In re Condemnation of Rights of Way & Easements Situate in the Borough of White Oak

Dissenting Opinion by

Judge Doyle :

I respectfully dissent. I believe a fair reading of the relevant sections of the Borough Code (Code)1 evidences an intent to embrace any exercise of eminent domain power necessary for the relocation of a street within the provisions of Section 1731 of the Code, 53 P.S. §46731 which requires the opportunity for a public hearing.

I note first that Section 1751 of the Code provides that any straightening or relocation of a street “shall be effected in the same manner and by the same procedure as provided in prior sections . . . for opening or vacation of streets.” 53 P.S. §46751. The land*580owner here is therefore correct in directing our attention ¡to Section 1731.

Second, I believe that the language of Section 1733, 53 P.S. §46733 makes it clear that a taking of property for street purposes by eminent domain is not an act separate from the opening of a street, but is rather an act constituting a part of the opening of a street, and must therefore be undertaken in compliance with the procedural requirements of Section 1731. Section 1733 governs actions for damages in the opening of a street and provides in p ertinent part:

AH parties whose ground is taken in the opening of a street or a portion thereof shall have three years from and after the effective date of the ordinance opening such street or portion thereof in which to bring an action for damages therefrom.

53 P.S. §46733 (emphasis added). The section also provides that “such damages shall be assessed by a jury of view under the provisions of the law of eminent domain.” Id. I think it is clear that, in providing the procedure for “'opening a street,” the legislature contemplated also the taking of land in eminent domain proceedings for such purposes as part of the “opening,” and intended the authority to undertake those proceedings to be conferred by ordinance under Section 1731.

1 would comment finally that the Borough Code was remarkably complete in providing separately for the planning2 laying out3 and opening4 of pubHc *581streets. Yet, the opinion of the majority implies an intermediate stage, not included in the planning or laying out of a street, hut prior to and distinct from the opening of a street, and asserts that this stage is not provided for in the Code. Considering the comprehensive scheme for the development of streets which is provided in the Code, I think isuch an oversight by the legislature is unlikely. I believe it was intended that an opportunity for a public hearing should be provided in eminent domain proceedings pursuant to the opening or relocation of a street.

Act of February 1, 1966, P.L. (1965), as amended, 53 P.S. §§101-3501.

Section 1711, 53 P.S. §46711, repealed by Section 1201 of the Act of July 31, 1968, P.D. 805, 53 P.S. §11201. Planning and laying out of streets is now covered by provisions governing Official Maps at 53 P.S. §§10401-10408.

Section 1721, 53 P.S. §46721, repealed by Section 1201 of the Act of July 31,1968, P.L. 805, 53 P.S. §11201. See note 2 supra.

Section 1731, 53 P.S. §46731.