Johnson v. Tele-Media Co. of McKean County

DISSENTING OPINION BY

BOWES, J.:

I agree with the learned majority that an intervenor need only meet a prima facie burden with regard to establishing his right to intervene. See Wilson v. State Farm Mut. Auto. Ins. Co., 512 Pa. 486, 517 A.2d 944, 947 (1986). However, my review of the record reveals that Appellants did present a prima facie case that they obtained adverse possession over the lower portion of the parcel of land at issue. Hence, I respectfully dissent from the majority’s decision to affirm the denial of their motion to intervene.

C. Russell and Anita D. Johnson (the “plaintiffs”) instituted this quiet title action against Tele-Media Company of McKean County (“Tele-Media”), and alleged that they acquired title to a parcel of land containing about forty-five square rods by a January 17, 2012 quit-claim deed from Comcast of Colorado/Pennsylvania/West Virginia, LLC (“Comcast”). In the January 17, 2012 deed, Comcast claimed title through Tele-Media, but there were no conveyances of record in McKean County from Tele-Media to Comcast. The plain*743tiffs averred that Comcast acquired title to the real estate through mergers and/or acquisitions. The plaintiffs, in count two of the complaint, set forth, in the alternative, that they had acquired ownership of the real estate through adverse possession.

On February 1, 2013, Raymond Kleisath, Alberta Kleisath and Teri Spittler (the “in-tervenors”) simultaneously filed a petition to intervene as defendants and preliminary objections to the complaint. In both documents, they alleged that they were necessary parties in that they were the direct descendants of J.L. and Cora A. Wirt, who had reserved interests in the real estate. The reserved rights included a right-of-way over the property for access to a garage and a right-of-way for purposes of utilizing the real estate as a sewer connection. They observed that their easement rights were evidenced in the plaintiffs’ quit-claim deed from Comcast.

The intervenors additionally averred that they had “maintained the subject property over the years.” Petition to Intervene, 2/1/13, at ¶ 3. In the preliminary objections, the intervenors set forth that the complaint was factually and legally insufficient to establish title either through the quitclaim deed, which was from a grantor without record title, or through adverse possession. In an amended petition to intervene, they claimed that they “used the property openly, continuously, notoriously, adversely, and exclusively,” and that their maintenance included, “but [was] not limited to, mowing the property, filling in holes and ruts, and traversing the property on foot and by vehicle for a period in excess of twenty-one (21) years.” Amended petition to intervene, 4/17/13, at ¶¶ 5, 3.

The court scheduled a hearing on the motion to intervene where the following was adduced. The parcel in question is a small, vacant piece of land abutting other property owned by the plaintiffs. The top portion of the parcel is a grassy area used by the plaintiffs to park cars. N.T. Hearing, 4/17/13, at 6. The bottom section of the real estate is where the intervenors’ express easements were located. Mr. Kleis-ath, the sole witness at the hearing, testified as follows. The easement for access had been utilized to reach a garage that was built by Mr. Kleisath’s great-grandfather. Mr. Kleisath described his family’s use of the entire parcel of real estate as intermittent in that he said that they “mowed it off and on.” Id. at 9. The witness acknowledged that the plaintiffs had cleaned brush from the top portion and parked cars on it “for several years.” Id. Mr. Kleisath then related that, as to “the bottom part of it where the right-of-way that was, we have maintained the bottom part of it off and on for years.” Id.

While this quotation would, at first glance, appear to indicate an intermittent use by Mr. Kleisath and his family as to the lower section of the real estate, a review of the entire transcript establishes the contrary. Specifically, Mr. Kleisath reported that the intervenors had provided the sole, exclusive, and constant maintenance on the bottom portion of the vacant lot for over a century. Mr. Kleisath testified that with respect to “the bottom portion of that property,” he mowed it and “everything else down over the years.” Id. at 10 (emphasis added). He explained that the years in question involved decades and that his activities included mowing the entire lower portion and repairing and restoring the surface of the easement for access as well as the area outside of that easement. Id. at 14. Mr. Kleisath also had used that section of the property to store equipment.

Mr. Kleisath admitted that he mowed the top portion only occasionally and that the plaintiffs began to maintain the top *744portion once they purchased the land abutting it. Nevertheless, his testimony also excluded the possibility that the plaintiffs had performed any activities on the bottom portion of the vacant parcel, and his uncon-tradicted testimony proved that he and his family had done the activities necessary to maintain the bottom section of the real estate in excess of twenty-one years.

