R. Miller & M.L. Miller v. The Borough of Indian Lake ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Richard Miller and Mary Lou Miller, :
:
Appellants :
:
v. : No. 1269 C.D. 2020
: Submitted: October 18, 2021
The Borough of Indian Lake :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: November 16, 2021
Appellants Richard Miller and Mary Lou Miller (Millers) appeal from
the judgment entered by the Court of Common Pleas of Somerset County (trial court)
on a unanimous jury verdict in favor of the Borough of Indian Lake (Borough) and
against the Millers. The Millers assert that the trial court erred and/or abused its
discretion by admitting the testimony of the Borough’s valuation expert over the
Millers’ objections and by refusing to charge the jury with the Millers’ proposed
instruction. Upon review, we affirm.
I. Background
This case arises out of a dam remediation project undertaken by the
Borough at the direction of the Pennsylvania Department of Environmental
Protection (DEP). DEP required that the Borough make improvements to Indian
Lake’s dam to control the probable maximum precipitation event of approximately
30 inches of rainfall over a 12-hour period or 27 inches of rainfall over a 6-hour
period. In order to comply with DEP’s requirements, the Borough opted to raise the
breast of the dam and to expand the existing flowage easement from 2,290 feet to
2,295.5 feet. To expand the flowage easement to the 2,295.5-foot mark, the Borough
needed the agreement from 500 lakefront property owners within Indian Lake
Resort, including the Millers.
The Millers’ lakefront property (Property), which has 100 feet of lake
frontage and a house that sits at an elevation of 2,290 feet above sea level with a 1.5-
inch slab just above the 2,290-foot level, was among the properties affected. The
Millers would not voluntarily agree to the flowage easement expansion. As a result,
the Borough was required to obtain the additional 5.5-foot flowage easement from
the Millers by way of partial condemnation.
On May 21, 2013, pursuant to its powers under the Eminent Domain
Code,1 the Borough Code,2 and Borough No. 165 (Ordinance),3 the Borough filed a
Declaration of Taking (Declaration)4 in the trial court to expand the Property’s
existing flowage easement to an elevation of 2,295.5 feet. Reproduced Record
(R.R.) at 306a-08a. The Millers filed a Petition for a Board of Viewers (Board),
which was appointed. Following a hearing, the Board issued its report and awarded
no damages. The Millers appealed the Board’s award to the trial court seeking just
compensation for the taking.
1
26 Pa. C.S. §§101-1106.
2
8 Pa. C.S. §§101-3501.
3
The Ordinance was enacted on March 27, 2013.
4
Reproduced Record (R.R.) at 295a-97a.
2
The matter proceeded to a jury trial. The Borough presented the
testimony of Robert Hagerich, Jr. (Appraiser), a licensed real estate broker in
Pennsylvania, as its valuation expert to testify regarding the before and after fair
market value of the Millers’ Property based on comparable properties. The Millers
initially sought to preclude his testimony as not competent by filing a motion in
limine, and then later moved to strike his testimony during the proceedings. R.R. at
107a, 446a. The Millers objected for various reasons, including his inexperience
performing flowage easement appraisals, his methodology, choice of comparable
properties, and reliance on a weather report, and the fact that Appraiser did not
provide a market value or any other valuation analysis after the taking. The trial
court partially granted the motion in limine by precluding Appraiser from testifying
regarding one property that was used in his analysis, but otherwise the trial court
denied the Millers’ motions and allowed Appraiser to testify. R.R. at 284a, 451a,
557a.
