Private Roads

The Commonwealth of Pennsylvania has a statute, as do many states and Commonwealths, that allows a private party to exercise the power of eminent domain over a neighbor's property so that no property will remain without access to a public street or way. Given my “Musings on a Commonwealth”, this may seem a strange place to go immediately after, but to me this so simply illustrates the tension and relationship between private interests and rights and the public interest.

So first to the statute. It has old origins, dating from the Act of June 13, 1836, Act No. 169 of 1836. It was amended by Act No. 316 of 1927, P.L. 485 (1927), to provide that the Commonwealth could be a petitioner in certain circumstances. The language is stilted and difficult to read, but provides as follows:

The several courts of quarter sessions shall, in open court as aforesaid, upon the petition of one or more persons, associations, partnerships, stock companies, or corporations, for a road from their respective lands or leaseholds to a highway or place of necessary public resort, or to any private way leading to a highway, or upon the petition of the chief executive officer of any executive or administrative department of the State Government for a road from any public highway across any lands of any person, association, or corporation to the boundary line of any lands owned, controlled, or administered by the Commonwealth, direct a view to be had of the place where such road is requested, and a report thereof to be made, in the same manner as is directed by the said act of thirteenth June, one thousand eight hundred and thirty six.

36 P.S. §2731.

What this means is layman's terms is that someone can take your property, without your permission, and turn it into their private property. True enough, the conversion is for the limited purpose of a road. However, this is a road that could allow anything from a farm field, to a hunting cabin to a home to a business to a Walmart. There is no provision in the statute itself that such a thing needs to be for a purpose with any intrinsic value.

Now to the philosophy.

It seems as early as 1885 the Supreme Court of the Commonwealth of Pennsylvania recognized the inconsistency of this statute. They stated that to take private property for a private purpose was on its face unconstitutional. In re Road in Plum Creek Township, 110 Pa. 544, 1 A. 431 (1885). The funny thing is that we might question that concept. Our Commonwealth, in fact our very nation, was founded on the concept of personal property and the inalienable right to property. The roots of this go back to England and the Magna Charta.

But despite this obvious inconsistency, the statue has remained valid. In a recent court argument, the attorney representing the landowner who wanted to take his neighbor's property stated that it was “obvious” that it was in the public interest to have all property accessible to a public street or way. Although the attorney did not elaborate upon the reasons, he did reference the case of Mazzante v. McClintock, 976 A.2d 648 (Pa. Cmwlth. 2009). This case discusses the public purpose behind why one neighbor can force the other neighbor to give them their property. It states this public purpose as opening up otherwise inaccessible land for development. Essentially, the reasoning assumes that development of property is good. Conversely, the inability to develop property is bad.

But what makes this so? The Pennsylvania Supreme Court, while refusing to invalidate the statute, divided on the issue and insisted upon more of a showing of public purpose than the indefinite public good shown by the reasoning in Mazzante. Opening of a Private Road for the Benefit of Timothy P. O’Reilly, 607 Pa 280, 5 A.3d 246 (2010). This case has not been finally decided, and may never be decided, as the parties may settle out of court. But that should not stop us from examining the issue.

For the neighbor whose land is taken, the development is almost uniformly negative. However, the level of negativity can range from almost zero for a small access road on a remote section of a large tract, to horrifying for a road right next to one's dream home to be used as access for a junkyard or a mine site or an oil and gas operation. Critics may say that this negativity is compensated by damages. However, the public good could just as easily argue the converse: the neighbor who denies someone access could be forced to pay the landlocked neighbor for the loss in value caused by the landlocking of the property.

But this analysis is not meant to give legal advice. Each situation is different, and each decision will turn on its own facts and the personalities and needs of the people involved. The intent here is to examine the bigger question of what should really be done. Should one landowner compensate another?

There is, of course, another answer. One which serves the common weal and illustrates why this is a good topic to follow the musings on the meaning of a Commonwealth. Land next to open space typically increases in value. This has been referenced in numerous articles. See, “Economic Impacts of Protecting Rivers, Trails, and Greenway Corridors, atfiles.org/files/pdf/NPSecon1.pdf, and the studies compiled therein; Kroeger, Timm, Ph.D., “Open Space Property Value Premium Analysis”, National Council for Science and the Environment 2006 Wildlife Habitat Policy Research Program Project Topic 1H: Development of an Operational Benefits Estimation Tool for the U.S., June 2008. A simple Google search will turn up many more examples. People have been shown to value living and working near open space. The environment is served by wild places which can serve as refuges for animals, plants and even insects. This natural environment serves to clean water through wetlands, clean air through plants and photosynthesis. Even if the land is nothing but rocks and appears to be fallow, it has life on it which provides detritus and food for animals living and being part of ecosystems elsewhere. It is part of the intricate web of life and balance of nature.

Thus, an undeveloped property serves the public in a myriad of ways from mercenary to spiritual. The point is that if the property being undeveloped serves a public purpose, why don't the citizens of the Commonwealth step up and acquire the property for the public good. And if development of a certain property is in the public's best interest (and most assuredly development sometimes is in the public good) then why doesn't the Commonwealth exercise eminent domain to get access to the property. The answer, of course, is that the Commonwealth instead chose to pass a statue that forces the public good to be placed upon individual private citizens. A situation no one should accept.

Only time will tell if the Commonwealth and its citizens will recognize public benefit and put their common finances toward its protection. Only in this way can we also direct what is truly in the public benefit. Finally, it does not leave the acquisition or protection of the public good to private interests and force neighbor upon neighbor.