Apple Storage Co. v. School District

Dissenting Opinion by

Judge Kramer:

- I respectfully dissent. This writer, is. fully aware of the numerous court decisions to the.-.effect that moving expenses are. a gratuity bestowed by the Legislature, not tp,be included in the constitutional right to “just compensation.”. However, I have, been unable to find any . case wherein the expense incurred by a warehouseman in moving bailed goods from premises condemned by the condemning. authority has been ruled upon by *65any court. As I view it, this case is an exception to the general rule.

Although most legal historians trace the term “eminent domain” to the great Dutch legal writer, Hugo Grotius, about the year 1625 A.D., the fundamental principle that government (or the sovereign) cannot take private property for a public use without the payment of just compensation, has its genesis in five of the sixty-three chapters of the Magna Carta, June 15, 1215 A.D. (See Chapters 28, 29, 30, 31 and 52.)

There can be no doubt that under our system of government the sovereign must have the power to take private property when that taking is necessary for the public good. However, from the early beginning of this country, the Founding Fathers insisted that private property should not be taken for a public use without just compensation being paid. The Fifth Amendment of the United States Constitution reads in part: “. . . Nor shall private property be taken for public use, without just compensation.” This was later reaffirmed in the Fourteenth Amendment to the United States Constitution where it is stated: “. . . Nor shall any state deprive any person of . . . property, without due process of law. . . .”

In the Pennsylvania Constitution, Article I, Section 10, we find: “. . . Nor shall private property be taken or applied to public use, without authority of law and without just compensation being first made or secured.” This section of the Pennsylvania Constitution was once described by our Pennsylvania Supreme Court in the case of Winger v. Aires, 371 Pa. 242, 244, 89 A. 2d 521 (1952): “The power of eminent domain, next to that of conscription of man power for war, is the most awesome grant of power under the law of the land.” This power to expropriate property is so great and far-reaching that courts from the beginning of American jurisprudence have had difficulties in developing with *66any definite specificity the rights of a citizen to “just compensation.” Generally it is the Legislature which exercises or delegates the exercise of the power of eminent domain. In the final analysis, however, it devolves upon the courts to determine whether or not a citizen has received “just compensation” as guaranteed by our Federal and State Constitutions.

In view of the well-recognized principle that every piece of property is unique and therefore not given to the establishment of a firm and fast rule, the facts of each case must be scrutinized in determining the value of the property and the “just compensation” due. The compensation to which an owner is entitled is the full equivalent of the property including total damages inflicted as a result of the taking, disregarding the value of the benefits derived by the condemnor.

In essence the law must strive to place the condemnee in as favorable a pecuniary position as he would have been but for the condemnation. In no event should a citizen be placed in a position whereby he sustains losses or damages in excess of that governmental compensation. Each and every element of value or damage ordinarily and naturally resulting from the taking of the property in eminent domain must be considered in arriving at “just compensation.” This is not to say that the compensation must include some personal value which a citizen places upon his property, provided, however, that if a piece of property or a building has a special use or value peculiar to the use which the citizen makes of that property, that additional worth should be included in the value to be placed upon the property taken. Similarly, should a citizen prove that the property taken causes a special damage to him, which can be measured in money, he should have the right to have that value or loss considered in the “just compensation” he receives. It is of no moment that the special value proven to exist causes no benefit to the condemnor. *67What does have moment is that the property taken has caused a proven special damage to the owner.

If in determining the market value (1) the court uses as a measure the price which would he agreed upon by a voluntary sale between an owner willing to sell and a purchaser willing to buy, (2) the seller would demand a higher price for his property because of a peculiar use which he makes of that property, (3) that he would not be willing to sell it for less than an amount which includes this unique value or expense, and (4) that is proven on the record; then that additional peculiar value or expense should be a part of the “just compensation.” See Harvey Textile Co. v. Hill, 135 Connecticut 686, 67 A. 2d 851 (1949), and Blincoe v. The Choctaw, O. & W. R. R. Co., 16 Oklahoma 286, 83 P. 903 (1905). In other words, if the condemnee owns and operates a warehouse under circumstances whereby he would not be a willing seller unless the price for the property included the cost of moving the stored materials of others, then “just compensation” must include that additional cost to the condemnee. To do otherwise is to deprive the condemnee of his constitutional right to “just compensation”. Whether one calls this cost a damage to the condemnee or an added value to the property is not important insofar as constitutional rights are concerned.

