Franceski, F. v. Linde Corp.

J-A17016-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOSEPH FRANCESKI AND : IN THE SUPERIOR COURT OF
BERNADETTE FRANCESKI, : PENNSYLVANIA
ADMINISTRATRIX OF THE ESTATE OF :
MICHAEL FRANCESKI :
:
:
v. :
:
: No. 1667 EDA 2021
LINDE CORPORATION AND RAIL- :
TRAIL COUNCIL OF NORTHEASTERN :
PENNSYLVANIA, INC. :

Appeal from the Judgment Entered December 9, 2021
In the Court of Common Pleas of Wayne County Civil Division at No(s):
71-Civil-2019

BEFORE: PANELLA, P.J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY NICHOLS, J.: FILED DECEMBER 13, 2022

Appellant Linde Corporation1 appeals from the judgment2 entered in this
____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 Appellant conveyed an easement to Rail-Trail Council, which maintains a rail
trail on the disputed property. Rail-Trail Council has filed a separate appeal,
which has been docketed at 1681 EDA 2021.

On December 3, 2021, Rail-Trail Council filed an unopposed motion to
consolidate both cases. On December 10, 2021, this Court issued an order
denying Rail-Trail Council’s motion without prejudice and explaining that, if
the appeals were consolidated, Appellant and Rail-Trail Council would be
limited to filing one consolidated brief. Appellant and Rail-Trail Council
subsequently elected to file separate briefs and neither party renewed the
motion for consolidation.

2 Appellant filed its notice of appeal on August 17, 2021, after the trial court
issued an amended verdict and order following the hearing on the parties’
post-trial motions. Generally, an appeal to this Court properly lies from the
(Footnote Continued Next Page)
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quiet title action filed by Joseph Franceski and Bernadette Franceski,

Administratrix of the Estate of Michael Franceski (Appellees). Appellant

argues that the trial court erred in failing to dismiss Appellees’ quiet title action

and concluding that Appellant had an easement in the disputed property,

rather than a fee simple interest. For the reasons that follow, we reverse the

judgment, vacate the trial court’s order, and remand with instructions.

The underlying facts of this matter are well known to the parties. See

Am. Trial Ct. Op., 7/21/21, at 2-5. Briefly, Appellees own a 293-acre parcel

of undeveloped land in Wayne County. The disputed property is a 12.8-acre

parcel of land, referred to by the parties as a “railroad right-of-way,” which is

located within the boundaries of Appellees’ property. The primary issue in this

case is whether the 1890 origination deed conveyed a fee simple interest in

the disputed property to OCS Railroad Company, in which case the disputed

property belongs to Appellant as successor-in-title. However, if the 1890 deed

granted OCS Railroad Company an easement, and Appellant subsequently

abandoned the easement, then the disputed property belongs to Appellees.

____________________________________________

entry of judgment, not from the order disposing of post-trial motions.
Mackall v. Fleegle, 801 A.2d 577, 580 (Pa. Super. 2002). Nevertheless, a
final judgment entered during the pendency of an appeal is sufficient to perfect
appellate jurisdiction. Drum v. Shaull Equipment and Supply Co., 787
A.2d 1050, 1052 n.1 (Pa. Super. 2001). Because the trial court subsequently
entered final judgment on December 9, 2021, Appellant’s notice of appeal
relates forward to that date. See Pa.R.A.P. 905(a)(5) (providing that a notice
of appeal filed after a court’s determination, but before the entry of an
appealable order, shall be treated as filed after such entry and on the day
thereof). Therefore, there is no jurisdictional impediment to our review, and
we have amended the caption accordingly.

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In 2019, Appellees filed an action to quiet title against Appellant and

Rail-Trail Council. See Compl., 2/21/19, at 1-7. Therein, Appellees alleged

that although the 1890 deed conveyed a property interest to Appellant’s

predecessor in title, it was “only a right-of-way,” as Appellees retained

“interest in the surface area below” the disputed property. Id. at 5.