Appraiser testified that he employed the comparable sales approach by
using recent sales of nearby comparable properties to provide the basis for his
valuation opinion. Appraiser described how each property was similar to the subject
Property, and how each was different, and he made adjustments in accordance with
basic tenets of professional appraisal practice. Appraiser concluded that the value
of the Millers’ Property prior to the taking was $390,000.00. Appraiser then
considered the impact of the flowage easement on the post-taking value of the
Property. With the understanding that the only time that the expanded flowage
easement would impact the Property would be in a weather event producing 30
inches of rainfall in a 12-hour period or 27 inches of rain over a 6-hour period,
3
Appraiser relied upon the report of weather expert Stephen M. Wistar (Wistar)5 of
AccuWeather on the likelihood of such significant rain (Wistar Report), which he
attached to his appraisal. Original Record (O.R.), Board of Viewer Proceeding,
9/27/17, Borough Exhibit Nos. 8 and 9. According to the Wistar Report, the
probability of a triggering maximum precipitation event occurring at Indian Lake is
“infinitesimally small” -- .0004% or once every 250,000 years. Id.; O.R., Notes of
Testimony (N.T.), 9/15/20, at 208; see R.R. at 503a. Appraiser also considered the
fact that the Millers are “entitled to the full use and enjoyment of the site,” and that
there are no building restrictions within the expanded flowage easement. R.R. at
503a. Appraiser described the unique characteristics of a flowage easement and how
it is not a physical taking in the usual sense of a regular sewage easement. R.R. at
503a. Because the use of the flowage easement was so unlikely, Appraiser testified
that a willing and informed buyer would not consider it a factor in arriving at the
price. He, therefore, concluded that the pre- and post-value of the Property were the
same -- $390,000.00. R.R. at 503a-04a.
The Millers also sought to have the trial court instruct the jury regarding
partial takings and the effect of a condemnation on the value of the remaining
property, by informing the jury that the Millers only had a single opportunity to
obtain compensation and that the Borough could make full use of the easement.6
5
The Borough also presented the testimony of Wistar.
6
More particularly, the Millers’ proposed instruction, which was based on Section 22.60
of the Pennsylvania Suggested Standard Civil Jury Instructions, Pa. SSJI (Civ.) 22.60 (2020),
provided:
6. Partial Taking – Effect Of Condemnation On Value Of
Remaining Property
(Footnote continued on next page…)
4
The trial court elected to use the model jury instruction relating to partial takings
rather than the Millers’ adaptation of it.
Following a two-day jury trial, the jury entered a verdict in favor of the
Borough upon finding that the Millers’ Property did not diminish in value as a result
of the Borough’s taking. R.R. at 8a. As a result, the jury awarded the Millers zero
damages for the partial condemnation of the Property.
Thereafter, the Millers filed a post-trial motion raising the same issues
regarding Appraiser’s testimony previously raised in their prior motions and
requesting a new trial. R.R. at 366a. By order dated December 1, 2020, the trial
court denied the Millers’ post-trial motion. On December 3, 2020, the trial court
then entered judgment on the jury verdict. The Millers filed a timely appeal in this
In this case, the Borough . . . took from the Millers a 5.5[-
]foot flowage easement. That means that the Borough has a right
since the taking, to flow water up to the new elevation which is now
raised from 2,290 [feet] to 2,295.5 feet. The Millers are asking you
to award them compensation for their loss. In considering their loss,
you must not limit your consideration to the current intended use by
the Borough. Rather, you are to consider that [the Borough has] a
full right to the use of the easement for flowage not just under the
present plan, but any future plan that [it] might develop. The Millers
will only be permitted this one occasion to come to court and appear
before a jury to be compensated for their loss, no matter how much
it is used in the future, so you must assume the Borough will use the
easement to the fullest extent the law permits.
In this case, [the] Borough condemned only a part of the
Millers’ [P]roperty, that is a five[-]foot rise in elevation to permit
occasional flooding. To determine the fair market value of the
remaining property, you must consider how [the] Borough may use
the condemned property and how that use will affect the remaining
property.
R.R. at 241a (emphasis added).
5
Court.7 The trial court filed an opinion in support of its order in response to the
Millers’ concise statement of errors complained of on appeal.
