concurring and dissenting.
Respectfully, I dissent. Under Section 2003(e)(1) of The Administrative Code of 1929,1 71 P.S. § 513(e)(1), the Department of Transportation (Department) is empowered to:
acquire, by gift, purchase, condemnation or otherwise, land in fee simple or such lesser estate or interest as it shall determine, in the name of the Commonwealth, for all transportation purposes, including marking, rebuilding, relocating, widening, reconstructing, repairing and maintaining State designated highways and other transportation facilities ... (emphasis added).
*67Two things are readily apparent from this language. First, the discretion as to the nature of the interest to be condemned is delegated to the Department, not to this Court. Second, a condemnation under Section 2003(e)(1) is permissible provided it is for “all transportation purposes.”
We have previously had occasion to consider the phrase “all transportation purposes.” In Miller v. Department of Transportation, 91 Pa. Commonwealth Ct. 622, 498 A.2d 1370 (1985), we broadly construed the above phrase, in dictum, to include transportation-related activities. In that case, the operation of a parking garage, functioning as an integral part of a highway project, was found to be a transportation-related activity within the meaning of Section 2003(e)(1). Further, we opined in Corcoran Appeal, 113 Pa. Commonwealth Ct. 402, 537 A.2d 384 (1988), that “all transportation purposes” means that “if the purpose of the condemnation is in furtherance of DOT’s responsibility to provide a fast, safe and efficient transportation system in the Commonwealth with due regard to public health and safety, then DOT has the authority and the duty to proceed with that condemnation if it is incidental to the reconstruction, repair or maintenance of a State designated highway.” Id,., 113 Pa.Commonwealth Ct. at 405, 537 A.2d at 385 (footnote omitted). Thus, in Corcoran, we permitted the Department to condemn portions of property for the purpose of constructing curbs around an intersection in order to make the roadway more safe.
Since we recognized in Corcoran that the Department may act under its Section 2003(e)(1) powers where it is pursuing the goal of an efficient transportation system, it is my view that the Department’s position, that the taking of a fee is justified on a cost effective basis, is a legally valid one.2 Moreover, considering that our state supreme court has held that the economic soundness of a taking is a *68proper factor to be considered when eminent domain powers are exercised, see Pittsburgh School District Condemnation Case, 430 Pa. 566, 244 A.2d 42 (1968),3 1 am unwilling to conclude, as does the majority, that the Department, by asserting cost effectiveness as a justification for taking the entire fee, has not demonstrated compliance with Section 2003(e)(1) or that it has abused its discretion.
The Department also argues that a holding such as that reached by the majority will create great uncertainty. It indicates in its brief, “[t]o uphold the action of the trial court would be essentially to force the Department of Transportation to sever and rebuild any number of properties that are involved in highway condemnations. The problems this would create would be greatly compounded by the existence of a tenant, as was the situation here. Would a severed building interfere with, or perhaps even cause cancellation of a lease? If so, what would the Department’s liability be for such cancellation? Here, the tenant had special wiring, piping and equipment. A partial taking of a building would have had virtually the same effect on the tenant as a total taking.” Department’s brief, p. 21. I agree with this reasoning.
What occurred here was a condemnation of part, not all, of the condemnee’s property (approximately 41%), but that portion taken included the condemnee’s entire building. This building was a one and two story structure, approximately 105’ by 105', and was situated on the north end of the condemnee’s property which abuts the new highway. The major portion of the property south of the building was not occupied by any structure and was used for parking. The building was totally occupied by a technical school which leased the entire property, including the parking lot, from the condemnee.
After DOT condemned that portion of the property that included the entire building, it totally razed the building and, of course, paid the condemnee just compensation for *69taking the entire fee interest. The condemnee’s argument is that DOT needed, permanently, only 20 feet of the building for the actual highway and the Commonwealth’s condemnation was excessive. The trial court agreed. This would have the effect of returning all the excess property taken, other than the 20 feet, to the condemnee. But the building that once was on that property is now gone, having been completely razed by DOT. Damages now would include the cost of reconstructing the building. The majority disagrees with the condemnee’s theory and holds that DOT had a right to condemn the entire building, but, “when DOT ceased to use the staging area for highway construction purposes, its rights ceased. The interest was a defeasible fee in that title reverted to the former owner at the end of the construction project, or to the heirs and assigns.” At p. 608. The majority remands for a computation of damages. But what will be the measure of damages? Since DOT did not abuse its discretion and the condemnation was not excessive, DOT properly razed the building to use the property as a contractor’s staging area. Must DOT now respond in damages for activity that was lawful and proper when it was committed?
On the other hand, DOT’S position would not result in an award for additional damages, but may result in the condemnee’s reacquisition of the property. This is because, as condemnee informs us in the brief, it is DOT’s intention, if it no longer needs the property, to “sell off the remaining portion of the property [which was taken by DOT] in accordance with the provisions of [Section 2003(e)(7)(ii), 71 P.S. § 513(e)(7)(h)]. Condemnee’s brief, p. 17. That Section states:
“[T]he department may sell at public sale any land acquired by the department if the secretary determines that the land is not needed for present or future transportation purposes:
*70(ii) Unimproved land shall first be offered to the person from whom it was acquired at its acquisition price, less costs, expenses and reasonable attorneys’ fees incurred by the person as a result of the acquisition of the land by the department, if the person still retains title to land abutting the land to be sold. If the land abutting the land to be sold has been conveyed to another person, the land to be sold shall first be offered to that person at its fair market value as determined by the department.4
Finally, Brookbank v. Benedum-Trees Oil Co., 389 Pa. 151, 131 A.2d 103 (1957), relied upon by the majority, is completely inapposite because the Supreme Court was there interpreting an agreement between a railroad company and the owners of a farm over which tracks had been laid. By 1957 the railroad had not run a train over the tracks in fourteen years and the litigation involved the mineral rights (a gas well drilled on the former railroad bed crossing) underlying the railroad’s right-of-way. Further, at the time Brookbank was decided, the Commonwealth could only condemn an easement interest for highway purposes, not a fee simple interest. See Section 3 of the Act of December 7, 1979 P.L. 478, amending Section 2003 of the Administrative Code of 1929, and permitting the Commonwealth to condemn a fee interest.
I, therefore, concur with the majority’s view that the condemnation was proper; I dissent from the majority’s further view that what was acquired was a “defeasible fee”; DOT condemned and acquired a fee simple interest.
. Act of April 9, 1929, P.L. 177, as amended.
. The Department also contends that the area in question was to be used for storage facilities during the course of the construction project. Since the Department never asserted initially that this was a basis for condemning the entire fee, I believe it is improper to consider that argument here on appeal.
. See also Hatfield Township Appeal, 28 Pa. Commonwealth Ct. 109, 367 A.2d 747 (1977) (quoting Pittsburgh School District).
. This language was added to Section 2003 by Section 3 of the Act of December 7, 1979, P.L. 478.