*133Concurring and Dissenting Opinion by
Mr. Justice Bell :I agree with the result reached by the majority but regret I can only arrive there by a different route. This proceeding is an unusual one. Plaintiffs brought an action in ejectment to eject the Pennsylvania Turnpike Commission from approximately 70 acres of their land on which the Commission had already built an interchange (allegedly) without any legal condemnation. Plaintiffs asked a conditional relief — a conditional judgment in ejectment against the Commission, with the allowance to it of reasonable time to exercise its power of eminent domain. The lower Court, after hearing oral testimony and considering a stipulation of facts, entered a Decree giving judgment in ejectment in favor of plaintiffs and against the Commission, conditioned, however, on allowing the Commission an opportunity to legally condemn plaintiffs’ tract of 67.62 acres and an additional tract of 1.555 acres of land, condemnation proceedings to be instituted by the Commission not later than January 1, 1959. From this Judgment and Decree the Commission appealed.
The decision in this case is especially important because it will affect the rights of property owners along the present and any future extension of the Pennsylvania Turnpike and, incidentally, the rights of holders of $65,000,000 of Turnpike bonds, and issues of future revenue bonds.
I shall summarize the most important facts.
On March 1¡, 1952, the Pennsylvania Turnpike Commission passed a Resolution, pursuant to the Act of May 23, 1951, which approved and condemned Route A “. . . beginning at a point on the present Pennsylvania Turnpike system near King of Prussia in Montgomery County [it then describes the route by compass directions and distances] . . . the right of way for the construction, operation and maintenance of the Dela*134ware River extension as hereinabove located, is hereby fixed ad 100 feet on each side of the center line* as shown on the official drawings . . . being Route A, or a total width of 200 feet, together with such additional lands sufficient to provide for slopes of cuts and embankments . . . and together with such additional lands deemed necessary for ramp approaches . . . gasoline stations, restaurants . . . and other facilities needed for the construction, operation and maintenance of the Turnpike . . . .” This plan for Route A was approved by the Governor and by the Department of Highways in accordance with the provisions of the Act of May 23, 1951.
Nearly a year later, viz., on January 13, 1953, the Commission delivered and plaintiff accepted its bond dated December 15, 1952, to secure the property owner (plaintiffs) against damages resulting from the taking by the Commission of the plaintiffs’ following described property: “Comprising all land of the said Obligee on either side of and lying within 100 feet of either side of the following described section of the Center Line of the Pennsylvania Turnpike in Upper Dublin Township, Montgomery County, beginning at [there then follows a description of the land] .... Containing 9.18 acres. . . .”
Sometime in March 1953 the Commission’s counsel mailed to plaintiffs a new description for insertion in its bond; the new description covered a total of 76.8 acres, which included the original 9.18 acres taken. There was also subsequently sent to plaintiffs by counsel for the Commission construction drawings dated January 14, 1954, which covered not only 76.8 acres of plaintiffs’ land, but an additional 0.78 acres of plaintiffs’ land which the Commission intended to take as a perpetual easement. In late March 1951¡. defend*135ant mailed to plaintiffs a so-called revised plan dated March 10, 1951¡, which covered and purported to take a total of 80.846 acres of plaintiffs’ property.
The Commission never passed any Resolution to condemn or take these 68 additional acres, or the additional .78 acres or the additional (nearly) 2 acres of plaintiffs’ property, or to change the terms of its bond to include these additional 68 or 69 or 70 acres. It is agreed by all parties that these additional acres were not “cuts or embankments,” or other land specifically included in the original 9.18 acres.
The Commission actually and physically entered into possession of these (approximately) 68 acres of plaintiffs’ property in April 1953, with intent to use them for Turnpike purposes, and upon 1.555 acres of plaintiffs’ property in March or April, 1954-
The majority opinion holds (1) that the Commission’s resolution of March 4, 1052 constituted a taking of 80 acres of plaintiffs’ land which is directly contrary to this Court’s recent decision in Cfitlin v. Pennsylvania Turnpike Commission, 384 Pa. 326, 121 A. 2d 79, and (2) that damages for taking 9.18 acres must be assessed as of March 4, 1952 and for 68 acres as of March 1958, in spite of the clear and express language of the 1951 Act that “the date of such resolution shall be the effective date of such condemnation.”
