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The taking of an easement “over, under and through” a piece of property does not result in a fee simple interest taking as a matter of law.
In re: Condemnation Proceeding by South Whitehall Township Authority, (Pa. Commw. Ct. 2008).
The Authority adopted a resolution condemning a 25-foot wide utility easement across Condemnee’s property. The resolution provided that it was for a sanitary sewer easement “over, under and through” Condemnee’s property. A Board of View was appointed and Condemnee was awarded $50,000 to compensate him for the taking. The Authority and Condemnee appealed. Condemnee claimed that the use of the language “over, under and through” amounted to a taking of a fee simple interest. A jury trial followed, and the jury ultimately awarded Condemnee $40,000 in damages. Condemnee then appealed to the Commonwealth Court arguing that the trial court should have instructed the jury that taking an easement “over, under and through” transforms the interest taken to a fee simple interest.
The Commonwealth Court found that the language “over, under and through” does not result in the taking of a fee simple interest as a matter of law. The Court also stated that no matter how expansive or invasive an easement is, it is never an interest in fee simple. The amount of damages in a taking case may vary depending on the burden the easement places on the land.
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