Appeal from the Order of the Court of Common Pleas of Butler County in case of Sunbeam Coal Corporation v. Commonwealth of Pennsylvania, Pennsylvania Game Commission, No. A.D. 210 September Term, 1968.
Leo M. Stepanian, with him Brydon & Stepanian, for appellant.
Richard L. McCandless, with him Dillon, McCandless, King & Kemper, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge DiSalle did not participate. Opinion by President Judge Bowman.
[ 37 Pa. Commw. Page 470]
Sunbeam Coal Corporation (Sunbeam) has appealed from an order of the Court of Common Pleas
[ 37 Pa. Commw. Page 471]
of Butler County which sustained the preliminary objections of the Pennsylvania Game Commission (Commission) to Sunbeam's motion to appoint a new board of view in this eminent domain proceeding. For the reasons stated below, we reverse and remand.
The protracted procedural history of this litigation is presently lumbering into its twelfth year. On June 2, 1967, the Commission adopted a resolution wherein it resolved to "acquire by condemnation a fee simple estate or interest in and to all tracts of land in the Glades Project situate in Cherry, Concord and Washington Townships, Butler County, including all tracts not under option and all of the rights, titles and interests of [inter alia] . . . Kenneth Hindman. . . ." (Emphasis added.) On July 13, 1967, the Commission filed a declaration of taking against Hindman.*fn1 The declaration of taking, after citing to the authorization of the June 2, 1967 resolution and setting forth a detailed survey description of the tract of land, contained the following paragraph:
7. The nature of the title or interest hereby appropriated and acquired by the Condemnor [Commission] is the surface only of the land hereinbefore described and of each and every part thereof, excepting the outstanding estates or interests in the minerals (including oil and gas) in, on and underlying the same with the mining rights as heretofore reserved or conveyed in prior deeds of record, if any. . . . (Emphasis added.)
On August 18, 1967, a lease was executed between Hindman and Sunbeam, whereby Sunbeam acquired
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the right to mine "all the limestone in, under and upon" Hindman's tract of land. The lease agreement was recorded on September 7, 1967.
On September 4, 1968, Sunbeam filed a petition for the appointment of viewers which represented the following: (1) that the Commission, by its June 2, 1967 resolution, resolved to acquire by condemnation a fee simple interest in Hindman's land; (2) that Sunbeam acquired a lease of the limestone in, under and upon said tract on August 18, 1967; and (3) "[t]hat no Declaration of Taking has yet been filed by the Commonwealth of Pennsylvania, Pennsylvania Game Commission against Sunbeam Coal Corporation nor has any notice been given to Sunbeam Coal Corporation of a Declaration of Taking." The court promptly ...