decided: February 4, 1977.
EZRA C. STAIR AND LOIS A. STAIR, HIS WIFE
COMMONWEALTH OF PENNSYLVANIA, FOR THE USE OF THE PENNSYLVANIA GAME COMMISSION. EZRA C. STAIR AND LOIS A. STAIR, HIS WIFE, APPELLANTS
Appeal from the Order of the Department of Community Affairs, Board of Property, in case of Ezra C. Stair and Lois A. Stair, his wife v. Commonwealth of Pennsylvania, for use of the Pennsylvania Game Commission.
N. Brian Caverly, with him John C. Eichorn, and Aston, Fine, McHugh, Caverly, Wetzel & Geist, P.C. for appellants.
Jeffrey Cooper, Assistant Attorney General, with him Benjamin B. Solomon, Assistant Attorney General, Norman J. Watkins, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellee.
Judges Kramer, Wilkinson, Jr. and Rogers, sitting as a panel of three. Opinion by Judge Wilkinson.
[ 28 Pa. Commw. Page 458]
This appeal arises from an order of the Board of Property (Board) dismissing appellants' petition for want of jurisdiction. We reverse and remand.
Appellants allege ownership of certain culm banks located on land acquired by the Commonwealth for the use of the Pennsylvania Game Commission. All parties agree that the culm banks constitute personal property.*fn1 Appellants claim title to the culm and the Commonwealth claims title to the land by virtue of deeds from a common grantor. Appellants seek to remove the culm banks and ask for reimbursement for any part thereof which has been appropriated by the Commonwealth.
[ 28 Pa. Commw. Page 459]
Appellants filed a petition before the Board to which the Commonwealth filed preliminary objections attacking the Board's jurisdiction.*fn2 After a hearing, the Board dismissed appellants' petition holding that the issue involved appropriation of personal property over which the Board had no jurisdiction. This appeal followed.
The jurisdiction of the Board is conferred by Section 1207 of the Administrative Code of 1929.*fn3 It provides:
The Board of Property shall, subject to any inconsistent provisions in this act contained, continue to exercise the powers and perform the duties by law vested in and imposed upon the said Board.
It shall hear and determine, in all cases of controversy on caveats, in all matters of difficulty or irregularity touching escheats, warrants on escheats, warrants to agree, rights of preemption, promises, imperfect titles, or otherwise, which heretofore have or hereafter may arise in transacting the business of the Land Office in the Department of Community Affairs: Provided, however, That no determination of the Board of Property shall be deemed, taken or construed to prevent either of the parties from bringing their action at the common law, either for the recovery of possession or determining damages for waste or trespass.
The Board of Property shall also have jurisdiction to hear and determine cases involving the title to land or interest therein brought
[ 28 Pa. Commw. Page 460]
by persons who claim an intereset in the title to lands occupied or claimed by the Commonwealth.*fn4
This case does not simply involve the appropriation of personal property as the Commonwealth contends. At issue is whether the ownership of the culm banks creates a controversy "involving the title to land or interest therein" within the meaning of Section 1207. We believe that it does, because if title to the culm can be proven, appellants would have an easement to enter the land to remove their property.*fn5 While the Board may incidentally have to first determine title to the culm, this does not preclude the Board's jurisdiction
[ 28 Pa. Commw. Page 461]
when such a determination is necessary to decide whether an interest in land exists.
We must, therefore, reverse and remand this case for a determination of whether appellants have title to the culm banks and, if so, to determine appellants' right of entry upon the Commonwealth's land. The Board may not grant damages for an unlawful appropriation, however. Granting such an award would be beyond the Board's statutory authority.*fn6
Accordingly, we will enter the following
Now, February 4, 1977, the order of the Board of Property, filed March 25, 1976, is reversed and the record is remanded for a determination on the merits.
Reversed and remanded.