Merritts v. Commonwealth
| Decision Date | 26 February 2018 |
| Docket Number | No. 763 C.D. 2017,763 C.D. 2017 |
| Parties | IN RE: CONDEMNATION BY the Commonwealth of Pennsylvania, DEPARTMENT OF TRANSPORTATION, OF RIGHT-OF-WAY FOR STATE ROUTE 0022, SECTION 034, IN the TOWNSHIP OF FRANKSTOWN Stewart M. Merritts, Jr., Appellant v. COMMONWEALTH of Pennsylvania, Department of Transportation |
| Court | Pennsylvania Commonwealth Court |
Phillip O. Robertson, Hollidaysburg, for appellant.
Eric J. Jackson, Assistant Chief Counsel, Pittsburgh, for appellee.
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION BY JUDGE COHN JUBELIRER
Stewart M. Merritts, Jr. (Condemnee) appeals from the February 8, 2017 Order of the Court of Common Pleas of Blair County (trial court), which, in relevant part, overruled Condemnee's preliminary objections (POs) to the June 1, 2016 Declaration of Taking (Declaration) filed by the Commonwealth of Pennsylvania (Commonwealth), Department of Transportation (Department), to acquire a drainage easement and temporary construction easement on Condemnee's Property.1 On appeal, Condemnee argues the trial court erred in denying his POs because: (1) the trial court should have held an evidentiary hearing prior to holding oral arguments on the legal issues; (2) the Commonwealth lacks the legal authority to exercise eminent domain to condemn Condemnee's Property; (3) the condemnation is intended to benefit a private enterprise and is excessive; and (4) the condemnation violates the Storm Water Management Act (Storm Water Act).2
The facts relevant to our review are as follows. Condemnee's Property consists of two parcels of land located in Frankstown Township (Township), Blair County, one that is 1.11 acres and one that is 0.43 acres, which run along State Route 0022 (Route 22). (Trial Ct. Op., Feb. 8, 2017, Finding of Fact (FOF) ¶ 1.) The Property borders the Frankstown Branch of the Juniata River. Condemnee's "[P]roperty was part of the original land warrant given to Daniel Lowery by the Penn family proprietorship in 1755 and subsequent patent [that was] given to Andrew Lowery in 1783[.]" (Id. ¶ 2.)
(Id. ¶ 5.) Condemnee filed nine POs to the Declaration3 asserting, relevant here, that: the Commonwealth did not have the authority to condemn his Property, (First PO ¶¶ 1-15, Reproduced Record (R.R.) at 23-26); the taking was for a private enterprise in violation of the Eminent Domain Code (Code)4 and was excessive, (Second PO ¶¶ 1-11, R.R. at 26-28; Third PO ¶¶ 1-10, R.R. at 28-29; Eighth PO ¶¶ 3, 5-6, R.R. at 35-36); and the taking violates the Storm Water Act, (Eighth PO ¶¶ 6-12, R.R. at 35-37). The Department filed a Motion to Dismiss the POs (Motion to Dismiss) and a Motion for a Writ of Possession.
The trial court heard argument on December 21, 2016, at which Condemnee presented his chain of title and the parties expressed their respective positions. Condemnee requested an evidentiary hearing on the POs. The trial court proceeded with oral argument, indicating it would schedule an evidentiary hearing if issues arose that required the taking of evidence. Subsequently concluding that evidence was required, the trial court reconvened the matter for an evidentiary hearing on the POs on January 11, 2017. The Department presented exhibits and the testimony of several witnesses, including the civil engineer who is supervising the Project (Engineer), who was accepted as an expert witness. Condemnee presented his own testimony and exhibits.
The Department's evidence described the Project Plan, which includes: replacing an existing 15-inch drain pipe with an 18-inch drain pipe across the Property "to upgrade drainage to existing standards;" and replacing an existing 24-inch drain pipe that drains into a stream with a 42-inch drain pipe "to help slow down pipe drainage and help stem the effects of erosion into the stream and the adjoining river." (FOF ¶¶ 11, 14, 16, 18.) Due to safety and efficiency concerns associated with the existing 15-inch pipe, the current location could no longer be used. The Department will own and maintain the drain pipes, and the 18-inch drain pipe will drain water away from Route 22.
