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WARREN L. KISTER ET UX. v. COMMONWEALTH PENNSYLVANIA (10/07/83)

decided: October 7, 1983.

WARREN L. KISTER ET UX., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, ACTING BY AND THROUGH THE PENNSYLVANIA FISH COMMISSION, ETC., RESPONDENT



Appeal from the Order of the Department of Community Affairs, Board of Property, in case of Warren L. Kister and Janet O. Kister, his wife v. Commonwealth of Pennsylvania acting by and through the Pennsylvania Fish Commission, an independent administrative commission of the Commonwealth of Pennsylvania, No. BP-80-13.

COUNSEL

James A. Kudasik, for petitioners.

Dennis T. Guise, Chief Counsel, for respondent.

Judges Rogers, Blatt and Craig, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 77 Pa. Commw. Page 431]

Warren L. Kister and Janet O. Kister, his wife, have filed a petition for review of an order of the Pennsylvania Department of Community Affairs, Board of Property, dismissing for lack of jurisdiction, their petition in the nature of an Action to Quiet Title. We reverse the board's order and remand the record to the Board of Property for disposition of the petitioners' complaint on its merit.

A brief history of this cause is as follows: Charles B. Kister, the father of Warren O. Kister, acquired a farm property in Somerset County. In the year 1955 the Pennsylvania Fish Commission acting through the Attorney General of Pennsylvania, filed a petition in the Court of Common Pleas of Somerset County averring that it proposed "to construct a fish propagation dam and lake . . . and for this purpose it is necessary that the petitioners acquire a portion of a tract of land belonging to Charles B. Kister." The tract

[ 77 Pa. Commw. Page 432]

    was described by metes and bounds and is recorded as containing 99.812 acres. The prayer of the petition was for the appointment of a jury of view, which being appointed, awarded Charles B. Kister damages for the take in the amount of $27,000. The dam and lake were constructed. In November, 1965, Charles B. Kister and Katie Landis Kister, his wife, the latter being Warren L. Kister's stepmother, executed and delivered to the petitioners a deed conveying five parcels of land seeming by their descriptions to contain a total of about one hundred and sixty acres. The following appears just after the description:

EXCEPTING AND RESERVING from the above conveyances, 99.812 acres previously conveyed by the above Grantor to the Commonwealth of Pennsylvania for Lake Somerset by Deed dated the day of , 19 , and recorded in Deed Book Volume , page , according to draft attached hereto.

In fact, however, Charles B. Kister never conveyed the 99.812 acre tract to the Commonwealth.

In 1973 Warren L. Kister and Janet O. Kister entered into an oil and gas lease with an individual which lease included the oil and gas beneath the 99.812 acres which had been taken by the Fish Commission. This lease was subsequently assigned by the lessee to Amoco Production Company.

In 1979, after a discovery of gas in the neighborhood, the Fish Commission entered into an oil and gas lease for its lands, including the former Charles B. Kister ...


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