Concurring Opinion
by Judge Rogers:I concur in the result reached by the court and in the lucid opinion of President Judge Bowman stating: (1) pursuant to Section 502(e) of the Eminent Domain Code, Act of June 22, 1964, P. L. 84, as amended, 26 P.S. §1-502(e), the condemnee might have filed a petition for the appointment of viewers before the declaration of taking was filed; and (2) by failing to file preliminary objections pursuant to Section 406 of the Code the condemnee waived his right to assert that the condemnation took place at a time other than on the date of the filing of the declaration of taking. I am unable to agree, however, with the majority’s statement that where there has been a de facto taking “. , . the condemnor’s attempted exercise of that power by the filing of a declaration of taking is in issue, an issue . . . which goes to the very heart of its power or right to condemn by formal condemnation proceedings.”
So long as all engineers, surveyors, project managers and lawyers are capable of error and some inclined to sloth, entities clothed with the power of eminent domain will occasionally appropriate property before complying with legal requirements. I find nothing in the Eminent Domain Code which prohibits the filing of a declaration of taking where this happens. The law prior to the enactment of the Code clearly per*540mitted condemnors to take formal action to condemn following a de facto taking. It not only recognized the power of condemnors to institute legally proper proceedings, it devised the remedy of so-called conditional ejectment for the purpose of affording an opportunity to do so. Oliver v. Pittsburgh V. & C. Railway Co., 131 Pa. 408, 19 A. 47 (1890); Connellsville Gas Coal Co. v. Baltimore and Ohio R.R., 216 Pa. 309, 65 A. 669 (1907). In many projects the acquisition by exact description of land upon which public improvements are to be erected is a prerequisite to financing. The majority’s dictum casts doubt upon the condemnor’s power after a de facto taking by mistake, premature action, or even with consent of the owner to make its ownership regular and established upon the public records.
Rather, I would declare that an objection in this case would have been properly directed to the “procedure followed by the condemnor.” Section 406(a) (3) of the Eminent Domain Code, 26 P.S. §1-406(a) (3). Section 402(a) of the Code, 26 P.S. §1-402(a), provides that condemnation shall be effected only by the filing in court of a declaration of taking. Therefore, an appropriation before such filing is a failure to comply with the required procedure for condemnation.