Rosenblatt v. Pennsylvania Turnpike Commission

Dissenting Opinion by

Mr. Justice McBride :

It seems to me that the majority opinion recognizes but does not apply the underlying principle controlling this case, i.e., that condemnation in order to be legal must follow the statute that authorizes it.

While it is true that §19 of the Act of May 23, 1951, P. L. 335, 36 P.S. §658.19 provides that the Act be liberally construed to effect its purpose of promoting public welfare, it must be remembered that this statute permits the Commission to take a person’s property without his consent. This power of eminent domain is thus in derogation of private property rights and hence, despite the legislative direction, must be strictly construed. Lakewood Memorial Gardens, Inc. Appeal, 381 Pa. 46, 112 A. 2d 135; Cochran Coal Co. v. Municipal Management Co., 380 Pa. 397, 110 A. 2d 345; Valmont Developing Co. v. Rosser et al., 297 Pa. 140, 146 Atl. 557; Boalsburg Water Co. v. State College Water Co., 240 Pa. 198, 87 Atl. 609.

*148But, whether we apply strict or liberal construction, we are not authorized to ignore the plain language of the statute. When the words of a law are clear and free from all ambiguity the letter of it is not to be disregarded under the pretext of pursuing its spirit. Act of M!ay 28, 1937, P.L. 1019, Art. IY, §51, 46 P.S. §551.

The statute1 authorizing the Turnpike Commission to exercise power of condemnation to build the Delaware River Turnpike Extension prescribes an exact method whereby land may be condemned: “The Commission is hereby authorized and empowered to condemn, by resolution, any lands, interests in lands, property rights, rights of way, franchises, easements and other property deemed necessary or convenient 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.” (Emphasis supplied.) (36 P.S. §658.8) That this language was carefully and deliberately chosen by the legislature is emphasized by the fact that it is much more specific and restricted than the language used by the legislature in the earlier Turnpike statutes, all of which up to 1951 provided merely that the Turnpike Commission was authorized and empowered to acquire land “by condemnation.” Also, nothing was said in those Acts with respect to the effective date of condemnation. See Act of May 21, 1937, P.L. 774, 36 P.S. §652(f), establishing the Pennsylvania Turnpike Commission; Act of May 16, 1940 (1941), P.L. 949, 36 P.S. §853(h), establishing the Philadelphia Extension; Act of June 11, 1941, P.L. 101, 36 P.S. §654(h) establishing the Western Turnpike Extension.

*149The majority opinion, however, concludes that the Commission did condemn all of the land in question by resolution on March 4, 1952. On that date the Commission passed a resolution to condemn one hundred feet on each side of a center line with additional lands and slopes of cuts and embankments and such additional lands as would be needed for “ramp approaches, maintenance sheds, gasoline stations, restaurants, power facilities, waste banks, borrow pits and other facilities including tunnels. . . needed for the construction operation and maintenance of the Turnpike. . .” This resolution exactly fixed the center line of the Delaware River Turnpike extension as shown on maps which were made part of the resolution. The maps attached to this resolution cover the entire length of the turnpike and affected property belonging to many owners. The maps included 9.18 acres of plaintiffs’ property. Plaintiffs never have questioned before and do not now question the validity of the condemnation of these 9.18 acres. However, on March 10, 1958 plaintiff was notified that the Commission had condemned approximately 68 acres more of his land for an interchange “strictly in accordance with the provisions of our Act and with the ruling laid down by the Supreme Court.” The Commission then took possession of the 68 acres. A year later the Commission notified plaintiffs that they needed an additional 1.555 acres of their property. There was no formal resolution adopted by the Commission condemning these 68 acres or the 1.555 acres. The majority opinion says that March 4, 1952 is the effective date of the condemnation of this additional land even though on that date the plans attached to the resolution indicated the land condemned was only 9.18 acres. Even the Commission has not contended that this date is the effective date of condemnation of the 68 acres or the 1.555 acres. The Commission’s requested findings of fact and conclu*150sions of law state, “3. The effective date of the taking of the 9.18 acres is March 4, 1952. 4. The effective date of the taking of the approximately 68 acres is January 9, 1953. 5. The effective date of the taking of the utility easement of 1.555 acres is March 10, 1954.” The reason that learned counsel for the Commission did not contend that the effective date of the condemnation of the 68 acres and the 1.555 acres is March 4, 1952 is understandable. That identical contention had been made by the Commission and rejected by this Court in the case of Gitlin v. Pennsylvania Turnpike Commission, 384 Pa. 326, 121 A. 2d 79.