II. Issues
First, the Millers contend that the trial court erred or abused its
discretion by admitting Appraiser’s testimony over their competency objections.
Appraiser did not take into consideration the value of “comparable” properties after
the taking, only before. Appraiser did not know whether the properties considered
were even affected by the taking. Second, the Millers argue that the trial court erred
or abused its discretion by failing to use the Millers’ requested jury instruction that
the jury should assume that the Borough would use the easement “to the fullest
extent the law permits” and that this was the Millers’ only occasion to seek
compensation for their loss. The trial court compounded this error by prohibiting
argument or cross-examination relevant to the proposed instruction.
III. Discussion
A. Appraiser’s Testimony
The Millers contend that the trial court erred and/or abused its
discretion by admitting Appraiser’s testimony and denying the Millers’ motion in
limine, motion to strike, and post-trial motion to preclude or strike the same. The
Millers contend that Appraiser employed a novel approach to valuation by only
using before values and not considering comparable sales after the taking to make a
post-taking valuation. When there is a partial taking of property, valuation before
7
Our review in an eminent domain proceeding is limited to determining whether the
findings of fact are supported by competent evidence and whether the trial court committed an
error of law. Lehigh-Northampton Airport Authority v. Fuller, 862 A.2d 159, 164 n.1 (Pa. Cmwlth.
2004).
6
and after the taking is necessary. It defies logic to develop the value before the
taking with comparable properties, but not to calculate the value based upon
comparable properties similarly affected after the taking. An expert witness is
required to present facts and data and a recognized methodology in coming to a
conclusion, and Appraiser did none of this. In fact, he did not even know whether
any of the purported comparable properties were affected by the flowage easement.
His valuation testimony was otherwise deficient because the only basis for his
conclusion was some vague statement about conversations with agents. Appraiser
also improperly relied upon the report of a weather expert as opposed to a
hydrologist regarding the likelihood of flooding. Considering that the jury reached
a verdict of no damages, it is obvious that Appraiser’s testimony was relied upon for
the outcome and was detrimental to the Millers’ case. Because his testimony was
not competent and should have been excluded, a new trial is the only remedy to cure
this error.
Under Pennsylvania law, “[i]t is well established that in order for a
party to be awarded a new trial, the moving party must demonstrate that it was
prejudiced by the alleged error of the trial court.” Boyle v. Independent Lift Truck,
Inc., 6 A.3d 492, 496 (Pa. 2010). “To constitute reversible error, a ruling on
evidence or an instruction to a jury must be shown not only to have been erroneous,
but [also] harmful to the party complaining.” Anderson v. Hughes, 208 A.2d 789,
791 (Pa. 1965). “A new trial should be awarded on the ground that the verdict is
against the weight of the evidence only when the jury’s verdict is so contrary to the
evidence as to shock one’s sense of justice and the award of a new trial is imperative
so that right may be given another opportunity to prevail.” Burrell v. Philadelphia
Electric Co., 265 A.2d 516, 518 (Pa. 1970). However, “[a] new trial is not warranted
7
merely because some irregularity occurred during the trial or another trial judge
would have ruled differently; the moving party must demonstrate prejudice resulting
from the mistake.” Stong v. Commonwealth, 817 A.2d 576, 581 (Pa. Cmwlth. 2003).
Rulings on the admission or exclusion of evidence are within the sound
discretion of the trial court and may be reversed only when there is a clear abuse of
that discretion. Harsh v. Petroll, 840 A.2d 404, 429 (Pa. Cmwlth. 2003), aff’d, 887
A.2d 209 (Pa. 2005); Milan v. Department of Transportation, 620 A.2d 721, 726
(Pa. Cmwlth. 1993). “An abuse of discretion is not merely an error of judgment, but
if in reaching a conclusion the law is overridden or misapplied, or the judgment
exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-
will, as shown by the evidence or the record, discretion is abused.” Sutherland v.
