J-A18012-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOHN J. BOWSER, DAVID B. BOWSER, IN THE SUPERIOR COURT OF
CARL E. BOWSER AND AMY B. WHERLEY, PENNSYLVANIA
Appellants
v.
GEORGE L. BEBOUT AND PEGGY A.
BEBOUT, HIS WIFE,
Appellees No. 2191 MDA 2015
Appeal from the Judgment Entered December 8, 2015
In the Court of Common Pleas of Tioga County
Civil Division at No(s): 789 CV 2013
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 16, 2016
Appellants, John J. Bowser, David B. Bowser, Carl E. Bowser, and Amy
B. Wherley (hereinafter the “Bowsers”), appeal from the judgment entered
in favor of Appellees, George L. Bebout and Peggy A. Bebout (hereinafter the
“Bebouts”), on December 8, 2015, following a non-jury trial. We affirm.
The trial court set forth the facts and procedural history of this case as
follows:
The Bowsers are the owners of a 392.04 acre piece of
property located in Brookfield Township, Tioga County,
Pennsylvania. They acquired the property in 2012 from their
father, Edward J. Bowser, Jr. and his wife, Hazel B. Bowser.
Edward J. Bowser, Jr. and his then wife, Constance A. Bowser,
acquired the property in 1978. [Appellees, the Bebouts,] are the
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*
Former Justice specially assigned to the Superior Court.
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owners of a 264.13 acre piece of property also located in
Brookfield Township, Tioga County, Pennsylvania. The Bebouts
acquired the property in 2006 from Homer Bebout, George
Bebout’s brother. Homer Bebout acquired the property from his
siblings and their spouses in 1978 after their father, Roger
Bebout, passed away. Roger Bebout and his wife, Nina Bebout,
originally acquired the property in 1955. The parties dispute
ownership of approximately 32.13 acres of land (hereinafter
“Disputed Parcel”) that is described in each party’s chain of title.
As the Disputed Parcel was conveyed to the Bebouts’
predecessors in title first and then [later] conveyed to the
Bowsers’ predecessors in title, the Bebouts have senior or better
record title to the Disputed Parcel. The Disputed Parcel was
included in the Bowsers’ chain of title due to a mistake in the
survey done in 1951 by E.O. Mudge, R.S. The Bowsers claim
ownership of the Disputed Parcel through the equitable doctrines
of adverse possession and/or consentable boundary line. The
Bowsers base their claim on their use of the Disputed Parcel
through the years. This use includes putting up postings,
updating blazes, consistently hunting on the Disputed Parcel,
constructing a four-wheeler [trail], hiking, along with other
recreational activities. The Bebouts used the Disputed Parcel for
similar activities. The Bowsers were assessed and paid property
taxes on the Disputed Parcel and enrolled it in the Clean and
Green Program. The Bowsers believed they owned the Disputed
Parcel. Neither party made any attempts to exclude the other
party from the Disputed Parcel.
The Disputed Parcel is heavily wooded except for a
rectangular square in the southern portion of the parcel [, which]
the Bebouts have continuously cultivated by cutting hay,
planting crops, and storing fire wood. The Disputed Parcel has
never been surrounded by a fence or any other physical barrier.
Neither party has erected any structures on the Disputed Parcel
except for possibly a hunting stand.
The Bebouts first became aware that the Bowsers claimed
an ownership interest in the Disputed Parcel when they had a
survey performed in 2005 by Duane Wetmore. They did not
pursue the matter at that time because they were involved in an
unrelated adverse possession case and were advised to resolve
that matter first.
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The Bowsers initiated this action against the Bebouts on
September 24, 2013[,] when they filed a complaint entitled
Action to Quiet Title/Declaratory Action Judgment. The action
included four counts: (1) declaratory judgment, (2) adverse
possession, (3) consentable boundary line, and (4) quiet title.
On October 29, 2013[,] the Bebouts filed an Answer, New
Matter, and Counterclaim for their own declaratory judgment.
The Bowsers then filed a reply to the Bebouts’ [N]ew Matter and
Counterclaim.
After the parties completed discovery, the [c]ourt held a
non-jury trial on June 10, 2015. The parties then filed their
respective post-trial briefs setting out proposed findings of fact
and legal arguments. On September 11, 2015[,] the [c]ourt
issued Findings of Fact and Discussion of the [L]aw and entered
judgment in favor of the Bebouts and against the Bowsers. The
Bowsers then filed a Post-Trial motion requesting the [c]ourt to
enter an[] order in their favor. The Bebouts filed a reply brief
opposing the request. On November [16], 2015[,] the [c]ourt
issued an [o]rder denying the post-trial motions and further
discussing the issue of consentable boundary lines.[1]
Trial Court Opinion (TCO), 1/22/16, at 1-3 (headings omitted).