Therefore, Appellees sought to (1) confirm that Appellees were the owners of

the disputed property; (2) confirm Appellees’ ownership interest in the

disputed property by compelling Appellant and Rail-Trail Council to commence

an action in ejectment; and (3) compel Appellant and Rail-Trail Council to

admit the validity or invalidity of Appellees’ claim of ownership interest in the

disputed property. Id. at 6.

Appellant filed an answer and new matter in response. See Ans. and

New Matter, 4/25/19, at 1-16. Therein, Appellant asserted that it was “in

possession of the disputed property, together with [] Rail-Trail, which [had

been] granted an easement by [Appellant] to maintain a rail trail.” Id. at 6.

Further, Appellant argued that the disputed property “remained vested in fee

in the OCS Railway Company and its successors and assigns since 1890.” Id.

The matter proceeded to a non-jury trial on November 23, 2020. At

trial, Appellees introduced a copy of an 1891 deed, which referred to the

interest conveyed in the 1890 deed as an easement. Both parties presented

testimony from lay witnesses and expert witnesses in support of their

respective positions.

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At the conclusion of trial, the parties filed proposed findings of fact and

conclusions of law. Appellant reiterated that (1) Appellees were not in

possession of the disputed land; (2) the 1890 deed clearly conveyed a fee

simple interest to Appellant’s predecessor in title; and (3) because Appellant

owned the disputed property in fee simple, Appellees had no ownership

interest.

On April 28, 2021, the trial court issued an opinion and verdict in favor

of Appellees. See Trial Ct. Op., 4/28/21, at 1-13. Therein, the trial court

explained that the 1891 deed provided “the necessary background in order to

demonstrate the grantor’s intent” with respect to the 1890 conveyance of the

disputed parcel. Id. at 10. After considering the language in both deeds, the

trial court concluded that the 1890 deed conveyed an easement to Appellant’s

predecessor in title, that the easement was abandoned after the rails and

superstructure were removed, and that, as a result, the encumbrance on the

property was removed and extinguished. Id. at 11-12.

Appellant and Rail-Trail Council filed a joint post-trial motion in which

they claimed, among other things, that the trial court erred in ruling on

Appellees’ action to quiet title despite the fact that Appellees failed to establish

possession. See Post-Trial Mot., 5/7/21, at 3. In response, the trial court

issued an amended opinion and verdict. Therein, the trial court explained that

although Appellees did not establish actual possession, they were entitled to

relief because they established a right to immediate possession. Am. Trial Ct.

Op., 7/21/21, at 11. The trial court also noted that the 1890 deed was

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ambiguous and that, therefore, it was necessary to consider the language in

the 1891 deed. Id. at 13. Ultimately, the trial court reached the same

conclusions regarding the rights conveyed by the 1890 deed. Id.

Appellant filed a timely notice of appeal. The trial court did not order

Appellant to file a Pa.R.A.P 1925(b) statement and did not file a Rule 1925(a)

opinion.

On appeal, Appellant raises the following issues, which we have

reordered as follows:

1. Did the trial court err as a matter of law in failing to dismiss
[Appellees’] quiet title action and require [Appellees] to
proceed with an action in ejectment when the trial court
concluded that [Appellees] were not in possession of the
railroad right-of-way and a plaintiff must be in possession of
the real property in controversy in order to proceed with a quiet
title action?

2. Did the trial court err as a matter of law in relying upon a later
1891 deed in determining the nature of the interest conveyed
by an 1890 deed and in concluding that the exception clause in
the 1891 deed indicates that the interest conveyed by the 1890
deed is merely an easement when the 1890 deed is not
ambiguous and the 1891 deed could not retroactively limit the
fee interest conveyed by the 1890 deed?

3. Did the trial court err as a matter of law in interpreting an 1890
deed as granting the railroad company merely an easement
over a railroad right-of-way and not a fee simple interest when
the 1890 deed contains a granting clause that uses the words
“grant, bargain, sell, and convey” in the present tense,
contains a general warranty clause, a habendum clause, and a
tenendum clause, does not limit the railroad company’s rights
to constructing and operating a railroad, does not contain any
language releasing the railroad company from liability, and
excepts and reserves for the grantor the coal and right to mine
it as though the grantor remained the owner in fee simple?