The majority opinion, when faced with the same resolution as in the Gitlin case, with the same plans attached, now says that resolution effectively condemned the land later thought necessary to be taken for use as an interchange. They accomplish this by holding that when in Gitlin the Court said, “All that was condemned by the resolution of March 4, 1952 was the two hundred foot strip and such additional ground as was necessary for the natural slopes of the cuts and fills” they did not use “condemned” as the word of art that it is, but used it in its factual sense meaning “appropriated.”

This is perhaps best refuted by quoting from Gitlin where this Court unanimously said: “Section 8 of the Act of 1951, supra, which authorized the construction of the Delaware River extension, from which the present proceeding stems, expressly provides that the date of the resolution shall be the effective date of the condemnation. Manifestly, that cannot mean that the condemnation embraces more property than was described in the resolution and identified by the attached plan.” (In this case the 9.18 acres).

“The appellant argues, however, since the Act of 1951, supra, providing for the construction, operation and maintenance of the Delaware River extension, au*151thorized 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 March 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. No property owner, abutting on the two hundred foot strip or at the bottom of the slopes of the cuts or fills, could possibly know how much additional of his land would be occupied for one or more of the statutorily authorized purposes not included in the plan made part of the condemnation resolution.”

Throughout the opinion in Qitlin when the Court used the word “condemned” it meant condemned) and when it used the word “appropriated” it meant appropriated. The opinion iterates and reiterates that all that was condemned by the resolution of March 4, 1952 was the property described in the resolution and identified by the attached plan (in this case the 9.18 acres).

The Commission’s position might be persuasive if the Delaware River Turnpike Extension Act, supra, (as interpreted by this Court in the GitUn case) had not prescribed the way in which they might condemn land, and fixed what constituted the effective date of condemnation. As noted above there are eminent domain statutes Avhich do not specifically prescribe the method of condemnation. The act involved in this case, hoAvever, does.

It is to be noted that in GitUn all parties agreed that the sole question was whether all of plaintiffs’ property was condemned by the resolution of March 4, 1952. As the majority opinion points out no additional condemnation resolution was adopted condemning the land appropriated for the interchange. But contrary to the majority’s conclusion that both appropriations were *152treated as having been condemned together by the resolution of March 4, 1952, in QitUn all parties agreed that the additional land taken for the interchange in that case was condemned by the Commission’s formally adopting the later revised condemnation plan showing the additional taking. Just what the Commission did in “formally adopting” this revised plan is not apparent from the record in the Qitlin case. It is clear, however, that no additional resolution was passed.

The Commission has contended throughout the present proceedings that the resolution of March 4, 1952 plus a resolution adopting the report of a consulting engineer plus the approval of construction drawings by the secretary of the Commission plus descriptions and other drawings prepared from the construction drawings plus their delivery to plaintiffs constituted a course of conduct which should be given the same effect as a formal resolution of condemnation required by the statute. They attempt to equate these activities with the formal adoption referred to in Qitlin. But in Qitlin, what was meant by the term “formally adopted” was never in issue and it was never contested that the additional land could be condemned by this formal adoption. On this point the court’s decision and language must be restricted to the facts as presented and the legal questions then in issue.

That the activities of the Turnpike Commission, its officers and employees, in this case, did not amount to a valid condemnation of plaintiff’s land seems clear. It is beyond dispute that Qitlin correctly decided that the Resolution of March 4, 1952 condemned only the 200 foot strip plus such additional ground as was necessary for the natural slopes of cuts and fills and did not condemn the property outside those bounds which the Commission later deemed necessary and appropriated for the construction of the interchange. To that extent the present case is specifically controlled *153by Gitlin directly contrary to the majority’s present position. That a formal adoption, which is in issue here, cannot be other than by resolution, is made apparent by the Act of 1951, supra. After such condemnation a bond or other security had to be tendered to secure the owner for damages from the taking. Both prerequisites, however, had to be met. The bond had to be filed,2 and a condemnation resolution had to be adopted. Neither is sufficient of itself to give the Commission the right to take private property. The inherent weakness in the Commissions’ position is that condemnation cannot be accomplished in a manner not authorized by statute; regardless of the things done or activities carried on there must be conformity to statutory methods.

