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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
EDYTHE H. BOSSERT TRUST, : IN THE SUPERIOR COURT OF
C/O TRUSTEES W. MAX BOSSERT, JR., : PENNSYLVANIA
THOMAS H. BOSSERT, AND SUSAN :
HANNEGAN, LIVING THRUSTEES, :
:
v. :
:
PATRICK O. MCGHEE, :
: No. 1124 MDA 2013
Appellant :
Appeal from the Decree June 3, 2013
In the Court of Common Pleas of Clinton County
Civil Division No(s).: 144-12
BEFORE: BOWES, OLSON, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 30, 2014
Appellant, Patrick O. McGhee, appeals from the decree entered in the
Clinton County Court of Common Pleas in favor of Appellees, Edythe H.
Bossert Trust, c/o Trustees W. Max Bossert, Jr., Thomas H. Bossert, and
Susan Hannegan, Living Trustees, in this action to quiet title.1 Appellant
contends the court erred in finding the boundary line between the parties’
properties is a standard wire fence, depicted in a 1917 railroad map, which
is no longer standing. We affirm.
*
Former Justice specially assigned to the Superior Court.
1
Appellant purports to appeal from the March 11, 2013 preliminary decree
and the June 3, 2013 decree. The March 11th decree was not the final
decree. See Pa.R.A.P. 341(a). Therefore, we have amended the caption.
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The trial court summarized the procedural posture and facts of this
case as follows:
Before us is a quiet title action filed by [Appellees on
February 8, 2012] with respect to a small parcel of land in
Beech Creek Township which [Appellees] contend was
acquired by them through a conveyance from the Fearon
Estate in 1992. [Appellant] claims ownership of the same
parcel through Deed from the Beech Creek Railroad
Company and the Penn Central Corporation in 1978.
[Appellant] filed an Amended Answer and Counterclaim
seeking quiet title, ejectment, trespass, and a request for
injunction. [Appellees] responded by filing an Amended
New Matter and Counterclaim seeking attorney’s fees,
court costs, and surveyor’s costs, in addition to their claim
for damages for removal of soil contained in their original
Complaint.
Prelim. Decree, 3/12/13, at 1.
Robert Ohl testified at trial as an expert for Appellant. N.T., 2/26/13,
at 26. He testified on cross-examination, inter alia, as follows:
[Counsel for Appellees]: Now, when you do surveying
work, do you look for spikes and pipes and pins?
A: Yes. I look for any monumentation that it calls for in
the survey.
Q: Did you look for old fence wire?
A: Yes. There is, . . . , marking trees with barbed wire on
what we found and also [a] fence post on the property
line between [Appellees’] and Day’s . . . .
Q: That fence line that you found, that was strictly on the
old fence wire between Day and [Appellees], correct?
A: Day and [Appellees] and [Appellant].
Id. at 39-40 (emphasis added).
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Kerry Uhler testified as an expert for Appellees regarding his survey of
the property:
[Counsel for Appellees]: And in this corner of [Appellees’]
property, what kind of monuments and boundaries did you
find in relationship to the survey?
A: We found possession in the manner of occupation and
use of a significant portion of the area for agricultural
purposes. Beyond that, we found very little
monumentation other than the standing stone . . .
Q: What about trees and brush?
A: There are significant trees, brush, and we’ll say debris
toward the northern portion of the disputed area.
* * *
Q: That 1896 deed describes woven wire and smooth wire;
does it not?
A: Yes, sir, it does.
Q: Can you tell the Court the significance of that?
A: The reference to woven wire is just the same as any
other monumentation. Survey is an attempt to retrace the
original surveyor’s footsteps. Any reference by a
stream, an iron pin, a stone, fence, those are all
monuments. The original deed from . . . Annie Fearon, to
the railroad[2] in 1896 referenced a fence which would be
installed by and maintained by the railroad. We have
found that fence was installed at the described location to
the west of Maple Avenue, but it was not installed at
the─to every piece of information we found, it was not
installed at the described location to the east of Maple
Avenue in the disputed area.
* * *
2
The railroad is the Beech Creek Railroad Company. Id. at 89.
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. . . I found historic documentation showing that there
actually was a fence installed at the location that we
are calling the property line, which is the same
location Warren Ohl surveyed.[3]
* * *
Q: Tell the court when [Appellant’s Exhibit K, a right-of-
way and tract map of the Beech Creek Railroad] was
prepared.
A: This document was prepared in June of 1917. . . .
Q: Of the entire length in the area in question and beyond?
A: Yes, sir.
Q: Can you show the Court where the disputed area is?
A: The disputed area─
The Court: Is marked with a number 5.
The Witness: Yes, sir. Right in the area marked number 5.
* * *
[Counsel for Appellees]: What are we looking at there?
What do you see there?
A: What I’m looking at there─well, I see the area in
question is delineated by the railroad as according to
historical documentations. When I look down very close to
the south line of the original 66 foot right-of-way, I see it
labels fence there. It says STD for standard wire
fence. . . . So it appears to me the railroad
constructed their fence line in the current location of
the property line . . . .
