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An easement not intended for or used by the public cannot be partially condemned for public purposes as a street.
Borough of Duncansville v. Beard, 919 A.2d 327 (Pa. Cmwlth. 2007).
A Borough sought to condemn the end of a shared private right of way to create a turn around area. The owner of the property opposed the condemnation arguing, among other things, that the Borough lacked the power because it did not intend to establish a “street” within the meaning of the Borough Code.
Under the Borough Code, a Borough may condemn lands or property for the purpose of “laying out, opening, widening, extending, vacating, grading or changing the grades or lines of streets.” 53 P.S. Section 46501. A “street” means a “cartway, sidewalk, gutter and/or right of way area” but must be “either for or intended for public use.” Section 45111.
Although the landowner’s preliminary objections were dismissed by the trial court, on appeal, the Commonwealth Court reversed and agreed with the landowner that the land the Borough sought to condemn had no legal status as a “street” under the Borough Code because it was a portion of a private prescriptive easement not intended for public use. In this case, the Court opined, although the Borough could have condemned the entire easement / right of way for use by the public, the Borough could not condemn a portion of a private drive solely to benefit local property owners.
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