The rationale upon which the decision in Gitlin was based remains as valid today as it was at that time. It is still true that no property owner abutting on the 200 foot strip could possibly know how much of his land would be occupied for one or more of the statutorily authorized purposes not included in the plan made part of the condemnation resolution. The resolution itself provides, inter alia:

*154“Now, therefore, Be it enacted by the Pennsylvania Turnpike Commission . . . that

“The route for the Delaware River extension of the Pennsylvania Turnpike system ... is hereby fixed and located ... in accordance with and as the same is definitely shown on the maps prepared at the instance of this commission. . .” (Emphasis supplied) These maps covered only the 9.18 acres of plaintiff’s land. The additional 68 acres and 1.555 acres could easily have belonged to some third person who would never have received notice of what this Court now says constituted a condemnation of his land.

It is also to be remembered that “the date of such resolution shall be the effective date of condemnation.” Under the majority’s ruling that there was such condemnation on March 4, 1952 but that an “appropriation” occurred on a later date, if at any time in the future the Turnpike Commission decides they need any new facility for the operation of the turnpike they may take the land of any abutting property owner merely by tendering security for damages and successfully contend that that land also was condemned by the resolution of March 4, 1952. See Act of May 23, 1951, P.L. 335, §10, 36 P.S. §658.10.

The result of the majority’s holding is thus that land may be condemned, not specifically as required by previous decision of this Court (see Department of Property and Supplies v. Rhoads, 378 Pa. 603, 107 A. 2d 868, and, Lakewood Memorial Gardens, Inc. Appeal, 381 Pa. 48, 112 A. 2d 135) but merely by the phrase in a resolution “together with such additional lands deemed necessary for ramp approaches, maintenance sheds, gasoline stations, restaurants, power facilities, waste banks, borrow pits and other facilities . . . needed for the construction, operation and maintenance of the Turnpike . . .”. I still believe that Gitlin *155was right in holding that this “contention is obviously untenable.”

To buttress their decision the majority opinion says: “Why, then, should not the Commission’s later appropriation of additional property for the construction of necessary approaches and ramps to the highway (i.e., an interchange), as envisioned by the Act of 1951 and contemplated by the resolution of March 4, 1952, come within the effective scope of the condemnation? Such appurtenances correspond, in their relation to the highway, with the type of things which this court denominated in Foley v. Beech Creek Extension R.R. Co., 283 Pa. 588, 595, 129 A. 845, as ‘engineering detail’ and not matters outside the condemnation.” The Foley case is the same case on which the Commission relied in Gitlin. The Commission there quoted just the same portion of the opinion in its brief as it quoted in its brief in this case and the same portion of the opinion quoted by the majority opinion. I can say no more of this case than was said by a unanimous court in disposing of the very same issue in Gitlin: “The Commission’s counsel cited at bar Foley v. Beech Creek Extension R. R. Co., 283 Pa. 588, 129 A. 845. But, that case affords the appellant no comfort. There, the railroad company, acting under its charter powers to condemn private property, pursuant to an enabling Act of February 19, 1849, P. L. 79, located, by resolution duly adopted, the center line of its proposed road. The Act authorized and empowered the officers, directors and engineers of the railroad to ‘fix, mark and determine such route for a railroad as they may deem expedient . . . and not, except in the neighborhood of deep cuttings or high embankments . . ., to exceed sixty feet in width. . .’ The plaintiffs, who were objecting property owners, conceded the company’s right to take their land to the extent of sixty feet in width but urged that the condemnation proceedings *156were ineffective as to any land in excess of sixty feet. The court below permitted the railroad to take additional land to the extent needed for the slopes of the cuts and fills. That is all that was involved in that case. And, while there is a statement in the opinion implying that the resolution condemning the sixty foot strip also permitted the railroad to take such land as was necessary for ‘stations, sidings and turnouts’ not noted on the plan, the statement was a patent dictum for the court immediately went on to say that ‘When the petition for approval of the bond is filed, accompanied by a map designating the extent of the land to be taken, the owner knows precisely the quantity of land the company proposes to take’ (Emphasis supplied). The same is equally true here.”