We shall start with the Constitution — strange to say, the legislature, attorneys and Courts in most of the cases in this field have been so engrossed with the interpretation of the pertinent statute that they have completely overlooked or ignored the Constitution, which of course is paramount. Article I, §10 of the Constitution of Pennsylvania provides: “. . . nor shall private property be taken or applied to public use without authority of law and without just compensation being first made and secured.” I believe the language and intent of the Constitution is clear — -private *136property cannot, constitutionally, be taken for public use without a bond or other security being first given.
The taking of private property by Government or by a Municipality or by a corporation or a commission or other body which is vested with a power of eminent domain, is a drastic appropriation and confiscation of a person’s property and can be justified only if, and to the extent authorized (1) (a) by the Constitution and (b) by a valid Statute or Ordinance, or (2) by an unequivocal and illegal Act of taking under color of eminent domain. Furthermore, if the first (and usual) method of taking is adopted or relied upon, the Constitution and the appropriate provisions, terms and conditions of the pertinent Statute which authorized the taking must be strictly construed* and pursued since the power of eminent domain is in derogation of basic rights of private property which were anciently recognized by the Common Law and in this Country by our Constitutions: Winger v. Aires, 371 Pa. 242, 89 A. 2d 521; Philadelphia’s Petition, 253 Pa. 434, 98 A. 620; Lazarus v. Morris, 212 Pa. 128, 61 A. 815; Valmont Developing Co. v. Rosser, 297 Pa. 140, 146 A. 557; 29 C.J.S. 1140, 1141, §215, 1154, §223(a) ; Statutory Construction Act of May 28, 1937, P. L. 1019, §58, 46 P.S. §558. Cf. Cochran Coal Co. v. Municipal Management Co., 380 Pa., supra.
The importance of limiting this extraordinary power of appropriation and confiscation of private property by eminent domain was recognized by the people of this Country in the Fifth Amendment to the Constitution of the United States and by the people of Pennsylvania in Article I, §10 and Article XVI, §8 of *137the Constitution of Pennsylvania, and in many recent decisions of this Court.
The Legislature provided in §8(a) of the Act of May 23, 1951, P. L. 335: “The commission is hereby authorized and empowered to condemn, by resolution [not, as the Commission contends, by the frequently changing plans of some engineer, or the action of some subordinate Commission official, or a letter from its counsel, or even action or approval by a single member of the Commission, but only by Resolution of the Commission itself], any lands . . . deemed necessary . . . for the construction and efficient operation of the turnpike or necessary in the restoration or relocation of public or private property damaged or destroyed and the date of such resolution shall be the effective date of condemnation.” Moreover, Section 10 of said Act provides: “Whenever the commission has [validly] condemned any lands ... as hereinbefore provided, and has tendered a bond or other security to secure the owner or owners for damages . . . the commission shall have the right to immediate possession of the property covered by the bond and may enter thereon in the name of the commission.”
When a Statute or Ordinance is reasonably capable of two constructions, one of which will sustain its constitutionality and the other will invalidate it, we should adopt the construction which will make it valid. Considering and construing the Act of 1951 in conjunction with the paramount provisions of the Constitution, it seems to me to be clear that the Legislature authorized the Turnpike Commission to condemn and take necessary lands for turnpike uses only (1) after the Turnpike Commission had condemned by valid resolution the particular lands which it considered necessary for turnpike uses and (2) had tendered a bond or other security to secure the owner for damages to this property in accordance with the provisions of the Constitu*138tion. Both of these are essential prerequisites to a taking which will be valid constitutionally and statutorily. It follows that the 1951 Act must be construed to contemplate and require a resolution of the Commission and the subsequent entry of a bond within a reasonable time thereafter for the particular lands which it takes, for turnpike purposes, and the effective date of the taking must be the date of such resolution and the entry of a bond within a reasonable time thereafter— in this case March or April 1953 for the 68 odd acres here involved.
