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BURNADETTA BIXLER v. LAWRENCE L. AND JULIA Z. HOVERTER (05/01/85)

decided: May 1, 1985.

BURNADETTA BIXLER, PETITIONER
v.
LAWRENCE L. AND JULIA Z. HOVERTER, RESPONDENTS



Appeal from the Order of the Commonwealth Board of Property in case of Burnadetta Bixler v. Lawrence L. and Julia Z. Hoverter, Patent No. 718, dated April 25, 1984.

COUNSEL

Daniel L. Sullivan, Shearer, Mette & Woodside, for petitioner.

Allan W. Holman, Jr., for respondents.

Judges Doyle and Barry, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish. Judge Williams, Jr., did not participate in the decision in this case.

Author: Kalish

[ 89 Pa. Commw. Page 89]

Burnadetta Bixler (Bixler) has appealed from an order of the Board of Property (Board) denying her

[ 89 Pa. Commw. Page 90]

    application for a patent for a number of acres of unimproved and vacant land, and granting Lawrence L. and Julia Z. Hoverter (Hoverters) reasonable time to file an application for a patent for the same land. On June 2, 1978, Bixler filed an application for a patent on 9.5*fn1 acres of ground in Perry County, Pennsylvania. The Hoverters subsequently filed a caveat to the application and, following the Board's decision, an application for a patent.

Section 4 of the Pennsylvania Public Lands Act (Act), Act of July 9, 1959, P.L. 510, 64 P.S. § 604, provides that any person may make an application for tract of vacant or unappropriated land and, if all the prerequisites*fn2 are met, a patent will be issued, provided that there has been a disposal of any caveat. However, no patent can be issued where the land, as a whole or in part, has been cleared and fenced or otherwise improved. Section 14 of the Act, 64 P.S. § 614.

After holding hearings, the Board concluded the Hoverters had improved the land within the meaning of Section 14 of the Act by constructing a tote road for lumbering purposes through the disputed land

[ 89 Pa. Commw. Page 91]

    during the summer of 1977, and had contracted for and were actually cutting timber from the land prior to any knowledge of Bixler's claim.

Bixler contends that since the Board stated "that there is no evidence which contradicts the presumption that the tote road was constructed prior to any claim by Bixler," the Board ...


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