The majority opinion then concludes this part of the opinion by holding that plaintiffs are entitled to damages for the condemnation of the right of way as of the date of the resolution, i.e., March 4, 1952, and for the appropriation of the additional land for the interchange as of the date of the Commission’s entry thereon, i.e., March 13, 1953:

“The date of the condemnation remains constant but the date for reckoning the damages for subsequent appropriations (not specifically described but within the purview of the resolution) is necessarily the date of the Commonwealth’s right of entry thereupon, if the statutory provision is to be given a reasonable and constitutional interpretation. . . . The entire damages (i.e., for both the right of way and additional land) are assessable as of two different dates, viz., the date of the resolution’s express appropriation of the 200 foot right of way and the date of the Commission’s appropriation of the additional property through its permissible entry thereupon: . . .” Thus the majority has, sub silentio, overruled Lakewood Memorial Gardens, Inc. Appeal, supra. In that case *157the sole issue on appeal, as stated by this Court, was the date of the taking, i.e., the date from which plaintiff’s damages accrued. The Court said: “. . . we think it is both logical and just to conclude that the Commission’s formal adoption of the condemnation resolution which set forth the location of the proposed turnpike extension by description and plans, approved by the Governor and the Department of Highways, constituted an appropriation of the indicated properties. . . .” It is true that the case arose under the Western Pennsylvania Turnpike Extension Act of 1941, P.L. 101, as amended, 36 P.S. §654, et seq., which provides merely that the Turnpike Commission may take private property “by condemnation”. But the language applies here a fortiori. It is significant that Justice Musmanno, in dissent, objected to the majority’s decision on the ground that the date of the condemnation resolution was the date of the taking. He said: “If the Legislature had intended to authorize the Turnpike Commission to condemn by resolution, it would have so declared, as in fact it did in the Pennsylvania Turnpike Delaware River Extension Act (Sec. 8, Act May 23, 1951, P.L. 335, 36 PS §658.8), where it said: '(a) The commission is hereby authorized and empowered to condemn, by resolution, any lands, interests in lands, property rights, rights of way, franchises . . . and the date of such resolution shall be the effective date of condemnation. . .’
“Where statutes dedicated to the same subject use such widely differing language, the only conclusion possible is that the Legislature intended to accomplish different results.”

It is thus apparent that under the Act of 1951 the entire court which decided Lakewood would agree that, under the Act of 1951, the date of the taking is the date of the condemnation resolution.

*158Also, under the Act of May 21, 1937, P.L. 774, 36 P.S. §652 (a) et seq., which created the Turnpike Commission and gave it the power of eminent domain to be used in the construction of the original section of the turnpike and had the same procedures prescribed as the Act of 1941, supra, this Court held that the date of the resolution of condemnation was the date of taking. See Hunter v. McKlveen, 353 Pa. 357, 45 A. 2d 222; Pennsylvania Turnpike Commission Appeal, 351 Pa. 139, 40 A. 2d 404; and Pennsylvania Turnpike Land Condemnation Case, 347 Pa. 643, 32 A. 2d 910.

If, as the majority holds, plaintiffs’ right to damages accrues from the date of the “appropriation”, i.e., when the revised plans were adopted and the new description, inserted into the bond, was furnished to the plaintiffs, no owner of private property abutting on the Turnpike can now convey title in fee simple. Title to this land since 1952 and thereafter can only be conveyed subject to the Turnpike Commission’s right to enter at any time in the future if they decide a new ramp approach, gasoline station, restaurant, power facility, waste bank, borrow pit, or any other facility is needed. This taking could be accomplished no matter how far in the future simply by filing revised plans and alleging that this land was condemned by the resolution of March 4, 1952. Then, for the first time, would a future owner discover that he had purchased condemned land. Yet in the Lakewood case we said, and I believe correctly so: “. . . from the moment of the adoption of the ordinance or resolution of condemnation, a cloud is placed on the property so appropriated. Actual physical entry may be, and frequently is, delayed. But, the owner, although still in possession, does not have the free and untrammeled use of the property.”

Furthermore, if in the meantime any owner after 1952 made (or in the future makes) improvements to *159Ms property located along the general route of the turnpike which may be taken for any reason enumerated in the resolution of March 4, 1952, such property owner could not recover under existing law for these improvements. Lakewood Memorial Gardens Appeal, supra. This, to me at least, seems a clear violation of Article I, Section 10 of the Pennsylvania Constitution “. . . nor shall private property be taken or applied to public use, without authority of law and without just compensation being first made or secured.”

In my opinion the resolution of March 4, 1952, the only formal resolution adopted by the commission to condemn land, does not lawfully condemn the 68 acres and the 1.555 acres. That resolution condemned only the two hundred foot strip and such additional ground as was necessary for the natural slopes of the cuts and fills and such additional land which was shown on the maps attached to the resolution. Gitlin v. Pennsylvania Turnpike Commission, supra.

