[J-91-2016]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
W. LOWELL STARLING AND NANCY : No. 30 MAP 2016
STARLING, :
: Appeal from the Order of the Superior
Appellees : Court at No. 1779 MDA 2014 dated
: August 11, 2015, Reconsideration
: Denied October 14, 2015, Reversing
v. : and Remanding the Order of the Adams
: County Court of Common Pleas, Civil
: Division, at No. 2010-S-498 dated
LAKE MEADE PROPERTY OWNERS : September 26, 2014.
ASSOCIATION, INC., :
: ARGUED: September 14, 2016
Appellant :
OPINION
JUSTICE WECHT DECIDED: May 25, 2017
In Pennsylvania, planned communities are sufficiently common that twenty years
ago our General Assembly adopted a uniform act regulating aspects of their inception,
organization, and management.1 This case involves a dispute in one such community
between property owners and their governing homeowners association. At issue is the
ownership and use of certain undesignated property and the road that runs the length of
a peninsula jutting into Lake Meade, the man-made lake at the heart of the community.
We granted review in order to consider ownership and permissible uses of the road and
the adjacent strip of undesignated, undeveloped property.
1
See Uniform Planned Community Act, Act of Dec. 19, 1996, P.L. 1336, No. 180,
68 Pa.C.S. §§ 5101, et seq.
I. Background
Because this case reaches us following the Superior Court’s reversal of the trial
court’s order granting summary judgment in favor of the Lake Meade Property Owners
Association, Inc. (“the Association”), the following account of the facts is as alleged by
homeowners W. Lowell and Nancy Starling (“the Starlings”), the non-moving parties
relative to that determination, with all inferences drawn in their favor.2 Thus, we begin
with the facts as alleged in the Starlings’ operative Second Amended Complaint (“the
Complaint”) and their answer and brief in opposition to the Association’s motion for
partial summary judgment.
The Lake Meade Subdivision (“the Subdivision”), originally purchased,
subdivided, and developed by Lake Meade Incorporated (“LMI”), is a gated community
comprised of more than 1,000 residential units surrounding Lake Meade in Adams
County. The Association was incorporated on June 25, 1966. LMI recorded the
Subdivision Plan (“the Plan”) in the Office of the Recorder of Deeds of Adams County
on January 20, 1967.3 The Dedication describing the Plan provided that the “[p]rimary
purpose of this plan is for the enjoyment of out of door recreation and will so provide for
the owners of lots purchased a healthful atmosphere for themselves, their children and
friends.” See Association’s Motion for Partial Summary Judgment, Exh. E
(“Dedication”).
By deed dated May 16, 1967, LMI transferred title in separate deeds to Lots 725
and 726 (collectively, “the Starling Tract”) to W.F.O. Rosenmiller, III, and Elinor T.
2
We review the record in the light most favorable to the nonmoving party, and we
resolve all doubts as to the existence of a genuine dispute regarding a material fact
against the moving party. Gilbert v. Synagro Cent., LLC, 131 A.3d 1, 10 (Pa. 2015).
3
For ease of reference, the relevant portion of the Subdivision Plan as recorded is
appended hereto.
[J-91-2016] - 2
Rosenmiller.4 The Starling Tract lies at the end of the aforesaid peninsula, which is
accessed via Custer Drive, a dead-end road that terminates in a cul-de-sac at the
northern end of the peninsula, which is bordered to the east by the Starling Tract, to the
north by a narrow strip of contested land that descends to rip-rap5 along the lakeshore,
and to the west by a narrow strip of contested land along the western shore of the
peninsula (we refer to the contested property along both the northern and western
shores of the peninsula, collectively, as “the Disputed Property”). On the Plan, the
Disputed Property is neither identified nor enumerated as one or more discrete lots, is
not clearly bounded by any lines resembling the boundary lines used to denote
individual properties in the Plan, and is not designated as a “recreational area” or for
“lake access.” However, since at least 2002, the Association has maintained a
community bulletin board and garbage cans on the Disputed Property, encouraging the
impression that the Disputed Property is intended for communal use, and during that
span it has been used as such.
On September 25, 1968, after it had sold most of the lots in the Plan, LMI deeded
to the Association “ALL those roads, the dam, lake and basin, and [thirty-six specifically
enumerated lots,] all more particularly shown on the plans of lots titled Lake Meade
Subdivision, duly recorded in the office of the Recorder of Deeds of Adams County.”
Complaint, Exh. D (Indenture, 9/25/1968, at 1) (“the 1968 Deed”). Notably, this
conveyance made no direct reference to the Disputed Property.
4
Each deed conveyed, by its terms, “ALL That certain lot of land situated in
Reading Township, Adams County, Pennsylvania, being more particularly described as
Lot No. [725/726] on a plan of lots of LAKE MEADE SUBDIVISION, duly entered and
appearing of record in the Office of the Recorder of Deeds of Adams County . . . .”
5
Rip-rap is “[a] loose assemblage of broken stones erected in water or on soft
ground as a foundation.” THE AMERICAN HERITAGE COLLEGE DICTIONARY 1177 (3d ed.
1993).
[J-91-2016] - 3
The Rosenmillers sold the Starling Tract to Louise I. Cookson in 1974; Cookson
conveyed the Starling Tract to A. Bailey and Doris A. Wood in 1977. The Starlings
purchased the Starling Tract from the Woods on August 12, 2002. 6 A few years later,
the Starlings built a house and, in 2006, they moved into their new home. Beginning
more or less immediately, the Starlings “regularly encountered problems with
unidentified individuals and groups fishing, picnicking, sunbathing, lounging, socializing,
parking and loitering on and around . . . Custer Drive and the [Disputed Property].”
Complaint at 9 ¶51. These same individuals parked their cars on Custer Drive and the
Disputed Property, littered the cul-de-sac, and damaged the Starlings’ lawn.
The Starlings began to complain to the Association in 2006. At first, the
Association took steps to address the Starlings’ concerns—for example, placing
boulders and no trespassing signs around the cul-de-sac. However, the Association did
not enforce the prohibition against trespassing and eventually removed the signs.
Furthermore, it did not place such boulders along the western edge of Custer Drive.
In 2007, following a meeting between the Starlings and officers of the
Association, the Association’s attorney sent the Starlings a letter in which he contended
that the Association held a fee simple interest in the Disputed Property that was
conveyed by LMI in the 1968 Deed. See id. Exh. M (Letter of John W. Phillips, Esq., to
the Starlings, 2/15/2007, at 1). The Starlings’ attorney responded that the Starlings had
“a genuine claim to extend the eastern[7] property line of [their] Lot 725 completely
6
Like all post-Rosenmiller deeds that preceded it, the deed conveying Lots 725
and 726 to the Starlings conveyed “ALL THAT CERTAIN lot of land situate in Reading
Township, Adams County, Pennsylvania, being more particularly described as Lot #725
and Lot #726 on a plan of lots of Lake Meade Subdivision, duly entered and appearing
of record in the Office of the Recorder of Deeds of Adams County.”
7
This appears to be a reference to the southern property line of Lot 725, which
runs east to west.
