J-A33011-16
2017 PA Super 49
RODGER WEIBLE IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WILLIAM P. WELLS AND ELIZABETH
LOUISE WELLS
Appellants No. 46 WDA 2016
Appeal from the Order December 8, 2015
In the Court of Common Pleas of Jefferson County
Civil Division at No(s): 923-2009 CD
BEFORE: LAZARUS, J., SOLANO, J., and STRASSBURGER, J.*
OPINION BY LAZARUS, J.: FILED FEBRUARY 27, 2017
William P. Wells and Elizabeth Louise Wells (the Wellses) appeal from
the trial court’s order ejecting them from the subject property, a portion of
Appellant Rodger Weible’s property, and ordering them to pay to resurvey
the line between the parties’ properties. The trial court concluded that the
Wellses did not adversely possess the subject property because they only
demonstrated the required elements of adverse possession for 20 years
before local counties, predecessors in title to Weible, became the owners of
and publicly used the property. After careful review, we reverse and
remand.
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*
Retired Senior Judge assigned to the Superior Court.
J-A33011-16
Weible and the Wellses own neighboring residential property located,
respectively, at 703 East Main Street and 717 East Main Street in
Reynoldsville, Pennsylvania. The Wellses obtained title to their parcel by
deed dated August 2, 1965, from Ralph August. Weible purchased his parcel
from Jefferson and Clearfield Counties (the Counties) on December 22,
1998. The Wellses installed landscaping and a driveway upon a portion of
703 East Main Street in August 1975 and October 1979 (collectively, subject
property). The Counties jointly operated a facility that housed and provided
services to mental health patients on the subject property from May 1995
through December 1998.
In 2008 a tree fell from the Wellses’ property and caused damage to
surrounding power lines and power sources. When the Wellses offered to
pay the borough to repair the lines, they were notified that the fallen tree
had come from Weible’s property and that they were not responsible for the
cost of repairs. After the borough attempted to collect payment from Weible
for the damage, Weible paid Alexander & Associates, Inc., to survey his
property to determine the boundary line between 703 and 717 East Main
Street. Weible discovered that the Wellses’ landscaping and driveway were
encroaching on his property; he requested that they remove the
landscaping.
On August 28, 2009, Weible filed the current action in ejectment
against the Wellses alleging that since August 2, 1965, the Wellses caused
landscaping and a driveway to be installed on his property. The Wellses
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filed an answer, new matter and counterclaim to quiet title to the subject
property and also raised the affirmative defense of adverse possession.
On September 11, 2015, the court held a non-jury trial.1 The trial
court found, as a fact, that the Wellses have “open[ly] notoriously, visibly
and adversely” used the subject property “for a period well in excess of 21
years” and that the subject property “has been in virtually the same position
and condition since the date of [its] initial placement which is well in excess
of 21 years.” Trial Court’s Findings of Fact, 12/8/15, at ¶ 16. The court
ultimately determined that “because Weible received his property from a
political subdivision, [the] Well[ses’] adverse possession claim cannot stand
until 21 years after the date of conveyance from these political subdivisions.”
Id. at ¶ 22 (emphasis added). The court reasoned that because the Wellses
were not “capable of adverse possession against those counties’ ownership,
the 21[-]year period would start anew after the counties sold the property.”
Id. at ¶ 23. Because the Wellses only possessed the subject property for
eleven years after the Counties sold it to Weible, the court found that they
did not adversely possess it for the requisite 21 years.
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1
We note that “the factual findings of a trial court sitting without a jury
carry the same weight as a jury verdict, and we will not disturb those
findings on appeal absent an error of law or abuse of discretion.” Arcadia
Co., Inc. v. Peles, 576 A.2d 1114, 1116 (Pa. Super. 1990) (citing Pato v.
Cernuska, 493 A.2d 758, 759 (Pa. Super. 1985)).
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On December 8, 2015, the court entered an order ejecting the Wellses
from the property, requiring them to pay the costs of resurveying the line
between their property and Weible’s property, and giving them until April 30,
2016, to remove any of their items from Weible’s property. The Wellses
filed a timely motion for reconsideration, which the trial court properly
treated as a post-trial motion. The court denied the motion and this timely
appeal follows. On appeal, the Wellses raise the following issues for our
consideration:
(1) Whether the lower court committed clear error in granting
[Weible’s] Complaint in Ejectment and dismissing [the
Wellses’] counterclaim for quiet title of the disputed real
property, because [the Wellses] established during trial
that they continuously and exclusively mowed and
adversely cared for and possessed the real property at
dispute from August 1965 through the time of trial.[2]
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2
There is a dispute regarding whether the Wellses maintained the subject
area prior to installing the landscaping and driveway consistently since they
owned the land in 1965 (while possessed by Ralph August and his family).
