J-A19007-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TODD N. SHAFFER, SHERYL K. : IN THE SUPERIOR COURT OF
SHAFFER, THOMAS C. SHAFFER, AND : PENNSYLVANIA
CAROL E. SHAFFER :
:
Appellants :
:
v. :
:
DEBRA A. LANG :
:
Appellee : No. 86 MDA 2018
Appeal from the Judgment Entered December 15, 2017
In the Court of Common Pleas of Centre County
Civil Division at No(s): 2017-2531
BEFORE: GANTMAN, P.J., NICHOLS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 29, 2018
Appellants, Todd N. Shaffer, Sheryl K. Shaffer, Thomas C. Shaffer, and
Carol E. Shaffer, appeal from the judgment entered in the Centre County Court
of Common Pleas in favor of Appellee, Debra A. Lang, and against Appellants
in this ejectment action. We affirm.
The relevant facts and procedural history of this case are as follows.
The dispute between Appellants and Appellee arose over a
7,400 square-foot tract along the western bank of Pine
Creek (“the [D]isputed [T]ract”). The [D]isputed [T]ract
was included in the description of a 14.8-acre parcel in the
following chain of title: (1) a 1976 deed based on a survey
performed by Marlin “Red” Wolfe [“the Wolfe Survey”], (2)
a May 19, 1987 deed conveying the parcel to Appellants’
predecessor, David R. Stinebring, and (3) the April 9, 2009
deed under which Appellants acquired the parcel. As
described in their deed, most of Appellants’ 14.8-acre parcel
was on the eastern side of Pine Creek, with only the
[D]isputed [T]ract on the western side of Pine Creek.
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Appellee, by virtue of a March 20, 1981 deed, initially
acquired an interest in a parcel known as “tract 3” near the
western bank of Pine Creek. As described in the 1981 deed
and Appellee’s successive deeds, her “tract 3” did not
include the [D]isputed [T]ract.
On September 15, 2009, five months after Appellants
acquired the 14.8-acre parcel, Appellee filed a complaint to
quiet title in the [D]isputed [T]ract. Appellee alleged she
acquired title to the [D]isputed [T]ract “by reason of
adverse possession,” and Appellants “attempted to exclude
[her] from the [Disputed Tract.]”
The matter ultimately proceeded to a nonjury trial on
December 12, 2012. Appellee presented evidence
regarding her use of the [D]isputed [T]ract for the twenty-
one year prescriptive period. Appellants, in turn, presented
evidence that their immediate predecessor, [Mr.]
Stinebring, claimed ownership over the [D]isputed [T]ract,
but permitted Appellee, as well as the general public, to use
the [D]isputed [T]ract. According to Appellants, Appellee’s
claim of adverse possession was defeated by [Mr.]
Stinebring’s express grant of permission to use the disputed
tract.
At the close of Appellants’ case-in-chief, Appellee proffered
rebuttal evidence, namely, expert testimony [from Zach
Gay] that the 1976 survey conducted by Wolfe erroneously
extended [Appellants’] 14.8-acre parcel across Pine Creek
to the [D]isputed [T]ract. Appellee thus asserted that [Mr.]
Stinebring did not acquire legal title to the [D]isputed
[T]ract and could not have granted permission to use the
tract. Appellants objected to Appellee’s proposed rebuttal
evidence, arguing that it introduced theories not set forth in
Appellee’s complaint. The trial court took the objection
under advisement and permitted Appellee to present her
rebuttal evidence[.]
Subsequently, when issuing its verdict on May 6, 2013, the
trial court overruled Appellants’ objection to Appellee’s
rebuttal evidence. The trial court found in favor of Appellee,
concluding: (1) Appellants did not have a claim of right to
the [D]isputed [T]ract; and (2) Appellee established
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adverse possession of the [D]isputed [T]ract as against
Appellants but not “as to ‘the world.’” Appellants timely filed
post-trial motions, which the trial court denied.
Lang v. Shaffer, No. 1435 MDA 2013, unpublished memorandum at 1-2
(Pa.Super. filed October 16, 2014) (internal citations omitted). Appellant
timely filed a notice of appeal.