Monongahela Valley Hospital, 856 A.2d 55, 59 (Pa. Super. 2004) (quoting Paden v.
Baker Concrete Construction, Inc., 658 A.2d 341, 343 (Pa. 1995)). “To constitute
reversible error, an evidentiary ruling must not only be erroneous, but also harmful
or prejudicial to the complaining party.” Lock v. City of Philadelphia, 895 A.2d 660,
665 (Pa. Cmwlth. 2006) (citation omitted).
The Eminent Domain Code requires the payment of “just
compensation” for the taking of real property. Just compensation consists of “the
difference between the fair market value of the condemnee’s entire property interest
immediately before the condemnation and as unaffected by the condemnation and
the fair market value of the property interest remaining immediately after the
condemnation and as affected by the condemnation.” 26 Pa. C.S. §702(a). Just
compensation measures “the entire property interest” before and after the
condemnation “as affected by the condemnation.” Id. The Eminent Domain Code
defines “condemn” as follows: “[t]o take, injure or destroy property by authority of
8
law for a public purpose.” 26 Pa. C.S. §103. It further explains that the “fair market
value” of property is
the price which would be agreed to by a willing and
informed seller and buyer, taking into consideration but
not limited to the following factors:
(1) The present use of the property and its value for that
use.
(2) The highest and best reasonably available use of the
property and its value for that use.
(3) The machinery, equipment and fixtures forming part of
the real estate taken.
(4) Other factors as to which evidence may be offered as
provided by Chapter 11 (relating to evidence).
26 Pa. C.S. §703.
In a partial taking of property, Section 706(a) of the Eminent Domain
Code provides that the after-taking fair market value shall consider the damages to
the remaining property. Section 706(a) states:
In determining the fair market value of the remaining
property after a partial taking, consideration shall be given
to the use to which the property condemned is to be put
and the damages or benefits specially affecting the
remaining property due to its proximity to the
improvement for which the property was taken.
26 Pa. C.S. §706(a). To determine “the fair market value of the remaining property,”
“consideration” must be given to the “damages or benefits affecting the remaining
property due to its proximity to the improvement[.]” Id. To determine the value that
a “willing and informed seller and buyer” would assign to a property, expert
testimony may be used.
9
Regarding the admissibility of expert testimony in an eminent domain
proceeding, Section 1105(1)-(2) of the Eminent Domain Code provides:
(1) A qualified valuation expert may, on direct or cross-
examination, state any or all facts and data which the
expert considered in arriving at an opinion, whether or not
the expert has personal knowledge of the facts and data,
and a statement of the facts and data and the sources of
information shall be subject to impeachment and rebuttal.
(2) A qualified valuation expert may, on direct or cross-
examination, testify in detail as to the valuation of the
property on a comparable market value, reproduction cost
or capitalization basis, which testimony may include, but
shall not be limited to, the following:
(i) The price and other terms of any sale or contract
to sell the condemned property or comparable property
made within a reasonable time before or after the date of
condemnation.
26 Pa. C.S. §1105(1)-(2)(i) (emphasis added). The Eminent Domain Code does not
define the term “comparable property.” Tedesco v. Municipal Authority of Hazle
Township, 799 A.2d 931, 936 (Pa. Cmwlth. 2002). “It merely restricts the evidence
to comparable property sold within a reasonable time before or after the
condemnation.” Id. It is up to the trial court to determine “whether a comparable
sale is admissible or, as is often articulated by our courts, ‘judicially comparable’”
on a case-by-case basis. Id.Here, Appraiser identified three valuation approaches -- the comparable
sales approach, the income approach, and the cost approach. He selected the
comparable sales approach for the Property. Under this approach, he identified four
properties, all of which were lakefront properties within the Indian Lake Resort that
sold between 2009 and 2012. Those sales occurred prior to but in relatively close
temporal proximity to the Borough’s filing of the Declaration on May 21, 2013.