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Appellant’s Brief at 4-5 (some formatting altered).

Dismissal of Quiet Title Action

In its first issue, Appellant argues that the trial court erred by granting

Appellees relief on a quiet title action despite Appellees’ failure to establish

that they had actual possession of the right-of-way. Id. at 36. Appellant

contends “because [Appellant and Rail-Trail Council] were in undisputed

physical possession of the [right-of-way], the correct procedure was for

[Appellees] to seek ejectment and not quiet title.” Id. at 37. Accordingly,

Appellant asserts that the court should have dismissed Appellees’ complaint

and required Appellees to proceed with an action in ejectment. Id.

Appellees concede that they did not have possession of the right-of-way

at the time they filed the action to quiet title. Appellees’ Brief at 18. However,

Appellees claim that they are nonetheless entitled to pursue a quiet title action

under Pa.R.Civ.P. 1061(b)(2). Id. at 19.

In reviewing Appellant’s claim, we are guided by the following principles:

When reviewing an equitable decision, like a quiet-title action, our
scope and standard of review are deferential. As this Court has
explained, we will reverse only where the trial court was palpably
erroneous, misapplied the law, or committed a manifest abuse of
discretion. Where there are any apparently reasonable grounds
for the trial court’s decision, we must affirm it. Moreover, the
function of this Court on an appeal from an adjudication in equity
is not to substitute our view for that of the lower tribunal; [we
are] to determine whether a judicial mind, on due consideration
of all the evidence, as a whole, could reasonably have reached the
conclusion of that tribunal . . . . when reviewing the results of a
non-jury trial, we are bound by the trial court’s findings of fact,
unless those findings are not based on competent evidence.

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Calisto v. Rodgers, 271 A.3d 877, 881 (Pa. Super. 2022) (en banc) (citation

and footnote omitted, formatting altered).

An action to quiet title may be brought either to compel an adverse party

to commence an action of ejectment, or, where an action of ejectment will not

lie, to determine the interest in a title in the land. See Pa.R.C.P. 1061(b)(1)-

(2).

Ordinarily, the plaintiff in an action to quiet title must be in
possession of the land in controversy; if he is out of possession,
his sole remedy is an action in ejectment. An action to quiet
title may be brought only where an action in ejectment will not lie.
Ejectment, being a possessory action, can be maintained if the
plaintiff has a right to immediate possession with the concomitant
right to demand that the defendant vacate the land.

Plauchak v. Boling, 653 A.2d 671, 674 (Pa. Super. 1995) (citations omitted

and emphasis added).

“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.” Billig v. Skvarla, 853 A.2d 1042, 1049 (Pa. Super. 2004)

(citations omitted). “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.” Id. at 1049-50 (citations omitted). “The

crux of an ejectment action, therefore, rests with the plaintiffs’ ability to

identify, by a preponderance of the evidence, the boundaries of a parcel of

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land to which they are out of possession but for which they maintain

paramount title.” Id. at 1050-51 (citations omitted).

This Court has explained that “[p]ermitting an out-of-possession

plaintiff to maintain an action to quiet title is impermissible because it

constitutes an enlargement of the plaintiff’s substantive rights as defined by

statute, and thus exceeds the court’s jurisdiction to proceed.” Plauchak, 653

A.2d at 674 (citation omitted). However, while it is procedurally improper for

an out-of-possession plaintiff to commence an action to quiet title, this Court

has stated that “[e]ven where a plaintiff mistakenly institutes an action to

quiet title instead of an action in ejectment, the appropriate remedy is to

permit the plaintiff to amend his or her pleadings to conform to the proper

action.” Id. (citation omitted); see also Moore v. Duran, 687 A.2d 822, 827

(Pa. Super. 1996) (stating that “[t]his Court has previously determined that,

even on appeal, we may amend the pleadings when necessary to conform to

the proper form of action as established by the evidence” (citations omitted));

Sutton v. Miller, 592 A.2d 83, 88–89 (Pa. Super. 1991) (holding that

although the trial court erred in failing to dismiss a quiet title action filed by

an out-of-possession plaintiff, the error was not fatal to the claim because this

Court may amend the pleadings to include an action in ejectment sua sponte).