[J-91-2016] - 4
across the right[-]of[-]way of Custer Drive to the water line of Lake Meade and that
[their] lot essentially surrounds and encompasses the full end of the cul-de-sac of
Custer Drive.” Id., Exh. N (Letter of Jeffrey Ernico, Esq., to John Phillips, Esq.,
4/26/2007, at 1).8
A few months later, the Association hosted an Independence Day celebration on
the Disputed Property. Numerous vehicles, including fire trucks, parked along Custer
Drive, and the party stretched late into the evening. On August 8, 2007, Attorney
Phillips sent a letter to the Starlings on behalf of the Association reporting on the
board’s “consensus . . . that the measures taken to date, which have included placing
boulders in the right[-]of[-]way to discourage parking on the Starling[s’] property, moving
the bulletin board further down the cul-de-sac, increasing monitoring of the area, and
increasing safety patrols have had the desired effect” of ensuring that all activities on
8
The Starlings here claimed ownership of the entire end of the peninsula north of
Lot 725’s southern property line. This claim differs from the claim made in their
Complaint that their parcel wrapped around the cul-de-sac and down the western shore
of the peninsula. See Complaint at 7-8 ¶¶35-40 (asserting only ownership of that strip
of land around the cul-de-sac). These competing accounts have remained a source of
confusion throughout this litigation, not least because the Starlings at each judicial level
have at times maintained one or the other position. Even in the trial court, their position
appeared to shift between the filing of their Complaint and the filing of their brief in
opposition to summary judgment. See Starlings’ Brief in Opposition to Motion for Partial
Summary Judgment at 5 (“The Starlings contend that the entire tip of Custer Peninsula
is part of their Lots 725 and 726, subject to the Association’s easement over the Custer
Drive Right-of-Way.”). Thus, the Superior Court’s contention that the Starlings simply
never laid claim to ownership of the entire end of the peninsula, including some portion
of Custer Drive, is inaccurate. See, e.g., Starling v. Lake Meade Prop. Owners Ass’n,
Inc., 121 A.3d 1021, 1032-33 (Pa. Super. 2015) (contending that the trial court
misconstrued the Starlings as seeking ownership of the cul-de-sac itself when they
claimed only ownership of the Disputed Property). Furthermore, before this Court, they
again assert ownership over Custer Drive. See, e.g., Starlings’ Supreme Court Brief at
18 (proposing that if, as they maintain, the Association does not own the fee to Custer
Drive, then “the Starlings own the underlying fee subject to the [Association’s]
ownership of an easement for ingress or egress”). For reasons set forth below, we
consider both claims.
[J-91-2016] - 5
Custer Drive and the Disputed Property were “consistent with the uses allowed on other
common areas.” Id., Exh. Q (Letter of John Phillips, Esq., to Jeffrey Enrico, Esq.,
8/8/2007, at 1). Acknowledging the ongoing disagreement, Attorney Phillips suggested
that the Starlings initiate a quiet title action to settle the ownership question.
The Starlings declined to file suit at that time, and discussions continued. The
Association went on to host Independence Day parties on the Disputed Property in
2008 and 2009. In a 2009 Association newsletter, the Association promoted “[f]ishing
[a]long Custer Drive,” explaining that “the narrow strip of land facing toward the Marina
is owned by [the Association]. Everything on the other side of the street is private
property. Please respect the owners.” Id., Exh. U (Lake Meader, vol. 34 no. 4 (July
2009), at 2).
In December 2009, the Starlings and the board again met, but failed to reach an
agreement. Adopting a new tack, the Starlings transmitted an email to the board
contending that a lawsuit commenced against the Association by Louise Cookson in
1976 (“the Cookson Litigation”) had resulted in a binding 1977 decree establishing that
the Disputed Property and Custer Drive north of the southern boundary of Lot 725 were
part of the Starling Tract. The Starlings noted that the common pleas court in Cookson
had described Lot 726 as being bounded by Lake Meade on three sides and Lot 725 as
being bounded by Lake Meade to both the east and west. See id., Exh. L (Decree Nisi
and Adjudication in Cookson v. Bd. of Dirs., Lake Meade Prop. Owners Ass’n, No. 5
Feb. Term 1976, at 1 (CCP Adams March 2, 1977) (“[Lots 725 and 726] are located on
a part of the development [that] extends out into [Lake Meade] with Lot No. 726 being
surrounded on three sides by the lake and Lot No. 725 being bounded on the east and
west by the lake.”)). The Association was unpersuaded.
[J-91-2016] - 6
The Starlings then filed suit against the Association, alleging trespass (Count I),
ejectment (Count II), and seeking a declaratory judgment (Count IV) to the effect that
the Starlings own the Disputed Property—specifically, they asked that the court “enter
an Order conclusively establishing the boundary line of [the] Starling Tract at [the]
southern end of the Disputed Portion of the Starling Tract and further declaring that the
entire Starling Tract belongs to the Starlings.” Id. at 26.9 The Starlings asserted that
the Association had exercised wrongful possession of the Disputed Property, as
evinced by the placement of Association’s garbage cans and bulletin board.
Additionally, the Starlings claimed nuisance (Count III), alleging that the Association
intentionally and unreasonably “permitted, encouraged and sponsored trespass and
nuisance activity” infringing on their property rights. Id. at 25 ¶154. Finally, the
Starlings sought declaratory and injunctive relief (Count V) to establish “the appropriate
use of the [Disputed Property] and the Starling Tract and the appropriate use of Custer
Drive.” Id. at 29 ¶177.
After preliminary proceedings and discovery, the Association moved for partial
summary judgment. It contended that the Starling Tract ended at Custer Drive’s
eastern edge. Thus, the Starlings had no claim to Custer Drive or the Disputed
Property. The Association further averred that the Subdivision’s Restrictions and
Covenants did not preclude unit owners, their families, and their guests from “walking,
biking, fishing, or socializing along [Custer Drive or the Disputed Property].”
Association’s Brief in Support of Its Motion for Partial Summary Judgment at 21.
9
The Starlings’ choice of terminology is somewhat confusing, but we read this as
seeking a declaration that the Starlings own the entirety of what we refer to as the
Disputed Property, ostensibly to some point near where the western shore of the
peninsula turns west at the peninsula’s base. In light of our ruling, the Starlings’
intention as reflected in this wording is immaterial; its gist is clear.
[J-91-2016] - 7
Regarding ownership, the Association observed that the Plan depicts courses
and distances for the Starling Tract that measure from the eastern waterline to the
eastern edge of Custer Drive. No corresponding east-west boundary lines transect the
road or appear on the Disputed Property west of Custer Drive. As to Lot 726, no course
or distance denotes where the northern boundary lay, but the Plan depicts a point of
tangency between the waterline and the northern edge of the Custer Drive cul-de-sac.
As well, note 2 on the lower right-hand corner of the Plan (appended to this Opinion)
provides: “Water-line (500 ft. elev.) is waterfront property line on all waterfront lots.”
Thus, the Association contended, the boundary of Lot 726 is where the water-line
becomes tangent to the cul-de-sac’s northern edge; nothing in the Plan’s depiction
suggests that Lot 726 wraps around the northern edge of the peninsula to continue
down the western side. Because the Plan is unambiguous, the Starlings’ attempt to
introduce extrinsic evidence in the form of the Cookson decision and post-recordation
surveys, tax maps, and behavior was impermissible. Thus, the Association was entitled
to judgment as a matter of law on Counts I, II, and IV (trespass, ejectment, and the
ownership claim), because each of those counts required the Starlings to establish a
question of material fact regarding ownership or the right to possession of the Disputed
Property, and the Starlings had failed to do either.
Regarding the Starlings’ claim for declaratory and injunctive relief as to the use of
Custer Drive and the Disputed Property, the Association contended that the Starlings’
reliance upon the Plan’s Restrictions and Covenants was infirm. The Association
asserted that the restriction providing that lots other than those designated as “business
or commercial areas” “shall be used exclusively for residential purposes” did not
[J-91-2016] - 8
encompass Custer Drive or the Disputed Property.10 Id. at 22. Instead, the
undesignated Disputed Property was free to be utilized in service of the outdoor
recreation that was the stated purpose of the Subdivision. Furthermore, applying the
Starlings’ strict definition of “residential purposes” would effectively “exclude activities
incidental to residential uses, such as walking, biking, fishing, and other forms of
socialization.” Id. at 23. The Association maintained that the restriction relied upon by
the Starlings was designed simply to ensure that lots designated for residential use
were not converted to commercial purposes. The Starlings also failed to identify any
restrictive covenant limiting Custer Drive to “vehicular travel.” Id. at 24. Furthermore,
although it was enacted after the creation of the Subdivision, the Uniform Planned
Community Act, see supra n.1, retroactively conferred upon the Association the power
to “[r]egulate the use . . . of common elements” within the Subdivision. 68 Pa.C.S.
§ 5302(a)(6); see 68 Pa.C.S. § 5102(b) (providing for retroactive application to pre-
enactment planned communities). Thus, the Association was free to allow authorized
individuals and their vehicles to utilize Custer Drive for more than just vehicular travel
and to use the Disputed Property for recreational purposes.