[On first appeal], [t]his Court reversed and remanded,
concluding the trial court lacked jurisdiction to enter
judgment in Appellee’s favor because Appellee did not
properly invoke the trial court’s jurisdiction pursuant to
Pa.R.C.P. No. 1061. [This Court] explained:
If Appellee, as she alleged, were in possession of the
[D]isputed [T]ract, the appropriate form of action was
to compel Appellant to commence an action in
ejectment. If, however, Appellee was not in
possession, but asserted an immediate right to
possess the [D]isputed [T]ract as against Appellants,
a cause of action in ejectment was available. Lastly,
if Appellee alleged and established she was not in
possession and lacked an immediate right to
possession, Rule 1061(b)(2) would govern her action
because neither party had recourse to an ejectment
action. [...] Despite lengthy proceedings in the trial
court, the jurisdictional question of possession was
not presented to the court by the parties nor
determined by the court. As such, we cannot conclude
that the trial court properly entered an order quieting
title in favor of Appellee.
* * *
Thus, the appropriate cause of action depend[ed] on which
party [was] in possession of the real property. [The]
element of possession [was] in dispute. We directed the
trial court to resolve that issue, because Appellee’s
possession, or lack thereof, would determine whether she
should file an ejectment or quiet title action.
After remand, Appellee alleged causes of action for both
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ejectment and quiet title. Appellee alleged she was in
possession of the Disputed Tract and asked the trial court to
enter an order compelling Appellants to commence an action
in ejectment. Thus, Appellee proceeded under Rule
1061(b)(1). Alternatively, Appellee alleged a cause of
action in ejectment. Appellants responded on April 17,
2015[,] with an answer and counterclaim for ejectment of
Appellee from the Disputed Tract.
The trial court conducted a [remand hearing] on January 13,
2016. At [the hearing], Appellee confirmed that she and
her family consistently mowed and cleared brush from the
Disputed Tract, put a fire ring on the Disputed Tract, and
did gardening, camping, and fishing there. The fire ring was
a tire wheel, and it was the only thing that remained on the
Disputed Tract until this litigation commenced. … After
Appellants purchased the neighboring lot in 2009, they
occasionally mowed the Disputed Tract as well. …
In its opinion in support of the February 6, 2016 verdict, the
trial court incorporated the reasoning from its May 6, 2013
pre-remand opinion…. Regarding the jurisdictional element
of possession, the trial court found: “[Appellee] was in
possession of the [Disputed Tract] before, during, and after
the commencement of this action.” In this scenario,
Appellants’ entrances on the Disputed Tract after their 2009
purchase of neighboring property are simply temporary
trespasses. Despite its finding that Appellee was in
possession, the trial court entered judgment in ejectment in
favor of Appellee. Once again, we…vacate[d] the judgment
and remand[ed], as the trial court’s finding of Appellee’s
possession [was] inconsistent with a judgment in ejectment
against Appellants.
Lang v. Shaffer, No. 642 MDA 2016, unpublished memorandum at 2-3
(Pa.Super. filed February 27, 2017) (internal citations and footnote omitted).
On June 7, 2017, the court ordered Appellants to file an action in
ejectment; Appellants complied on July 7, 2017. On November 22, 2017, the
court denied Appellants relief and entered a verdict in favor of Appellee.
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Appellants timely filed a post-trial motion on Monday, December 4, 2017,
which the court denied on December 11, 2017. The court entered a judgment
on the verdict in favor of Appellee on December 15, 2017. Appellants, on
January 8, 2018, timely filed a notice of appeal. On January 24, 2018, the
court ordered Appellants to file a concise statement of errors pursuant to
Pa.R.A.P. 1925(b). Appellants timely complied on February 12, 2018.
Appellants raise the following issues for our review:
DID THE TRIAL COURT ABUSE ITS DISCRETION WHEN IT
HELD THAT [APPELLEE] HAD POSSESSION OF THE
PROPERTY AT THE COMMENCEMENT OF THE ACTION
DESPITE THE FACT THAT APPELLEE ONLY HAD POSSESSION
WITH THE PERMISSION OF APPELLANTS’ PREDECESSOR IN
TITLE?