10
Appraiser described how each property was similar to the subject Property, and how
each was different, and he made adjustments in accordance with basic tenets of
professional appraisal practice. Appraiser concluded that the value of the Millers’
Property prior to the taking was $390,000.00.
As for just compensation for the flowage easement, Appraiser
explained that “[a] general condemnation appraisal always involves an appraisal of
the property before the condemnation act as unaffected by the condemnation and
then we consider the effects of the condemnation act; and the difference between
those two is – is the damages,” and that the same rule applies in a case involving an
easement. R.R. at 489a (emphasis added).
To determine the post-taking value, Appraiser considered the effect of
the condemnation act. He reviewed the Declaration and the Ordinance. He testified
that the only time that the new flowage easement would impact the Property would
be in a weather event producing 30 inches of rainfall in a 12-hour period or 27 inches
of rain over a 6-hour period. As for the likelihood of such a weather event, Appraiser
relied on the Wistar Report. According to the Wistar Report, the probability of such
a maximum precipitation triggering event occurring at Indian Lake is extremely rare
-- .0004% or once every 250,000 years. O.R., Board of View Proceeding, 9/27/17,
Borough Exhibit Nos. 8 and 9; O.R., N.T., 9/15/20, at 208; see R.R. at 503a-04a.
Appraiser considered the fact that the Millers are “entitled to the full use and
enjoyment of the site,” and that there are no building restrictions within the expanded
flowage easement. R.R. at 503a. Appraiser also described the unique characteristics
of a flowage easement and how it is not a physical taking in the usual sense of a
regular sewage easement. Id. Because the likelihood of a maximum precipitation
event and use of the flowage easement was so unlikely, Appraiser testified that a
11
willing and informed buyer would not consider it a factor in arriving at the price.
Therefore, he did not compare post-condemnation properties. Ultimately, Appraiser
concluded that the post-value of the Property was $390,000.00 -- the same as the
pre-condemnation value. He testified: “My opinion of value is unchanged from the
before value. I see no damages.” Id.The Millers argue that the properties used by Appraiser in his valuation
were not comparable. However, this is not a basis upon which to exclude
Appraiser’s testimony. As the trial court correctly explained when denying the
Millers’ motion in limine: “Any differences between those properties and the
[Millers’] [P]roperty can be further developed by counsel during cross-
examination.” Trial Court Op., 9/4/20, at 11; R.R. at 266a. The Millers had the
opportunity to point out the differences during cross-examination. The trial court
determined that the four properties were comparable because they were similar in
type and class and there was no indication that the sales were made under special
circumstances. Trial Court Op., 9/4/20, at 11; R.R. at 266a.
The Millers also challenge the methodology used by Appraiser, arguing
that it does not pass muster under the Frye8 doctrine, which stands for the proposition
that novel scientific evidence is admissible only if its methodology is generally
accepted in the relevant scientific community. Grady v. Frito-Lay, Inc., 839 A.2d
1038, 1044 (Pa. 2003). The Millers’ reliance on Frye is misplaced because the
comparable sales approach used by Appraiser was not “novel,” and is regularly used
in condemnation proceedings. See Lehigh-Northampton Airport Authority v. Fuller,
862 A.2d 159, 166 (Pa. Cmwlth. 2004). As for Appraiser’s failure to consider post-
condemnation values, he was not required to do so. Section 1105(2)(i) of the
8
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The doctrine was adopted by the
Pennsylvania Supreme Court in Commonwealth v. Topa, 369 A.2d 1277 (Pa. 1977).
12
Eminent Domain Code specifically authorizes the valuation of property based on
comparable properties sold “before or after” the condemnation. 26 Pa. C.S.
