Dutch Corner Historical Society, Estate of Joseph W. Imler, Jr. and Mr. and Mrs. Neal Buterbaugh, Petitioners
Allen K. Stahl, Respondent
Argued: September 12, 2012.
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge.
PELLEGRIN, PRESIDENT JUDGE
Dutch Corner Historical Society (Society), Estate of Joseph W. Imler, Jr. (Estate), and Neal and Linda Buterbaugh (Buterbaughs), (collectively, Petitioners), appeal from the Pennsylvania Board of Property's (Board) order dismissing their caveats to the two patent applications filed by Allen K. Stahl under the statute commonly known as the Public Lands Act (Act), 68 Pa. C.S. §§6101-6114. We reverse.
By the Royal Charter of March 4, 1681, King Charles II of England granted "William Penn, his heirs and assigns ... make, create and constitute the true and absolute proprietaries of the Contrey [Pennsylvania]" conveying to him "an immediate and absolute estate in fee to the province of Pennsylvania." Thompson v. Johnston, 6 Binn. 68, 70 (Pa. 1813) Throughout the proprietorship, lands were conveyed by warrant and patent by the Land Office which has operated continuously since William Penn arrived in Pennsylvania in 1682 and began to administer and sell land. In 1779, the Commonwealth bought out the proprietorship and assumed title to all public land not yet conveyed. The Land Office has been housed in various departments of the Commonwealth over its history. In 1981, the land records and the functions of the office, which had been in the Department of Community Affairs, were transferred to the Pennsylvania Historical and Museum Commission (Commission). Among other duties, the Commission has the duty to maintain and preserve papers relating to the surveys of this Commonwealth, reports of commissioners relating to the boundary lines of this Commonwealth, and maps and other papers lodged with the Land Office. 68 Pa. C.S. §6102. Commonwealth land records only document transactions between the Penns or the post-revolutionary Commonwealth and the first purchaser(s) of each tract of land.
A person may apply for a warrant to have a survey made of any tract of vacant or unappropriated land. 68 Pa. C.S. §6103. Land is" unappropriated" when no patent has been issued by the Commonwealth. 68 Pa. C.S. §6101. Land is "vacant" to which no office rights are outstanding. Id. The Department of Conservation and Natural Resources (DCNR), with the cooperation of the Commission, is to determine whether office rights have been granted for a tract of land and whether the tract of land is vacant or unappropriated once an applicant makes a proper application. 68 Pa. C.S. §6103(c). The applicant is required to give 30 days' notice of the application in a "publication once a week for three successive weeks in a newspaper of general circulation in the area where the land is situate…." 68 Pa. C.S. §6103(c)(2).
On April 2, 2008, Stahl filed two patent applications with the DCNR for vacant and unimproved land at the summit of Evitts Mountain in Bedford County. The first application involved 57.44 acres of land in South Woodbury Township on the east side of Evitts Mountain based on the Kochendarfer and Brumbaugh Warrant of 1851. The second application was for 75.18 acres of adjoining land in Bedford and South Woodbury Townships on the east and west sides of Evitts Mountain.
On December 18, 2009, Buterbaughs, who own land on the southwestern side of Evitts Mountain from the Ross Warrant of 1794, filed a pro se caveat asserting that Stahl did not follow warrant and patent procedures under the Act, and that Stahl had rebuffed their attempts to resolve the dispute. On March 23, 2010, the Buterbaughs and the Society filed an amendment to the caveat asserting the Society's interest as the grantee of an easement from the Buterbaughs, and that the Buterbaughs owned and improved just over two acres of the lands claimed in the applications. On April 16, 2010, the Estate and the Society filed a caveat contesting the claim that the other parcel was vacant and unappropriated by chain of title and survey. They also alleged that the Estate's property, from the McCurdy and Cisna Warrants of 1794, adjoins the Buterbaughs' property from the northeast side and across the summit of Evitts Mountain. The Estate's land is bounded on the boundary of the Cisna, McCurdy and Adair Warrants.