DID THE TRIAL COURT ERR WHEN IT FOUND THAT
[APPELLANTS’] PREDECESSOR IN TITLE, DESPITE HAVING
A DEED THAT CONTAINED WITHIN THE BOUNDARIES OF
ITS LEGAL DESCRIPTION THE AREA OCCUPIED BY THE
DISPUTED TRACT, DID NOT HAVE SUFFICIENT TITLE TO
GIVE PERMISSION TO [APPELLEE] TO OCCUPY THE TRACT
OF LAND?
DID THE TRIAL COURT ERR WHEN IT FOUND THAT
[APPELLEE] HAD ESTABLISHED ADVERSE POSSESSION OF
THE DISPUTED TRACT IN THE FACE OF CLEAR,
UNCONTROVERTED TESTIMONY OF [APPELLANTS’]
PREDECESSOR IN TITLE THAT HE HAD GIVEN PERMISSION
TO [APPELLEE’S] HUSBAND TO CROSS ONTO AND USE THE
LAND IN DISPUTE?
DID THE TRIAL COURT ERR WHEN IT STATE[D] IN ITS
VERDICT THAT APPELLANTS’ PREDECESSORS ASSERT THAT
THEY POSTED NO-TRESPASSING SIGNS AND ERECTED
OTHER BARRIERS TO PROVIDE NOTICE TO [APPELLEE] OF
THEIR CONTINUED CLAIM OF THE PROPERTY DESPITE
APPELLANTS’ PREDECESSOR’S CLEAR TESTIMONY THAT HE
GAVE EXPRESS PERMISSION TO APPELLEE TO USE THE
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PROPERTY[?]
(Appellants’ Brief at 4).
Appellants argue Appellee did not have possession of the Disputed Tract,
but instead had the permission of Appellants’ predecessor to use the land.
Appellants submit they are record owners of the Disputed Tract because their
deed contains the Disputed Tract while Appellee’s deed does not. Appellants
contend David Sprowls, Appellee’s ex-husband, did not object when Mr.
Stinebring told Mr. Sprowls that Mr. Stinebring owned the Disputed Tract, and
that Mr. Sprowls had permission to use the land. Appellants maintain this
conversation, along with another instance when Mr. Stinebring told Patrick
Winter, Appellee’s paramour, that he had permission to build a tree house on
the Disputed Tract, demonstrates Appellants’ ownership of the Disputed Tract.
Further, Mr. Stinebring heavily used the Disputed Tract from at least 1987 to
2001, and kept the Disputed Tract open to anyone who wanted to use it for
recreational purposes. Appellants maintain the record owner of the Disputed
Tract retained dominion by confirming with Appellee the true ownership and
by expressly granting permission to Appellee to use the Disputed Tract.
In their second and third issues combined, Appellants argue Mr.
Stinebring had sufficient title to give permission to Appellee. Appellants aver
that after Mr. Stinebring told Mr. Sprowls about the ownership of the Disputed
Tract, Mr. Sprowls surveyed the land and established a boundary line in
conformance with Appellants’ deed. Mr. Stinebring testified that he believed
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Mr. Sprowls’ actions settled any dispute over who owned the Disputed Tract.
Appellants avow Mr. Stinebring’s use of the property from 1987 to 2001
interrupts the 21-year prescriptive period necessary to establish Appellee’s
claim of adverse possession. Appellants assert the description of Appellee’s
tract 3 states for the boundary to be the west side of Z.A. Weaver’s land, Mr.
Stinebring’s predecessor; thus, there is no gap or gore between Appellants’
land and Appellee’s land going back to 1976, and Appellee’s expert testimony
should be disregarded because it contradicts the legal description of the two
deeds. Appellants submit they have, and their predecessors had, color of title
to the Disputed Tract, and Appellee cannot claim adverse possession when Mr.
Stinebring gave Appellee permission to use the Disputed Tract.
In their final issue, Appellants argue the trial court erred when it stated
Mr. Stinebring posted the property and erected barriers. Appellants contend
Mr. Stinebring never posted the property; instead, he kept the land open to
the public during his period of ownership, which places the burden on Appellee
to show she prevented use of the Disputed Tract. Appellants conclude this
Court should reverse the trial court’s verdict in favor of Appellee and award
the Disputed Tract to Appellants. We disagree.