The trial court granted the Association’s motion. Regarding the ownership
questions, the court noted that it must seek to “ascertain and effectuate the intentions of
the parties at the time of the original subdivision.” Trial Court Opinion (“T.C.O.”),
1/15/2013, at 5 (citing Pa. Elec. Co. v. Waltman, 670 A.2d 1165, 1169
(Pa. Super. 1995)). Where, as in this case, a deed describes the land to be conveyed
10
Interestingly, the Association does not argue that the last clause of the
Restrictions and Covenants, which grants the Association discretion to “redesignate
certain areas . . . to assure adequate facilities for its members” effectively authorized the
Association to treat the undesignated Disputed Property as land to be used for
recreation and lake access. In any event, this omission is immaterial to our disposition.
[J-91-2016] - 9
only by lot number in a subdivision plan, the plan is “an essential part of the deed, giving
[it] the same force and effect as if the plan had been copied into the conveyance.” Id.
at 5-6 (citing Richardson v. McKeesport, 18 Pa. Super. 199, 204 (1901)); see
Birmingham v. Anderson, 48 Pa. 253, 260 (1864) (“Where a map or plan is thus referred
to [in a deed] it becomes a material and essential part of the conveyance, and is to have
the same force and effect as if it was incorporated into or copied into the deed.”).
Turning to the Plan, the court recited the distances specified thereupon for the
southern boundaries of Lots 721, 722, 723, 724, and 725, and underscored that those
boundary lines extend from the eastern waterline only to the eastern edge of Custer
Drive and no farther. Addressing Lot 726’s lack of a measured northern boundary, the
court recited the Plan’s notation establishing that the waterline, at 500 feet elevation, “is
[the] waterfront property line on all waterfront lots.” Id. at 6; see Plan, Appendix note 2.
Furthermore, “the northwest boundary of Lot 726 becomes tangent with [the Custer
Drive cul-de-sac] at the 500[-]foot elevation water[-]line,” establishing an unambiguous
boundary at the depicted point of tangency. T.C.O. at 6-7. Accordingly, the Plan could
sustain neither the Starlings’ theory that Lot 725’s southern boundary traversed Custer
Drive to the western shore nor their contention that Lot 726 wrapped around the
northern edge of the cul-de-sac and incorporated any portion of the Disputed Property.
Regarding the wrap-around theory, the trial court observed that the Starlings’ contention
would lead to the absurd result that the owner of Lot 1020, located at the southwestern
corner of the peninsula, also would have a competing claim to the Disputed Property.
That is to say, if a point of tangency combined with the absence of clear dimensions
could not bound Lot 726, the same logic would suggest that the northeastern boundary
of Lot 1020, unaffected by its own depicted point of tangency with Custer Drive, extends
northward along the peninsula’s westward shore to include the Disputed Property.
[J-91-2016] - 10
Because the wrap-around theory would provide the owners of Lots 726 and 1020 with
equally viable claims to the Disputed Property, such a theory could not reflect LMI’s
intent in designing the Plan.
Although the trial court evidently believed that the Plan was unambiguous,11 it
nonetheless reviewed the parol evidence submitted by the Starlings in opposition to
summary judgment. The trial court first rejected the Starlings’ reliance upon an Adams
County tax map that purportedly showed the boundary of Lot 726 reaching around the
northern edge of Custer Drive, observing that the Starlings’ payment of taxes on the
Disputed Property, if any,12 would not be competent evidence of ownership. T.C.O. at 8
(citing James v. Bream, 106 A. 722, 723 (Pa. 1919)13). Next, the trial court rejected the
Starlings’ reliance upon the April 1974 survey that was attached to the 1974 deed from
the Rosenmillers to Cookson. Although the survey was attached to that conveyance,
neither that deed nor any other in the succeeding chain of title referred to that survey in
describing the Starling Tract. Rather, each deed in the chain of title described the
Starling Tract solely by reference to the Plan. Regarding the Starlings’ reliance upon
the Cookson Litigation, the court carefully delineated the issues that were decided in
that case, explaining that the only boundary in dispute was that between the eastern
11
See T.C.O. at 7 (discussing the parol evidence introduced by the Starlings,
“[d]espite the unambiguous Subdivision Plan which does not show boundary lines that
extend over Custer Drive and through the land west of Custer Drive”).
12
Based upon the information before it, the trial court disputed that the Starlings
actually had done so.
13
Specifically, in James this Court held that “[a]ssessment and payment of taxes do
not prove title, but are circumstances tending to support a claim of possession.” 106 A.
at 723. As discussed herein, possession and the right thereto may bear on trespass
and/or ejectment, but in this case, as a practical matter, the Starlings seek to support
their right to relief on these claims by virtue of ownership only, not some non-ownership-
based possessory right.
[J-91-2016] - 11
part of the cul-de-sac and the Starling Tract, which had no bearing on the Disputed
Property. Thus, the passing description of the boundaries of the Starling Tract in
Cookson were dicta of no binding effect.14
Of particular relevance to our analysis, not least because it appears to have been
the view adopted by the Superior Court, the trial court next considered the Starlings’
argument that they must own the Disputed Property (and, ostensibly, Custer Drive)
because the Association possesses only a right-of-way or easement15 over Custer
Drive, but no fee interest in the land beneath it. The Starlings argued that, by 1968,
when LMI purported to convey to the Association, inter alia, all Subdivision roads, LMI
no longer held a fee in those roads. Rather, upon its sale of many of the Subdivision’s
residential parcels, and in retaining the lots enumerated in the 1968 Deed, LMI
effectively granted access easements to those purchasers as a matter of law and
retained only such easements itself to the extent they attached to the properties it had
retained until the 1968 Deed, somehow simultaneously converting its own fee interest in
the Subdivision roads to no more than the same easement enjoyed by all holders of
Subdivision parcels.16 In rejecting this argument, the trial court found that, at the time of
the 1968 Deed, LMI retained its fee interests in the Subdivision roads, and that the deed
from LMI to the Association unambiguously reflected LMI’s intention to convey the roads
14
See Cinram Mfg., Inc., v. W.C.A.B. (Hill), 975 A.2d 577, 581-82 (Pa. 2009)
(holding that statements that are inessential to the reasoning in a judicial opinion are not
binding in future cases).
15
These terms may be, and are herein, used interchangeably. See Lease v. Doll,
403 A.2d 558, 561 (Pa. 1979) (“A right[-]of[-]way is an easement.”).
16
See Kao v. Haldeman, 728 A.2d 345 (Pa. 1999) (“When . . . lots are sold
according to a subdivision plan on which a street has been plotted by the grantor, the
purchasers acquire property rights in the use of the street. Such a right is sometimes
called an easement of access[,] which means the right of ingress and egress to and
from the premises of the lot owners.” (internal quotation marks omitted)).
[J-91-2016] - 12
in fee to the Association.17 Thus, the Association took fee simple ownership of the
Subdivision roads subject only to the access easements of all Subdivision owners
(including those who would come to own the residential lots that LMI conveyed to the
Association in fee in the 1968 Deed).
For the foregoing reasons, the trial court granted the Association’s motion for
partial summary judgment as to the Starlings’ claims for trespass, ejectment, and
declaratory judgment regarding ownership of Custer Drive and/or the Disputed Property.