If this were the case, 21 years would have passed prior to the Counties
owning the subject property. Although Ralph August testified that they all
took turns mowing the grass right to the edge of the Wellses’ property line,
because a split-rail fence was installed after the Augusts moved from the
subject property, the evidence of the Wellses’ maintenance of the area was
not conclusive. See N.T. Non-Jury Trial, 9/11/15, at 156-57 (“[W]e always
mowed that edge to their property.”). Therefore, we find that the time the
clock started running for purposes of adverse possession was the date that
the landscaping (1975) and driveway (1979) were installed. Thus, finding
that the Wellses established that they adversely possessed the land from the
latter dates, see infra pp. 5-10, this issue is moot.
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(2) Whether, based upon the pleadings, as well as the
evidence presented in the instant matter, the lower court
committed clear error in finding that [the Wellses] failed to
satisfy the elements of adverse possession during their
open, exclusive, continuous, and adverse possession of the
real property in dispute from August 1965 through the
time of trial.
(3) Whether the lower court committed clear error in
determining that the 21-year statutorily prescribed period
for [the Wellses] to obtain the real property in dispute by
virtue of adverse possession started anew or reset – as
opposed to being tolled or paused – during the time that
Clearfield and Jefferson Counties purportedly owned said
real property.
(4) Whether the lower court committed clear error in
determining that the disputed real property was devoted to
public use by Clearfield County and Jefferson County from
May 1995 through December 1998.
(5) Whether the lower court committed clear error in ruling
that political subdivisions of this Commonwealth are
immune from a claim of adverse possession, when, as in
the present matter, Clearfield and Jefferson Counties
owned a residential property, of which county officials and
personnel visited and observed on a regular, daily basis
from May 1995 through December 1998.
(6) Whether the lower court committed clear error in finding
that [the Wellses] did not contest the survey map
prepared by [Weible’s] surveyor, Alexander and
Associates, and ordering that [the Wellses] are required to
retain and pay Alexander and Associates to resurvey the
line between [the parties’ properties] to determine the
proper location of said boundary.
Adverse possession is an extraordinary doctrine which permits one to
achieve ownership of another’s property by operation of law; it is dependent
upon possession for a set period of time and authorized by statute. See 68
P.S. §§ 81-88 (claim by adverse possession). One who claims title by
adverse possession must prove actual, continuous, exclusive, visible,
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notorious, distinct and hostile possession of the land for twenty-one years.3
Flannery v. Stump, 786 A.2d 255, 258 (Pa. Super. 2001) (citations
omitted). Each of these elements must exist; otherwise, the possession will
not confer title. Id. Moreover, until the full expiration of the statutory
period, “a property owner’s record title remains unaffected and
untrammeled.” Hershey v. Poorbaugh, 21 A.3d 434, 488 (Pa. Super.
1941).
Counties’ Possession (1995-1998)
The trial court relies upon the common law doctrine, nullum tempus
occurrit regi, which translated means “time does not run against the king” to
come to its decision that the Wellses cannot be successful in their claim of
adverse possession against the Counties. Specifically, the court determined
that “the law, as it has long stood and currently stands, does not allow this
Court to rule against the political subdivision even when it owns a residential
neighborhood, and as such, judgment must be for the plaintiff.” Trial
Court’s Discussion, 12/8/15, at 6. While the court was correct that one
cannot adversely possess land against a political subdivision like the
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3
Typically, if a party’s use of the property is adverse from its inception, one
of the true title-holders, in order to interrupt the adverse possessor's
continuous adverse use and toll the running of the statute of limitations
against that true owner, must: a) bring and pursue to judgment legal
proceedings in which the use is determined to be without legal justification;
or b) cause a cessation of the use without the aid of legal proceedings.
Reed v. Wolyniec, 471 A.2d 80, 85 (Pa. Super. 1983).
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Counties, it does not necessarily prevent that person from adversely
possessing the land against the individual that purchases the property from
the political subdivision, its successor. Rather, during the time that the
political subdivision owns the property the 21-year statutory period for
adverse possession is tolled or stops running.