Id. at 91-93, 94, 95-96 (emphases added).
3
Warren Ohl, an engineer and surveyor, was Robert Ohl’s uncle. Id. at 34.
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There was an aerial photo taken in 1938 which showed “a very fine
and clear line . . . which is indicative of what a maintained fence line looks
like in an aerial photo.” Id. at 99.
[Counsel for Appellees]: Now, is this aerial photograph, the
1938 aerial photograph, and where the fence line
appears to be in that photograph consistent with
Warren Ohl’s survey?
A: Yes, it is.
Q: Is it consistent with [Appellees’] boundary line?
A: Yes, it is.
* * *
Q: So that I’m clear, when you’re doing surveying, do
monuments like fence lines control over legal descriptions?
A: In the situation of a division of land where land is
divided and described in a deed and the original division of
that land on the ground as witnessed by monuments do
not agree, those monuments will prevail over the
written documentation.
Q: Is a fence line a monument?
A: Yes, it is.
Q: So based upon all of the things that you’ve done, the
actual being present on site on more than one occasion, I
believe─
A: Yes, sir.
Q: ─reviewing everything that you’ve reviewed, including
that 1896 deed and reviewing all of the photographs and
all of the surveys, what is your opinion within a
reasonable degree of certainty as to who owns this
disputed land?
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A: . . . It is my opinion that the title to that land never
transferred to the railroad as the railroad monumented
their line further north at that point. And, therefore, that
[disputed] land remains with [Appellees].
Q: Fearon and then [Appellees]?
A: Fearon and then [Appellees], yes, sir.
Id. at 100, 101 (emphases added).
The trial court found that Appellees were “the owners of all land lying
south of the location of this standard wire fence. Because [they] have failed
to establish their claim for adverse possession of land lying north of the
standard wire fence, their claim of ownership fails.” Prelim. Decree at 3-4.
Accordingly, the court directed Uhler to “amend his survey to eliminate from
[Appellees’] claim land lying to the North of the ‘std. wire fence’ line set
forth on [Appellant’s] Exhibit K-1 and submit his modified survey to the
Court for the entry of a final Decree.” Id. at 4.
On April 25, 2013, Uhler submitted a revised survey which the court
found established the boundary line. Decree, 6/4/13, at 1. Appellant filed a
motion for reconsideration. On June 4, 2013, the court denied the motion
for reconsideration and entered a final decree establishing the boundary line
and awarding Appellees damages. Appellant’s motion for post-trial relief
was denied. This timely appeal followed. Appellant filed a court-ordered
Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The trial
court’s Rule 1925(a) statement relied upon its prior decrees.
Appellant raises the following issues for our review:
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I. Did the court err in finding that the boundary line
between the parties’ properties should be in the location of
a standard wire fence noted on a railroad map dated June
30, 1917, instead of in the location of the actual boundary
line clearly shown on the same map and as described in
the deeds in the chain of title of [Appellant]?
II. Did the court err in awarding [Appellees] twelve
hundred dollars ($1,200.00) when there was no testimony
or evidence offered at trial to enable the factfinder to
determine the amount or the value of the topsoil/fill
removed from the property the court awarded [Appellees].
Appellant’s Brief at 5.
First, Appellant argues the trial court erred in determining “that the
proper location of the boundary line separating the parties’ property should
be in the location of where a standard wire fence was shown to be on a
railroad map dated June 30, 1917 and revised December 31, 1955.” Id. at
16. Appellant contends “[t]he fence was not a monument on the ground
to control over a metes and bounds description in the Deed.” Id. at
17 (emphasis added). He maintains, “The standard wire fence does not
exist today nor was it ever in existence at any point where any of the parties
saw evidence of a fence in that location.” Id. Appellant avers that instead,
the October 6, 1896 deed in his chain of title from Fearon to the Railroad
shows the proper boundary line between the properties. Id. at 24. We find
no relief is due.
“The question of where a boundary line actually is located is a question
for the trier of fact. Where, as here, the trial court sat as the fact-finder, we
will not reverse on appeal unless the court’s findings are not supported by
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credible evidence.” Schimp v. Allaman, 659 A.2d 1032, 1034 (Pa. Super.
1995) (citations omitted). “Further, the test is not whether we, the
appellate court, would have reached the same result had we been acting as
the hearing judge who saw and heard the witnesses, but whether a judicial
mind, on due consideration of the evidence, as a whole, could reasonably
have reached the conclusion of the chancellor.” Barthelmes v. Keith, 732
A.2d 644, 646 (Pa. Super. 1999) (citation omitted).
“The general rules to be applied in boundary cases were set forth in
Walleigh v. Emery, [ ] 163 A.2d 665, [667 (Pa. Super. 1960),] as follows:
‘Courses and distances in a deed must give way to monuments on
the ground.’ Merlino v. Eannotti, [110 A.2d 783. 787 (Pa. Super.
1955)].” Baker v. Roslyn Swim Club, 213 A.2d 145, 148 (Pa. Super.