Because each count required a showing of ownership or the right to possession of the
contested property, and because the Starlings had failed to establish a genuine issue of
material fact as to either, those claims failed as a matter of law. See T.C.O. at 13 &
nn.2 & 3 (citing Hartley v. Spencer, 75 Pa. Super. 449 (1920), for the proposition that
one may recover for trespass only upon proof of ownership and possession or the right
thereto of the land at the time of the trespass, and Wells Fargo Bank, N.A. v. Long, 934
A.2d 76, 79 (Pa. Super. 2007), for the proposition that ejectment may only be had by
one with the right to possess the property in question); see Soffer v. Beech, 409 A.2d
337, 340-41 (Pa. 1979) (“[T]he right to possession is the central element of [an action in
ejectment],” which “has long been the general method for obtaining possession of real
property. . . . [O]ur cases involving fee claimants speak only of the right to possession
by one not presently in possession.” (citations omitted)). In so ruling, the court
determined that the Association retained a fee to Custer Drive and that the Starlings
17
Absent contrary indications on the face of the deed, the use of the word “grant” in
a conveyance of land connotes the grantors’ intent to pass fee simple title of the land so
conveyed. See 21 P.S. § 2 (“[I]n any deed or instrument in writing for conveying or
releasing land hereafter executed, unless expressly limited to a lesser estate, the words
“grant and convey,” or either one of said words, shall be effective to pass to the grantee
or grantees named therein a fee simple title to the premises conveyed . . . .”).
[J-91-2016] - 13
had no ownership or possessory interest in the Disputed Property outside the depicted
point of tangency of the water-line and the northern edge of the cul-de-sac.
With regard to the Starlings’ claim for an injunction restricting the use of Custer
Drive to “vehicular travel,”18 the court noted that no Subdivision covenant so limited the
use of that road. The trial court observed that, were it to limit use of Custer Drive to
“vehicular purposes” in the sense ventured, “activities such as walking, running and
biking would not be permitted.” T.C.O. at 16. Indeed, were the Starlings to host a party,
their own guests would not be allowed to park on Custer Drive, because parking is not
“vehicular travel.” Id. This would contravene what the court deemed the “main purpose
of the Subdivision, . . . the enjoyment of outdoor activities.” Id. at 16-17.
With regard to the Starlings’ claim for declaratory and injunctive relief precluding
non-residential use of the Disputed Property,19 the trial court found that the lack of
designation of the Disputed Property for recreation or lake access was not conclusive in
favor of the Starlings’ claim. Rather, the Plan’s stated “primary purpose” was to serve
“the enjoyment of out of door recreation.” Association’s Motion for Partial Summary
Judgment, Exh. E. Furthermore, the “Dedication” section of the Plan specified that all
lots not designated “water supply” or “commercial” would be “either recreational areas,
lake access areas, or residential lots.” Id. The Disputed Property not having been
designated water supply, commercial, recreational, lake access, or residential, the trial
court found that “any lawful use is permitted” on the Disputed Property. T.C.O. at 15.
18
See Complaint at 28 ¶175 (alleging that “[t]he Association is using and permitting
its membership to use Custer Drive for purposes other than vehicular travel”), 29
¶177(a) (seeking “[a] decree enjoining permanently the Association from using Custer
Drive and its cul-de-sac for purposes other than vehicular travel”).
19
See Complaint at 29 ¶177(b) (seeking “[a] decree enjoining the Association from
using the [Disputed Property] for non-residential purposes of any kind”).
[J-91-2016] - 14
Finding no further controversy with respect to Count V, the court granted the
Association summary judgment on Count V.
Following the trial court’s entry of partial summary judgment for the Association,
the parties entered a consent order dismissing the Starlings’ remaining nuisance count
(Count III), and the Starlings agreed not to seek damages. This rendered the trial
court’s judgment final, and the Starlings appealed to the Superior Court.
In a unanimous precedential opinion that largely adopted the Starlings’
arguments, a three-judge panel of the Superior Court rejected the trial court’s
determination that the Association held a fee simple interest in Custer Drive. The
Superior Court found it of “vast importance” that the Plan was recorded in 1967, the
year before LMI deeded, inter alia, its interests in the Plan’s roads to the Association.
Starling v. Lake Meade Prop. Owners Ass’n, Inc., 121 A.3d 1021, 1028 (Pa.
Super. 2015). It also was in 1967 that the Rosenmillers acquired the lots comprising the
Starling Tract. The court correctly noted that, “when lots are sold as part of a recorded
subdivision plan on which ‘a street has been plotted by the grantor, the purchasers
acquire property rights in the use of the street.’” Id. at 1028 (quoting Kao v. Haldeman,
728 A.2d 345, 347 (Pa. 1999)). This “easement of access” “is a property right
appurtenant to the land [that] cannot be impaired or taken away without compensation.”
Id. (internal quotation marks omitted); see id. (quoting RESTATEMENT (3d) OF
PROPERTY—SERVITUDES § 2.13(1)) (“A description of the land conveyed that refers to a
plat or map showing streets . . . implies creation of a servitude restricting use of the land
shown on the map to the indicated areas.” (Superior Court’s emphasis omitted)).
From this uncontroversial proposition, though, the Superior Court proceeded to
an inference that is unprecedented in Pennsylvania law:
As of [the date of the 1968 Deed, LMI] did not own any road in fee interest
absolute because it had . . . sold lots in the [S]ubdivision. As owner of
[J-91-2016] - 15
certain unsold lots in 1968, [LMI] owned an easement in the platted roads
shown on the [Plan] when it conveyed the roads to the Association. The
grantor in a deed cannot convey title to property greater than that owned
by the grantor. See Ecenbarger v. Lesoine, 438 A.2d 969
(Pa. Super. 1981) (where grantor did not own property in fee but was co-
owner, grantor could not convey easement over section of property owned
in common with other grantors without joinder of other property owners).
[LMI] simply did not own a fee simple interest in the platted roads in the
[Subdivision] in 1968, when it purported to grant such an interest to the
Association. The trial court therefore erred, as a matter of law, in ruling
that the 1968 [D]eed created a fee simple absolute interest to the
Association to Custer Drive in the [Subdivision] and that, as fee simple
owners, the Association could continue to use Custer Drive as it wished.
Indeed, the logical implications of a finding that the Association owns, in
fee simple absolute, the platted roads in the subdivision are far-reaching
and counter-intuitive. If the Association owned the roads in fee simple
absolute, it could sell those roads and permit houses to be built on them.
It could allow them to be used as parking lots. The Association could
thereby prevent access by [Subdivision] property owners to their lots.
Id. at 1029 (citation modified; emphasis added).
Thus, the Superior Court held that the trial court not only erred in entering
summary judgment with regard to trespass, ejectment, and ownership of Custer Drive,
but it also erred in denying declaratory and injunctive relief regarding the Association’s
usage of Custer Drive. It held that, because the Association has no greater right to the
use of Custer Drive than is enjoyed by any holder of a Subdivision lot, the Association
was entitled only to use Custer Drive for “vehicular and pedestrian ingress and
egress.”20 Starling, 121 A.3d 1031. Thus, the Superior Court reversed the trial court’s
entry of judgment on Counts I, II, and on Count IV to the extent that it established the
Association’s ownership of Custer Drive, and it directed the trial court to enter judgment
20
The Superior Court characterized this remedy as “the relief requested in Count V
of the Complaint,” but, as noted supra, the Starlings actually sought an injunction
precluding all use but “vehicular travel,” without any allowance for pedestrians.
[J-91-2016] - 16
in the Starlings’ favor on their prayer for injunctive relief regarding the use of Custer
Drive.
That left only the question of ownership and use of the Disputed Property. In this
connection, the Superior Court found that the Plan was ambiguous. The court then
reviewed the Starlings’ parol evidence, every item of which post-dated the recordation
of the Plan, and found that genuine issues of material fact remained regarding whether
Lot 726 wrapped around the cul-de-sac to encompass some portion of the strip of land
west of Custer Drive. Thus, the court specifically remanded for further fact-finding on
the ownership question. With regard to use, the court was less clear, but its opinion at
least suggested that the absence of an express Plan designation of the Disputed
Property for common use precluded non-residential use such as that alleged by the
Starlings. See id. at 1031 (“The fact that the Starlings do not own the triangular shaped
piece of land, however, does not mean that the Association does own it and can allow
people to use it for recreational purposes.”), 1033 (“In sum, we remand for the grant of
partial relief to the Starlings as to [C]ount [V] . . . and for entry of an injunction
permanently enjoining use of the entirety of the platted Custer Drive and the entirety of
its platted cul[-]de[-]sac to any use other than for ingress and egress.”).
