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WILLIAM G. AVERY v. COMMONWEALTH PENNSYLVANIA (04/23/71)

decided: April 23, 1971.

WILLIAM G. AVERY, ET UX., ELIZABETH MALONEY, ET AL., NELLIE M. STORCH, ET AL.
v.
COMMONWEALTH OF PENNSYLVANIA



Consolidated appeals from the Orders of the Court of Common Pleas of Bradford County at Nos. 41 and 42 April Term, 1969, and No. 127 October Term, 1969, in cases Commonwealth v. Elizabeth Maloney, et al.; Commonwealth v. William G. Avery, et ux.; Commonwealth v. Nellie M. Storch, et al.

COUNSEL

James W. Cullen, for appellants.

Donald Reuter, Special Counsel, with him Fred Speaker, Attorney General, for appellee.

President Judge Bowman, and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer, and Rogers. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 2 Pa. Commw. Page 107]

This is an appeal from the order of the Court of Common Pleas of Bradford County, dismissing the preliminary objections of the appellants to the eminent domain declarations of taking by the Department of Forests and Waters for a State Park under Project 70, 72 P.S. § 3946. The court below joined the three for hearing and argument. We affirm.

Appellants, aside from asserting procedural irregularities with which we will deal later, have raised two questions concerning the power of the Department to condemn this land. First, they contend that the Act of May 20, 1921, as amended by the Act of July 16, 1935 (26 P.S. 261) only permits the Department to condemn land which it has attempted to purchase unsuccessfully and since the Department did not negotiate with appellants, it may not condemn. Section 261 of the Act of May 20, 1921, which granted the power of eminent domain to the Department reads in part: "Whenever the Department of Forests and Waters . . . desires to acquire land, suitable and desirable for state forest purposes, for state park purposes, . . . and a price for such lands cannot be agreed upon with the owner . . . the Department . . . is authorized to acquire said respective classes of land by condemnation." This section clearly spells out the conditions precedent to the Department's power of condemnation under that Act.

Project 70, Act of June 22, 1964, P.L. 131, No. 8, § 17, 72 P.S. 3946.17, has further provided for acquisition of lands by the Department of Forests and Waters: "Land to be acquired by the Commonwealth for recreation, conservation or historical purposes in any county, shall be approved by the Department of Forests and

[ 2 Pa. Commw. Page 108]

Waters and acquired by purchase agreement or by eminent domain proceedings in the manner provided by applicable provisions of law which may govern land acquisitions by the Department of Forests and Waters." Appellants argue that negotiation is required in that the "manner provided by applicable provisions of law" refers in part to Section 261 and thus limits the right to condemn under Project 70. We do not agree. Neither do we agree with the court below that Project 70 impliedly repealed the negotiation requirement of Section 261. Upon careful analysis we conclude that these sections can and must be read in consistence with each other.

The clause in Section 261 "and a price for such lands cannot be agreed upon with the owner" provided a condition to the power granted by that section, not the "manner" in which the "eminent domain proceedings " were to be held. Therefore, that clause is not intended to limit acquisition under Project 70 where the Legislature for the limited purpose of acquisitions under that Project provided the Department with the choice to purchase or condemn. Section 261, instead of being impliedly repealed, limits the power of the Department to condemn for purposes not governed by Project 70. It was therefore proper for the court below to dismiss the preliminary objection. The failure to negotiate contention is without merit. See also, Pittsburgh School District Condemnation Case, 430 Pa. 566, 573, 244 A.2d 42, 45 (1968).*fn1

Secondly, the appellants have contended that the Department has failed to prove the need to acquire recreational land ...


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