As part of the overall Project, certain Township roads, including Flowing Spring Road, which runs along Condemnee's smaller parcel and along part of Condemnee's larger parcel, would be permanently removed by the Township. Township intended, subject to the requirements of The Second Class Township Code,5 to vacate and "dedicate Flowing Spring Road and the accompanying right-of-way to Rails to Trails of Central Pennsylvania (Rails to Trails)." (Id. ¶¶ 7, 23.) This part of the Project "is to connect a trail for non-motorized use to Canoe Creek State Park with the Lower Trail Station, controlled by Rails to Trails ...." (Id. ¶ 21.) Part of Canoe Creek State Park is next to property owned by Rails to Trails, although the properties are separated by Route 22. The proposed trail will utilize "the closed Flowing Spring Road and right-of-way to connect" the two. (Id. ¶ 22.) Rails to Trails will be responsible for maintaining the trail.
Also as a part of the Project, the Department will construct a driveway for Condemnee to access Route 22 from the 0.43 acre parcel; however, current access to Condemnee's 1.11 acre parcel requires him to cross over a neighbor's property because he cannot access that parcel from his smaller parcel due to its steep grade. The plans related to the proposed trail have no effect on the amount of Condemnee's Property the Department sought to condemn in the Declaration.
The trial court issued an opinion addressing each of Condemnee's POs. Condemnee's first relevant PO asserted that the Commonwealth lacks " ‘standing, power, right, jurisdiction or authority for condemnation or to take land in this instant matter’ " because the title to the Property dates back to the land warrant issued to Daniel Lowery in 1755 from the William Penn proprietary, which subsequently deeded it to Alexander Lowery, "who received a patent in 1783." (Trial Ct. Op. at 7.) Condemnee argued that, because the land patent provided a claim that was free from all restrictions and reservations, the only way the Commonwealth could condemn the land was if it had a connection or ownership interest in the land at the time it became a state. Because the Commonwealth never owned or claimed possession to his land, it "does not have privity of title with the Condemnee, which, the Condemnee assert[ed], must be proven to take the easement in question." (Id. )
The trial court rejected Condemnee's contention that, in order to exercise eminent domain over his Property, the Commonwealth had to have some connection or have privity of title to the Property. The trial court held that the Commonwealth's eminent domain power does not derive from it having privity with the original title holder or having a relationship at the time of the original conveyance but from its power as a sovereign, a power that cannot be extinguished. It concluded that, while the United States and Pennsylvania Constitutions and legislative enactments could place limits on the Commonwealth's ability to use this power, such "power is inherent in the Commonwealth's existence and is not reliant on constitutional and legislative enactment." (Id. at 10 (citing In re Legislative Route 1018, Section 4, Lower Chichester Twp., Del. Cnty. , 422 Pa. 594, 222 A.2d 906, 908 (1966) ).) The trial court pointed out that to accept Condemnee's argument would allow any landowner who can trace his or her deed back to the original colonial grant "to circumvent over one hundred fifty (150) years of eminent domain law" and would "usurp the sovereignty of the Commonwealth by claiming a title in land superior to the sovereign power of eminent domain." (Id. at 10, 13.)
The trial court considered Condemnee's other arguments about why the Commonwealth lacked jurisdiction to take his Property and likewise concluded that they were without merit. In particular, the trial court held that the cases Condemnee cited were not applicable because they did not involve the use of eminent domain to acquire an easement.
Condemnee's next pertinent POs asserted that the Commonwealth exceeded its authority to condemn property because of the transfer of the right-of-way in Flowing Spring Road to Rails to Trails, a private entity, and that the condemnation was excessive because there was no need to change the size of the drain pipes. Condemnee asserted this transfer is a "silent" condemnation of lands across his property via an agreement between the Department, Township, and Rails to Trails. (Id. at 14.) The trial court dismissed all of Condemnee's arguments related to the future transfer of Township's right-of-way to Rails to Trails because the Declaration at issue concerned only the Department's taking of the 1,150 square foot drainage easement and the 2,896 square foot temporary construction easement. Therefore, the trial court concluded, the issue of Flowing Spring Road, which is controlled by Township, was collateral to the proceedings before it, and the POs against the Department related to Flowing Spring Road were not proper preliminary objections under the Code. Ad...
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