Interestingly, in analyzing this consideration, the court appeared to understand
the Starlings as seeking only the northwestern bulge opposite Lot 726, which the court
referred to as “the triangular-shaped piece of land.” Id. at 1024. However, based upon
our review, the Starlings never restricted their claim in that fashion before the trial court,
nor did they do so in their briefing to the Superior Court. Indeed, contrary to the
Superior Court’s claim, before that court the Starlings were less than clear about
whether they sought ownership of the entire peninsula north of the southern boundary
of Lot 725 or merely some indeterminate portion of the land to the north and west of
[J-91-2016] - 17
Custer Drive, and in any event, nowhere did the Starlings so much as refer to any land
as triangular. Thus, while the Superior Court correctly observed that the Starlings’
Complaint never appeared to assert ownership of Custer Drive, the court was simply
wrong to suggest that the Starlings never raised that argument in the trial court at all,
see supra n.8, or that their arguments on appeal were so focused.21
II. Analysis
We granted allowance of appeal to consider three issues. Although the two
issues we reach were stated in terms of the Superior Court’s apparent determination
that the fee to Custer Drive was surrendered by LMI (or effectively extinguished entirely)
as soon as LMI sold the first Subdivision lot and the Superior Court’s alleged conclusion
that “extrinsic evidence can vary property boundaries on a recorded subdivision plan,” 22
21
Cf. Starlings’ Superior Court Brief at 10 (“The Starlings contend that the entire tip
of Custer Peninsula is part of their Lots 725 and 726, subject to the Association’s
easement over Custer Drive.”), 22 (quoting the affidavit of an agent for the developer
that was submitted in the Cookson Litigation: “[T]hrough inadvertence of [LMI], the
Plans of Lots 725 and 726 prior to the recording were not corrected to show the actual
intent of the parties but rather to show the [sic] Custer Drive to extend through Lot 725
to the shoreline of Lake Meade” (emphasis in original)), 26 (“Accordingly, the trial
court’s holding that the area between Custer Drive and Lake Meade on the western side
is owned by the Association is without support in the existing record.”).
22
Adopting the Association’s formulation of the issues verbatim, our order granted
review of the following issues:
1. Whether the Superior Court erred as a matter of law in holding that
a fee simple owner of a private road who grants an easement over that
road extinguishes its fee simple ownership of the road?
2. Whether the Superior Court’s decision conflicts with
Pa.R.C.P. 1035 when the court reversed the trial court’s grant of summary
judgment and directed the entry of injunctive relief in favor of the
[Starlings] and did so without considering the facts of record found by the
trial court, without considering the record in the light most favorable to [the
(continued…)
[J-91-2016] - 18
the lower courts, and now we, find that the most sensible way to resolve these issues is
to address ownership and use of Custer Drive and the Disputed Property as such,
which implicate and are encompassed by the issues as stated. For clarity of analysis,
we address both ownership questions first, then take up the question of use.
A. Standard of Review
Appellate review of summary judgment entails a question of law. Accordingly,
we review the Superior Court’s reversal of the trial court’s order de novo, and we need
not defer to either lower tribunal’s determinations. See Summers v. Certainteed Corp.,
997 A.2d 1152, 1159 (Pa. 2010). In reviewing the lower courts’ rulings, we apply the
same legal standard as the trial court. Albright v. Abington Mem. Hosp., 696 A.2d 1159,
1165 (Pa. 1997).
Summary judgment is appropriate only in those cases where the record
clearly demonstrates that there is no genuine issue of material fact and
that the moving party is entitled to judgment as a matter of law. . . . The
reviewing court must view the record in the light most favorable to the
nonmoving party, resolving all doubts as to the existence of a genuine
issue of material fact against the moving party. When the facts are so
clear that reasonable minds cannot differ, a trial court may properly enter
summary judgment.
(…continued)
Association], and where there are general issues of material fact
precluding the entry of judgment in the [Starlings’] favor?
3. Whether the Superior Court erred as a matter of law in concluding
that extrinsic evidence can vary property boundaries on a recorded
subdivision plan?
Starling v. Lake Meade Prop. Owners Ass’n, Inc., 133 A.3d 733 (Pa. 2016) (per curiam).
As explained below, our disposition of the ownership and use-related issues provides
the answers to issues one and three and renders issue two moot.
[J-91-2016] - 19
Gilbert v. Synagro Cent., LLC, 131 A.3d 1, 10 (Pa. 2015) (quoting Atcovitz v. Gulph
Mills Tennis Club, 812 A.2d 1218, 1221-22 (Pa. 2002) (citations omitted)). In the
specific context of boundary disputes, we have drawn the following distinction, which is
critical to understanding what we can—and cannot—decide in the summary judgment
phase:
The meaning of a deed—that is, what it covers—is a question of law for
the court; what the boundaries of a given piece of land are is a question of
construction for the court also; where they are is a question of fact for the
jury. Where the boundary lines of a grant are fixed by the grant itself, the
question as to what these lines are is purely one of law.”
Miles Land Co. v. Hudson Coal Co., 91 A. 1061, 1064 (Pa. 1914) ((citations and internal
quotation marks omitted))
B. The Ownership Issues
We first must address the above-mentioned confusion regarding whether the
Starlings asserted ownership of the entire northern section of the peninsula
encompassing some portion of Custer Drive, with the southern boundary of their claim
presumably delineated as the extension of Lot 725’s southern boundary across Custer
Drive to the western water-line—what we have referred to as the cross-cutting theory—
or asserted only ownership of the Disputed Property itself, i.e., some contiguous portion
of the Plan extending Lot 726 around the northern edge of the cul-de-sac and down the
western shore, west of Custer Drive, to some southern boundary the location of which
cannot conclusively be gleaned from the Starlings’ pleadings, i.e., the wrap-around
theory. For the reasons set forth supra, we conclude that the Starlings gave both the
trial court and the Superior Court ample reason to believe that they pursued both
theories in the alternative. See, e.g., supra nn.8, 21, and accompanying text. The trial
[J-91-2016] - 20
court appeared to approach the case upon this basis, but the Superior Court nominally
rejected it, although its opinion nonetheless seemed to address aspects of both
theories. In any event, there is no question that the Starlings now maintain that their
tract actually extends across the peninsula entirely and encompasses Custer Drive. In
their view, the Association enjoys only the same access easement enjoyed by the other
owners in the Subdivision. Nonetheless, in the analysis that follows, we give them the
benefit of, and address at length, both theories, not least because the Starlings’
underlying complaint clearly is more consistent with the wrap-around theory. See
Complaint at 26 (seeking a declaration “establishing the boundary line of [the] Starling
Tract at [the] southern end of the Disputed Portion of the Starling Tract,” i.e., the
Disputed Property).
The same principles that apply to the interpretation of a contract apply to the
interpretation of a deed. See New Charter Coal Co. v. McKee, 191 A.2d 830, 834
(Pa. 1963). The nature and quantity of the interest conveyed by a deed “must be
ascertained from the instrument itself.” In re Property of W.R. Covert, 186 A.2d 20, 23
(Pa. 1962) (quoting Yuscavage v. Hamlin, 137 A.2d 242, 244 (Pa. 1958)). When a
deed incorporates by reference a subdivision plan, the plan becomes “a material and
essential part of the conveyance, and is to have the same force and effect as if it was
incorporated into or copied into a deed.” Birmingham, 48 Pa. at 260. “[W]e seek to
ascertain not what the parties may have intended by the language but what is the
meaning of the words,” or, in this case, the words as informed by the Plan’s depiction.
Property of W.R. Covert, 186 A.2d at 23 (emphasis omitted). Thus, “the language of the
deed shall be interpreted in the light of the subject matter, the apparent object or
[J-91-2016] - 21
purpose of the parties and the conditions existing when it was executed.” Highland v.
Commonwealth, 161 A.2d 390, 402 (Pa. 1960). “If the deed is ambiguous, then all of
the attending circumstances existing at the time of the execution of the instrument
should be considered to aid in determining the apparent object of the parties.” Stewart
v. Chernicky, 266 A.2d 259, 263 (Pa. 1970) (emphasis added); accord Clancy v.
