Dissenting Opinion by
Judge Kramer:I respectfully dissent for the reason that the record in this case discloses (and the defendants frankly admit) that none of the conditions precedent, as statutorily required for the running of the statutes of limitations, has occurred. Therefore there is nothing in this record or in the law to preclude these plaintiffs from receiving payment for the improper taking of the plaintiffs’ property.
There is hardly any more deep-seated principle in the common law than that the sovereign may not take private property for public use without compensation. Protection of a citizen’s rights to ownership in property has been expressed in every constitution of this Commonwealth to the present time. The Pennsylvania Constitution of 1968, in Article I, Section 10, says in pertinent part: “[N]or shall private property be taken or applied to public use, without authority of law and without just compensation being first made or secured.” (Emphasis added.) In Article X, Section 4 of that same Pennsylvania Constitution, we find: “Municipal and other corporations invested with the privilege of taking private property for public use shall make just compensation for property taken, injured or destroyed by the construction or enlargement of their works, highways or improvements and compensation shall be paid or secured before the taking, injury or destruction.” (Emphasis added.)
*404The General Assembly of Pennsylvania with the intent and purpose of carrying out the mandate of these constitutional provisions (past and present) passed the Eminent Domain Code (Code), Act of June 22, 1964, Spec. Sess., P. L. 84, as amended, 26 P.S. §§1-101 et seq., wherein the rights of citizens are set forth. In Section 201(1) of the Code, 26 P.S. §1-201(1), we find: “ ‘Condemn’ means to take, injure or destroy private property by authority of law for a public purpose.” (Emphasis added.) Subsection 3 of Section 201 reads: “ ‘Condemnor’ means the acquiring agency, including the Commonwealth of Pennsylvania, taking, injuring or destroying private property under authority of law for a public purpose.” (Emphasis added.)
I would first determine, under the facts, whether plaintiff’s property has been condemned, and whether there exists a condemnor in this case. Because we are ruling in this appeal on the lower court’s sustaining of preliminary objections, we must accept all the properly pleaded averments of fact contained in the amended petition. In that petition, one finds and must accept as factual that:
1. There has been no declaration of taking.
2. There has been no eminent domain proceedings initiated by the defendants of any kind or nature.
3. No bond in any sum has ever been tendered.
4. No copy of any resolution has ever been served on the plaintiffs.
5. There has been no payment made or tendered.
6. The defendants entered upon the plaintiffs’ land without any right (by condemnation proceedings or otherwise), constructed a deep ditch on plaintiffs’ property, and proceeded to lay water lines.
In accepting these pleaded facts, I can only conclude that the defendants in this case are nothing more than trespassers on plaintiffs’ land. Defendants occu*405pied plaintiffs’ land under no color of right. The letter which the defendants rely upon so strenuously cannot be tortured into an agreement, by any stretch of the imagination.
The majority affirms the court below on the basis of the statute of limitations provisions of the 1964 Eminent Domain Code. In Section 302 of that Code, 26 P.S. §1-302, we find: “This act shall take effect immediately upon approval, and shall apply to all condemnations effected thereafter, except the provisions of Article IY, which shall not take effect until September 1, 1964 and shall apply to all condemnations effected thereafter. The provisions of Articles Y and YII shall also apply to all steps taken subsequent to the effective date of this act in all condemnation proceedings in which the condemnation was effected prior to the effective date of this act.” (Emphasis added.) The question immediately arises: when was any condemnation effected under the facts of this case? There was no condemnation. Further, under the provisions of 26 P.S. §1-201 (1) (quoted above), when was the plaintiffs’ property ever condemned under “authority of law?” Could it possibly be argued that government effectuates a condemnation by boldly and without authority taking a citizen’s property? I think not. At this point in time, the defendants are trespassers, and until either the condemnor or the condemnee commences proceedings under the applicable eminent domain statute, condemnation has not been effected. Under the facts of this case it only became a condemnation matter when these property owners filed their Petition.