Plaintiffs contend that there never was any valid taking by the Commission of these 68 acres and that this case is ruled in their favor by Gitlin v. Pennsylvania Turnpike Commission, 384 Pa., supra. The Commission seeks to distinguish it; the majority opinion in my judgment overrules Gitlin and certainly repudiates the grounds on which the Gitlin opinion was based. It is therefore important to analyze the Gitlin case, as well as prior and subsequent decisions of this Court. The Gitlin case arose under a Resolution of the Pennsylvania Turnpike Commission, which in all material respects was identical with the Commission’s March 1¡., 1952 Resolution in the instant case and on its facts was in all material aspects exactly the same as the instant case. In order to make clear what was decided in that case we shall quote at length from the Court’s opinion (per Chief Justice Jones) :
“On March 1¡, 1952, the Pennsylvania Turnpike Commission formally adopted a resolution, pursuant to authority conferred on it by the Act of May 23, 1951, P. L. 335, locating its Delaware River Extension and condemning the private property necessary therefor, according to attached plan approved by the Governor and the Department of Highways. The resolution established the center line of the proposed extension by compass directions and distances and fixed the width *139of the right of way at one hundred feet on each side of the center line for a total width of two hundred feet together with such additional lands as were necessary for the slopes of cuts and fills and such further lands as were deemed necessary by the Commission Tor ramp approaches, maintenance sheds, gasoline stations, restaurants, power facilities, waste banks, borrow pits and other facilities including tunnels . . .
“. . . Some fourteen months later, the Commission, deeming it essential that an interchange at Route 611 be constructed, appropriated additional property of the plaintiffs to the extent of 7.14 acres in all. This increased appropriation, which included the two houses, was accomplished by means of a revised plan formally adopted by the Commission on May 8, 1953. . . .
“The Commission contends that the condemnation took place in its entirety with the passage of the resolution of March 4, 1952, whereas the plaintiffs maintain that the two hundred foot strip was all of their property that was condemned by the resolution and that the balance of the appropriation did not occur until the Commission formally adopted the revised condemnation plan on May 8, 1953 [which all parties agreed specifically and validly included these 7.14 acres of plaintiffs’ property unless they were included in the Commission’s original resolution of March 4, 1952]
“All that was condemned by the resolution of March 1¡, 1952, toas the two hundred foot strip and such additional ground as was necessary for the natural slopes of the cuts and fills.1* The property outside those bounds, which the Commission later deemed necessary for the construction of the interchange, was not appropriated until May 8, 1953,when the Commission formally adopted the revised plan showing the further *140taking. [All parties agreed and the appeal was presented to this Court on the basis that these 7.14 acres were validly taken by the Commission on either March 4, 1952 or May 8, 1953]. The appellant argues, however, since the Act of 1951, supra, providing for the construction, operation and maintenance of the Delaware River extension, authorized the Commission to condemn additional property Tor ramp approaches, maintenance sheds, gasoline stations, restaurants, power facilities, waste banks, borrow pits and other facilities including tunnels,’ that the resolution of Mar eh 4, 1952, ipso facto condemned to the full limit of the Commission’s statutory power without identifying the precise property subject to the intended appropriation. The contention is obviously untenable,1* No property owner, abutting on the two hundred foot strip or at the bottom of the slopes of the cuts or fills, could possibly know2** how much additional of his land would *141be occupied for one or more of tbe statutorily authorized purposes not included in tbe plan made part of tbe condemnation resolution ....
“In tbe instant ease tbe viewers correctly concluded that there were two separate appropriations of tbe plaintiffs’ property, one on March 4,1952, and the other on May 8,1958.”