On September 1, 2010, a DCNR Professional Land Surveyor (PLS) James J. McElwee (PLS McElwee) filed a report with the Board on the applications and caveats, concluding that the vacant lands existed as asserted and that patents should be issued to Stahl. On October 22, 2011, the Board notified Petitioners of PLS McElwee's report and Petitioners requested a hearing.
At the hearing, Mr. Buterbaugh testified that he bought a 50 to 56-acre parcel on the western side of Evitts Mountain in 1994 and informally surveyed the property himself. Mr. Buterbaugh said that Ken Schulze (PLS Schulze) surveyed the property for him in 2007 and 2008, and located 2.03 acres of vacant land, and that he put up barricades, a tree stand and "no trespassing" signs on that land. He testified that his family have hunted and ridden horses on the 2.03 acres since he purchased the property in 1994.
The Estate's administrator, Joseph Imler, testified that his parents lived on the property for 64 years and told him that their property went over Evitts Mountain, onto the other side, and bordered the Buterbaughs' property. He stated that the Imler family used the land on the summit for hunting, horseback riding and hiking, but did not erect any fencing or other markings to define the property boundaries.
Laura Jackson, who works with the Society, testified that Dutch Corner is a designated rural historic district with many trails on either side of Evitts Mountain, many of which were preserved. She stated that Stahl's proposed use of the land as a wind energy project would make the area unavailable for public use.
PLS McElwee testified that a connected warrant map had to be constructed because one was not available for this area, and that he reached his conclusions that vacant land existed based on this map. He said that none of the connected warrants for the Estate's or Buterbaughs' property reference the top or summit of Evitts Mountain so neither the Estate property nor the Ross Warrant, from which Buterbaughs' land proceeds, go to the top of Evitts Mountain. With respect to the Buterbaughs' property, he stated that while a filler warrant was put in between the Kochendarfer and Brumbaugh Warrants and the King Warrant of 1794, the source of Stahl's adjoining parcel, the Ross Warrant and not the Kochendarfer and Brumbaugh Warrants, was the source of the Buterbaughs' title and the Ross Warrant does not go to the top of Evitts Mountain. He stated that he disagreed with Norman Van Why's (PLS Van Why) reliance on John Fluck's (Fluck) 1886 resurvey of John Bennett's official 1831 boundary that extends the Ross Warrant line by 27 rods to the east.
PLS Schulze testified that Stahl and his father contacted him to resurvey their property and he found vacant property on the top of Evitts Mountain. He said that he created a connected draft of the area, admitted as Exhibit 46 (see Reproduced Record (R.R.) at 444a), while preparing Stahl's applications for the warrant and patent showing the unclaimed areas alleged in the applications. He stated that he also discredited the evidence and findings of Fluck's resurvey extending the Ross Warrant line by 27 rods.
Through PLS Van Why, Petitioners introduced a number of exhibits composed of surveys and title documents of other owners in the area. He testified that he believes that the Ross Warrant's line should extend to adjoin the Garretson Warrant of 1867 to comply with Fluck's resurvey thereby extending the Ross Warrant line 27 rods to the east. PLS Van Why identified Exhibit 36, (R.R. at 410a), a recorded connected draft prepared by the Department of Community Affairs in 1979 (1979 Connected Draft) of the Garretson Warrant that follows the Fluck drawing and shows the 27-rod extension of the Ross Warrant. He identified Exhibit 38, (R.R. at 412a-414a), a recorded survey map he created in 1986 for another party also based on the Fluck resurvey of the Garretson Warrant, and Exhibit 41, (id. at 415a), a recorded 1910 deed following the Fluck resurvey. Following the hearings, the Board directed the simultaneous filing of briefs and closed the record on July 29, 2011.
On October 17, 2011, the Board issued an adjudication and order disposing of Petitioners' ...