If this case is to turn on the statute of limitations found in the 1964 Code, then the conditions precedent, as set forth in the statute, must be found in the record before the property owner can be precluded from his constitutional rights. Any statute which restricts or *406constricts a constitutional right must be strictly construed. See McCafferty v. Guyer, 59 Pa. 109, 111 (1868) wherein the Court stated: “A right conferred by the Constitution is beyond the reach of legislative interference. If it were not so, there would be nothing stable; there would be no security for any right.” The statute of limitations section of the 1964 Code is found in Section 524, 26 P.S. §1-524. It reads as follows: “A petition for the appointment of viewers for the assessment of damages for a condemnation or compensable injury may not be filed after the expiration of six years from the date on lohich the condemnor made payment in accordance with section 407(a) or (b) of this act where the property or any part thereof has been taken, or from the date of injury where the property has been injured but no part thereof has been taken. If such petition is not filed before the expiration of such period, such payment shall be considered to be in full satisfaction of the damages.” (Emphasis added.) The second sentence of Section 524 makes it obvious to me that the condition precedent, before the running of the six-year period, is that payment be made or tendered to the property owner. No such payment nor tender was made in this case. I repeat that we are ruling on preliminary objections, and we must accept as true the properly pleaded fact that no payment or tender has been made. How is a condemnation required to be commenced? Section 402 provides the answer, 26 P.S. §1-402. There we find that: “Condemnation . . . shall be effected only by the filing in court of a declaration of taking, with such security as may be required. . . .” (Emphasis added.) Once again, the amended petition of the plaintiffs avers as a fact that no such declaration or security was ever filed. Therefore, in the words of the statute itself, the condemnation has not become “effected.” Pane v. Department of Highways, 422 Pa. *407489, 222 A. 2d 913 (1966) : “Under the Code, a condemnation which involves the ‘taking’ of property is ‘effected’ only by the filing in court of a ‘declaration of taking’ with the required security; Code, supra, §402, 26 P.S. §1-402.” 422 Pa. at 496, 222 A. 2d at 916. The court went on to say if there is merely an “injury” to the property, the time of injury is “when the physical change is begun. . . .” 422 Pa. at 497, 222 A. 2d at 917. Injury here means damage caused by off-property condemnation vis-a-vis a taking.
Section 902 of the 1964 Code, 26 P.S. §1-902, repeals absolutely the statute of limitations provisions of the 1956 (Eminent Domain) Code. I agree with the majority that the 1964 Code is applicable for the reason that no condemnation was effected under the 1956 Code by virtue of the fact that Section 3 of that Code, 26 P.S. §153, provides that the six-year statute of limitations does not run until after the condemnor is “entitled to possession of private land.” This Court, in the case of Upper Montgomery Joint Authority v. Yerk, 1 Pa. Commonwealth Ct. 269, 274 A. 2d 212 (1971) made it quite clear that these statute of limitation sections of the various eminent domain codes are procedural rather than substantive; and therefore, they may be applied retroactively. However, this principle is not applicable if there was no condemnation. In Weigand Appeal, 214 Pa. Superior Ct. 371, 257 A. 2d 627 (1969), the Court clearly provides that, if the statute of limitations has run under a prior eminent domain code, the rights of the landowner are not resurrected by the passage of a new eminent domain code. I find Weigand inapposite because the condition precedent to the running of the statute of limitations of the 1956 Code required of the condemnor (namely, entitlement to possession) is not factually supported by the record in this case.
*408By contrast, the lower court here decided this case on Section 2 of the 1956 Code, 26 P.S. §152, for the reason that the plaintiffs had “notice of the taking.” I reiterate that Section 2 states that the statute of limitations begins to run from the date when the condemnor “became entitled to possession of the land” and not solely on notice. Section 2 specifically sets forth additional conditions precedent, such as (1) a copy of the resolution being personally served on the owner; (2) if not personally served, then by registered mail; and (3) if not personally served or served by mail, then advertised. None of these conditions is found in the record of this case. Therefore, the statute of limitations under the 1956 (Eminent Domain) Code could not have run against these plaintiffs.
From my point of view, the Constitution establishes a specific right in the citizen, and a specific restriction on government. I can find no inference in the Constitution that government can expropriate a citizen’s property after the passage of six years from an unlawful taking. I can find restrictions on the citizen by virtue of statutes of limitation only if the governmental condemnor has strictly followed every provision of whatever eminent domain code is applicable to a given situation. The condemnors in this case could have set the wheels in motion for the running of the statute of limitations. They did not. This particular constitutional right is too precious to be shunted aside for reasons of “procrastination” or “lack of vigilance” on the part of the citizen property owner. If government had no means at its disposal to properly condemn this property, then perhaps I could understand the sustaining of these condemnors’ preliminary objection. The fact is, however, that these condemnors had the responsibility and the duty to proceed in a lawful way. I conclude that the statute of limitations provisions did not com*409menee to run at all, because the condemnors did nothing after they unlawfully expropriated the plaintiffs’ property. I would reverse the court below, overrule the preliminary objections, and order the court below to proceed with the appointment of viewers.
Judge Blatt joins in this dissenting opinion.