§1105(2)(i) (emphasis added). Indeed, the 1964 comment to Section 1105(2)(i)
states that “[t]he purpose of the subclause is to emphasize that any sale of or contract
or agreement to sell the condemned property or comparable property, if not too
remote in time, is admissible in evidence, both on direct and cross[-]examination, as
both impeaching evidence and as evidence of value.” Id. cmt. Furthermore,
Appraiser explained that the flowage easement had no effect on the value of the
Property because of the unlikelihood of an extreme precipitation event triggering the
use of the flowage easement and the fact that the Millers retained the full use and
enjoyment of the Property. R.R. at 502a-03a. Therefore, in his opinion, it was
unnecessary to compare values with post-condemnation properties. The Millers had
a full and fair opportunity to present their own witnesses, including their own
professional real estate appraiser, to challenge Appraiser’s methodologies and
conclusions.
The Millers also take issue with Appraiser’s reliance upon the Wistar
Report. Our courts have held that experts, by necessity, may rely on the reports of
others, even reports not admitted into evidence. Milan, 620 A.2d at 727; see 26
Pa. C.S. §1105(1) (qualified valuation expert may state any or all facts and date upon
which he considered in arriving at an opinion). Those reports are subject to
impeachment and rebuttal. 26 Pa. C.S. §1105(1). Appraiser testified that he relied
upon the Wistar Report to form an opinion as to the likelihood of a maximum
precipitation event of approximately 30 inches of rainfall over a 12-hour period or
27 inches of rainfall over a 6-hour period. Based on the Wistar Report, Appraiser
concluded that the chance of a precipitation event was extremely rare. R.R. at 502a-
13
03a. The Millers had the opportunity to challenge the Wistar Report and present
their own evidence regarding likelihood of a weather event triggering the flowage
easement. In addition, the Millers had the opportunity to cross-examine Wistar
himself regarding his conclusions. See O.R., N.T., 9/15/20, at 211-15.
Upon review, both parties had a full and fair opportunity to present
evidence regarding the Property’s value based on comparable sales and to scrutinize
and rebut the evidence presented by or relied upon by the other party. Appraiser’s
testimony was subject to cross-examination and was ultimately a matter of
evidentiary weight and credibility for the jury. See Lehigh-Northampton, 862 A.2d
at 163. We, therefore, conclude that the trial court did not err or abuse its discretion
by admitting Appraiser’s testimony and denying the Millers’ motions to preclude or
strike the same.
B. Jury Instructions
Next, the Millers contend that the trial court erred by using the model
jury instruction and rejecting the Millers’ proposed adaption of it that the jury should
assume that the Borough would use the flowage easement “to the fullest extent the
law permits.” R.R. at 241a. The trial court’s instruction disregarded the plain
language of the Declaration by ignoring the use of the term “initially.” R.R. at 458a.
The Declaration provides: “Initially, the expansion of said flowage easements is
necessitated by renovations to the breast of Indian Lake’s dam[,] which as a result
of unusual weather events cause the temporary impoundment of water upon the
[waterfront] properties” owned by the Millers. R.R. at 458a (emphasis added). The
use of the word “initially” makes it clear that the easement is not restricted to the
overflowing dam and that this is just the initial usage. The trial court ignored that
term to conclude that the flowage easement could be used only for “occasional
14
flooding” as a result of extreme weather conditions. The trial court compounded
this error by prohibiting argument or cross-examination relevant to the proposed
instruction.
The applicable “standard of review when considering the adequacy of
jury instructions in a civil case is to determine whether the trial court committed a
clear abuse of discretion or error of law controlling the outcome of the case.”
Phillips v. Lock, 86 A.3d 906, 916-17 (Pa. Super. 2014) (citations and quotations
omitted).
Based on Section 22.60 of the Pennsylvania Suggested Standard Civil
Jury Instructions, the trial court charged the jury as follows:
In this case, [the Borough] condemned only a part of [the
Millers’] [P]roperty. To determine the fair market value
of the remaining property, you must consider how [the
Borough] will use the condemned property and how that
use will affect the remaining property. You should
consider whether the Borough’s use for the condemned
property will cause special damages or benefits to the
remaining property.