Here, because Appellees did not have actual possession of the disputed

land, their sole remedy was an action in ejectment. See Plauchak, 653 A.2d

at 674. As such, the trial court should have directed Appellees to amend the

complaint accordingly. See id.; Sutton, 592 A.2d at 88–89. In any event,

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Appellees’ failure to use the appropriate form of action is not fatal. See

Sutton, 592 A.2d at 88–89. Therefore, rather than reversing the trial court’s

order, we will consider the claims of the parties solely in the context of an

action in ejectment. See id.; see also Moore, 687 A.2d at 827.

Interpretation of the 1890 Deed

Appellant argues that the trial court erred in relying on the 1891 deed

to determine the nature of the interest conveyed by the 1890 deed.

Appellant’s Brief at 54. In support, Appellant contends that the “1890 deed

clearly and unambiguously grants and conveys an interest ‘in fee’” for the

railroad right-of-way. Id. Further, Appellant argues that although the trial

court implied that the 1890 deed was ambiguous in its amended opinion, the

court “failed to make any findings of fact regarding the alleged ambiguity, nor

did the court “specify what language [it found] ambiguous.” Id. at 30.

Therefore, Appellant concludes that the trial court “should not have resorted

to an examination of any evidence beyond the four corners of the deed in

determining the intent of the parties.” Id. at 54.

Appellees respond that the trial court found that the 1890 deed was

ambiguous because (1) it did not use terms such as “in fee, easement, and/or

right-of-way;” and (2) it conveyed “an interest in only the ‘surface’ of the

[disputed] property.” Appellees’ Brief at 19-20. Therefore, Appellees

conclude that the trial court properly relied on the 1891 deed to determine

the grantor’s intent. Id. at 23.

When interpreting a deed, this Court has explained:

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[A] court’s primary object must be to ascertain and effectuate
what the parties themselves intended. The traditional rules of
construction to determine that intention involve the following
principles. First, the nature and quantity of the interest conveyed
must be ascertained from the deed itself and cannot be orally
shown in the absence of fraud, accident or mistake. We seek to
ascertain not what the parties may have intended by the language
but what is the meaning of the words they used. Effect must be
given to all the language of the instrument, and no part shall be
rejected if it can be given a meaning. If a doubt arises concerning
the interpretation of the instrument, it will be resolved against the
party who prepared it. . . . To ascertain the intention of the parties,
the language of a deed should be interpreted in the light of the
subject matter, the apparent object or purpose of the parties and
the conditions existing when it was executed. . . .

In the absence of fraud, accident or mistake, the nature and
quantity of the real estate interest conveyed must be ascertained
from the deed itself and cannot be shown by parol. When the
language of the deed is clear and free from ambiguity, the intent
of the parties must be determined from the language of the deed.
With respect to unambiguous deeds, a court must ascertain what
is the meaning of the words used, not what may have been
intended by the parties as shown by parol.

Wright v. Misty Mt. Farm, LLC, 125 A.3d 814, 818-19 (Pa. Super. 2015)

(citations omitted).

“Whether an ambiguity exists is a question of law subject to plenary

review. However, resolution of conflicting parol evidence relevant to what the

parties intended by an ambiguous provision is for the trier of fact.” PARC

Holdings, Inc. v. Killian, 785 A.2d 106, 112 (Pa. Super. 2001) (citations

omitted).