Tbe two most important points which were clearly, expressly and specifically decided in tbe Gitlin case were (1) that tbe Commission’s Resolution of March 4, 1952 took only the 200 foot strip — 100 feet on each side of tbe defined center line — and such additional ground as was necessary for tbe natural slopes of tbe cuts and fills, and (2) that that Resolution did not include or condemn any property outside those bounds, (viz., 7.14 acres), which the Commission later deemed necessary for the construction of an interchange. On these two points Gitlin v. Pennsylvania Turnpike Commission specifically rules tbe instant case* and is directly contrary to tbe basic ruling of tbe majority in *142the instant case and to the contentions of the Commonwealth.
It is both important and necessary to further analyze the problems involved.
There are two possible solutions: (1) There has never been any legal talcing of plaintiffs’ additional 68 plus acres — a solution which will add* untold millions of dollars to the cost of the Turnpike; or (2) an application of an exception to the above mentioned general rule, which exception is recognized in Philadelphia Parkway** 250 Pa. 257, and in Rowan v. Commonwealth, 261 Pa. 88, and cases infra.
Defendant did not comply with the Act of 1951, i.e., adopt a resolution taking or condemning plaintiffs’ 68 plus acres, although it finally complied with the Constitutional requirement of the entry of a bond to cover these 68 additional acres. In such a case property owners — where the body or Commission having power of eminent domain illegally enters upon and appropriates their land under color of eminent domain, i.e., without complying with the Constitution and with the pertinent statutory requirements — is given what might be termed an equitable remedy. Whether the Commission’s actions were the result of gross negligence, or ignorance of the law, or actual fraud, or unintentional but legal fraud is immaterial — the property owner is entitled to damages when the unequivocal but illegal entry for turnpike purposes occurred on his (68 acres) land. Philadelphia Parkway and Rowan v. Common*143wealth, supra. See also Sansom Street. Capian’s Appeal, 293 Pa. 483, 143 A. 134; Miller v. Beaver Falls, 368 Pa. 189, 82 A. 2d 34; Philadelphia Appeal, 364 Pa. 71, 70 A. 2d 847. In Sansom Street, supra, although the mere plotting of a city street on a city plan without anything more does not constitute a taking in the constitutional sense — the Court held that the property owner had been deprived of his property and was entitled to damages for a taking which resulted from a setback ordinance. In Miller v. Beaver Falls, 368 Pa. supra, the Court, quoting from Mr. Justice Schaffer's opinion in Sansom Street, said (page 196) : “ ‘The governing principle is accurately stated in 20 Corpus Juris, 566, “There need not be an actual, physical taking, but any destruction, restriction or interruption of the common and necessary use and enjoyment of property in a lawful manner may constitute a taking for which compensation must be made to the owner of the property.” ’ ”
In Rowan v. Commonwealth, 261 Pa., supra, the Court in sustaining the claim of the property owner said (page 93) : “The Commonwealth concedes the general rule that damages for taking or injury to land are to be determined as of the date of the actual taking or the doing of some unequivocal act by which the municipality or the State indicates the possession of the owner is about to be disturbed: Volkmar Street, Philadelphia, 124 Pa. 320; Whitaker v. Phoenixville Boro., 141 Pa. 327. . .”
In Philadelphia Parkway, 250 Pa., supra, a similar question was presented. In that case the City plotted a Parkway on the City Plan to run from City Hall to a specified public park. Some properties in the line of the Parkway had been taken by condemnation, some had been acquired by purchase and some buildings had been torn down during an interval of 10 or 12 years. Appellant owned a parcel of ground within the lines *144of the proposed Parkway, and, based upon the above facts, presented its petition for the appointment of viewers to assess its damages for a taking. The City moved to quash the petition because only city streets had been plotted and no ordinance to open had been passed nor security given by City Council, and consequently there could be no legal taking of appellant’s property. The Court first held that the general rule established by a long line of cases was well settled, namely, the mere plotting of a proposed new street did not constitute a taking of land so as to give an abutting owner the right to have damages assessed. However, the Court recognized an exception to this general rule, and held that — notwithstanding the Constitutional provision for compensation and a bond or other security, and notwithstanding the fact that no ordinance condemning the property had been passed and no bond to secure the property owners’ damages had been given — under the facts in this exceptional case, there had been “a taking” and the property owner was entitled to damages. The Court said, inter alia: “The construction of the parkway is not an ordinary or usual undertaking on the part of the city; it is unusual and extraordinary. ... It is a defined public way within specified and limited boundaries. ... In Volkmar Street, Philadelphia, 124 Pa. 320, this court speaking through Mr. Justice Williams said (page 327) :
“ ‘As between the city and the land owner no right of action exists . . . for the recovery of damages until some act done, or notice or demand made, affecting, or relating to, the possession or appropriation of the land.’