Initially, we observe:
Our review in a non-jury case is limited to whether the
findings of the trial court are supported by competent
evidence and whether the trial court committed error in the
application of law. We must grant the court’s findings of
fact the same weight and effect as the verdict of a jury and,
accordingly, may disturb the non-jury verdict only if the
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court’s findings are unsupported by competent evidence or
the court committed legal error that affected the outcome
of the trial. It is not the role of an appellate court to pass
on the credibility of witnesses; hence we will not substitute
our judgment for that of the factfinder. Thus, the test we
apply is not whether we would have reached the same result
on the evidence presented, but rather, after due
consideration of the evidence which the trial court found
credible, whether the trial court could have reasonably
reached its conclusion.
Hollock v. Erie Ins. Exchange, 842 A.2d 409, 413-14 (Pa.Super. 2004),
appeal dismissed, 588 Pa. 231, 903 A.2d 1185 (2006) (internal citations and
quotation marks omitted).
The trial court’s conclusions of law on appeal originating
from a non-jury trial are not binding on an appellate court
because it is the appellate court’s duty to determine if the
trial court correctly applied the law to the facts of the case.
When reviewing the sufficiency of the evidence…this Court
must determine whether the evidence and all reasonable
inferences therefrom, viewed in the light most favorable to
the verdict winner, was sufficient to enable the fact-finder
to find against the losing party. A challenge to the
sufficiency of the evidence in a civil case is reviewed on
appeal as a claim that the trial court erred in denying a
motion for judgment notwithstanding the verdict (“JNOV”).
A JNOV can be entered upon two bases: (1) where the
movant is entitled to judgment as a matter of law;
and/or, (2) the evidence was such that no two
reasonable minds could disagree that the verdict
should have been rendered for the movant. When
reviewing a trial court’s denial of a motion for JNOV,
we must consider all of the evidence admitted to
decide if there was sufficient competent evidence to
sustain the verdict. In so doing, we must also view
this evidence in the light most favorable to the verdict
winner, giving the victorious party the benefit of every
reasonable inference arising from the evidence and
rejecting all unfavorable testimony and inference.
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Concerning any questions of law, our scope of review
is plenary. Concerning questions of credibility and
weight accorded the evidence at trial, we will not
substitute our judgment for that of the finder of fact.
If any basis exists upon which the [court] could have
properly made its award, then we must affirm the trial
court’s denial of the motion for JNOV. A JNOV should
be entered only in a clear case.
Atlantic LB, Inc. v. Vrbicek, 905 A.2d 552, 557-58 (Pa.Super. 2006)
(internal citations and quotation marks omitted).
In a Rule 1061 action, the court must first determine the jurisdictional
question of possession of the disputed land before the court proceeds to the
merits of an ejectment action. Siskos v. Britz, 567 Pa. 689, 700, 790 A.2d
1000, 1007 (2002). A plaintiff’s actual possession meets this jurisdictional
requirement for claims based on adverse possession. Bride v. Robwood
Lodge, 713 A.2d 109, 112-13 (Pa.Super. 1998). Generally, actual possession
of land means dominion over the land; it is not necessarily equivalent to
occupancy. Id. at 113. “There is no fixed rule, however, by which the actual
possession of real property by an adverse claimant may be determined in all
cases.” Watkins v. Watkins, 775 A.2d 841, 846 (Pa.Super. 2001). “The
determination of what constitutes actual possession of property for purposes
of adverse possession depends on the facts of each case, and to a large extent,
on the character of the premises.” Id.
Ejectment is an action filed by a plaintiff who does not
possess the land but has the right to possess it, against a
defendant who has actual possession. Pursuant to Rule
1061(b)(1), a possessor of land is entitled to bring an action
against one who, although not in possession, has some
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claim or interest in the land, compelling that person to
assert his or her interest by bringing an action of ejectment,
or be forever barred from attacking the title of the
possessor. A party will file a Rule 1061(b)(2) Action to Quiet
Title when she is not in possession, does not have the right
to possess the land, and wishes to determine all rights in
the land. The purpose of an ejectment action as opposed to
quiet title is not to determine the relative and respective
rights of all potential title holders, but rather the immediate
rights between plaintiff and defendant involved in that
particular litigation.