1965) (emphasis added). “As a general rule, where there is a conflict
between courses and distances or quantity of land and natural or artificial
monuments, the monuments prevail.” Pencil v. Buchart, 551 A.2d 302,
306 (Pa. Super. 1988) (emphasis added).
Instantly, the trial court reasoned:
With respect to the respective cross-claims for adverse
possession, we are not satisfied that either party has
established adverse, hostile, notorious, and exclusive
possession. While [Appellees’] Exhibit 2, aerial photos in
the 1930’s and 1970’s, suggests tree lines enclosed the
area in dispute on [Appellees’] side of the trees, the
testimony establishes that, at least with respect to the
northern portion of the area in dispute, that area was used
for miscellaneous purposes by both parties. With respect
to the southern portion of the area in dispute, it is clear
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from the aerial photographs that much of that area has
historically been farmed by [Appellees] and their
predecessors.
With respect to [Appellees’] claim, we accept generally
the survey of Alan Uhler ([Appellees’] Exhibit 1) which
establishes the area in dispute as lying entirely within
[Appellees’] parcel. On the other hand, we cannot
ignore the presence of a “standard wire fence”
which was in existence in 1917. We find that fence
to be the most significant factor in this dispute as
discussed hereafter and base our Decree on the location of
that fence in conjunction with the Uhler survey.
After consideration of all of the exhibits presented to us,
we believe the area in dispute is designated as Parcel 5 on
the right-of-way and tract map of the Beech Creek
Railroad dated June 30, 1917 ([Appellant’s] Exhibit K).
That map references Parcel 5 as . . . the premises
conveyed to the Beech Creek Railroad Company by Annie
W. Fearon, et al., dated October 6, 1896, and recorded in
Clinton County Deed Book 43, Page 847. That Deed
begins at the dividing line between Fearon and William
McAlmont on the southern boundary line of the right-of-
way of the railroad thirty-three (33) feet at right angles
from the center line. The parties seem to be in agreement
that the parcel currently owned by Michael Day is the
McAlmont parcel. The sixty-six (66) foot right-of-way in
question we believe to be the area contained in a land
release obtained in the 1880’s. In previous litigation
between Day and [Appellant], we determined [Appellant
and Debra McGhee, his wife] have no fee simple interest in
the land release parcel, only a prescriptive easement, a
decision which was affirmed by the Superior Court.[4]
From the beginning point of the 1896 Deed, the call is a
“curved line to the right with a radius of 3,853 feet (148
feet) to a point in the westerly line of the public road
leading from Lock Haven to Beech Creek” and thereafter
23 feet along said public road. The documents submitted
4
Day v. McGhee, 878 MDA 2008 (unpublished memorandum) (Pa. Super.
Feb. 2, 2009).
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by [Appellant], prepared by H. Richard Ohl, Registered
Surveyor, dated January 3, 1978, and Robert Ohl,
Registered Surveyor, dated November 17, 2011, do not
reflect a “curved line” nor do they designate the location of
the 23 feet. The 1896 Deed then travels in a westerly
direction along the railroad right-of-way to land of Joseph
Merry, then in a southerly direction 381/2 feet, thence back
in an easterly direction to another “curved line to the left
with a radius of 3,903 feet (228 feet) to the lands of
McAlmont.” The final call is North 37 degrees 50 minutes
West 55 feet to the point of beginning. This call could
conceivably be the 56.6 feet set forth in the Richard Ohl
and Robert Ohl surveys if one ignores the two separate
calls for a “curved line.”
What is interesting about [Appellant’s] Exhibit K-1, [an
enlarged] portion of [Appellant’s] Exhibit K, is that the
placement of a “std. wire fence” extending from the
roadway to the McAlmont line and beyond is clearly
designated. . . .
Prelim. Decree, 3/12/13, at 1-3 (emphases added).
Instantly, the trial court found the boundary between the parties’
properties was established by Appellees’ expert Uhler’s survey. Decree,
6/4/13. The trial court agreed with Uhler that the standard wire fence was a
monument and it prevailed in the instant land dispute. Prelim. Decree at 2.
The court concluded the “fence [was] the most significant factor in this
dispute . . . and based [its] Decree on the location of that fence in
conjunction with the Uhler survey.” Id. We agree. See Pencil, 551 A.2d
at 306; Baker, 213 A.2d at 148.
Appellant asks this Court to find his expert witnesses more credible.
The trial court was the finder of fact and concluded Appellees’ expert was
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more credible. We find the court’s conclusion was reasonable. See
Barthelmes, 732 A.2d at 646; Schimp, 659 A.2d at 1034.
Lastly, Appellant contends there was insufficient evidence to enable
the court to determine that Appellees should be awarded $1,200 for the
material he removed from the disputed area. Appellant’s Brief at 25.
As a prefatory matter, we consider whether Appellant has waived this
issue. The “failure to develop an argument with citation to, and analysis of,
relevant authority waives that issue on review.” Harris v. Toys “R” Us-
Penn, Inc., 880 A.2d 1270, 1279 (Pa. Super. 2005). Instantly, Appellant
fails to cite any legal authority in support of this issue; therefore, it is
waived. See id.
Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2014
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