Dissenting Opinion
by Judge Mencer :I respectfully dissent.
It is a common human trait, when told that something cannot be done, to respond with the affirmation that “we will see about that.” Thereafter, we often endeavor to retaliate to .the initial admonition by finding some way to accomplish our desires. -
When elected public officials react in this manner, it is not sufficient justification of their actions to call forth the usual presumption that municipal officers properly act for the public good or to reiterate that the exercise of the powers given them by law is solely discretionary and is only subject to a very limited judicial review.
As the majority correctly stated, Township Eoad No. T-644 is a dead-end dirt road in Snyder Township, *619Jefferson County. Ronald and Ella Stubbs (Stubbs) are the owners of a lot containing approximately 2.14 acres of land, situate north of this dirt road and fronting for a distance of 623.5 feet along the northern right-of-way line of the road in question. A dispute arose between the Stubbs and the Supervisors of Snyder Township (Supervisors) concerning the correct location of Township Road No. T-644 (dirt road).1
Stubbs commenced an action in ejectment to oust the Supervisors from using a portion of allegedly their property for a public highway. A jury returned a verdict in favor of Stubbs and determined that the land in question was owned by Stubbs and was outside of the ordained right-of-way of the dirt road. Thereafter, Stubbs placed stakes connected hy string along that portion of the established dirt road which the jury had determined belongs to Stubbs.
How did the Supervisors react to this legal determination that they could no longer usé Stubbs’ land for a public road! They reacted in the human way that one might expect. They simply, with á we-will-see-about-that attitude, responded to the legal defeat by exercising their power of eminent domain and condemned the exact portion2 of Stubbs’ land that had been the subject of the ejectment proceeding.
I agree with the majority that a summary of the legal principles applicable here is found in Weber v. Philadelphia, 437 Pa. 179, 262 A.2d 297 (1970).
Section 1120 of The Second Class Township Code, Act of May 1, 1933, P.L. 103, as amended, 53 P.S. §66120, being the authority under which the Super*620visors proceeded in this case, provides, inter alia, that “[a]ny township may acquire, by purchase or by the right of eminent domain, any such property and lands situate along or adjacent to any township road, as, in the opinion of the supervisors of such township, may be necessary to eliminate dangerous curves and widen narrow roads for the better protection and safety to the traveling public.”
Stubbs do not question here that the Supervisors have the power by this statute to take private property to widen narrow roads. However, they do challenge the extent of that power, and under the factual setting of this case such a challenge brings to mind the following words found in Winger v. Aires, 371 Pa. 242, 244, 89 A.2d 521, 522 (1952):
“There is no authority under our form of government that is unlimited. The genius of our democracy springs from the bedrock foundation on which rests the proposition that office is held by no one whose orders, commands or directives are not subject to review. 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. Article 1, Section 10 of our Pennsylvania Constitution, declares: ‘. . . nor shall private property be taken or applied to public use, without authority of law and without just compensation being first made or secured. ’
“It is to be emphasized, however, that the restriction in this clause is not limited to the guarantee of just compensation. The condemnation may not take place at all without authority of law.” (Emphasis in original.)
Also, Stubbs do not dispute the need to widen that portion of the dirt road, approximately 8 feet in width, remaining within the Township’s 33-foot right-of-way. However, Stubbs contend that it was not necessary to *621condemn their property when there remains 25 feet of an existing right-of-way which was available to the Supervisors for widening purposes. My reading of the record fails to disclose any reason of substance that would explain why the Supervisors chose condemning the exact land dealt with in the ejectment proceeding rather than utilizing any portion of the available unused existing right-of-way.
The trial court reasoned that, even if there exists sufficient room within the existing right-of-way to widen the road on the south side, it must “conclude that the physical location of the roadbed is primarily an engineering, maintenance and cost judgment which the Supervisors have been given the statutory authority to make.” My reason for not reaching this same conclusion is that the record does not support that the Supervisors’ decision to condemn Stubbs’ property was based on an “engineering, maintenance and cost judgment.” Bather, when Supervisor John Boss was asked about the purpose of the condemnation in question here, his reply indicated that it was solely to condemn the area set forth in the jury verdict in the ejectment action.3
*622This case does not turn on whether or not the condemnation was for a public, as opposed to a private, purpose4 but on whether or not the condemnation, made under the prevailing circumstances, was an arbitrary. and .bad-faith exercise -of discretion such as to constitute an abuse of discretion.
The words “bad faith’.’ have vital meaning when used as a limitation on the power of a governmental authority to condemn property. Bad faith is generally the opposite of good faith and, under the factual situation of this case, implies a tainted motive of retaliation. The courts have .the responsibility to see that public officials have not acted in bad faith and that property be taken by eminent, domain only to the extent reasonably, required for the purpose for which the -power is authorized. , Compare Redevelopment Authority of the City of Erie v. Owners, 1 Pa. Commonwealth Ct. 378, 274 A.2d 244 (1971).
I conclude that (1) the condemnation of the exact land involved in the ejectment proceeding, (2) the existence of a'33-foot right-of-way of which 25 feet adjacent to the dirt road in question is not being utilized, (3) the absence of evidence indicating the element of necessity required by the empowering statute for'exercising eminent domain, and (4) the motive of retaliation, borne out by the history of the litigation and being the triggering factor for the condemnation, were sufficient circumstances to constitute bad faith and overcome the presumption that the discretionary acts of the Supervisors were proper and not arbitrary or unreasonable.
*623Tims, I would hold on this record that the action of the Supervisors in condemning Stubbs’ land constituted an abuse of discretion in its exercise of the power of eminent domain. Therefore,-the taking in question was beyond the power conferred upon the Supervisors by law.
Township Koad T-644 has a right-of-way width of 33 feet. N.T. 14.
The Supervisors described the land condemned by the same metes and bounds as the area that was in dispute in the ejectment proceeding. This fact of itself would not be crucial if the record supported a need for the taking-.
Mr. Ross testified as follows, oil direct examination by counsel for the Township: “Q. Now, that portion of the paved road that’s, for lack of a better term, barricaded or roped off or strung off, that more or less represents the area that the jury found a couple of years ago that was an area upon which the Township encroached on the Stubbs' property, is that correct? A. Yes. Q. And the purpose of the Condemnation is to condemn the area set forth in that jury award? A. Yes.”
And upon cross-examination by counsel for Stubbs, Mr. Ross testified: “Q. Now, are you aware, Mr. Ross, that the Township has a 33 foot right of way over that road, over T-644? A. Yes. Q. Then can you tell me why you’re only using eight feet of the 33 foot right of way; why you permit the road to be a bottleneck when you own 33 feet of right of way? A. No. ... Q. So you have permitted this bottleneck to remain for at least three months and have *622not used the other 25 feet of roadway available for you to use, is that correct, up to this point? -A Yes. Q. Now, can you give me a reason for 'not using your right of way? A. No.”
See Borough of Big Run v. Shaw, 16 Pa. Commonwealth Ct. 623, 330 A.2d 315 (1975).