Recker, 316 A.2d 898, 902 (Pa. 1974). When parol evidence is admissible, “it must
generally have a foundation in pre-existing evidence of fraud, accident or mistake,”
except when it is introduced “not to contradict or vary, but to explain the contract, as
when something is omitted . . . so as to qualify the tribunal passing upon the writing to
interpret it truly according to the intent of the parties.” Baltimore & Phila. Steamboat Co.
v. Brown, 54 Pa. 77, 81-82 (1867). Because no one maintains that any relevant deed or
the Plan itself is the product of fraud, accident, or mistake, it is necessary to focus upon
the Plan. If we conclude that the Plan’s depiction is ambiguous, we may consider only
such parol evidence as bears upon LMI’s contemporaneous intention in preparing and
recording the Plan. See Highland, 161 A.2d at 402; Wilkes-Barre Twp. Sch. Dist. v.
Corgan, 170 A.2d 97, 98 (Pa. 1961).23
23
Before the Superior Court, the Starlings acknowledged that LMI’s intention
governs the interpretation of the Plan. See Starlings’ Superior Court Brief at 23 (“[T]he
trial court correctly recognizes that the intent of [LMI] is what controls the interpretation
of the [Plan].”). Thus, even if we find the Plan ambiguous, no parol evidence unrelated
to LMI’s intent at the time of the Plan’s recordation would be pertinent. While one might
colorably argue that LMI’s conduct in the time between their recordation of the Plan and
the 1968 Deed is relevant, insofar as their conduct immediately in the wake of devising
and recording the Plan might imply something about their contemporaneous
understanding of the Plan, certainly no extrinsic evidence after the 1968 Deed has any
bearing upon LMI’s “apparent object or purpose . . . when [the Plan was recorded].”
Highland, 161 A.2d at 402. Thus, the learned Dissent’s reliance upon the Starlings’
evidence that they pay taxes on some portion of the disputed property and its citation of
(continued…)
[J-91-2016] - 22
Custer Drive
Given the indisputable fact that LMI owned the fee to the property under Custer
Drive at some point during the design and development of the Subdivision, the Superior
Court’s determination that the Association had no fee interest in Custer Drive when it
purported to convey the fee to the Subdivision’s roads to the Association in the 1968
Deed24 necessarily derived from one of two conclusions: Either LMI surrendered its fee
(…continued)
the Association’s putative 2007 “admission” that Lot 726’s boundary line “is
undeterminable,” see Conc. & Diss. Op. at 8, to establish a disputed issue of material
fact are misplaced. See City of Pittsburgh v. Weinman, 134 A. 382 (Pa. 1926)
(“[A]ssessment and payment of taxes on property is not proof of title . . . .”); James, 106
A. at 723 (same); Grace Bldg. Co. v. Parchinski, 467 A.2d 94 (Pa. Cmwlth. 1983)
(rejecting proffered tax deed and county tax map because the documents were
insufficient both to identify the boundaries of the parcel in dispute and to locate them on
the ground); cf. T.C.O. at 8 (noting that the most recent tax documents of record in fact
disfavor the Starlings’ claim of ownership). The same can be said about the Starlings’
invocation of the 1974 Survey, which cannot, by itself, inform LMI’s intention at the time
of Recordation. The Dissent’s suggestion that these matters are cited “only to
demonstrate the record contains genuine issues of material fact regarding ownership”
does not alleviate the problem. Conc. & Diss. Op. at 8 n.1. The evidence is (and by
definition, must be) legally irrelevant to the resolution of any factual dispute regarding
the contemporaneous intention reflected in a conveyance that preceded the evidence
by years. It logically follows that the same incompetent evidence cannot establish that
such a dispute existed in the first place. That the current parties dispute ownership
does not, by itself, establish a factual dispute regarding the question of what the
boundary was intended to be at the time of the recordation of the Plan and the
conveyances by LMI of Lots 725 and 726 to those lots’ first owner.
Regarding the Dissent’s suggestion that an ambiguous deed must be interpreted
in favor of the non-drafting party, id. at 4, we note that the Association did not draft the
Plan or the deeds in question; rather, LMI did. Hence, this particular interpretive
principle has no bearing upon this case. The remaining interpretive principles cited by
the Dissent as “more properly applicable to interpreting a deed or subdivision plan,” id.
at 3, are not only consistent with the familiar array of tools at our disposal for the
interpretation of ambiguous contracts of any sort, they also are reflected in our own
recitation of the governing principles.
24
“As of [the date of the 1968 Deed, LMI] did not own any road in fee interest
absolute because it had . . . sold lots in the [S]ubdivision. As owner of certain unsold
(continued…)
[J-91-2016] - 23
upon its first sale of a residential lot, presumably in sections corresponding to each lot
as those lots were purchased, or the fee to all roads entirely ceased to exist upon that
first residential sale. This, in turn, would appear to require the utterly unintuitive result
that all Subdivision owners and the Association itself own an access easement over
land that, by virtue of being owned by no one, presumably need not be servient to such
an easement to ensure its availability for use to all authorized entrants to the
Subdivision itself. Thus, in just a few sentences, and without reference to supporting
authority, the Superior Court cast a shadow over the title to the roads, and for that
matter all common areas, of every planned community in the Commonwealth of
Pennsylvania.
As well, the court’s sweeping account of the Association’s prerogatives if it held a
fee to the roads25 is patently at odds with hornbook law regarding a property owner’s
rights when the property in question is servient to an easement. It is beyond cavil in
Pennsylvania that a property owner may use his property only in ways that do not
interfere with the rights of the easement holder. See Minard Run Oil Co. v. Pennzoil
Co., 214 A.2d 234, 235 (Pa. 1965) (“The owner of the servient tenement may make any
use thereof which is consistent with or not calculated to interfere with the exercise of the
easement.” (citation omitted)); Mercantile Library Co. of Phila. v. Fid. Trust Co., 83 A.
(…continued)
lots in 1968, [LMI] owned an easement in the platted roads shown on the [Plan] when it
conveyed the roads to the Association.” Starling, 121 A.3d at 1029 (emphasis added).
25
“If the Association owned the roads in fee simple absolute, it could sell those
roads and permit houses to be built on them. It could allow them to be used as parking
lots. The Association could thereby prevent access by [Subdivision] property owners to
their lots.” Starling, 121 A.3d at 1029.
[J-91-2016] - 24
592, 595 (Pa. 1912) (“The grant of a fee, subject to an easement, carries with it the right
to make any use of the servient soil that does not interfere with the easement . . . .”
(citation omitted)). Thus, insofar as the Superior Court correctly noted that all owners in
the Subdivision held an access easement to the roads, it necessarily followed that no
fee owner of Custer Drive could permit houses to be built upon it, designate it as a
parking lot, or otherwise “prevent access by . . . property owners to their lots,” Starling,
121 A.3d at 1029, and the Starlings never have suggested that the Association has
sought in any way to do so.
In arguing in favor of affirmance of the Superior Court’s rejection of the
Association’s ownership of Custer Drive, the Starlings direct our attention to two
authorities, Allen v. Scheib, 101 A. 102 (Pa. 1917), and Sides v. Cleland, 648 A.2d 793
(Pa. Super. 1994), the latter of which the Superior Court deemed “dispositive,” albeit
perhaps of the use issue rather than the ownership issue (on this point, the intermediate
court was not entirely clear). See Starling, 121 A.3d at 1029. In any event, we address
these cases in turn.
In Allen, a testator devised forty acres of his 142-acre property to four family
members in various acreages, but without specifying the portion of the larger estate
from which to take those forty acres. Later, the family arranged for the forty acres to be
taken from a corner of the farm inaccessible from the public highway adjacent to the
larger estate. By the same arrangement, a private road from the public road along the
border of the full property to the captive property was set aside by agreement, and that
private road was used without conflict for approximately twenty years by the occupants
of the devised properties. Later, the title to the entire forty-acre tract, along with
[J-91-2016] - 25
“whatever interest the owners thereof had in the lane,” became vested in John Scott
Harbison, who conveyed the full tract to Eleanor Allen in 1911. Id. at 102-03.