Siskos, supra at 699, 790 A.2d at 1006 (internal citations and quotation
marks omitted). See also Pa.R.C.P. 1061.
The plaintiff’s burden in an action of ejectment is clear: he
must establish a right to immediate exclusive possession.
In order to recover in an ejectment action, the plaintiff must
show title at the commencement of the action and can
recover, if at all, only on the strength of his own title, not
because of weakness or deficiency of title in the defendant.
This rule places upon the plaintiff the burden of proving a
prima facie title, which proof is sufficient until a better title
is shown in the adverse party. The plaintiff in an ejectment
suit, as in other cases, need not go further than to make out
a prima facie case. Until and unless the plaintiff has made
a prima facie case by showing title sufficient upon which to
base a right of recovery, the defendant is not required to
offer evidence of his title. If it is admitted or shown that
both parties derive their title from a common source, neither
party need prove anything regarding the prior title to that
property. Further, if the plaintiff traces title to himself from
the common source, he thereby makes out a prima facie
case in his favor, calling upon the defendant to prove his
alleged title if he wishes to defeat the plaintiff’s apparent
ownership.
It is also clear that to support an action in ejectment, the
evidence must be sufficient to identify the land in dispute
and establish the plaintiff’s right to possession thereof. The
burden of identifying and locating the land clearly rests upon
the plaintiff. In this regard, [the] plaintiff has the burden of
presenting definite and certain evidence of the boundary of
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the property in controversy. Where the plaintiff is unable to
establish his boundary line by adequate legal proof, his
action must fall and he is not entitled to relief.
Hallman v. Turns, 482 A.2d 1284, 1287-88 (Pa.Super. 1984) (internal
citations and quotation marks omitted).
Color of title is the appearance of title, without its reality. Arcadia Co.,
Inc. v. Peles, 576 A.2d 1114, 1117 (Pa.Super. 1990). Where entry to land
is made under an invalid deed or other written instrument, which the
trespasser believes is valid, the trespasser is deemed to have color of title.
Beck v. Beck, 648 A.2d 341, 343 (Pa.Super. 1994), appeal denied, 540 Pa.
591, 655 A.2d 981 (1995).
The effect of a color of title is merely to fix the character of
the occupant’s possession and to define its extent and limits.
Mere color of title is valuable only so far as it indicates the
extent of the dissei[z]or’s claim. This is the law with respect
to unseated land, it is the same as to seated. A grantor
need not have title to any part of the land conveyed in order
to give color of title. If subsequent conveyances continue
this color of title, they do not add to the right or give title.
… It is necessary for [a] plaintiff to complete the color of
title by a real title through possession. Without such
possession, deeds giving color of title are unavailing as
against one who owns the land or has rights therein.
Philadelphia Electric Co. v. City of Philadelphia, 303 Pa. 422, 428, 154
A. 492, 494 (1931). Title acquired by adverse possession “extinguishes all
prior claims, including those asserted under color of paper title. Rights under
the paper title are extinguished, and the purchaser of a paper title may not[,]
ordinarily, prevail.” Plauchak v. Boling, 653 A.2d 671, 678 (Pa.Super.
1995).
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“[A] party claiming title to real property by adverse possession must
affirmatively prove that…she had actual, continuous, distinct, and hostile
possession of the land for twenty-one years.” Watkins, supra at 846.
Each of these elements must exist, otherwise the possession
will not confer title. An adverse possessor must intend to
hold the land for [herself], and that intention must be made
manifest.
* * *
The words visible and notorious possession mean that the
claim of ownership must be evidenced by conduct sufficient
to place a reasonable person on notice that…her land is
being held by the claimant as [the claimant’s] own. To
constitute distinct and exclusive possession, it need only be
a type of possession which would characterize an owner’s
use. Further, in order for adverse possession to ripen into
title, it is necessary to show that such possession has been
continuous and uninterrupted for the full statutory period.
In this Commonwealth, the statutory period is twenty-one
years. The law does not require that the claimant remain
continuously on the land and perform acts of ownership
from day to day. The word “hostile,” as an element of
adverse possession does not mean “ill will” or “hostility,” but
implies an assertion of ownership rights adverse to that of
the true owner and all others. If all of the elements of
adverse possession other than hostility are established, the
element of hostility is implied.
