Borough of Jefferson v. Bracco

In Borough of Jefferson v. Bracco, 160 Pa. Commw. 681, 635 A.2d 754 (Pa. Cmwlth. 1993), the condemnor appropriated a sewer easement "in, over, through and across" the front of the property on which was located a restaurant and lounge, and the easement area included the entrance to the restaurant and lounge. The condemnees maintained that the language took both a surface and subsurface easement, and that such a taking entitled them to the costs associated with the construction of a new entrance to the restaurant and lounge. The condemnor argued that it had taken only subsurface rights and the old entrance could still be used. Based solely on condemnor's alleged admission that the taking included a "full fee simple absolute interest," Bracco, 635 A.2d at 759 (quoting from the trial court's opinion), the trial court awarded damages on that basis. On appeal, the Court noted that the condemnor never admitted that the interest it took was a fee simple interest, and the only issue before the trial court was whether taking an easement "in, over, through and across" took both surface and subsurface easements. Holding that the language appropriated a surface as well a subsurface interest, we remanded the matter to the trial court for a recalculation of damages. Bracco does not hold that the use of the language "in, over through and across" by a condemnor results in the taking of a fee simple interest as a matter of law.