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Home arrow Archives   The American Surveyor     

Vantage Point: Bad Decisions Print E-mail
Written by Wendy Lathrop, PS, CFM   
Saturday, 12 March 2016

A 137Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE

Originally I was going to entitle this month's column, "When the Courts Get it Wrong." The problem is, depending upon which court we are talking about a decision we hate may be the new rule from that moment on. At that point "wrong" and "right" switch positions.

Bad decisions happen. On the national scene there was the series of suits the Presaults of Vermont pursued regarding whether or not conversion of a railroad easement to a trail was an unconstitutional taking. At one point in this very long and expensive pursuit of justice, the US Claims Court decided that rather than the laws and contractual language in effect when the easement was created in 1899, the proper way to decipher the intent of the original grant should be what was in effect at the time of the Presaults' land acquisitions (1966 to 1980).

Fortunately, this terrible decision was overturned by the US Court of Appeals four years, several suits, and many dollars later, upholding the terms of the original grant (100 F.3d 1525, 1996). Imagine the effect on every contract ever written if today's contractual language and laws controlled interpretation of documents written a decade or a century ago. Imagine the effect on every deed for every land interest and every boundary in the nation if no one had to go back to original intent. Thankfully the later decision averted such a disaster.

I've experienced bad decisions personally. In a chancery court suit about whether a right of way was public or private, the sole judge ignored all the deeds and instead based his decision upon a tax map that (1) had not been introduced as evidence and (2) the municipality said was wrong. While I found this outcome incredible, at least it affected only one landowner and not future cases.

Recently the Pennsylvania Supreme Court has upended the ability of landlocked property owners to rely on a law that originated in 1735 when Pennsylvania was a province controlled by the heirs of William Penn. It is presently is known as the Private Road Act of 1836, and provides a means for landlocked owners to petition for appointment of a Board of Viewers to determine necessity and location of a private means of access.

Timothy O'Reilly filed such a petition in 2004 due to the landlocked status of his property as a result of Pennsylvania's exercise of eminent domain to build Interstate 79. The primary protest of the affected parties (the respondents) was that opening a road under the Private Road Act would result in an unconstitutional taking of private property, because the use of any such easement is solely for private rather than public purpose. O'Reilly countered with prior Pennsylvania and US District Court decisions pronouncing the statute constitutionally sound and not an exercise of the power of eminent domain. As a side point, the public would benefit by the increased value of his no-longer-landlocked land's assessed value (thereby increasing public tax coffers).

In 2007 O'Reilly's right to rely on the Public Roads Act was upheld, relating the Act to the common law "way of necessity" doctrine. In 2008 the appellate court upheld the two prior decisions favoring O'Reilly, remanding the case to the trial court for the appointment of Viewers to establish the location of the private road.

But in 2009 the Pennsylvania Supreme Court granted the respondents' appeal to determine the constitutionality of the Private Roads Act. It then vacated the order for appointment of Viewers, and, in a 4-3 decision, remanded the case for further consideration (5 A.3d 246, 2010). In that remanded case (2011), the court decided it did not have enough information to determine if the public would be the primary beneficiary of the "taking", and sent the case back down to the trial court to hold a hearing, make findings of fact, and gather additional evidence.

Subsequently O'Reilly returned to Common Pleas Court in 2013, where his petition for appointment of Viewers was quashed, as opening a road under the Public Road Act would (now) be considered unconstitutional. His 2014 appeal yielded an opinion (100 A.3d 689) apologizing for having to follow the Supreme Court's rulings against his petition for Viewers. Four of the five separate concurring judges' opinions basically say that they did what they were instructed to do, but that they disagree with it being appropriate.

The problem is that later cases must now rely on the highest court's decision, already yielding some peculiar outcomes. Owners of an industrially-zoned site that is landlocked on three sides and bounded by a river on the fourth were astounded when the court overturned the Board of Viewers' determination that a private road was necessary, because the Viewers had not considered evidence regarding river access (11 A.3d 902, 2011). More apologies appear in the concurring opinions.

Wendy Lathrop is licensed as a Professional Land Surveyor in NJ, PA, DE, and MD, and has been involved since 1974 in surveying projects ranging from construction to boundary to environmental land use disputes. She is a Professional Planner in NJ, and a Certified Floodplain Manager through ASFPM.

A 137Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE

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