Over time, the balance of the original farmstead was further subdivided such that,
ultimately, two distinct owners, the defendants in the Allen action, held the land on
either side of the access road. Setting aside those owners’ apparent disputes regarding
ownership of the road, Allen eventually contended that ownership in fee of the lane,
rather than a mere easement, was included with her ownership of the forty-acre tract.
Allen retained a contractor to install and maintain a gas line to run along the private
road. However, the defendants managed “by opposition and threats” to prevent
construction. Id. at 103. The Allen litigation followed.
This Court held first that if Allen owned only an easement, then she was entitled
to use it only for the use for which it was dedicated. Id. Conversely, if Allen owned the
fee to the road, then she was entitled to construct her gas line. Although no deed
showed conveyance of the road in fee by the original devisees to Allen’s predecessor,
reference was made in the conveyance corresponding to one of the other tracts, which
described a boundary of that tract as running “[t]hence along a certain road or lane
between the land herein conveyed and the land of John Stirling.” Id. Generally
speaking, we explained, “[t]he term ‘road,’ and especially ‘private road,’ is indicative of
an easement rather than a fee.” Id. Thus, “[t]he mere reference in a conveyance to a
private road does not tend to show ownership in fee thereof in the party for whose use it
may have been established.” Id. at 104. In such a situation, such a road “may, prima
facie, be used by all abutting owners, and defendants as such would have standing to
object to an additional use being made thereof by the construction therein of a gas line.”
[J-91-2016] - 26
Id. The Court concluded that Allen, as owner of the captive forty-acre plot for the
benefit of which the road had been created, had “a right to the free and uninterrupted
use thereof as a way for purposes of passage over and upon the same; and, so far as
appears, defendants may lawfully make such use thereof as will not interfere with the
rights of plaintiff.” Id. However, being the claimant, Allen bore the burden of
establishing ownership and failed to do so. Accordingly, her interest was in the nature
of an easement, and she was not entitled to run a gas line to her captive property.
This case actually undermines the Starlings’ argument in two regards. First,
nothing in Allen suggested that no party owned a fee to the road, or that the
conveyance of a road easement extinguished such a fee. Even given the Starlings’
decontextualized reading of our holding that, absent a contrary indication, the use of the
word “road” in a deed suggests the conveyance only of an easement, nothing about
Allen suggests that LMI, once having held the fee, conveyed, abandoned, or
extinguished that fee simply by selling off Subdivision lots, and, in so doing, retained
only access easements to the Subdivision roads. Second, in Allen we clearly imposed
the burden of establishing the necessary fee upon Allen as plaintiff rather than merely
negating the fee of others, which we never endeavored to ascertain. As set forth above,
the Starlings have failed to establish their own fee to Custer Drive, which undermines
their attempt to enjoin Association uses of Custer Drive that do not interfere with the
Starlings’ use and enjoyment of their own easement over that road.
Sides has even less bearing in this case. In Allen, at least, there was an
embedded fee issue. In Sides, however, at issue was not ownership of the trail; the
defendant in that case undisputedly held the fee to the trail, subject to a right-of-way
[J-91-2016] - 27
explicitly reserved in the subdivision plan. Rather, the dispute in Sides concerned the
use of that right-of-way. The Starlings’ discussion of Sides, although it appears in
connection with their argument regarding ownership of Custer Drive, basically assumes
that the Association does not own Custer Drive, and then attempts to use Sides to
support the Superior Court’s entry of injunctive relief against the Association concerning
Custer Drive. We take up the question of use, infra, but Sides is useful in neither
connection. Furthermore, as a Superior Court decision, Sides would not bind us even if
it was on-point.
In light of the foregoing, we are left with the conclusion as a matter of law that the
Association retains the fee to Custer Drive. The trial court correctly so held, and the
Superior Court erred in overturning that determination.
The Disputed Property
This leaves the Starlings’ wrap-around theory.26 The Association argues that we
must reject the Superior Court’s determination that the Starlings’ pleadings and proofs
established a triable factual dispute regarding the Starlings’ alleged ownership and/or
possessory rights in the Disputed Property and restore the trial court’s determination
that the Starlings, in failing to establish such a factual dispute, did not state prima facie
claims for trespass and ejectment. See Soffer, 409 A.2d at 340-41.
Two competing accounts of the Plan arise due to the lack of metes and bounds
defining the northern boundary of Lot 726 and the concomitant lack of unequivocal
26
We are left to consider the wrap-around theory, because in determining that the
Starlings have no ownership interest in Custer Drive, their cross-cutting theory
necessarily is infirm for that reason, if no other. Thus, any tenable ownership and use
claims concerning the Disputed Property that remain can be sustained only pursuant to
the wrap-around theory, which also is consistent with the wording of their Complaint.
[J-91-2016] - 28
denominations establishing the northern and southern ends of the Disputed Property.
However, the prohibition on any interpretation that leads to an absurd result enables us
to bring the Plan into sharper focus. See Pocono Manor Ass’n v. Allen, 12 A.2d 32, 35
(Pa. 1940) (“Before a court will interpret a provision in a . . .contract in such a way as to
lead to an absurdity or make the . . . contract ineffective to accomplish its purpose, it will
endeavor to find an interpretation which will effect the reasonable result intended.”).27
In order for the Starlings’ wrap-around theory to succeed, it must be the case that
LMI did not intend for the depicted tangency between the cul-de-sac and the waterline
to constitute a boundary. However, if the tangency is immaterial to the determination of
Lot 726’s boundary, then that necessarily entails that we treat no similar point of
tangency on the peninsula as a boundary. As the trial court noted, such a conclusion
would lead to the patently absurd result that, just as there is no clearly intended
boundary to Lot 726 to the north or west, there also can be no clear northeastern
boundary to Lot 1020. See T.C.O. at 6-7. If those points of tangency bound neither Lot
726 nor Lot 1020, then the owners of those lots both have a viable claim to the entirety
of the Disputed Property, because there is no notation or boundary other than the
tangencies to suggest where one lot ends and the other begins. Taken to its logical
27
The Dissent distinguishes Pocono Manor from the facts of this case at length,
see Conc. & Diss. Op. at 6-7, but appears not to appreciate that our “claim[ed] reliance”
on that case extends no further than the uncontroversial principle of contract and deed
interpretation stated, not as binding or analogous authority on the particular issues now
before us. Just as the Dissent relies upon the inapposite case, Toy v. Metro. Life Ins.
Co., 928 A.2d 186 (Pa. 2007), to establish the standard governing review of a motion for
summary judgment, see Conc. & Diss. Op. at 2, we cite Pocono Manor merely for a
legal principle that applies in myriad circumstances, including the interpretation of a
facially ambiguous deed.
[J-91-2016] - 29
extreme, the Starlings’ argument could result in the Starlings and the owners of Lot
1020 having opposing claims to each other’s entire lot.
In a case such as this, where the only metes and bounds available to us are
illustrated but not described, we confront an arguable ambiguity where the boundaries
are depicted with less information than is necessary to define with certainty the property
in question. However, we must interpret the Plan as a whole, and we need no parol
evidence to infer that LMI did not intend to invite a property dispute between the owners
of Lot 726 and Lot 1020. Thus, we must seek to construe the Plan in any reasonable
way that avoids that absurd result. Here, the interpretation this principle requires is
clear: LMI must have intended both properties to be bounded by their boundaries’
respective points of tangency with Custer Drive,28 because that is the only principled
interpretation that creates ascertainable boundaries to both 726 and 1020.
That ruling alone does not eliminate the explanatory limitations of the Plan and
the actual location on the ground of that point of tangency with the northern edge of the
Custer Drive cul-de-sac as depicted on the Plan. It also is not clear that the Plan’s
shoreline as depicted in 1967 corresponds to the 500-foot elevation line described in
note 2 to the Plan. But it is LMI’s intent at the time of the Plan’s design and recordation
that must govern the identification of the intended boundary, and we find that LMI
intended Lot 726 to terminate where the depicted northern boundary becomes tangent
with the cul-de-sac. Thus, the Superior Court erred insofar as it determined that a fact
28
It seems appropriate to note one last time the undisputed proposition that Custer
Drive, as depicted on the Plan, encompasses significantly more land than the paved
portion of Custer Drive. Indeed, the non-cul-de-sac portion of Custer Drive is measured
sixty feet wide on the Plan.
