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COMMONWEALTH PENNSYLVANIA v. RUSSELL H.I. ULRICH AND DOROTHY M. ULRICH (11/03/89)

decided: November 3, 1989.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA GAME COMMISSION, PETITIONER,
v.
RUSSELL H.I. ULRICH AND DOROTHY M. ULRICH, HIS WIFE, RESPONDENTS



PETITION FOR REVIEW, (BOARD OF PROPERTY).

COUNSEL

William R. Pouss, Chief Counsel, Harrisburg, for petitioner.

Frank J. Madey, Kasick & Madey, Allentown, for respondents.

Barry and Smith, JJ., and Barbieri, Senior Judge.

Author: Smith

[ 129 Pa. Commw. Page 378]

The Pennsylvania Game Commission (Commission) seeks review of a decision of the Board of Property (Board) which determined that Russell H.I. Ulrich and Dorothy M. Ulrich (Ulrichs) have superior title to approximately thirty-eight acres of land located on Blue Mountain in the Township of Heidelberg, Lehigh County (Property). The Board's decision is affirmed.

The Ulrichs initiated proceedings before the Board by filing a petition to quiet title against the Commission requesting a decree by the Board that the Ulrichs hold legal title to the Property. The Commission filed an answer and new matter raising inter alia the affirmative defenses of de facto condemnation and adverse possession. The Commission formally withdrew the adverse possession claim at the August 11, 1986 hearing. Counsel for the parties stipulated to the deeds submitted at hearing.

The Ulrichs claimed that their chain of title originated in 1888 when the Estate of Andrew Loeffler conveyed title of the Property to Margaret Loeffler. Andrew Loeffler's title is attributed to an unrecorded conveyance. The Board found that in 1895, the Estate of Margaret Loeffler conveyed title to the Property by recorded deed to Mary Ulrich, Russell H.I. Ulrich's grandmother. Mr. Ulrich obtained title of the Property through purchase and inheritance from his parents' estates in 1936.

The Commission's asserted chain of title dates back to the 1793 recorded Mordecai Piersol Warrant (Warrant) which originally contained 426 acres. It is undisputed that the

[ 129 Pa. Commw. Page 379]

Property is a portion of the 426 acres described in the Warrant. The Board further found that in 1889, David Leiby conveyed by recorded deed 388 acres of the Warrant to Joseph Fink and that in 1961 the commission acquired property in Heidelberg Township through deed from Irene Handwerk. Although the Handwerk Deed identified 388 acres of the Warrant, the Commission argues that it in fact contained all of the original 426 acres and that this difference was the result of changes in surveying techniques. The Board concluded that the reduction in acreage from 426 to 388 acres appearing in the 1889 conveyance to Joseph Fink corresponds with the conveyance to Margaret Loeffler through the Estate of Andrew Loeffler in 1888 as well as a subsequent conveyance to Mary Ulrich in 1895. Board Findings of Fact Nos. 7-8, 11-13.

The Commission claims that the Board erred in concluding that the Ulrichs were the rightful owners of the Property and therefore the findings of fact are not supported by substantial evidence. The Commission further argues that it should be entitled to the benefit of the recording statutes, citing Section 1 of the Act of March 18, 1775, 1 Sm.L. 422, as amended, 21 P.S. ยง 444. Lastly, the Commission argues that its actions in posting signs and otherwise treating the Property as game land constituted a de facto condemnation of the subject property.*fn1

To prevail in an action to quiet title, a plaintiff must establish title by a fair preponderance of the evidence. Kaiser Energy, Inc. v. Department of Environmental Resources, 113 Pa. Commonwealth Ct. 6, 535 A.2d 1255 (1988). This "places upon the plaintiff the burden of proving a prima facie title, which proof is sufficient until a better title is shown in the adverse party." Hallman v. Turns, ...


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