Appeal from the Order of the Board of Property of the Commonwealth of Pennsylvania in case of Charles R. Hughes and Albertine M. Hughes v. Maurice K. Goddard, Secretary of Pennsylvania Department of Forests and Waters, C. Elwood Huffman, Andrew C. Long, Colonel Nicholas Biddle, John C. Herman, H. L. Buchanan, Dewey H. Miller, and Russell M. Lucas, Commissioners of the Pennsylvania Game Commission, and Pennsylvania Game Commission.
Richard A. Carothers, with him M. David Halpern, for appellants.
Robert Lesko, Assistant Attorney General, with him Benjamin B. Solomon, Assistant Attorney General, Raymond C. Miller, Deputy Attorney General, and Israel Packel, Attorney General, for appellees.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson. Dissenting Opinion by Judge Crumlish, Jr. Judge Blatt joins in this Dissent. Judge Mencer joins in this Dissent.
[ 11 Pa. Commw. Page 191]
This is an appeal from an adjudication of the Board of Property of the Commonwealth of Pennsylvania, dismissing appellants' claims to certain properties as set forth in a petition and amended petition filed against the Department of Forests and Waters, now the Department of Environmental Resources, and the Pennsylvania Game Commission. After the original petition and answer were filed in 1957, eminent domain proceedings were instituted to Nos. 1155 through 1163, September Term 1965, in Cambria County where the property is located. The records of those proceedings were not included in this proceeding before the Board, but much of the record here is devoted to determining whether the minerals that were condemned in those proceedings were under the surface that is claimed by the appellants in these proceedings. The parties agreed that the mineral rights condemned in the eminent domain proceedings were under the surface claimed here.
Before the conclusion of the eminent domain proceedings, the parties agreed to a stipulation which set forth the amount of the damages that were to be awarded appellants in each case, totaling $236,501. Judgments were entered in each case on August 28, 1967, as
[ 11 Pa. Commw. Page 192]
of June 5, 1967, in accordance with the amounts specified in the stipulation which was signed on May 22, 1967. On June 5, 1967, a release was executed which, since it is the controlling item in this litigation, is set forth here in full:
"Know All Men By These Presents, That we, Charles Robert Hughes and Albertine M. Hughes, for the sole consideration of Two Thousand ($2,000.00) Dollars lawful money of the United States to us in hand paid by the Commonwealth of Pennsylvania, Department of Forests and Waters, the receipt whereof is hereby acknowledged, have remised, released and forever discharged, and by these presents do, for ourselves, our heirs, executors, administrators and assigns, remise, release and forever discharge the said Commonwealth of Pennsylvania, Department of Forests and Waters, and its successors and assigns, of and from all claims, demands, acts, causes of action or suits at law or in equity, of whatsoever kind or nature, for or because of any matter or thing done by the said Commonwealth of Pennsylvania, Department of Forests and Waters, prior to and including the date hereof, arising out of eminent domain proceedings of the Commonwealth of Pennsylvania against lands of the plaintiffs in establishing Prince Gallitzin State Park. It is intended that this General Release include and be limited to those parcels of land, surface and mineral, within and without the park boundaries, which are contained in, covered by and the subject of litigation filed to Nos. 1155, 1156, 1157, 1158, 1159, 1160, 1161, 1162 and 1163 September Term, 1965 in the Court of Common Pleas of Cambria County, Pennsylvania.
"In Witness Whereof, we have hereunto set our hands and seals this 5th day of June, 1967."
On July 23, 1969, two years later, the appellants filed an amended petition in this proceeding, now claiming title to the ...