Dissenting Opinion by
Senior Judge Kalish:I respectfully dissent.
Condemnation is accomplished by filing a declaration of taking, in writing, in which the condemnor states what is the nature of the title to be acquired. Section 402 of the Eminent Domain Code (Code), Act of June 22, 1964, Special Sess., P.L. 84, as amended, 26 P.S. §1-402. While the Code does not indicate in any way the nature of the interest acquired by the condemnation, it does require that the declaration of taking contain a statement of the nature of the title acquired and it is by reference to this statement that it is determined what interest in the land was acquired. Thus, in 1971, *380the Commonwealth of Pennsylvania, Department of Transportation (DOT) took an easement in the property and declared it to be for highway purposes. It was not until thirteen years later, in 1984, that DOT filed a declaration of taking and declared that it was taking a fee simple estate in the land underlying the previous easement.
The condemnee filed a petition for the appointment of a Board of View, alleging that the prior easement had been extinguished by abandonment so that what the condemnor took was a complete fee simple estate. DOT filed preliminary objections contending that it had not abandoned the original easement and that the taking of the burdened property was a complete taking of the land unburdened by the easement.
The trial court dismissed the petition for the appointment of a Board of View, finding that there was no abandonment of the easement and that mere non-use, as a matter of law, does not result in an abandonment. DOT expressly indicated the nature of the interest it was taking with each declaration. Unless a statute expressly provides that a fee simple estate must be taken, only an easement will be acquired if that is all that is required. Pennsylvania Game Commission v. Renick, 21 Pa. Commonwealth Ct. 30, 342 A.2d 824 (1975).
Combining the taking of the servient estate with the easement previously taken, DOT now believed that it had achieved its purpose in obtaining a fee simple estate in the land. Restatement of Property §507 (1936) provides that an easement is extinguished by the taking in fee of the servient tenement. In this case, however, the taking of the servient tenement was expressly limited to the easement thereon.
Section 408 of the Code, 26 P.S. §1-408, provides that upon relinquishment of the property by the condemnor, title is revested in the condemnee as of the *381date of the filing of the declaration. In the context of eminent domain, ownership of property is viewed as consisting of various interests in the physical object, each interest bearing on the value of the property. Obviously, ownership of a servient estate burdened with an easement has a value different from that when both interests are combined.
It is contended that pursuant to section 406 of the Code, 26 P.S. §1-406, the trial court was correct in holding a hearing to determine the question of abandonment after the filing of preliminary objections. Section 406 of the Code provides that preliminary objections are the exclusive method to challenge the lawfulness of the declaration of taking and any procedure used in the taking (i.e., the power or right to condemn). The purpose of this section is to attack the regularity or legality of the proceeding so that when the matter comes before the Board of View, the issue is one of damages only. DOTs preliminary objections did not raise this issue. They raised the question of the abandonment of the easement, the effect of which had to do with determining the extent of damages and not the right or power to condemn. The viewers were certainly competent to decide the question, in limine. See Re: Condemnation for Legislative Route 23047, 79 Pa. Commonwealth Ct. 512, 470 A.2d 1080 (1984). The viewers’ report was subject to exceptions in the trial court.
The procedure for determining damages in eminent domain is exclusive and provided for in the Code. The trial court’s dismissal of the petition for the appointment of viewers was in error. It was for the Board of View, a judge or a jury in a trial de novo, to determine whether there was an abandonment, in fixing value.
I would reverse and remand to the trial court, with orders to appoint a Board of View to determine the value of the taking, consistent with this opinion.