In Torch v. Constantino, 323 A.2d 278 (Pa. Super. 1974), a panel of
this Court addressed the issue of “whether land held for tax sale after return
for nonpayment of taxes tolls the prescription period” for adverse
possession. Id. at 279 (emphasis added). There, our Court held that
“adverse possession does not run against the political subdivisions holding
land for tax sales for nonpayment of taxes, as trustee, and . . . this function
is a governmental one.” Id. at 281. Specifically, the court acknowledged
that local governments have immunity from a claim of adverse possession
when the land in question is devoted to public use. Id. See Lysicki v.
Montour School Dist., 701 A.2d 630 (Pa. Cmwlth. 1997) (as to political
subdivisions, such as counties, townships and boroughs, rule seems to be
that title by presumption against such governing bodies may be asserted
unless land in question is devoted to public use); see also Fred E. Young,
Inc. v. Brush Mt. Sportsmen’s Ass’n, 697 A.2d 984, 992 (Pa. Super.
1997) (“Adverse possession does not lie against land held by the county in
connection with a tax sale.”); 68 P.S. § 88 (“Nothing contained in this act
[claim by adverse possession] shall be construed to give any title to any
lands by a claim of title adverse to that of the Commonwealth of
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Pennsylvania, and no claim of title adverse to the Commonwealth of
Pennsylvania shall be made or recorded under the provisions of this act.”).
Instantly, the trial court concluded that the subject property was
publicly used by the Counties from 1995 to 1998. Specifically, the court
noted that:
[O]ur government and governmental agencies are tasked with
the care and housing of mentally challenged individuals, and in
fulfilling that duty they often acquire property and operate
facilities through which they can provide valuable services
persons satisfying their criteria. It is true, of course, that a
relatively limited segment of the population directly takes
advantage of these services. It is also true, however, that they
are available to many others who choose not to utilize them.
It would be shortsighted to conclude that only persons who are
mentally ill or handicapped benefit from the services afforded
them, though, because in offering those services, the
government and its agencies also attempt to alleviate the
familial, and societal burdens often associated with mental
illness and retardation. In short, Jefferson and Clearfield
Counties were operating 703 East Main Street for everyone’s
benefit. Whether or not every person in Jefferson and Clearfield
County could actually go and receive the public services offered
at and from that location, therefore, the counties clearly made
public use of the property.
Trial Court Opinion, 12/22/15, at 1-2. We agree that the Counties publicly
used the subject property, upon which they housed and provided services to
a special subset of the local population, namely those with mental
disabilities. See Dornan v. Philadelphia Hous. Auth., 200 A. 834 (Pa.
1938) (because low-income housing on subject parcel would not be occupied
by all, but only few of public, does not change fact that property’s use
constituted public use).
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Therefore, accepting the trial court’s conclusion that the subject parcel
was publicly used, we must determine whether the three-year period in
which the Counties owned the parcel merely tolled or completely reset the
Wellses’ 21-year statutory clock upon the Counties’ sale of the land to
Weible. We find that the statutory period was tolled and not completely
reset.
While it is well established that the Wellses could not have legally
obtained title to the land by adverse possession against the Counties while
the Counties were the legal title owners of the subject property, it does not
necessarily prevent the Wellses from asserting a claim of adverse possession
against the Counties’ successor in title, Weible. The trial court maintained
that while the Counties owned the parcel from 1995-1998, the Wellses were
unable to adversely possess the land. This is a distinction with a difference.
Whether one can assert a claim of adverse possession against a landowner is
distinguishable from whether that party can adversely possess land while it
is owned by that same landowner. As Torch clearly stated, local
governments have immunity from a claim of adverse possession when the
land in question is devoted to public use. Nelson v. Dibble, 510 A.2d 792,
794 (Pa. Super. 1986). Moreover, not only can a claim not be brought
against these entities, but the 21-year statute does not continue to run
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during that time period. It is simply “tolled.” 4 See Torch, 323 A.2d at 430
(“question before us is whether land held for tax sale . . . tolls the
prescription period”) (emphasis added); see also Duffy v. Duffy, 20 Pa.
Super. 25, 28 (1902) (issue on appeal concerned whether recovery in
ejectment action, without surrender, “toll[s] the statute of limitations and
interrupt[s] adverse possession.”) (emphasis added).
