The PA Supreme Court recently ruled that the PA Private Road Act may facilitate unconstitutional takings. In In the Matter of Opening a Private Road For The Benefit of Timothy P. O’Reilly, a landlocked property owner proceeded under the Private Road Act to open a private road to connect to a public road. The Private Road Act permits the owner of a landlocked property to petition the Court of Common Pleas for the appointment of a board of viewers to evaluate the necessity of a private road to connect such property with the nearest public thoroughfare or private way leading to a public thoroughfare. Upon a finding of necessity, the board will lay out a private road to cause the least damage to private property. The Act requires the owner of the landlocked property to pay damages to persons over whose property the new road is built; the owner is then afforded exclusive use of the road.

The owners of the property where the proposed private road would be located filed preliminary objections alleging that the Private Road Act facilitates an unconstitutional taking of private property for a private purpose in violation of the Fifth Amendment to the US Constitution and similar sections of the PA Constitution. They claimed that the PRA is unconstitutional because it facilitates the transfer of property from one private property owner to another private property owner for a private use. The landlocked property owner argued, in part, that the creation of a private road under the Act is not a taking, but, instead, embodies reasonable regulation of property usage or provision of an otherwise unavailable private easement, both exercised under the Commonwealth's police power.

The trial court overruled the preliminary objections and the Commonwealth Court affirmed that decision. The PA Supreme Court vacated the Commonwealth Court’s decision and ruled that the creation of a private road is a taking. It held that “irrespective of the police-powers rubric, a physical invasion and permanent occupation of private property, such as that which would be accomplished by the creation of a private road under the Act, is a taking.” The Court also concluded that the lower courts did not perform the necessary analysis to determine if the taking was proper under the test for whether a taking is for a public use. Therefore, the Court remanded the case to perform that analysis.

It will be interesting to see how the lower courts deal with this issue. It is the first time the PA Supreme Court considered this issue and it could open the door to challenges of any taking under the PRA.