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

COMMONWEALTH COURT OF PENNSYLVANIA


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 made an improper conclusion and an error of law.

The term presumption is often used loosely and in a variety of senses in the cases. Watkins v. Prudential Insurance Co., 315 Pa. 497, 173 A. 644 (1934).

A presumption is a procedural device which shifts the burden of persuasion or the burden of going forward with the evidence. An inference, on the other hand, is simply a clear, logical, reasonable and natural conclusion which the trier of fact may embrace or reject based on the evidence in the case. Commonwealth v. Shaffer, 447 Pa. 91, 288 A.2d 727 (1972). The employment in this case of the term "presumption" is due simply to its historical usage; presumption was originally a term equivalent in one sense to an inference. From the Board's opinion it is clear that it was dealing only with a permissible inference because the evidence competently established that the tote road was constructed and that the lumber was actually removed and sold. It was clear and reasonable to infer that this occurred before the Bixler claim.

Bixler also contends that the wrong procedure was used at the hearing. Section 137.9 of the Pennsylvania Code, 4 Pa. Code § 137.9, provides that the party who enters a caveat shall become the plaintiff and shall open the case. This procedure was not followed at the hearing before the Board. However, it is clear from the record that the Hoverters met their burden of proof with substantial evidence. We affirm.

[ 89 Pa. Commw. Page 92]

Order

The order of the Board of Property for Patent No. 718, dated April 25, 1984, is hereby affirmed.

Judge Williams, Jr., did not participate in the decision in this case.

Disposition

Affirmed.


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