In re Forrester

In In re Forrester, 575 Pa. 365, 836 A.2d 102 (2003), our Supreme Court in a plurality decision stated that the taking of a private road conferred no public benefit, but only a benefit to the person who was requesting the private road. Id. The issue in Forrester was whether the Agricultural Lands Condemnation Approval Board (ALCAB) was required to approve the opening of a private road under the Private Road Act when that road was in an Agricultural Security Area (ASA). Section 13(a) of the Agricultural Area Security Law, Act of June 30, 1981, P.L. 128, as amended, 3 P.S. 913(a), states that no agency of the Commonwealth, political subdivision, authority, public utility or other body "having or exercising powers of eminent domain shall condemn any land within an ASA unless prior approval has been obtained from the ALCAB." To decide the issue, our Supreme Court had to determine whether the opening of a private road under the Private Road Act was an exercise of the power of eminent domain. In a fractured non-precedential decision regarding the constitutionality of the Private Road Act, Chief Justice Cappy issued the plurality opinion announcing the judgment of the Court, while Justice Saylor concurred in the Judgment and Justice Newman dissented. In Forrester the issue presented was whether the Agricultural Lands Condemnation Approval Board (Agricultural Board) must approve the opening of a private road from a private landowner's 22-acre landlocked tract of land in Franklin County. The landowner petitioned for the appointment of a board of view under the Private Road Act to locate and open a private road over farmland owned by the appellants. The private road was in an agricultural security area as defined by the Agricultural Area Security Law (Agricultural Law), Act of June 30, 1981, P.L. 128, as amended, 3 P.S. 901 - 915, and the appellants challenged the petition on the basis that a private road may not be opened without prior approval of the Agricultural Board. The board of view determined that prior approval of the Agricultural Board was not required to open a private road and found that the landowner was entitled to have the road opened for access to his landlocked property. The board of view fixed the location of the road and assessed damages against the petitioning landowner. The trial court and this Court affirmed, and on appeal by the appellants the Supreme Court affirmed this Court after ultimately ruling that prior approval by the Agricultural Board was not required before opening a private road on land in an agricultural security area. To decide the question presented in Forrester the Supreme Court had to determine first whether the opening of a private road represented an exercise in eminent domain. Section 13(a) and (b) of the Agricultural Law, 3 P.S. 913(a) and (b), provided that "no agency of the Commonwealth" and "no political subdivision, authority ... or other body having or exercising powers of eminent domain shall condemn any land within any agricultural security area ... unless prior approval has been obtained from the Agricultural Board." In reviewing case law predating the turn of the 20th century, including Waddell's Appeal, 84 Pa. 90, 4 Week. Notes Cas. 29 (1877), the court noted one instance in which it directly had dealt with whether the opening of a private road effectuated a public purpose, i.e., in Pocopson Road. In Pocopson Road the Supreme Court rejected the argument that opening a private road under the Private Road Act constituted a taking for a purely private use, but it agreed in Forrester that its decision in Pocopson Road was "wholly unsupported by any reasoning." Forrester, 575 Pa. at 369, 836 A.2d at 105. The Court observed that a taking will have a public purpose only when the public is to be the primary and paramount beneficiary of the exercise of eminent domain power and that to consider a taking as effectuating a public purpose the citizenry at large rather than a private entity or individual will be the principal recipient of any benefit. Thus the trial court's repeated assertions that Brown must show that the taking was "solely" for a private benefit were incorrect. In Redevelopment Authority of Erie v. Owners or Parties in Interest, 1 Pa. Commw. 378, 274 A.2d 244 (Pa. Cmwlth. 1971), the Court repeated cogent observations of the Pennsylvania Supreme Court that there is not a suggestion anywhere in the Constitution that private property may be taken for a private use.