The terms of the instrument conveying the interest are interpreted
by applying general principles of contract law. Clear contractual
terms that are capable of one reasonable interpretation must be
given effect without reference to matters outside the contract.
Where a term is ambiguous and susceptible of more than one

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reasonable interpretation, however, the court is free to receive
extrinsic, i.e., “parol evidence,” to resolve the ambiguity. A
contract will be found ambiguous: if, and only if, it is reasonably
or fairly susceptible of different constructions and is capable of
being understood in more senses than one and is obscure in
meaning through indefiniteness of expression or has a double
meaning. A contract is not ambiguous if the court can determine
its meaning without any guide other than a knowledge of the
simple facts on which, from the nature of the language in general,
its meaning depends; and a contract is not rendered ambiguous
by the mere fact that the parties do not agree on the proper
construction. Ambiguity within a contract may be latent or
patent. A patent ambiguity appears on the face of the contract
and is a result of defective or obscure language. Although
Pennsylvania law provides that “parol evidence” may not be
introduced unless the language of the written agreement is
ambiguous on its face, extrinsic facts and circumstances may be
proved to show that language apparently clear and unambiguous
on its face is, in fact, latently ambiguous.

Baney v. Eoute, 784 A.2d 132, 136 (Pa. Super. 2001) (citations and some

quotation marks omitted, emphasis added); see also Metzger v. Clifford

Realty Corp., 476 A.2d 1, 5 n.2 (Pa. Super. 1984) (stating that the latent

ambiguity “exception to the general rule against parol evidence is expectably

limited” and usually arises when “a writing refers to a particular person or

thing and is thus apparently clear on its face, but upon application to external

objects is found to fit two or more of them equally” (citations omitted));

Wysinski v. Mazzotta, 472 A.2d 680, 683 (Pa. Super. 1984) (explaining that

“[t]here can be no latent ambiguity where, as here, there was land owned by

the grantor which satisfied the description contained in the deed of

conveyance”).

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Here, the granting clause of the origination deed states, in relevant part,

as follows:

This indenture, made the twenty-fifth day of March in the year of
our Lord one thousand eight hundred and ninety between the
president, managers, and company of the Delaware and Hudson
Canal Company, party of the first part and the Ontario Carbondale
and Scranton Railway Company, party of the second part.
Witnesseth, that the said party of the first part, as well for and in
consideration of the fulfillment of the covenants and agreements
hereinafter mentioned to be kept and performed by and on the
part of the said party of the second part, as for and in
consideration of the sum of Twenty-eight Thousand Six Hundred
and Eighty-eight ($28,688.00) Dollars, lawful money of the United
States of America, unto the said party of the first part will and
truly paid by the said party of the second part, the receipt of which
is hereby acknowledged, have granted, bargained, sold and
conveyed and by these presents do grant, bargain, sell and convey
unto the said party of the second part, its successors and assigns,
the surface or right of soil of the following pieces or parcels of
land, bounded and described as follows . . . .

Deed at DB 87, P 452, with the Recorder of Deeds of Wayne County (1890

Deed).

The deed also includes the following language which pertains solely to

the disputed parcel:

Another of them[3] being the moiety or undivided one-half interest
(being the interest of the party of the first part) in the
surface of all that certain, piece or parcel of land situate partly in
the Township of Clinton, County of Wayne and State of
Pennsylvania and partly in the Township of Clifford, County of

____________________________________________

3 As mentioned previously, the right-of-way at issue in this case was one of
twenty conveyances made in the 1890 deed. The remaining nineteen
conveyances are not at issue in this case.

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Susquehanna and State of Pennsylvania . . . .[4] Being part of a
tract of land, an undivided one-half interest in which Anna
M. Olyphant by deed dated 28th May A.D. 1874, recorded in
the office for the recording of deeds [] in and for Wayne
county . . . conveyed to the president, mangers, and
company of the Delaware and Hudson Canal Company in
fee, as by reference thereto will more fully appear.

Id. at 463-65 (emphases added).

