anticipate the most severe flood which might occur within a hundred year period.
In conducting the negotiation with plaintiff Edward Bookser, a representative of the Game Commission stated to him that, if the Booksers would not accept the price offered by the Game Commission for the portion of the Booksers' land to be purchased in fee and for the flood easement, the Game Commission would condemn the entire fee, for the reason that it would not cost the Game Commission more to condemn the whole property than to condemn a portion of it with flooding easements. It is acknowledged that, with respect to all three of the properties herein, the Game Commission would not have condemned the entire fees had the plaintiffs accepted the price offered by the Game Commission for the lesser acquisitions. It is a fair inference, and I so draw it, that the policy of the Game Commission was to avoid putting to a Board of Viewers a determination of the fair value of the lesser portions of plaintiffs' properties taken in fee and the flood easements over other portions, simply by declaring a taking upon the entire fees of plaintiffs' properties.
On April 7, 1967 and June 2, 1967, the Game Commission formally adopted a single Resolution condemning in fee the entirety of the three properties in question. On September 5, 1967, the Game Commission filed a Declaration of Taking describing as the interests taken the surface rights only to the three fees in question.
Plaintiffs, as condemnees, thereupon filed in the Court of Common Pleas of Butler County Preliminary Objections to the Declaration of Taking. Plaintiffs asserted therein five or more grounds of objection, one of which challenged that part of the Declaration which stated an intention to take only the surface rights to plaintiffs' properties. After hearing, the Court rendered an Opinion which sustained the aforementioned objection, rejected another and was silent upon the remaining objections. At the same time, the State Court granted leave to the Game Commission to amend the Declaration of Taking in the light of plaintiffs' sustained objection.
The Game Commission subsequently filed an amended Declaration of Taking, whereupon plaintiffs again filed Preliminary Objections, these clearly being constitutional in nature. After hearing, the State Court entered an Order dismissing the second Preliminary Objections and rendered an Opinion grounding the dismissal upon Section 406(c) of the Pennsylvania Eminent Domain Code of 1964,
which provides that all preliminary objections must be raised at one time.
The State Court found that the constitutional objections were newly filed and were as applicable to the unamended Declaration of Taking as they were to the amended Declaration. It was thereupon concluded that plaintiffs had not raised these constitutional objections upon first opportunity and consequently had waived them.
Plaintiffs appealed from the Order dismissing their second Preliminary Objections to the Supreme Court of Pennsylvania, which affirmed per curiam. Plaintiffs did not petition for certiorari to the Supreme Court of the United States and the time for so doing has now elapsed.
Plaintiffs rather request this Federal District Court to enjoin the Game Commission from proceeding further with its condemnation.
I am met with the threshold question of whether this Court has jurisdiction over the subject matter of this action. As I read plaintiffs' Complaint, it alleges the existence of facts raising the following federal questions:
1. Whether the taking of plaintiffs' properties by the Game Commission with the intention, among others, to lease or contract out portions thereof to private sharecroppers, constitutes an unconstitutional taking for private use.
2. Whether the Game Commission's taking of plaintiffs' entire properties in fee rather than lesser portions thereof was an abuse of discretion and in bad faith.