I, too, am somewhat impressed by the fact that plaintiffs assigned their right to damages and petitioned for a Board of Viewers as to 76.8 acres, but it does not seem to me that their answer is weak in view of the fact that they had been advised that the additional land had been condemned “strictly in accordance with the provisions of our act and with the ruling laid down by the Supreme Court.” We must not overlook the fact that plaintiffs relied and acted on the assurances of the Commission. When the contractor for the Commission first appeared on the 68 acre tract, plaintiffs drove him off, whereupon he was notified by the Chief Counsel of the Bight of Way division that the land had been condemned and taken in accordance with law. It was only after this assurance that plaintiffs permitted the contractor to enter on the land. Thereafter, in October, 1957, they learned for the first time from counsel for the Commission that *160no resolution had ever been adopted by the Commission condemning the additional lands, and that there had not even been any formal approval by the Commission of the additional plans.3 Immediately thereupon plaintiff, with leave of court, amended his petition for the appointment of viewers so that the ascertainment of the damages in that proceeding would be limited to the portion of the land which was condemned by the Commission according to the legal requirements. I believe this action, in light of the foregoing facts, was timely.

Since I believe Gitlin, supra, and Lakewood Memorial Gardens, supra, are correct and are contra to the result reached by the majority today, I must dissent. The majority opinion states a rule of law that would deprive countless owners of their property abutting on the turnpike without even notice that they were being affected. Public bodies and public officers should, above all others, act in strict accordance with the law which *161empowers them to act at all. To reverse the judgment of the court below permits too much power not authorized by the statute.

For the reasons stated I believe the judgment of the court below granting conditional ejectment is correct and should be approved. However, I agree that in view of all the circumstances it should not be enforced without giving the Commission an opportunity of condemning the land in the manner prescribed by law. This can be accomplished by extending the stay of execution for sufficient length of time to enable the Commission to condemn the additional lands in the statutorily prescribed manner. The judgment of the court below however, did not undertake to state the time at which damages should be measured. I agree with the majority that on remand to the Board of View appointed by the Court of Common Pleas of Montgomery County these damages should be assessed as of the date of entry. Connellsville Gas & Coal Co. v. Baltimore & Ohio R. Co., 216 Pa. 309, 65 Atl. 669; Oliver v. Pittsburgh V. & C. Ry. Co., 131 Pa. 408, 19 Atl. 47; 13 P.L.E., Eminent Domain §132.

I would thus achieve the same result reached by the majority without creating a cloud on the titles of all property owners abutting on the turnpike. If in the future the Commission needs land for another borrow pit, waste bank, gasoline station, etc. I would require them to pass a resolution condemning that land and the property owner’s right to damages would be measured from that date. Until such time, however, the owners may improve, convey or use their property as anyone else can and are not entitled to any damages. If, however, there has been a taking of land not according to the applicable laAV the OAvner’s right to damages accrues at the date of that taking. He may bring an action in ejectment Avhicli may result in judgment of ouster if proper and feasible or in damages if not feasible.

Act of May 23, 1951, P.L. 355, §1, 36 P.S. §§658.1 to 658.20.

The Commission throughout this 12 month period (during which the majority says plaintiff’s land was condemned) did not even have the right to take possession of the additional 68 acres. Section 10 of the Act of 1951 provides: “Whenever the Commission has condemned any lands, rights, rights of way, easements and franchises or interests therein, as hereinbefore provided, and has tendered a bond or other security to secure the owner or owners for damages and the same has been accepted. . . 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.” (Emphasis supplied)

The property “covered by the bond” throughout this period was only the 9.18 acres. A new description containing the additional 68 acres was not submitted to the plaintiffs to be inserted in the bond until March 33, 1953, more than a year after the resolution.

The majority opinion, in passing, suggests that the signing of these additional plans by the Secretary and Chief Engineer of the Commission is a formal adoption by the Commission in light of the presumption that a public official’s acts are pursuant to proper authority. However, as stated therein, this presumption is effective only in the absence of proof to the contrary. Here, of course, there is such proof to the contrary. The Commission’s Senior Plans Engineer testified that he carried the revised plans into the offices of the Chief Engineer and the Secretary where they were signed. There was never any action taken as to the signing of these plans by the Commission as a whole. The record is clear that the action of these individuals was not a resolution of the Commission. The Act of 1951, supra, does not say that the Commission may condemn property by having the engineer and the secretary of the Commission sign some plans. The Commission is a body of five members of whom three constitute a quorum. (36 P.S. §652(d)). We have defined a resolution as “a formal expression of the opinion or will of an official body or public assembly, adopted by vote.” Wiley v. Woods, 393 Pa. 341, 346, 141 A. 2d 844. Certainly here there was no formal expression of the opinion or will of the Turnpike Commission.