The majority makes much over the fact that Section 610 of the Eminent Domain Code, Act of June 22, 1964, Special Session, P. L. 84, 26 P.S. 1-610, provided for a maximum award for moving expenses in the amount of $25,000.00, and that almost a year after the condemnation Section 610 was amended to remove the $25,000.00 limitation. The majority thereby concludes this condemnee could not recover more than $25,000.00 because the amendment acted solely prospectively in its application. Under my reasoning, once the Legislature recognizes that moving expenses, if proven, are a legitimate *68part of constitutional “just compensation”, then if the citizen proves damages in excess of the maximum allowed by the Legislature, that statutory maximum must fall as unconstitutional. In this ease, however, I would hold that it is not necessary to rely upon Section 610 in arriving at this condemnee’s damages as proven in the record of this ease.

In applying my reasoning to this case, I first refer to the “just compensation” provision of the Pennsylvania Constitution set forth above. I next look to what the Legislature comprehends as just compensation in Section 601 of the Act, supra, 26 P.S. 1-601, which states: “The condemnee shall be entitled to just compensation for the taking, injury or destruction of his property, determined as set forth in this article.”

In Section 602 of the Act, supra, 26 P.S. 1-602, “just compensation” is described as: “Just compensation shall consist of the difference between the fair market value of the condemnee’s entire property interest immediately before the condemnation and as unaffected thereby and the fair market value of his property interest remaining immediately after such condemnation and as affected thereby, and such other damages as are provided in this article.”

“Fair market value” is described in Section 603 of the Act, supra, 26 P.S. 1-603 as follows: “Fair market value shall be the price which would be agreed to by a willing and informed seller and buyer, taking into consideration, but not limited to, the following factors:

“(1) The present use of the property and its value for such use.
“(2) The highest and best reasonably available use of the property and its value for such use.
“(3) The machinery, equipment and fixtures forming part of the real estate taken.
“(1) Other factors as to which evidence may be offered as provided by Article 7.”

*69In Article VII, Section 705 of the Act, supra, 26 P.S. 1-705, we find: “. . . (1) A qualified valuation expert may, on direct or cross-examination, state any or all facts and data which he considered in arriving at his opinion, whether or not he has personal knowledge thereof, and his statement of such facts and data and the sources of his information shall be subject to impeachment and rebuttal.” (Emphasis added.)

Finally in Section 704 of the Act, supra, 26 P.S. 1-704, the statute reads: “The condemnee or an officer of a corporate condemnee, without further qualification, may testify as to just compensation. . . .” (Emphasis added.)

In this case we have a condemnee who has proven on the record that as a result of a taking under eminent domain he will be damaged, among other things, in the amount of $60,000.00 which he was required to pay for the removal of bailed property stored in his warehouse. From the point of view of this condemnee, it matters not whether one views this from a value concept, or expenses incurred, or damages suffered. Apple Storage Company has not received “just compensation.” In view of the fact that the order of the court below did not include the full amount of the moving expense incurred by the condemnee, as proven in the record, and the court restricted the condemnee to a maximum arbitrarily set by the Legislature, this condemnee’s constitutional rights have been violated.

To further emphasize the point I make, had the cost of removal incurred by this condemnee exceeded the gross award which was made to it under the condemnation proceedings, this condemnee would then be forced to expend its own money to aid the government to condemn its property. The record incontrovertibly indicates the expenditure of $60,000.00 by the condemnee in order to remove the property bailed in the condemned premises. The record is devoid of any evidence that this *70condemnee would have willingly sold this property absent the inclusion of this removal expense in the selling price. There is not one word in the record of this case which would support the Legislature's arbitrary setting of moving expenses at $25,000.00 for all citizens, under every circumstance of every conceivable condemnation. The fact that Section 610 was amended certainly supports the argument that the $25,000.00 maximum was inadequate.

I have read the cases cited by the majority, and the majority is correct that the courts of this Commonwealth have held that the expense for the removal of “machinery, equipment and fixtures or personal property, other than machinery, equipment and fixtures”, are a separate and distinct item of damage. But none of these cases holds that a warehouseman whose property is taken cannot have included in his “just compensation” the damages he suffers by virtue of the removal of the property which has been bailed to him, or the value he would have placed upon the condemned property. as a willing seller.

Viewing this condemnation from every vantage point, this writer arrives at the conclusion that this condemnee never became a willing seller insofar as he was deprived of moving expenses. This condemnee is entitled to one hundred percent of both the value of property taken and the damages caused to him by this taking, no more and certainly no less. I would reverse the court below and add an additional $35,000.00 (the difference between the proven $60,000.00 and the award of $25,000.00) to the award given by the court below.

Although the condemnee’s witness was not fully articulate, I would hold that there was adequate testimony in the record to establish as a matter of law the condemnee’s right to an award of $5,000.00, for business dislocation damages, which was disallowed by the court below.

Judge Crtjmlish, Jr., joins in this dissent.