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question remained regarding whether Lot 726 wraps around the northern end of the
peninsula to encompass some portion of the Disputed Property along the western
shore. Contract interpretation is a question of law for the court; ambiguities are to be
resolved in favor of a reasonable rather than an absurd or unreasonable interpretation;
and here it was unreasonable to imagine that LMI intended to leave the owners of Lots
726 and 1020 squabbling in perpetuity over who owns how much of the Disputed
Property. Interpreting the points of tangency as boundaries of the properties to which
they correspond is the reasonable of two alternative interpretations, and, as such, it is
the correct one.
We emphasize, though, that we are not here called upon to determine where
precisely that point lies on the ground. Nor do we purport to do so. We declare here
only what the boundary is according to the Plan. See Miles Land Co., 91 A. at 1064.
The Starlings asked the trial court to “enter an Order conclusively establishing the
boundary line of [the] Starling Tract at [the] southern end of the Disputed Portion of the
Starling Tract and further declaring that the entire Starling Tract belongs to the
Starlings.” Complaint at 26. Thus, the question of where precisely the boundary lies is
not at issue; at issue is whether their tract includes the Disputed Property. It does not.
For the foregoing reasons, the trial court correctly granted the Association’s motion for
summary judgment on this claim, in effect determining that no fact question remained
the resolution of which would entitle the Starlings to the relief requested.29
29
Much of the Dissent relies upon the premise that the boundary dispute regarding
Lot 726 cannot be decided as a matter of law, but rather must be submitted to a fact-
finder. See Conc. & Diss. Op. at 7 (“The identification of the boundary line in this matter
cannot be determined as a matter of law for purposes of summary judgment.”). This
(continued…)
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C. The Use of Custer Drive and the Disputed Property
In light of our above ruling, it is clear that the Starlings are not entitled to the
injunctive relief they seek with respect to Custer Drive and its cul-de-sac. We have
determined as a matter of law that the Association holds the fee to Custer Drive as
depicted on the Plan. Like every other Subdivision owner, the Starlings have an access
easement to Custer Drive and nothing more. The Association, as owner of Custer
Drive, can utilize that road however it sees fit, provided it does not interfere with the
Starlings’ (and any other Subdivision owner’s) access easement. See Minard Run Oil
Co., 214 A.2d at 235 (“The owner of the servient tenement may make any use thereof
which is consistent with or not calculated to interfere with the exercise of the easement.”
(citation omitted)); Mercantile Library Co. of Phila., 83 A. at 595 (“The grant of a fee,
subject to an easement, carries with it the right to make any use of the servient soil that
does not interfere with the easement . . . .” (citation omitted)). Thus, the Starlings have
no entitlement to injunctive relief restricting the Association’s non-interfering uses of
Custer Drive, and they have not claimed any such interference in the instant matter.
(…continued)
misunderstands the narrow scope of our ruling, which hinges upon a distinction—one
that the Dissent’s own citations reinforce—between identifying a boundary (a question
of law) and locating a boundary (a question of fact). See Miles Land Co., supra; cf.
Grace Bldg. Co., Inc., v. Parchinski, 467 A.2d 94, 96-97 (Pa. Cmwlth. 1983)
(recognizing the distinction between identifying boundaries and locating them). It also
disregards that, fairly construed, the Starlings’ complaint asserts ownership of the
Disputed Property generally, not by reference to a specific line or a clearly-defined
location. For present purposes, we decide only that the depicted point of tangency on
the Plan where Lot 726’s boundary touches the cul-de-sac bounds the Starlings’
property, which plainly is a ruling regarding what the boundary is. To the extent the
parties seek further clarification, our ruling is not intended to prejudice future efforts to
seek it, but that issue is not squarely presented in the case as we find it.
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For this reason, the Superior Court erred in directing the trial court to grant injunctive
relief to the Starlings vis-à-vis Custer Drive.
With respect to the Disputed Property, having identified as a matter of law that
the point of tangency between the northern boundary line of Lot 726 and the cul-de-sac
as depicted in the Plan bounds the Starling Tract, we must conclude that the Starlings
have no ownership or possessory interest to any of the property that lies north, west,
and south of the point of tangency. However, in connection with the use of the Disputed
Property, the Starlings originally argued that even if they did not prevail on their claim
for ownership of that property, they nonetheless were entitled to injunctive relief
regarding its use for “non-residential purposes.” Complaint at 27-29 ¶164-177. Thus,
resolving the ownership question does not conclude the matter.
The trial court granted the Association’s motion for summary judgment on this
issue, as well. It noted that the General Notes to the Subdivision Plan specify that the
primary purpose of the plan is “for the enjoyment of out of door recreation.” T.C.O. at
14. Reviewing the Dedication section of the Subdivision Plan, the court noted that,
“unless designated as a water supply lot or commercial area, all other lots are
recreational areas, lake access areas or residential lots.” Id. The Disputed Property,
being none of the above, but rather “a small strip of undesignated shoreline property”
“without a specific designation,” the trial court concluded that “any lawful use is
permitted” on the Disputed Property. Id. at 15. Thus, no relief was due.
On appeal to the Superior Court, the Starlings challenged this ruling in tandem
with their challenge to the trial court’s entry of summary judgment in the Association’s
favor concerning the use of Custer Drive. However, while the Superior Court ruled in
[J-91-2016] - 33
the Starlings’ favor with regard to Custer Drive, its determination that a question of fact
remained regarding ownership of the Disputed Property precluded deciding any
subsidiary questions regarding use of that property. Although the Superior Court
seemed skeptical about the complained-of uses of the Disputed Property, it evidently
recognized that it would be premature to venture a legal opinion on that subject. If
further proceedings in the trial court resulted in a determination that the Starlings owned
the Disputed Property, any questions regarding Association use thereof would be moot.
Thus, when the court “remand[ed] for the grant of partial relief to the Starlings as to
count five” of their complaint, Starling, 121 A.3d at 1033, it referred to its entry of
injunctive relief as to “the entirety of the platted Custer Drive and the entirety of its
platted cul[-]de[-]sac,” id., i.e., the road and its right of way as designated on the Plan,
but did not dictate such relief with respect to the Disputed Property, the ownership of
which remained unresolved in the wake of the Superior Court’s ruling.
With today’s decision, we effectively reinstate the trial court’s entry of partial
summary judgment. We do not purport to rule upon the question of the Disputed
Property’s use, an issue as to which the Superior Court demurred as a consequence of
its divergent ruling. Thus, on remand, the Superior Court is free to consider the
question whether the trial court erred in determining that the covenants and restrictions
did not preclude the Association’s recreational use of the Disputed Property.
D. Conclusion
For the foregoing reasons, we reverse the Superior Court’s order insofar as it
reversed the trial court’s entry of partial summary judgment in the Association’s favor
with respect to counts I, II, and IV of the Starlings’ Complaint. We further reverse the
[J-91-2016] - 34
Superior Court’s order directing the entry of judgment in the Starlings’ favor on their
claim for injunctive relief regarding the use of Custer Drive, as well as its reversal of the
trial court’s determination that the Association did not own Custer Drive in fee simple
subject to Subdivision owners’ access easements and any other established rights-of-
way.30 We remand this case for further proceedings consistent with this Opinion.
Chief Justice Saylor and Justices Todd and Mundy join the Opinion.
Chief Justice Saylor files a concurring opinion.
Justice Baer concurs in the result.
Justice Dougherty files a concurring and dissenting opinion.
Justice Donohue did not participate in the consideration or decision of this case.
30
These rulings effectively dispose of the first and third issue as to which we
granted review, and obviate any need to consider the second issue. Because we find
that the Superior Court erred in granting relief to the Starlings for substantive reasons,
whether it overstepped its contextual authority in doing so is moot.
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