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WARREN L. KISTER AND JANET O. KISTER v. COMMONWEALTH PENNSYLVANIA FISH COMMISSION (07/22/86)

decided: July 22, 1986.

WARREN L. KISTER AND JANET O. KISTER, HIS WIFE, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA FISH COMMISSION, RESPONDENT



Appeal from the Order of the Department of Community Affairs, Board of Property, in the 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, No. BP-80-13, dated July 31, 1985.

COUNSEL

James A. Kudasik, for petitioners.

Dennis T. Guise, Chief Counsel, for respondent.

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

Author: Rogers

[ 99 Pa. Commw. Page 87]

Warren L. Kister and Janet O. Kister, husband and wife, (petitioners) have filed a petition for review of an order of the Pennsylvania Department of Community Affairs, Board of Property, denying the prayer of their petition in the nature of an Action to Quiet Title that they be declared to have title to the oil, gas and minerals underlying a 99.812 acre tract of land in Somerset County and that the Commonwealth acting by the Pennsylvania Fish Commission (Commonwealth) be enjoined from setting up a claim of title to the oil, gas and minerals.

A history of events culminating in this litigation may be found in Kister v. Pennsylvania Fish Commission, 77 Pa. Commonwealth Ct. 430, 465 A.2d 1333 (1983) (Kister I). We there reversed an order of the Board of Property dismissing the petitioners' action for lack of jurisdiction

[ 99 Pa. Commw. Page 88]

    and remanded the matter for disposition by the Board. That history is as follows: Charles B. Kister, father of Warren L. Kister, owned a farm in Somerset County. In April 1955, the Commonwealth filed a petition in the Court of Common Pleas of Somerset County, expressly stated to be pursuant to Section 1 of the Act of May 20, 1921, P.L. 984, as amended, 26 P.S. ยงยง 261, declaring that it proposed to construct a fish propagation dam and lake in Somerset County and that "for this purpose it is necessary that the petitioner acquire a portion" of Charles B. Kister's property. The portion taken was the 99.812 acre tract. The Commonwealth further represented in the petition for viewers that Charles B. Kister was the owner in fee simple of the land being acquired and that it, the Commonwealth, had attempted to purchase land from Charles B. Kister but a price could not be agreed upon. The prayers of the petition were that the court appoint viewers and that it fix a time when the viewers "shall meet upon the land and view the same and all improvements in connection therewith and determine the fair and reasonable price to be paid by the petitioner for said lands." Viewers were duly appointed, met, and on June 23, 1955 reported to the court that they had viewed the premises "to determine what if any damage may result from the appropriation of about 100 acres of [Charles B. Kister's] farm by the Commonwealth . . . for a . . . dam or lake"; that the farm contained a total of about 165 acres, leaving 65 acres "after the condemnation"; that the use of the farm "will be appreciably lessened by the condemnation"; and that they awarded the owner "$27,000 for the land condemned." The viewers' report is in the record.

As we reported in Kister I, Charles B. Kister and his then wife conveyed all of his lands to the petitioners Warren L. and Janet O. Kister in 1965 by a deed

[ 99 Pa. Commw. Page 89]

    excepting and reserving the 99.812 acres which had been taken by the Commonwealth. This deed recited that Charles B. Kister had conveyed the 99.812 acre tract to the Commonwealth; but that was not the fact.

In the 1970's, first the petitioners, and later the Commonwealth, each entered into oil and gas leases with others in each case including within the area of the leased premises the 99.812 acres here in suit. The lease entered into by the Commonwealth is called a Nondevelopment Oil and Gas Lease and includes extensive ...


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