Id. (internal citations omitted).
Instantly, Appellee acquired property in 1981, which included tract 3, a
parcel adjacent to the Disputed Tract. Appellee and her family regularly
mowed and cleared brush from the Disputed Tract, placed a fire ring, built two
tree houses, and repeatedly used the Disputed Tract for recreation from 1981
through the current litigation. Appellants acquired a deed to a neighboring
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parcel of land, which contained the Disputed Tract, on April 9, 2009. After
Appellants asserted their title to the Disputed Tract, Appellee filed a complaint
to quiet title on September 15, 2009, and alleged she acquired title by adverse
possession.
The court held a bench trial on December 12, 2012. Appellee presented
evidence of her use of the Disputed Tract for the 21-year prescriptive period,
while Appellants rebutted that their predecessor, Mr. Stinebring, claimed
ownership of the Disputed Tract and permitted Appellee and the public to use
the Disputed Tract. Appellee’s expert testified that the Wolfe Survey
erroneously included the Disputed Tract in Appellants’ deed. On May 6, 2013,
the court entered a verdict in favor of Appellee, concluding that Appellants did
not have a right to the Disputed Tract and Appellee established adverse
possession as against Appellants but not as to the world. Appellants timely
filed a notice of appeal.
This Court remanded the case twice for procedural errors. Upon the
second remand, the court determined Appellee had possession of the Disputed
Tract and ordered Appellants to file an action in ejectment, per Pa.R.C.P.
1061(b)(1). Appellants complied; the court denied Appellants relief and
entered a verdict in favor of Appellee on November 22, 2017. Appellants
timely filed a post-trial motion, which the court denied. The court entered a
judgment on the verdict in favor of Appellee on December 15, 2017, and
Appellants timely filed a notice of appeal.
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The trial court set forth its analysis as follows:
[T]he [c]ourt determine[d] that [Appellee] was in
possession of the [Disputed Tract] before, during, and after
the commencement of this action. [Appellee’s] possession
was not nullified or terminated or interrupted by the
commencement of shared use, or a shared claim to the
[Disputed Tract] by [Appellants]. To rule that [Appellee’s]
non-confrontational behavior, in the face of [Appellants’]
claims would prejudice or jeopardize [Appellee’s] claim of
possession, is tantamount to encouraging conflict or self-
help in the future. If the law would turn a deaf ear to the
claims of any who sought redress through the [c]ourts,
rather than through challenge or conflict, future possessors
would be best served by self-help and confrontation rather
than the civil recourse through the law.
[T]he failure to directly challenge the intrusions of
[Appellants], after April 2009, did not tarnish or diminish
[Appellee’s] possession of the [Disputed Tract].
(Trial Court Opinion and Verdict, filed February 8, 2016, at 1). In a
subsequent opinion, the court stated:
[T]he testimony of Zach Gay described the historical chain
of title beginning in 1795 and continuing up to, and through,
the Deed of Weaver-to-Weaver dated May 22, 1947, (at that
time containing 34 acres). From 1795 through the 1947
Deed, and up until [the Wolfe Survey] (set forth in the
October 5, [1976], Weaver-to-Bealer Deed), the legal
description of the tract had always been called for as
running from two distinct points through the center of…Pine
Creek.
For reasons that are not explained by [Mr.] Wolfe in his
survey, and not explained by [Appellants] in this action, the
1976 Weaver-to-Bealer Deed based on the Wolfe [S]urvey
shifted the purported boundary line west across Pine Creek
to the location adjacent to [Appellee’s tract 3]. The
preliminary question for the [c]ourt to resolve, before we
can reach the resolution of any issues regarding whether
[Appellee] may or may not have established an adequate
claim by adverse possession, is whether [Appellants] in this
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action have a claim to the land attempted to be adversely
claimed by [Appellee]. [The c]ourt [r]ules that [Appellants]
do not have such an ownership claim.
The possessor of land can only obtain title to that which the
seller had legal right to convey. While [Mr.] Bealer could
convey to [Mr.] Stinebring and [Mr.] Stinebring could
convey to [Appellants], they could only convey that which
[Mr.] Bealer properly received from [Ms.] Weaver in 1976.