“Again, in Whitaker v. Phoenixville Borough, 141 Pa. 327, Mr. Justice Green in discussing the Volkmar Street case, said (p. 332) :
*145“ ‘We decided that the right of action to have damages assessed to the owner did not commence until the opening of the street or the doing of some unequivocal act by the city which indicated that the possession of the owner was about to be disturbed
“The plain inference from this language is that if the city did some unequivocal act evidencing an intention to open, followed by actual work done on the projected street, the right to compensation under proper circumstances might accrue even if councils had failed or neglected to pass an opening ordinance.* In the very nature of things such cases would be exceptional and we only mention the excerpts above quoted to show that the principle has been recognized as applicable when the facts warrant its application. The present case belongs to this exceptional class.”
Realities and Justice sometimes require, as in the Philadelphia Parkway case, an exception to a general rule. The principle asserted in the aforesaid cases, while it was there applied in favor of the property owner, is equally applicable under the exceptional facts herein, to the instant case. Fraud or mutual mistake can void nearly every transaction. We should not permit the Constitution or a statute to be evaded by fraud, actual or legal, or to be used as a shield to protect fraud. In the instant case the grossly negligent actions of the Commission, followed by a taking *146under color of the statutory requirements of eminent domain amounted to legal, although of course unintentional, fraud. The exception may be thus stated: When a State, Municipality or governmental body or any corporation commits one or more unequivocal acts such as the actual physical seizure, confiscation or appropriation of an owner’s real estate under color of eminent domain, justice and the realities of exceptional cases require that such unequivocal act or acts constitute in law a “taking”, and the damages are determined as of the date of entry into a portion of the land for the purpose of appropriation. If there were no such exception, the possessor of a power of eminent domain, could by fraud or subterfuge or mistake, fail to comply with the Constitution and the applicable statute, and consequently could for years deprive a property owner of damages to which he is justly entitled.*
This exception to the well settled general rule is supported by principle, by reason, by authority, and by practical common sense. Moreover, it very greatly minimizes fraud, accident or mistake by engineers or by clerks or subordinate officials or by one or more individual members of the Turnpike Commission, and equally important, it brings about a fair, practical and just result for both the property owner and the Commonwealth.
I would, therefore, hold that, (1) while a so-called conditional ejectment will lie for the 68 plus acres here involved: Oliver v. Pittsburgh Railway Co., 131 Pa. 408, 19 A. 47; Connellsville Gas & Coal Co. v. Baltimore & Ohio R.R. Co., 216 Pa. 309, 65 A. 669; Wheeling, P. & B. R.R. Co. v. Warrell, 122 Pa. 613, 16 A. 20, a petition for the appointment of a Board of *147View would be a more appropriate remedy: Lawrence Appeal, 78 Pa. 365; Philadelphia Parkway, 250 Pa. 257, 95 A. 429; Barron’s Use v. United Railway Co., 93 Pa. Superior Ct. 555. Cf. also Gitlin v. Pennsylvania Turnpike Commission, supra; (2) that the additional acres (68 or more) taken by the Commonwealth for an interchange and other Turnpike uses, without an appropriate Resolution of the Commission were taken as of the date of entry upon plaintiffs’ land (68 acres) by the Commission for Turnpike uses, and (3) the damages for such land are to be determined and assessed as of the date of said actual physical entry.