The Bowsers filed a timely notice of appeal on December 14, 2015,
contesting the judgment entered in favor of the Bebouts. The trial court
directed the Bowsers to file a concise statement of matters complained of on
appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), and
they timely complied.
In their appellate brief, the Bowsers raise two issues for our review:
1. Did the [t]rial [c]ourt err in failing to find that a
consentable boundary line existed when the evidence
demonstrated that [the Bowsers] had established a
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1
On December 7, 2015, the Bebouts filed a praecipe for the entry of
judgment in favor of themselves and against the Bowsers in accordance with
the trial court’s order docketed on November 16, 2015.
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boundary line made up of regularly maintained blazes and
pins which was recognized and acquiesced to by [the
Bebouts] for a period in excess of twenty-one years?
2. Did the [t]rial [c]ourt err in finding that the evidence of
adverse possession was insufficient to confer quiet title to
the disputed parcel in favor of [the Bowsers]?
Bowsers’ Brief at 4 (suggested answers omitted).
Initially, we set forth our standard of review:
Our review in a non-jury case is limited to whether the
findings of the trial court are supported by competent evidence
and whether the trial court committed error in the application of
law. We must grant the court's findings of fact the same weight
and effect as the verdict of a jury and, accordingly, may disturb
the non-jury verdict only if the court's findings are unsupported
by competent evidence or the court committed legal error that
affected the outcome of the trial. It is not the role of an
appellate court to pass on the credibility of witnesses; hence we
will not substitute our judgment for that of the factfinder. Thus,
the test we apply is not whether we would have reached the
same result on the evidence presented, but rather, after due
consideration of the evidence which the trial court found
credible, whether the trial court could have reasonably reached
its conclusion.
Lynn v. Pleasant Valley Country Club, 54 A.3d 915, 919 (Pa. Super.
2012) (internal citations omitted).
On appeal, the Bowsers first challenge whether the trial court abused
its discretion in determining that no consentable boundary line existed. See
Bowsers’ Brief at 14. Our Court has previously discussed the legal
considerations underlying consentable boundaries:
The doctrine of consentable line is a rule of repose for the
purpose of quieting title and discouraging confusing and
vexatious litigation. There are two ways in which a boundary
may be established through consentable line: (1) by dispute and
compromise, or (2) by recognition and acquiescence. As the en
banc court explained in Niles [v. Fall Creek Hunting Club,
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Inc., 545 A.2d 926, 930 (Pa. Super. 1988) (en banc)], the
doctrine of consentable line is a separate and distinct theory
from that of traditional adverse possession, although both
involve a twenty-one year statute of limitation. Under the
doctrine of consentable line,
if adjoining landowners occupy their respective premises
up to a certain line which they mutually recognize and
acquiesce in for the period of time prescribed by the
statute of limitations, they are precluded from claiming
that the boundary line thus recognized and acquiesced in is
not the true one.
…
The requirements for establishing a binding consentable line
by recognition and acquiescence are: (1) a finding that each
party has claimed the land on his side of the line as his own; and
(2) a finding that this occupation has occurred for the statutory
period of twenty-one years. In such a situation, the parties need
not have specifically consented to the location of the line. It
must nevertheless appear that for the requisite twenty-one years
a line was recognized and acquiesced in as a boundary by
adjoining landowners.
Plauchak v. Boiling, 653 A.2d 671, 675-76 (Pa. Super. 1995) (internal
citations and quotations omitted).
Here, the Bowsers claim that a consentable boundary line was
established through recognition and acquiescence. Specifically, they
contend that “it is clear that [the Bowsers’] posted and blazed line was an
effective ‘fence’ in that it established a clear line between the properties that
was recognized by all parties and acquiesced to by [the Bebouts’] for over
thirty six years during which [the Bowsers] occupied, used, claimed, and
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paid for the land up to the posted and blazed line.” 2 Bowsers’ Brief at 18.
We disagree.
Our sister court, the Commonwealth Court, has observed that “[a]
consentable line by recognition and acquiescence is typically established by a
fence, hedgerow, tree line, or some other physical boundary by which each
party abides.” Long Run Timber Co., Limited Partnership v.
Department of Conservation and Natural Resources, --A.3d--, No.
2313 C.D. 2015, 2016 WL 4533467 (Pa. Commw. filed Aug. 30, 2016)
(emphasis added). Furthermore, by definition, “[a] consentable boundary
constitutes a clear[-]cut instance of adverse possession. It is a judicial
recognition of a boundary … that the parties have consensually accepted for
a period of at least twenty-one years.” Lilly v. Markvan, 763 A.2d 370,
371 n.1 (Pa. 2000) (internal citations omitted) (emphasis added).
Following the nonjury trial in the case sub judice, the trial judge found
that “[t]he Disputed Parcel is a largely wooded area that each party used for
hunting and recreation purposes. Each party essentially used the area
without interference from the other.” TCO at 7 (emphasis added).