With regard to the trial court’s claim that the Counties’ public use of
the property made it impossible for the Wellses to continuously possess the
land, a required element of adverse possession, we note that our Supreme
Court has described this element as when one “continue[s] a positive
appearance of ownership, by treating the property as his own, and holding it
within his exclusive control.” Stephens v. Leach, 19 Pa. 262 (1852). See
also Reed v. Wolyniec, 471 A.2d 80, 85 (Pa. Super. 1983) (in explaining
continuity element of doctrine of adverse possession, our Supreme Court has
noted that “[p]ossession of land is dominion over the land; it is not
equivalent to occupancy”). Merely because the Counties owned the subject
property does not automatically mean that the Wellses are unable to
concurrently use the land in a way consistent with adverse possession. This
is especially true where the record supports the trial court’s finding of fact
that “the [Wellses] continued their notorious and adverse possession of the
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4
Toll is defined, in part, as “to delay, suspend or hold off the effect of a
statute.” http://dictionary.law.com.
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property claimed during the time period that Clearfield and Jefferson
Counties owned the property for programs for mentally challenged
individuals.” Trial Court’s Findings of Fact, 12/8/15, at ¶ 21. The court also
noted that county officials and other individuals that visited the county
property could see, just feet away, the landscaping that the Wellses put in
and maintained as well as the driveway that was paved over the line. See
Brennan v. Manchester Crossings, 708 A.2d 815 (Pa. Super. 2008) (to
constitute distinct and exclusive possession for purposes of establishing title
to real property by adverse possession, claimant’s possession need not be
absolutely exclusive; rather, it need only be type of possession which would
characterize owner’s use).
The record bears out the fact that the Wellses have “consistently and
continuously maintained and notoriously used the property in plain view of
their neighbors,” id. at 6, from installation of the landscaping and driveway
(1975/1979) through the present. We do not believe that the Counties’
immunity from suit eviscerates the Wellses actual, continuous, 5 exclusive,
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5
The dissent relies upon Showalter v. Pantaleo, 9 A.3d 233 (Pa. Super.
2010), to conclude that the Wellses’ possession was not continuous and that
the 21-year period for purposes of adverse possession should run anew after
the local counties sold the land to Weible. We disagree. In Showalter, a
case involving land that became part of a bankruptcy estate, our Court relied
upon an Illinois decision that found that the mere act of a title holder
petitioning for reorganization under the federal bankruptcy act was
considered “an act of dominion over the property.” General Iron
Industries, Inc. v. A. Finkl and Sons Co., 686 N.E.2d 1, 5 (Illinois 1997).
Instantly, Pennsylvania law clearly states that land held by a governmental
(Footnote Continued Next Page)
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visible, notorious, distinct and hostile possession of the subject property.
Stated another way, the Counties’ ownership of the tract does not “start
anew” the 21-year clock upon their sale of the land to Weible. It merely
tolled the statutory period for the Wellses. Title from adverse possession
comes from occupying the land in a manner consistent with ownership.
Here, the Wellses proved that they adversely possessed the subject property
for the requisite 21 years. Accordingly, we reverse the trial court’s order
granting Weible title to the subject property and mandating that the Wellses
pay for resurveying, and remand the case for the entry of an order vesting
ownership of the property to the Wellses by adverse possession.6
_______________________
(Footnote Continued)
or political subdivision “tolls the prescription period.” Torch v.
Constantino, 323 A.2d 278 (Pa. Super. 1974). Under such circumstances,
the statute is merely stalled or held in abeyance until the subdivision sells
the land. In the instant case, no overt act of “dominion” was ever exercised
by the counties like that in General Iron. In fact, the court found that the
Wellses have “consistently and continuously maintained and notoriously
used the property in plain view of their neighbors.” See supra p. 11.
Accordingly, we believe that the statutory period did not run anew once
Weible became the title holder to the subject property, but, rather, the years
that the counties owned the property are excluded from the running of the
21-year clock. See Bezjak v. Diamond, 135 A.3d 623, 629 (Pa. Super.
2016) (citing principles announced in Showalter and concluding that “by
excluding the time [when property was part of bankruptcy estate],”
adverse possessor claimants could not “establish the requisite twenty-one
years of continuous possession for adverse possession.”).
6
We also recognize that an adverse possessor may accumulate the requisite
statutory 21 years as against multiple title owners of the disputed land. See
Brennan, supra (adverse possession proven by appellants where multiple
persons were successive title owners of subject property).
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Order reversed. Case remanded. Jurisdiction relinquished.7
Judge Solano joins this Opinion.
Judge Strassburger files a Dissenting Opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/27/2017
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7
Having disposed of the appeal on the bases of issues 2 and 3, we need not
address the Wellses’ remaining issues.
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Weible, R. v. Wells, W.
Combined Opinion