I would reverse the judgment, without prejudice to plaintiffs’ right to petition for the appointment of a Board of View to determine and fix plaintiffs’ damages in accordance with this opinion and with other pertinent principles of law.
Italics throughout, ours.
The provision of Section 19 of the 1951 Act that it shall be “liberally construed to effect the purposes thereof” does not mean that we should or can ignore the plain language of the Act or the well settled law protecting an owner of land from an unlawful seizure and confiscation.
*1 This is exactly and directly contrary to the majority’s opinion in the instant case.
*1 This is exactly and directly contrary to the majority’s opinion in the instant case.
**2 it is even more obvious that a property owner whose land did not abut on the 200 foot center strip could not possibly know that the Turnpike Commission sometime in the unknown future would wish to take a part or all of his property for an interchange, etc. Even the Turnpike Commission concedes that it did not know on March 4, 1952 or until sometime in 1953 (and it might not know for 10 years later) that it intended to take 68 additional acres of plaintiffs’ land for Turnpike purposes. The vice of holding the Commission’s resolution of March 4, 1952 condemned all land that might in the unknown future be considered necessary for Turnpike uses is strikingly illustrated by the following example: If A, who owned a hundred acres, 100 feet of which abutted on the Turnpike, built after Ma/reh 1¡, 1952 a large commercial or industrial building, or a beautiful residence on that part of his property half a mile or a mile back from the center line of the turnpike, and 5 or 10 years later the Turnpike Commission decided to use such land for an interchange or other proper Turnpike purposes, and for the first time tendered a bond for this particular land, such property owner could not recover under the ma*141jority’s opinion and under existing law any damages for these buildings or improvements: Lakewood Memorial Gardens Appeal, 381 Pa. 46, 112 A. 2d 135; Philadelphia Appeal, 364 Pa. 71, 70 A. 2d 847; Miller v. Beaver Falls, 368 Pa. 189, 82 A. 2d 34; Scattergood v. Lower Merion Township Commissioners, 311 Pa. 490, 167 A. 40; Philadelphia Parkway Opening, 295 Pa. 538, 145 A. 600; Bush v. McKeesport, 166 Pa. 57, 30 A. 1023; Witman v. Reading, 191 Pa. 134, 43 A. 140; Philadelphia Parkway, 250 Pa. 257, 95 A. 429. Could anything better illustrate the unfairness, the injustice and .the untenability of the majority’s position that plaintiffs’ land was, unbeknownst to him and to the Commission, being taken by the Commission’s resolution of March 4, 1952.
The reason for the distinction which the Court made in Gitlin v. The Turnpike is clear and sound. It is obvious that the owner of land which the Commission deems necessary for slopes, fills or embankments along the clearly defined center line would be put on notice of the taking and thus given an opportunity to protest.
In some eases when a real estate depression bad occurred or lor some other reason there bad been a depreciation instead of an appreciation of property abutting or near tbe Turnpike, tbe cost of tbe Turnpike would be substantially decreased, but in either event it would be an unfair yardstick.
Philadelphia Parkway has been narrowed in its application to parkways and turnpikes, but has been cited with approval by this Court 12 times and by the Superior Court 6 times.
We note that the law as to what constitutes a taking has been undergoing a radical change during the last few years. Whenever the lawful rights of an individual to the possession, use or enjoyment of his land are materially abridged or destroyed by reason of the exercise or purported exercise of the power of eminent domain, his property is generally considered to be taken pro tanto, and he is entitled to compensation: Cf. Miller v. Beaver Falls, 368 Pa. 189, 82 A. 2d 34; Philadelphia Appeal, 364 Pa. 71, 70 A. 2d 847; also Sansom Street. Caplan’s Appeal, 293 Pa. 483, 143 A. 134; 20 Corpus Juris 566.
Examples will occur to everyone — a real estate depression or anything which decreases the value of the owner’s land.