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COMMONWEALTH PENNSYLVANIA v. DAVID A. KEOWN AND EVELYN M. KEOWN (02/27/84)

decided: February 27, 1984.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA GAME COMMISSION, PETITIONER
v.
DAVID A. KEOWN AND EVELYN M. KEOWN, HIS WIFE, RESPONDENTS



Appeal from the Order of the Pennsylvania Board of Property in the case of David A. Keown and Evelyn M. Keown, his wife v. Commonwealth of Pennsylvania through the Pennsylvania Game Commission, dated September 28, 1982.

COUNSEL

William R. Pouss, Assistant Counsel, for petitioner.

James A. Huff, II, with him R. Thomas Forr, Jr., Sullivan, Forr & Stokan, for respondents.

President Judge Crumlish, Jr. and Judges MacPhail and Doyle, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 80 Pa. Commw. Page 472]

The Pennsylvania Game Commission (Commission) appeals to this Court from an order of the Board of Property (Board) which held that the Commission had encroached 89 feet upon lands of Mr. & Mrs. Keown (Appellees) for the entire length of their eastern boundary and enjoined the Commission from disturbing Appellees' peaceful enjoyment of the disputed land. We will affirm.

This litigation began as a petition by Appellees to the Board for resolution of a boundary dispute between the Commission and Appellees. Jurisdiction in such matters is lodged in the Board by virtue of Section 1207 of The Administrative Code of 1929 (Code), Act of April 9, 1929, P.L. 177, as amended, 71 P.S. ยง 337. It appears that the Appellees' petition was filed with the Board on or about May 10, 1976. A Board hearing was held November 30, 1977. The Board's decision was dated September 28, 1982. None of the members of the Board who heard the case were members of the Board who decided the case.

The Commission argues that the critical findings of fact made by the Board are not supported by substantial evidence; that the Board's conclusion regarding the location of the Commission's western boundary as it affects Appellees' eastern boundary was in error; and that the Board's decision was not in accordance with the law.

Boundary disputes are always difficult, especially where deeds and surveys vary and competent surveyors differ in their conclusions. A complete review of the evidence heard by the Board in this case would serve no useful purpose. We will, however, endeavor

[ 80 Pa. Commw. Page 473]

    to highlight the evidence which seems critical to the result.

By deed dated January 5, 1953 and recorded January 7, 1953, Appellees became owners in fee of a tract of real estate containing 5 acres and 118.12 perches, rectangular in shape with dimensions of 321.20 feet by 778.20 feet. There is no reference in that deed to a survey; however, the tract was physically surveyed after the deed was recorded and its boundaries were confirmed thereby. The Commission became vested of its title by a deed dated June 16, 1971 and recorded June 23, 1971. The deed recites that the tract contains 3,635.7 acres by actual survey.*fn1 That survey was based in large part upon a wall map in the office of Commission's grantor. Neither the origin of, the basis for nor the surveyor who drew the wall map are known. There is no reference to the map in any of the deeds in the Commission's source of title. The description in the Commission's present deed was made without reference to deeds of record in the courthouse. The eastern boundary of Appellees' land adjoins a small portion of the western boundary of the Commission's land. It is agreed that the description in the Commission's deed of its western boundary would overlap or encroach upon Appellees' eastern boundary by 89 feet. Both parties produced surveyors as witnesses and both parties submitted drafts, surveys and deeds to support their respective positions.

Neither party disputes the well established principle that what is a boundary line is a question of law but where a boundary line is actually located is a question of fact. Murrer v. American Oil Co., 241 Pa. ...


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