Finally, the deed the contains a clause reserving “all the coal and other

mineral” rights to the grantor, which states:

And the said party of the first part hereby except and reserve to
themselves their successors and assigns, all the coal and other
minerals under, in or upon each and every of the above described
parcels of land, together with the unrestricted right and privilege
of mining and removing the same, or any part thereof, and of
making, driving, using an occupying tunnels, passages and weighs
under the surface of said lands, for the purpose of mining and
removing any coal or other minerals upon or from said lands, or
whom or from any lands adjoining or convenient there to at their
discretion as fully and entirely as if the said party of the first
part their successors or assigns remained the owners in fee
simple of said surface or right of soil.

Id. at 467 (emphasis added).

As noted previously, the trial court concluded that the 1890 deed was

ambiguous and that, therefore, it was necessary to consider the language in

the 1891 deed. Am. Trial Ct. Op., 7/21/21, at 13.

Following our review of the record, we find no basis to conclude that the

language in the 1890 deed was ambiguous. See PARC Holdings, Inc., 785

____________________________________________

4 The conveyance also includes a lengthy description of the property’s
boundaries and geographical location. However, because the parties do not
dispute the description of the property, we need not restate it here.

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A.2d at 112. The granting clause clearly states the grantor’s intent to convey

the surface and soil rights for twenty parcels of land to the grantee. See Deed

at DB 87, P 452. With respect to the disputed property, the deed states that

the grantor acquired the parcel from its predecessor in title in fee, and that

it was the grantor’s intent to convey its ownership interest for that parcel to

the grantee. See id. at 463-65. Finally, the grantor included a provision

reserving its sub-surface rights to the property “as if the [grantor] remained

the owners in fee simple of said surface or right of soil.” Id. at 467 (emphasis

added).

Under these circumstances, we conclude that the 1890 deed is not

ambiguous,5 and that the trial court erred as a matter of law in considering

parol evidence when interpreting the 1890 deed. See Wright, 125 A.3d at

818-19; PARC Holdings, Inc., 785 A.2d at 112. Accordingly, we will confine

our review of Appellant’s remaining claims to the express language of the

1890 deed.

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5 We note that, even if the 1890 deed referred to the disputed property as a
“railroad right-of-way,” it would not have affected our conclusion. As our
Supreme Court noted in Brookbank, “[t]he interest acquired by a railroad
was unknown to the common law. This comparatively new interest in land is
without a technical legal name. Some of the early cases refer to it as an
easement, while later cases call it a base or conditional fee[.]” Brookbank
v. Benedum-Trees Oil Co., 131 A.2d 103, 111 n.23 (Pa. 1957) (citations
omitted). As such, “the vital thing . . . is not the name given to the estate
acquired by the railroad company,” but “the rights acquired . . . .” Id. (citation
omitted).

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Appellant’s Ownership Interest

Appellant argues that the trial court erred by “interpreting the 1890

deed as granting the railroad company merely an easement over the railroad

right-of-way and not a fee simple interest.” Appellant’s Brief at 38. In

support, Appellant argues that (1) “the parties themselves referred to the

interest conveyed as being a fee simple interest[,] and included words like

‘successors and assigns’ and ‘forever’ [which] clearly indicate the parties

intent to convey a fee simple interest;” (2) “the Brookbank factors clearly

indicate that the interest conveyed was a fee simple interest and not merely

an easement;” (3) the description of the property as a “right-of-way” does not

appear in the 1890 deed and could refer equally to both an easement and a

fee interest; (4) the trial court erred in interpreting the term “surface” as

granting an easement; (5) the trial court erred in concluding that the words

“in fee” did not appear in the 1890 deed because the description for the right-

of-way states that the grantor received it “in fee.” Id. at 39, 41, 48, 50, 52.

A fee simple interest in land endures until the current holder dies without

heirs. See, e.g., Herr v. Herr, 57 A.2d 1280, 1285 (Pa. Super. 2008).

“Pennsylvania law recognizes three discrete estates in land: the surface

estate, the mineral estate, and the right to subjacent (surface) support.

Because these estates are severable, different owners may hold title to

separate and distinct estates in the same land.” Consolidation Coal Co. v.

White, 875 A.2d 318, 326 (Pa. Super. 2005) (citations omitted).

