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WAIDLICH v. FARMERS BANK OF MERCERSBURG

April 1, 1957

Donald C. WAIDLICH and Beulah S. Waidich, his wife, Plaintiffs,
v.
The FARMERS BANK OF MERCERSBURG, Defendant



The opinion of the court was delivered by: FOLLMER

Plaintiffs here have sued their adjoining property owner alleging an encroachment by the defendant on plaintiffs and seeking damages and an injunction restraining further encroachment. The case was tried to the Court without a jury.

On the basis of the pleadings and the testimony, I make the following

 Findings of Fact

 1. The plaintiffs, Donald C. Waidlich and Beulah S. Waidlich, his wife, are citizens and residents of the State of West Virginia, residing at Gary, West Virginia.

 2. The defendant, The Farmers Bank of Mercersburg, is a banking corporation organized and doing business under the laws of the Commonwealth of Pennsylvania, and has its principal place of business at Mercersburg, Franklin County, Pennsylvania. Prior to its incorporation, and as far back as the year 1881, the defendant was an unincorporated private bank and did business under the name of both the Farmers Bank of Mercersburg, Pa., and The Farmers Bank of Mercersburg.

 3. The matter in controversy exceeds the sum or value of Three Thousand ($ 3,000) Dollars, exclusive of interest and costs, and this Court has jurisdiction by reason of the diversity of citizenship of the parties under the Act of June 25, 1948, c. 646, 62 Stat. 930, 28 U.S.C. § 1332.

 4. The plaintiffs are the owners in fee simple of the following described real estate:

 
All of the following described real estate lying and being situate in the Borough of Mercersburg, County of Franklin, and State of Pennsylvania, consisting of a house and lot of ground, and bounded on the north by land of Caroline Freshholtz' heirs, on the south by land of The Farmers Bank of Mercersburg, on the east by North Main Street and on the west by an alley, and known on the General Plan of said Borough of Mercersburg, Pennsylvania, as Lot No. 6.

 5. The said real estate is the same real estate that Catherine Shirts, Administratrix of John Shirts, deceased, by deed dated February 24, 1869, and recorded in the Office for the Recording of Deeds in and for said County of Franklin, Pennsylvania, in Deed Book Vol. 47, Page 426, conveyed to F. C. Waidlich and John Waidlich (grandfather of Donald C. Waidlich); and the widow and heirs of the said F. C. Waidlich, deceased, by their deed dated May 9, 1887, and recorded in said Recorder's Office in Franklin County in Deed Book Vol. 79, Page 424, conveyed the undivided one-half interest of the same to John Waidlich, who died seized thereof; and Henry Spangler, Administrator d.b.n.c.t.a. of the estate of John Waidlich, deceased, by deed dated February 7, 1906, and recorded in said Recorder's Office in Franklin County, in Deed Book Vol. 140, Page 208, conveyed the same to Harry S. Waidlich, who with his wife, by their deed dated December 19, 1929, and recorded in said Recorder's Office in Franklin County, in Deed Book Vol. 236, Page 158, conveyed the same to Frank S. Long, single (straw transfer), who by his deed dated December 19, 1929, and recorded in said Recorder's Office in Franklin County, in Deed Book Vol. 236, Page 159, conveyed the same to Harry S. Waidlich and Sue C. Waidlich, his wife; and the said Sue C. Waidlich died February 16, 1946, thus vesting full and complete title in her surviving spouse, Harry S. Waidlich, who, by his deed dated August 6, 1946, and recorded in said Recorder's Office in Franklin County, in Deed Book Vol. 365, Page 572, conveyed the same to Donald Cromer Waidlich and John Ernest Waidlich, thus vesting an undivided onehalf interest in the said Donald Cromer Waidlich and an undivided one-half interest in the said John Ernest Waidlich; and the said John Ernest Waidlich, single, by his deed dated March 25, 1949, and recorded in said Recorder's Office in Franklin County, in Deed Book Vol. 390, Page 399, conveyed his undivided one-half interest in the same to Donald Cromer Waidlich, thus vesting full and complete title in the above described real estate in Donald Cromer Waidlich, who, with his wife, Beulah S. Waidlich, by their deed dated March 29, 1949, and recorded in said Recorder's Office in Franklin County, in Deed Book Vol. 390, Page 401, conveyed the same to Frank S. Long, single (straw transfer), who conveyed the same to Donald C. Waidlich and Beulah S. Waidlich, his wife, and recorded in said Recorder's Office in Franklin County, in Deed Book Vol. 390, Page 404.

 6. Defendant's predecessor, the Farmers Bank of Mercersburg, Pa., an unincorporated private bank, acquired title to a tract of land in the Borough of Mercersburg, Pennsylvania, by deed of John Schonberger and his wife dated May 9, 1881, and recorded in said Recorder's Office in Franklin County, in Deed Book Vol. 68, Page 133. This deed conveyed to George C. Steiger, President of the firm trading and doing business as the Farmers Bank of Mercersburg, Pa., the following described real estate in said Borough:

 
'On the east by Main Street, on the north by lot of F. & J. Waidlich, and on the south and west by lot of said John Schonberger, being 22 feet front on said Main Street and running back a distance of 40 feet.
 
'It being a part of the same lot of ground (known as Lot No. 7 on the general plan of Borough of Mercersburg) sold and conveyed by John Patterson and William Boyd, Executors and Trustees for the heirs and legatees of Wm. Van Dyke's estate, by deed dated the 31st day of March, A.D. 1870 to F. & J. Waidlich, who by their deed dated Apr. 1, A.D. 1875, and recorded in the office for the recording of deeds, etc. in Record Book, Vol. 57, page 46, etc. sold and conveyed the same to John Schonberger, the grantor hereof * * *'.

 7. The full names of F. & J. Waidlich, referred to in Finding of Fact No. 6 as the grantees in the deed dated March 31, 1870, were Frederick C. Waidlich and John Waidlich and they were respectively the grand uncle and grandfather of Donald C. Waidlich, one of the plaintiffs. The deed from them, referred to in Finding of Fact No. 6, to John Schonberger, dated April 1, 1875, and recorded in said Recorder's Office in Franklin County, in Deed Book Vol. 57, Page 46, conveyed real estate in the Borough of Mercersburg, known as Lot No. 7 on the general plan of the Borough, and described as follows:

 'Bounded on the east by Main Street, on the west by an alley, on the north by lot of F.C. and John Waidlich and on the south by lot of Michael Fallon, fronting on Main Street 50 feet and extending back 200 feet to said alley'.

 Therefore, as appears from Finding of Fact No. 5 and from the description in the deed to John Schonberger, the Messrs. Waidlich, who are the predecessors in title of the plaintiffs, were, at the time of the conveyance to Schonberger, the owners of the lot immediately to the north thereof, being Lot No. 6 on the said Borough plan, and the same having been acquired by them by deed dated February 24, 1869, and recorded in said Recorder's Office in Franklin County, in Deed Book Vol. 47, Page 426.

 8. By deed dated August 30, 1945, and recorded in said Recorder's Office in Franklin County, in Deed Book Vol. 343, Page 317, J. M. Drumm, President, and S. G. Steiger, Cashier, of the Farmers Bank of Mercersburg, Pa., an unincorporated private bank, and The Farmers Bank of Mercersburg, an unincorporated private bank of Mercersburg, Pennsylvania, conveyed to The Farmers Bank of Mercersburg, a Pennsylvania corporation, all that tract of land on the west side ...


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