In an order dated April 25, 2013, the court denied the petition to intervene, found in favor of the plaintiffs in their quiet title action, and ruled that the plaintiffs owned the property in question. The court first noted that the intervenors’ easements over the property for access and to maintain the sewage line were adequately protected by language in the quit-claim deed. It additionally ruled on the merits of the intervenors’ adverse possession claim and decided that they had failed to prove their claim of ownership in the entire parcel through that means. Trial Court Opinion, 4/26/13, at 7-8.

Appellants appealed from the April 26, 2013 order and from the ensuing entry of judgment in this action in favor of the plaintiffs. The original appeal was dismissed by order dated July 10, 2013, wherein we stated that all issues raised in the first appeal would be addressed in the present appeal.

I agree with the intervenors’ allegations that they have an interest in the land that will be affected by the judicial determination that plaintiffs own the entire parcel in question. Initially, I observe, “Although it is within the sound discretion of the trial court whether to grant intervention, a denial of intervention may be reversed where there has been manifest abuse of such discretion.” Pennsylvania Ass’n of Rural and Small Schools v. Casey, 531 Pa. 439, 613 A.2d 1198, 1200 n. 3 (1992). Pa.R.C.P. 2327 provides in pertinent part that: “At any time during the pendency of an action, a person not a party thereto shall be permitted to intervene therein, subject to these rules if ... the determination of such action may affect any legally enforceable interest of such person whether or not such person may be bound by a judgment in the action.” Pa.R.C.P. 2327(4) (emphasis added).

While I agree that the intervenors’ interest as easement holders is protected by the language in the quit-claim deed, I observe that the intervenors did not make a claim for only those interests in the land. They also claimed ownership over the lower section by adverse possession. In my view, Mr. Kleisath’s testimony at the hearing sufficiently established a prima facie case of adverse possession over the lower portion of the property in question to warrant intervention.

“One who claims title by adverse possession must prove actual, continuous, exclusive, visible, notorious, distinct and hostile possession of the land for twenty-one years. Each of these elements must exist; otherwise, the possession will not confer title.” Piston v. Hughes, 62 A.3d 440, 443 (Pa.Super.2013) (citation omitted). “There is no precise definition of what constitutes possession of real property; the determination of possession is dependent upon the facts of each case, and to a large extent upon the character of the land in question. In general, however, actual possession of land means dominion over the property; it is not the equivalent of occupancy.” Moore v. Duran, 455 Pa.Super. 124, 687 A.2d 822, 827 (1996) (citations omitted). In the case at bar, the land was a vacant lot, and it is evident from Mr. Kleisath’s unrebutted testimony that his activities with respect to the lower portion of the land were sufficient to establish dominion as to that section since he stated that he did everything necessary to maintain it. Additionally, the maintenance in question *745was not confined to the boundaries of the easement for access to the garage. Further, the trial court did not find Mr. Kleisath incredible. Rather, it concluded that his proof did not establish adverse possession over the entire portion of the property. While I agree with this conclusion, it ignores the fact that one can acquire title by adverse possession to a portion of property owned by another, as illustrated by our decision in Brennan v. Manchester Crossings, Inc., 708 A.2d 815 (Pa.Super.1998).

In Brennan, the plaintiffs brought a quiet title action against the defendants, averring that they acquired title by adverse possession to a small parcel of land that was part of the defendants’ larger acreage. The trial court concluded that the plaintiffs failed to prove their adverse possession cause of action, and we reversed. We held that the plaintiffs’ uncon-tradicted proof established that they had, for over twenty-one years, actually, continuously, exclusively, visibly, notoriously, distinctly, and hostilely possessed the portion that they claimed. This holding was premised upon the plaintiffs’ testimony that they maintained the land in question by mowing the grass, trimming trees and shrubbery, raking leaves, and occasionally parking cars on it. Additionally, no one else performed these activities on the part of the defendants’ land claimed by the plaintiffs. We relied upon a prior case authority wherein similar types of activities were held sufficient to establish adverse possession over a parcel of land. See Reed v. Wolyniec, 323 Pa.Super. 550, 471 A.2d 80 (1983).