R.R. at 542a; accord Pa. SSJI (Civ), §22.60 (2020). The model jury “instruction is
derived from [S]ection 706 of the Eminent Domain Code[, 26 Pa. C.S. §706] . . . .”
Pa. SSJI (Civ), §22.60, subcommittee note. While suggested standard jury
instructions are not binding, “what is important is whether the charge as a whole
provides a sufficient and correct legal basis to guide a jury in its deliberations.” City
of Philadelphia v. Duda by Duda, 595 A.2d 206, 212 (Pa. Cmwlth. 1991).
It cannot be reasonably argued that a trial court’s use of a standard jury
instruction constitutes reversible error. Nevertheless, the Millers contend that the
use of the model instruction is intertwined with the use of the easement. The Millers
argue that, because the trial court’s conclusion that the Borough’s use of the
15
easement was limited and remote is at odds with the plain language of the
Declaration, the model instruction was insufficient.
The Borough’s use is limited to the purpose of the taking as set forth in
the Declaration and the Ordinance. The Declaration clearly details that the purpose
of the taking is “to acquire by condemnation flowage easements for occasional
flooding necessitated by requirements of [DEP] to increase the size of the easements
for the rise and fall of water at Indian Lake to an elevation of 2,295.5 feet from a
previous flowage easement elevation of 2,290 feet authorized by deed covenants.”
R.R. at 457a. The Declaration provides:
5. The purpose of this condemnation is to acquire for
public purposes as more fully set forth in Ordinance
aforementioned, which purposes stated therein are
incorporated herein by reference as fully as though the
same were herein set forth at length. Initially, the
expansion of said flowage easements is necessitated by
renovations to the breast of Indian Lake’s dam which as a
result of unusual weather events cause the temporary
impoundment of water upon the [waterfront] properties
owned by the Condemnees identified in Exhibit A
attached hereto . . . .
R.R. at 458a. The Ordinance similarly provides that the purpose of the
condemnation is to enlarge the flowage easements for occasional flooding in order
to comply with DEP requirements. R.R. at 465a. Although the term “initially” is
used in the Declaration, there is no other stated purpose in the Declaration or the
Ordinance authorizing the condemnation or the use of the easement. We will not
read into the Declaration and the Ordinance a purpose or intention that is not there.
See Rossiter v. Whitpain Township, 170 A.2d 586, 588 (Pa. 1961).
Contrary to the Millers’ assertions, the trial court accurately
summarized the purpose of the Declaration stating:
16
[T]he clear and express purpose of the Declaration . . . in
this case is for a deed of flowage easement for occasional
flooding necessitated by requirements of [DEP] to
increase the size of easements for the rise and fall of Indian
Lake to an elevation of 2295.5 feet in connection with the
raising of the height of the breast of the dam at Indian Lake
to account for occasional flooding caused by unusual
weather events.
Trial Court Order, 9/14/20 (capitalization omitted); R.R. at 340a.
Because there are no other uses than those expressly set forth in the
Declaration and the Ordinance, the trial court did not err or abuse its discretion in
rejecting the Millers’ proposed jury instruction that the Borough would use the
easement “to the fullest extent the law permits,” and prohibiting argument regarding
the same. As the trial court found, the Millers’ proposed jury instruction “attempted
to include speculative, and realistically, impossible, uses that are inconsistent with
the purpose stated in the Declaration . . . and [the] Ordinance.” Trial Court Op.,
02/01/21, at 3-4, R.R. 584a-85a.
IV. Conclusion
Accordingly, we affirm.
MICHAEL H. WOJCIK, Judge
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Richard Miller and Mary Lou Miller, :
:
Appellants :
:
v. : No. 1269 C.D. 2020
:
The Borough of Indian Lake :
ORDER
AND NOW, this 16th day of November, 2021, the judgment entered by
the Court of Common Pleas of Somerset County, dated December 3, 2020, is
AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge