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PENNSYLVANIA GAME COMMISSION v. J. PAUL BOWMAN ET AL. (04/09/84)

decided: April 9, 1984.

PENNSYLVANIA GAME COMMISSION, GLENN L. BOWERS AND JACOB I. SITLINGER, PETITIONERS
v.
J. PAUL BOWMAN ET AL., RESPONDENTS. J. PAUL BOWMAN ET AL., PETITIONERS V. PENNSYLVANIA GAME COMMISSION, GLENN L. BOWERS AND JACK I. SITLINGER, RESPONDENTS



Appeals from the Order of the Department of Community Affairs, Board of Property, in the case of J. Paul Bowman and Lillian Bowman, his wife; Warren Brubaker and Mary Brubaker, his wife; Warren Bucher and Ellen Bucher, his wife; Harry Reesor and Grace Reesor, his wife; Mary Blouch; Luke Hostetter and Edith Mae Hostetter, his wife; John Kleinfelter and Theresa Kleinfelter, his wife; Allen Laudermilch and Jay Kleinfelter v. The Pennsylvania Game Commission, Commonwealth of Pennsylvania, Glenn L. Bowers and Jacob I. Sitlinger, No. BP-81-1.

COUNSEL

Stuart M. Bliwas, Chief Counsel, for petitioner/respondent, Pennsylvania Game Commission.

Timothy D. Sheffey, with him James T. Reilly, Egli, Reilly, Wolfson, Sheffey and Schrum, for respondents/petitioners, J. Paul Bowman and Lillian Bowman, his wife, et al.

Judges Rogers, Palladino and Barbieri, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 81 Pa. Commw. Page 383]

The Pennsylvania Game Commission has appealed from an order of the Board of Property of the Commonwealth's Department of Community Affairs declaring that the appellees, owners of land adjoining the eastern and western boundaries of lands in title to the State Game Commission (game lands),*fn1 have an irrevocable license to use a road crossing the game lands for access to their properties.

In 1933, Warren Brubaker, the father and predecessor in title of one of the appellees, made improvements to a logging road extending from U.S. Route 322 across the game lands which were then owned by Margaret C. Buckingham and John P. C. Alden, trading as Cornwall Estate, to his, Brubaker's land, and thence to and beyond the lands now owned by the other appellees. The improvements consisted of the installation of drainage culverts, the application of crushed stone, the filling and grading of the road and the trimming of the undergrowth -- all in order that the road could be safely traveled by an automobile. In the succeeding years and until the road was obstructed by the Game Commission in 1980, the Brubaker family and the other appellees owning land adjacent to the game lands used and maintained the road for access to their land.

In 1938 Margaret Buckingham and John P. C. Alden conveyed the later game lands to the City of

[ 81 Pa. Commw. Page 384]

Lebanon. In January, 1946 the City of Lebanon conveyed it to the City of Lebanon Authority which, in April, 1980, conveyed it to the Commonwealth of Pennsylvania, For the Use of the State Game Commission.

Shortly after taking possession of the game lands, the Game Commission erected metal gates and installed cables across the road thus effectively denying the appellees the use of the road and access to their properties at least by vehicle. In June 1981, the appellees, claiming a right of easement based upon a recital in the 1938 deed from Buckingham and Alden to the City of Lebanon, filed a complaint with this court seeking an order enjoining the Game Commission and two of its employees from obstructing the road. We transferred the matter to the Board of Property which held hearings and, by order dated February 8, 1983, determined that the appellees have an irrevocable license to use the road.

Both the Game Commission and the appellees have filed petitions for review of the Board's action. The Game Commission contends that the Board erroneously found that the appellees have an irrevocable license to use the road. The appellees say that the Board erred in not concluding that they had easements over the road through the game lands.

A license is a personal and initially revocable privilege to perform an act or series of acts on the land of another. Hennebont v. Kroger Company, 221 Pa. Superior Ct. 65, 289 A.2d 229 (1972). A license to use another's land will become irrevocable where the licensee, in reliance upon it, treats his land in a way he would not have treated it except for the license, that is, by spending money for such changes as would prevent his being restored to his original position. Bieber v. Zellner, 421 Pa. 444, 220 A.2d 17 (1966).

[ 81 Pa. Commw. Page 385]

The evidence of expenditures of money or labor by the appellees on their lots in reliance upon the asserted license is rather thin. The Brubaker family once constructed on its land a cabin, which has since fallen into disrepair; the appellee, J. Paul Bowman permitted a friend to place a house trailer on his property; and the Bowman children once constructed a lean-to. There is no evidence that the other appellees made improvements to their properties. Thus, the record ...


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