We indicated in Brennan that the plaintiffs’ actions of maintaining the piece of defendants’ land constituted actual possession. Intervenors’ actions likewise constituted maintenance over the unoccupied parcel. As to the continuous and exclusive nature of the actions herein, Brennan also controls. We noted therein that, “The law does not require that the claimant remain continuously on the land and perform acts of ownership from day to day_A temporary break or interruption, not of unreasonable duration, does not destroy the continuity of the adverse claimant’s possession.” Brennan, swpra at 818-19. We further noted that “the claimant’s possession need not be absolutely exclusive. Rather, it need only be a type of possession which would characterize an owner’s use.” Id. at 818. Thus, in the present matter, it is not important that maintenance did not occur each day. Given the nature of the parcel, the owner would have only performed the activities that the in-tervenors undertook. In my view, the elements of exclusivity and continuity were present herein.

Possession is considered visible and notorious when the “party without color of title” evidenced “conduct sufficient to place a reasonable person on notice that his or her land is being held by the claimant as his own.” Id. Intervenors’ actions were performed openly and were visible for any passerby to view. Hence, the visible and notorious aspects of adverse possession were established as a prima facie matter herein. Id.

Finally, the term “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.” Id. Additionally, “if all of the elements of adverse possession are established, the element of hostility is implied.” Id. All of the other elements of adverse possession were established herein, and intervenors asserted ownership rights over the easement and surrounding area adverse to the true owner. Hence, the element of hostility was contained within Mr. Kleisath’s testimony.

*746I believe that Mr. Kleisath set forth a prima facie case of adverse possession over the lower part of the land in question by conducting activities on it indistinguishable from those discussed in Brennan. His possession was exclusive since he stated that he and his family were the only people to maintain the bottom portion of property for decades. The activities in question — mowing, paving, repairing, and storage of equipment — were performed in public and thus, were, by definition, open, visible, and notorious. Given that no extant entity had title to the property, the intervenors could not have had permission from the title holder to conduct their actions. Hence, the element of hostility was established through the proof in question.

Thus, the intervenors established, as mandated by Pa.R.C.P. 2327(4), that the action herein “may affect [a] legally enforceable interest” that they have in the parcel “whether or not [they] may be bound by a judgment in the action.” (Pa. R.C.P. 2327(4)). We have ruled, “The phrase legally enforceable interest has been interpreted to require that the applicant for intervention own an interest in or a lien upon property in question or own a cause of action which will be affected by the action.” Marion Power Shovel Co., Division of Dresser Industries, Inc. v. Fort Pitt Steel Casting Co., Division of Conval-Penn, Inc., 285 Pa.Super. 45, 426 A.2d 696, 700 (1981) (citation and quotation marks omitted). Herein, the applicants for intervention presented a prima facie case that they own a cause of action, i.e., an adverse possession claim to part of the property, that will be affected by this action. They do not merely own easements that were protected by the deed to the Plaintiffs. Thus, the court was required to grant them intervention. Id. (“a person not a party thereto shall be permitted to intervene”) (emphasis added). The determination herein, which granted the plaintiffs title to the real estate, undoubtedly affects a legally enforceable interest that the in-tervenors have asserted in the subject matter of this quiet title action.

The purpose of the intervention hearing was to establish, as a preliminary matter, that the intervenors might have a legally enforceable interest in the entire parcel at issue. The trial court, in concluding that intervention was unnecessary, appeared to decide the merits of the adverse possession claim. Nevertheless, through the interve-nors’ single witness, the intervenors presented testimony that they had consistently maintained their right-of-way and the area surrounding the right-of-way, in contravention to the allegations in plaintiffs’ complaint that they maintained the entire parcel.

After what was supposed to be a hearing to establish, preliminarily, that they might have a legally protectable claim of adverse possession, the trial court ruled, on the merits, that they failed to establish title by adverse possession. Since the hearing in question was not designed to address the merits of the adverse possession claim, the trial court manifestly abused its discretion. The intervenors presented prima facie proof to refute the plaintiffs’ adverse possession cause of action by eliciting sufficient evidence that they might have an adverse possession claim over their right-of-way and the land surrounding it. In my view, their motion to intervene should have been granted and they are entitled to a trial on the merits, and to bring in other witnesses regarding the extent of their activities on the lower portion of the parcel in question.

I am aware that the trial court also stated that the intervenors could bring an ejectment action. However, as the inter-venors observe, the burden of proof would shift in such a setting since they would be *747plaintiffs with that burden, whereas, in the present lawsuit, the plaintiffs bear the burden of establishing that they own the real estate.