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In contrast, an easement is “a right in the owner of one parcel of land

by reason of such ownership to use the land of another for a special purpose

not inconsistent with a general property in the owner.” Clements v. Sannuti,

51 A.2d 697, 698 (Pa. 1947) (citations omitted, formatting altered).

In Brookbank, our Supreme Court addressed a property owner’s claim

that the “railroad company had simply a ‘right of way’ across his land for

railroad purposes and, upon the cessation of its use for railroad purposes . . .

the land within the ‘right of way’ reverted to him as the present owner of the

fee.” Brookbank, 131 A.2d at 105-06 (footnote omitted). Initially, the

Brookbank Court explained that “[a]n examination of [the] agreement in its

entirety, including all its language,” was required to determine whether the

parties intended to convey a fee or an easement. Id. at 111. The Court then

identified several factors that may clarify the nature of the property conveyed:

(1) the amount of consideration paid;6 (2) the operative words of conveyance

and whether they are past or present tense; (3) whether the deed references

a strip, parcel, or tract of land, as opposed to a right to use the land; (4) the
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6 The Brookbank Court stated that “in the absence of any evidence as to
value” of the land at issue, “a finding that the consideration was inadequate
for conveyance of a fee simple title would be based on conjecture and
surmise.” Brookbank, 131 A.2d at 108. Therefore, the Court concluded that
the amount of consideration was “not reflective of the parties’ intent” under
the circumstances of that case. Id.

In the instant matter, the amount of consideration paid for the disputed
property is unclear, as it was only one of twenty parcels conveyed in the 1890
deed for a total sum of $28,688.00. Therefore, like the Court in Brookbank,
we conclude that the amount of consideration is not a deciding factor when
determining the parties’ intent in the instant case.

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inclusion or omission of habendum,7 tenendum,8 and/or warranty clauses; and

(5) the rights given or retained. Id. at 108-11.

With respect to the words of conveyance, the Brookbank Court noted

that words “used in the past tense, do not, standing alone, compel an

interpretation that a fee was intended to be conveyed,” and that, although

present-tense language may convey a fee simple interest, those terms must

be read in the context of the agreement as a whole. Id. at 109.

Regarding the description of the property conveyed, the Brookbank

Court explained:

It is true that in other jurisdictions a judicial ‘yardstick’ has been
established by the application of which conveyances to railroads
granting or conveying a strip, parcel or tract of land are held to
pass a fee simple title whereas conveyances which grant or convey
a ‘right’ are held to pass only a limited estate.

Id. “However, this ‘yardstick’ is only applied in the absence of additional

language cutting down or limiting, directly or indirectly, the estate conveyed,

and is only applicable in this case as one of the factors to be considered in

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7 This Court has explained that “a habendum clause is the part of a deed that
defines the extent of the interest being granted and any conditions affecting
the grant.” Herr, 957 A.2d at 1286 (citations omitted and some formatting
altered).

8“The tenendum clause is the clause wherein the tenure of the land is defined
and limited.” Newman & Co., Inc. v. City of Phila., 249 A.3d 1240, 1248
n.13 (Pa. Cmwlth. 2021). While we acknowledge that Commonwealth Court
decisions are not binding upon this Court, we may refer to them for instructive
purposes. See Cunningham v. Cunningham, 182 A.3d 464, 471 n.1 (Pa.
Super. 2018).

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attempting to determine the parties’ intent.” Id. (footnote and emphasis

omitted).

Concerning the omission of habendum, tenendum, and warranty

clauses, the Brookbank Court stated: “It seems inconceivable that the

railroad would have omitted these clauses from an instrument of conveyance”

if they intended to receive a fee simple estate. Id. at 110.

