A state statute that allows one private landowner to compel the the building of a private road over the land of a neighbor might violate the Public Use Clause held the Pennsylvania Supreme Court in In re Opening a Private Road for the Benefit of O’Reilly, No. 10 WAP 2009 (Sep. 30, 2010), a case in which a landowner challenged the Pennsylvania Private Road Act as unconstitutional. The Road Act allows:

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 the property. The Act requires the owner of the landlocked property to pay damages to persosn over whose property the new road is built; the owner is then afforded exclusive use of the road.

Slip op. at 2 (citations omitted). When O’Reilly began the process to open a private road over his neighbors’ land (he asserted the Commonwealth’s taking of land to build I-79 caused his property to become landlocked), the neighbors asserted the Road Act “facilitates an unconstitutional taking of private property for a private purpose” in violation of both the U.S. and Pennsylvania Constitutions Slip op. at 2-3.

The common pleas and Commonwealth courts rejected the challenges, and held that the Road Act was constitutional. The Commonwealth Court concluded “sua sponte, that, from the beginning of the Commonwealth, all lands in Pennsylvania were encumbered with a six percent incorporeal burden for the building of a public road system, which included private roads.” Slip op. at 7. According to the court, original land grantees were granted six percent extra land, so the Road Act was “not a taking in the ordinary sense,” but an exercise of the Commonwealth’s police power, and merely regulated a property owner’s use of her land. The court also held that even if analyzed as an exercise of eminent domain power, the Act served the public purpose of insuring that “otherwise inaccessible swaths of land in Pennsylvania would [not] remain fallow and unproductive.” Slip op. at 7.

The Pennsylvania Supreme Court rejected both rationales. The court concluded that the Act was not merely regulation of property, but was a taking because it requires property owners to allow physical invasions of their land:

[W]e reject Appellee’s argument that the creation of a private road under tthe Act is not a taking, but, instead, embodies reasonable regulation of property usage or provision of an otherwise unavilable private easement, both exercised under the Commonwealth’s police power. As Appellants correctly observe, 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.

Slip op. at 18 (citations omitted). The court held that both the U.S. and Pennsylvania Constitutions require that takings be for public use, and “[t]his Court has maintained that, to satisfy this obligation, the public must be the primary and paramount beneficiary of the taking.” Slip op. at 19.

The court relied on Middleship Township v. Lands of Stone, 939 A.2d 331 (Pa. 2007) to reject the Commonwealth Court’s conclusion that some public benefit is enough to constitute “public use.” It is not enough to simply measure the public benefit, but it must be compared to the private benefit and in order for the taking to be constitutinal, the public benefits must be primary and paramount. Consequently, although the Supreme Court accepted that there might be some public benefit stemming from the Road Act’s keeping of otherwise inaccessible land from being “fallow and unproductive,” it concluded that the court below did not “attempt to confirm that the public is the primary and paramount beneficiary” of the road taking. Slip op. at 20.

The Supreme Court remanded the case for an inquiry into whether the private taking was so connected to the Commonwealth’s earlier taking for I-79 which allegedly landlocked O’Reilly’s parcel such that it could be said that the public is the primary beneficiary of the otherwise private taking.

Three justices dissented and would have held the Road Act constitutional and “the constitutionality of the Private Road Act (Act) is well settled” because the Pennsylvania Supreme Court, despite many opportunities, had never held it unconstitutional, and the Pennsylvania legislature has never repealed it, even after Kelo. The dissenting justices also analogized the Act to the common law doctrine of easement by necessity, “which has long been used to allow a landlocked landowner to access a public highway over another’s private land when no other relief is available.”