[Ms.] Weaver could only convey what she legally and
properly owned from her deed dated 1947. The reliance, as
[Appellants] must, upon the property description from a
survey, must rise and fall based upon the strength and
accuracy of that survey.
Under the circumstances presented in this case, through the
testimony of Mr. Gay, it appears that the [Wolfe Survey] is
completely inconsistent with the description of the property
that had been use[d] in perpetuity up to the time of the
Wolfe [S]urvey. The [c]ourt deems that the property line is
not as set by the Wolfe [S]urvey, but as historically
described in the chain of title, as running along the midline
of…Pine Creek.
Consequently, the land at question in this action is not
apparently owned by [Appellants].
The [c]ourt having determined that the lands of [Appellants]
are limited to those set forth in the historical description,
any claim of right to the disputed property by [Appellants]
is judicially extinguished. The [c]ourt must then move on
to whether [Appellee’s] claim for adverse possession can
succeed?
[Appellee’s] claim for adverse possession is not as to “the
world,” but has been made specifically only to [Appellants].
No other party has been put on notice. No other party has
been given an opportunity to respond to the action. No
other party can be deemed to have lost or surrendered any
rights to claim the subject property which is now determined
to lie outside [Appellee’s tract 3] and outside [Appellants’]
14.8 acre parcel.
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Any claim by [Appellee] to ownership of the disputed parcel
can only be accomplished through satisfying all of the legal
requirements for such an action. In this action, the only
[party] against whom [Appellee] can succeed are
[Appellants]. Adverse possession as to the properly served
[Appellants] is, however, proper.
Trial Court Opinion and Verdict, filed May 6, 2013, at 4-5. We agree with the
court’s rationale and adopt its reasoning. See Hollock, supra; Atlantic LB,
Inc., supra; Bride, supra; Watkins, supra; Siskos, supra; Pa.R.C.P.
1061.
The plain language of Appellants’ deed was sufficient to meet their
burden in an ejectment action to show prima facie title. See Hallman, supra.
Appellee’s expert, however, rebutted Appellants’ prima facie title when he
testified to the chain of Appellants’ title, which included the erroneous Wolfe
Survey in 1976. The Wolfe Survey is the first instance where the Disputed
Tract is included in Appellants’ deed and merely provided color of title, not
real title. See Philadelphia Electric Co., supra. Therefore, without real
title, Appellants and their predecessors could not give “permission” to Appellee
to use the Disputed Tract and to interrupt the statutory period for adverse
possession. See id.
Appellee established a claim of title by adverse possession with her
“actual, continuous, distinct, and hostile possession of the land for twenty-one
years.” See Watkins, supra. From 1981 until 2009, when Appellants
acquired a deed to neighboring land, Appellee used the Disputed Tract as an
owner would. Appellee and her partners mowed and cleared brush, fished,
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constructed two treehouses, and placed a fire ring on the land. See id.
Appellee’s conduct sufficiently placed a reasonable person on notice that the
Disputed Tract was being held as her own. See id. Mr. Stinebring would
occasionally fish from the Disputed Tract, but this conduct was not enough to
disrupt Appellee’s adverse possession. See id. Therefore, Appellee
established title by adverse possession, which extinguished Appellants’ claim
under color of title. See Plauchak, supra.
Finally, Appellants’ last issue, regarding an incorrect observation by the
trial court, is waived for failure to cite to relevant legal supporting authority.
See Pa.R.A.P. 2119(a); Lackner v. Glosser, 892 A.2d 21 (Pa.Super. 2006)
(explaining arguments must adhere to rules of appellate procedure and
arguments which are not appropriately developed are waived on appeal;
arguments not appropriately developed include those where party has failed
to cite any authority in support of contention). Moreover, even if Appellants
had properly preserved this claim, it would not merit relief. We observe the
trial court did misconstrue the testimony of Mr. Stinebring, and in fact Mr.
Stinebring never posted the Disputed Tract. This misstatement, however,
does not affect the analysis of this case or warrant entry of judgment in favor
of Appellants. See Hollock, supra. Accordingly, we affirm the judgment
entered in favor of Appellee.
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J-A19007-18
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/29/2018
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