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January 26, 1970

Carl HILLIARD, Pressley L. Hilliard, Ruth R. Bookser and Edward F. Bookser, husband and wife,
COMMONWEALTH OF PENNSYLVANIA acting By and Through the PENNSYLVANIA GAME COMMISSION and Glenn L. Bowers, Executive Director of the Pennsylvania Game Commission

Gourley, District Judge.

The opinion of the court was delivered by: GOURLEY

 Plaintiffs are the owners of three adjacent tracts of land located in Washington Township, Butler County, Pennsylvania. Plaintiffs Carl Hilliard and Pressley Hilliard own 78.9 acres and 82.9 acres, respectively, and plaintiffs Ruth and Edward Bookser own, in tenancy by the entireties, 79.4 acres. All of the tracts are eminently fertile farmlands, containing topsoil sixteen feet in depth which has been deposited in the area of Butler County by the prehistoric glacier movement. Plaintiff Pressley Hilliard farms and maintains a high state of cultivation upon 350 to 400 acres of tillable land to be found in the three tracts in question and other adjacent thereto.

 In 1964, the Pennsylvania Legislature enacted the Project 70 Land Acquisition Act *fn1" authorizing the Pennsylvania Game Commission to acquire lands in Butler and forty-two other Pennsylvania counties for the purpose of "conservation and propagation of game threatened by development in urban areas and for other wildlife conservation and recreation purposes." *fn2" Pursuant thereto, the Pennsylvania Game Commission drafted the Glades Waterfowl Project which contemplates the acquisition of 1533 acres of land in and about Butler County, Pennsylvania, and the creation of a 400 acre water impoundment or lake therein, for the purpose of attracting, propagating and conserving migratory waterfowl and small game. The Glades Waterfowl project also contemplates that the Game Commission will develop 300 of the aforesaid 1533 acres by sharecropping contracts pursuant to which private farmers will produce a crop three-fourths of which shall be for their own use and one-fourth of which shall be Japanese millet or food for the waterfowl or small game.

 By letter of May 10, 1965, the Executive Director of the Pennsylvania Game Commission advised the Hilliards of the Game Commission's intention to acquire by purchase agreement, among a total of twenty-six properties in Butler County, the three tracts of land owned by plaintiffs herein. A few days thereafter, on May 14, 1965, the Pennsylvania State Planning Board approved the Game Commission's Glades Waterfowl Project and accorded to the Game Commission discretion to acquire the aforementioned twenty-six properties in fee or lesser portions thereof, where hardship or other factors might justify.

 Subsequent to the action of the State Planning Board and prior to the Game Commission's filing of any declarations of taking with respect to the three properties in question, members of the State Game Commission negotiated with plaintiffs herein for the purchase in fee of the portions of their respective properties which would be within the contemplated boundaries of the impoundment or lake and, additionally, for the purchase of substantial flood easements over the remaining portions of plaintiffs' respective properties. *fn3" Said flood easements were to encompass sufficient portions of the lands not taken in fee to 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, *fn4" 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. *fn5"

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