Appeal from the Order of the Court of Common Pleas of Butler County in case of Commonwealth of Pennsylvania acting by and through the Pennsylvania Game Commission v. 21.1 Acres of Land in Washington Township, Butler County, and Homer Renick and Patricia Renick, his wife, No. 72 June Term, 1973.
William C. O'Toole, Assistant Attorney General, with him Israel Packel, Attorney General, for appellant.
William D. Kemper, with him Lee C. McCandless and McCandless, Chew & Krizner, for appellees.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers. Judge Mencer dissents.
The Pennsylvania Game Commission, an independent administrative commission of the Commonwealth, has appealed from an order of the Court of Common Pleas of Butler County sustaining the preliminary objections of Homer Renick and Patricia Renick, his wife, to the appellant's Declaration of Taking in this eminent domain case.
The Renicks own 21.1 acres of land in Washington Township, Butler County. The Game Commission, sought by resolution and by its Declaration of Taking, to acquire the "perpetual right, power, privilege and easement occasionally to overflow, flood and submerge the . . . [Renicks' land] . . . in connection with, and incident to the construction of Glade's Dam. . . ." The principal preliminary objection made by the Renicks, sustained below, was that the Commission was without statutory power to condemn an interest in their, or any lands, of lesser dignity than that of a fee simple absolute estate.*fn1
The statutory provision in issue is Section 901 of the "Game Law of 1937," Act of June 3, 1937, P.L. 1225, 34 P.S. § 1311.901, which is, in its entirety, as follows:
"The commission may acquire title to or control of lands and/or buildings within the Commonwealth, or the hunting rights or other rights on lands, suitable for the protection, propagation, and management of wildlife, or for public hunting and trapping, or administrative purposes, or to be used as hereinafter provided, by purchase, gift, lease or otherwise.
"The commission may also acquire title to lands by condemnation proceedings in the same manner as provided for the condemnation of lands for State Forests.
"The commission may also purchase tax delinquent lands from the commissioners of the respective counties, or from the county treasurers of the respective counties as provided by law.
"The commission may acquire by purchase or otherwise timber, minerals, oil, gas, or other rights outstanding for or on land for which ...