Finally, the Brookbank Court noted that the deed conferred certain

rights on the grantee, such as “the right of entry, the right to use, construct,

maintain and operate a railroad, the right to use earth, stones and gravel to

grade and fill the roadbed[,]” all of which were “rights which naturally and

lawfully arise from ownership of land in fee simple. If the parties intended the

railroad to receive a fee in this land, this language would give it those rights

which it already had.” Id. (footnote omitted). Therefore, the Court stated

that “[t]he only rational conclusion from this language is that the parties did

not intend to vest in the railroad any interest in fee simple; any other

construction does violence to the expressed grant of these rights to the

railroad.” Id.

Here, in contrast to the facts in Brookbank, the words “grant, bargain,

sell and convey” are used in both the past and present tense in the 1890 deed,

which refers to the grantor’s rights and the rights being conveyed to the

grantee. See Deed at DB 87, P 462 (stating that the grantor “has granted,

bargained, sold and conveyed and by these presents do grant, bargain, sell

and convey its successors and assigns, the surface or right of soil of the

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following pieces or parcels of land, bounded and described as follows . . .”).

Further, the deed conveyed a specific parcel of land to the grantee, as opposed

to certain usage rights. See id.

The 1890 deed also contains a warranty clause, a habendum clause, and

a tenendum clause. The warranty clause states:

[The grantor], for themselves and their successors, do covenant,
promise and agree to and with the [the grantee], its successors
and assigns, . . . in the quiet and peaceable possession of [the
grantee], its successors and assigns, against all and every person
and persons whomsoever lawfully claiming or to claim the same,
by, from, through or under them, they shall and will warrant by
these presents forever defend.

Id. at 469.

The tenendum and habendum clauses state:

Together with all and singular the tenements, hereditaments,
rights, privileges, and appurtenances, unto the said above
mentioned and described premises belonging, or in any wise
appertaining, and the reversion and reversions, remainder and
remainders, rents, issues, and profits thereof, and also, all the
estate, right, title, interest, property, possession, claim and
demand whatsoever, as well at law, as in equity, of the said party
of the first party, of, in and to the said above mentioned and
described premises, and every part and parcel thereof, with the
hereditaments and appurtenances (exception and reserving
however, as aforesaid).

* * *

To have and to hold the above granted, bargained and described
premises, and every part and parcel thereof, with the
hereditaments and appurtenances unto the said party of the
second part, its successors and assigns, to the sole and proper
use, benefit and behalf of the said party of the second part, its
successors and assigns forever. Subject, however, to the
aforesaid exceptions and reservations.

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Id.

Based on our review of the record, we conclude that application of the

Brookbank factors clearly demonstrates that the 1890 deed conveyed a fee

simple interest in the property, rather than an easement. Specifically, we

note that the deed includes both past and present-tense conveyance

language, a warranty clause, a tenendum clause, and a habendum clause that

is consistent with the language in the granting clause. Additionally, the deed

does not contain a liability release, which would be inconsistent with the

conveyance of a fee simple title. Finally, the deed conveyed a parcel of land

to the grantee, rather than a usage right, and did not contain “language

cutting down or limiting, directly or indirectly, the estate conveyed[.]”9 See

Brookbank, 131 A.2d at 109. Therefore, the trial court erred in concluding

that Appellant had an easement in the disputed property, rather than a fee

simple interest.

Accordingly, we reverse the judgment entered in this matter, vacate the

order holding that Linde Corporation possessed an easement, and remand for

the trial court to enter an order clarifying that Appellees’ complaint is an

____________________________________________

9 As noted previously, the 1890 deed contained a clause in which the grantor
reserved “all the coal and other mineral” rights in the disputed property. See
Deed at DB 87, P 467. However, because the surface estate is distinct from
the mineral estate, the reservation clause does not affect our conclusion that
the grantor conveyed a fee interest in the disputed property to the grantee.
See Consolidation Coal Co., 875 A.2d at 326 (stating that because the
surface estate and mineral estate are severable, “different owners may hold
title to separate and distinct estates in the same land” (citation omitted)).

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ejectment action10 and award Linde Corporation a fee simple interest in the

disputed property.

Judgment reversed and order vacated. Case remanded with

instructions. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/13/2022

____________________________________________

10 See Sutton, 592 A.2d at 89.

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