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2
We note that the trial court determined that “[t]he Bebouts’ initial
awareness of an actual boundary dispute did not occur until at or after the
time of the survey … in 2005, nowhere near twenty-one years before this
action.” TCO at 7. This finding contradicts the Bowers’ assertion that the
boundary line was recognized and acquiesced to by the Bebouts for nearly
thirty-six years. Notwithstanding, we must accept the trial court’s findings,
as they are supported by competent evidence. See N.T., 6/10/15, at 119-
21; see also Lynn, 54 A.3d at 919.
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Significantly, the trial court determined that both the Bowsers and the
Bebouts used the Disputed Parcel. It found, based on testimony at trial,
that “[t]he Bebout family has continuously used the Disputed Parcel for
hunting, hiking, and riding four wheelers, as well as maintaining the semi-
rectangular parcel along the southern portion as a field since they acquired
title. The Bebouts’ use of the Disputed [Parcel] has never been restricted,
interrupted, infringed upon or limited in any manner by [the Bowsers] or
anyone else.”3 See Findings of Fact, 9/11/15, ¶ 50. Given that the Bebouts
continued to use the Disputed Parcel without limitation, the trial court
correctly determined, based on competent evidence, that they did not
recognize or abide by a boundary line. Thus, we conclude that no
consentable boundary line exists.
Second, the Bowsers contend that the court erred in determining that
they did not meet the burden of proving title by adverse possession. See
Bowsers’ Brief at 18. They argue that the trial court “erred in failing to find
that the significant, permanent enclosure of signs, blazes, and pins
combined with the regular use of the property, the construction of at least
one tree stand and trails thereon, and open claiming of the property for tax
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3
We note, however, that the Bebouts did not harvest timber on the
Disputed Parcel because “they were aware ownership of the Parcel was in
dispute[.]” See Findings of Fact, 9/11/15, ¶ 48.
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purposes, did not rise to the level of possession required for adverse
possession of woodland.” Bowsers’ Brief at 22. The trial court did not err.
This Court has explained that “[o]ne who claims title by adverse
possession must prove actual, continuous, exclusive, visible, notorious,
distinct and hostile possession of the land for twenty-one years. Each of
these elements must exist; otherwise, the possession will not confer title.”
Recreation Land Corp. v. Hartzfeld, 947 A.2d 771, 774 (Pa. Super. 2008)
(quoting Flannery v. Stump, 786 A.2d 255, 258 (Pa. Super. 2001)).
Generally, “actual possession of land means dominion over the property.”
Bride v. Robwood Lodge, 713 A.2d 109, 112 (Pa. Super. 1998). However,
“[w]hat constitutes adverse possession depends, to a large extent, on the
character of the premises.” Id. When “the disputed parcel is undeveloped
woodland, actual possession is established by either erecting a residence or
by enclosing and cultivating the property.” Id. at 112 (citing Niles, 545 at
930).
In Flickinger v. Huston, 435 A.2d 190 (Pa. Super. 1981), this Court
concluded that evidence of adverse possession was insufficient where the
person seeking title through adverse possession paid taxes on the property,
cleared portions of the land, erected a flagpole and outhouse, and built a
fence around the property, among other acts and investments. Id. at 192-
93. In that case, in considering what constitutes enclosure, we explained
that “one who relies on enclosure as proof of adverse possession must show
that (the land) was so substantially and visibly fenced in and the fence was
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so continuously and substantially maintained for at least twenty-one years
as to amount to an assertion against the world of his exclusive private
ownership of that area of the earth's surface.” Id. at 193 (internal
quotations and citations omitted). Moreover, we noted that the person
seeking title through adverse possession “never lived on the tract, and there
is no evidence that he cultivated the land continuously for twenty-one
years.” Id.
Here, the Bowsers agree that the Disputed Parcel is woodland. See
Bowsers’ Brief at 20. The trial court found, based on competent evidence,
that the Bowsers did not erect a residence on the Disputed Parcel, did not
enclose the Disputed Parcel with a fence or enclosure of any kind, and did
not cultivate the land. TCO at 5-6. Accordingly, we agree with the trial
court that the elements of adverse possession are not met in this case.
Nevertheless, the Bowsers assert that it would be “grossly inequitable” to
deprive them of the Disputed Parcel in light of their acts and purported
investment in it. Bowsers’ Brief at 13. However, as pointed out by the
Bebouts, courts have determined that more extensive acts and investments,
such as those discussed in Flickinger, did not legally suffice to establish
possession for purposes of gaining title through adverse possession. See
Bebouts’ Brief at 16-17. Thus, we do not agree that a gross inequity would
result. Finally, even if the Bowsers could satisfy the actual possession
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element, they clearly would not satisfy all of the other requirements of
adverse possession.4
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2016
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4
For instance, we would not characterize their use of the Disputed Parcel as
exclusive, given that the Bebouts continued to use it without virtually any
restriction, as discussed supra.
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