September 26, 1960
MCCANDLESS TOWNSHIP APPEAL.
Appeal, No. 196, March T., 1960, from order of Court of Quarter Sessions of Allegheny County, June T., 1956, No. 204, Miscellaneous Docket, in re disputed boundary between McCandless Township and Ross Township in Allegheny County. Order affirmed; reargument refused November 23, 1960.
William Claney Smith, with him Smith, Smith & Zehner, for appellant.
John R. Nicklas, Jr., with him McCrady & Nicklas, for intervenors, appellants.
Henry E. Rea, Jr., with him William W. Milnes, Paul W. Brandt, and Brandt, Riester, Brandt & Malone, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Eagen, JJ.
[ 401 Pa. Page 429]
OPINION PER CURIAM
This litigation involves the establishment of a boundary line between McCandless and Ross Townships in Allegheny County. On July 26, 1956 McCandless Township presented to the Court of Quarter Sessions of Allegheny County a petition for the appointment of
[ 401 Pa. Page 430]
three commissioners to ascertain and establish and establish the boundary line between Ross and McCandless Townships.*fn1
Pursuant to the presentation of this petition the court appointed two lawyers and an engineer as commissioners. These commissioners held fifteen hearings and on March 12, 1958 made a report and findings accompanied by a detailed map indicating the boundary line between the two townships, which report was confirmed nisi by the court below. McCandless Township filed exceptions to the report of the commissioners and, on February 3, 1960 the court en banc made an order dismissing McCandless Township's exceptions and confirmed the report of the commissioners and from that order McCandless Township has taken this appeal.*fn2
Prior to 1809, Pine Township (located in Allegheny County) had its southerly boundary at the allegheny River and its northerly boundary at the Butler County line. This township extended in a north-south direction sixteen miles and in an east-west direction six miles. In 1808 residents of the southerly portion of Pine Township petitioned the Court of Quarter Sessions of Allegheny County to create a new township; pursuant to that petition, the court appointed viewers or commissioners. In 1809 these commissioners made a report which was later confirmed by the court and Ross Township was created out of the southerly portion of Pine Township. In 1849 residents of the southerly half of the then Pine Township petitioned the Court of Quarter Sessions of Allegheny County to divide Pine
[ 401 Pa. Page 431]
Township in half and to create a new township, known as McCandless Township, and that court appointed Viewers whose report was approved in 1851 and McCandless Township was created.
In approximately 1953 dispute arose between McCandless Township and Ross Township as to the boundary line between the two townships which led to the presentation by McCandless Township on July 26, 1956 of the petition, hereinabove referred to, for the appointment of commissioners to establish said boundary line. McCandless Township contends that the line which has been presently established by the commissioners and confirmed by the court is approximately eighteen hundred feet north of the real boundary line between McCandless and Ross Townships, a boundary line recognized for approximately one hundred and fifty years. Within the area in dispute the land was exclusively farm land until approximately 1950 when a suburban shopping center was built in the area. There are approximately five hundred acres of land, having an assessed value of over two million dollars, wherein two hundred families are now resident which will be affected by this alleged change in the boundary line.
McCandless Township's contentions are four-fold: (1) that the commission erred in its interpretation of the order of the Court of Quarter Sessions of 1809; (2) that the commission erred in its finding that the distance of seven and one-half miles from the Allegheny River as delineated on the sketch accompanying the court order of 1809 meant seven and one-half miles along the Jones-Douglass Meridan rather than seven and one-half miles along the Franklin Road; (3) that the commission and court below erred in failing to find that the deeds out of one Robert Anderson, one of the original petitioners in 1809, supported the boundary line as later delineated on a certain warrantee atlas map; (4) that the commission and the court erred in
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failing to give proper weight to the evidence of the recognition of the location of the established line by practice and the fact that the recognized line coincided with that shown on official ancient documents and surveys in the form of the warrantee atlas map and a U.S. Coast and Geodetic map.*fn3
In essence, this controversy depends upon a construction and interpretation of the order of the Court of Quarter Sessions of Allegheny County in 1809. After a careful examination of the record we are of the opinion that the order of the court below should be affirmed upon the following excerpts from the opinion of the court below:
"It is amply clear that the present line established by the Commissioners follows the description as set forth by the viewers in 1809 and is the only possible line which could meet the requirements of that description.
"The Township of McCandless has contended that the boundary line between the two townships contains a 'jog' whereby the boundary line beginning at the westerly side of the townships proceeds in an easterly direction approximately 1,700 feet and then continues to the easterly side of said townships.
"The fallacy in the argument of McCandless Township is immediately apparent when one views the sketch accompanying the viewers' Report in 1809. It is clear, beyond doubt, that the line established in 1809 was a straight line running in an easterly and westerly direction and there was no indication in any of the proceedings at that time of any jog in the boundary line. In fact, it is physically impossible to draw a boundary line having a jog in it as contended by McCandless Township, which would meet actual description set forth in the viewers' report of 1809.
[ 401 Pa. Page 433]
"The location of the boundary line as set forth in the present Report of the Commission is further substantiated by the proceedings creating Shaler Township. Shaler Township was created out of the easterly section of Ross Township in the year 1844. At that time the viewers appointed to establish the boundary lines of Shaler Township prepared a sketch showing the entire area of Ross Township and indicating that portion which was to be divided off to create Shaler Township. In those proceedings, the northerly boundary line of Ross Township (that line which is presently in controversy) was clearly shown to be a straight line running in an easterly and westerly direction. At the oral argument before the court en banc counsel for the Township of McCandless frankly admitted that the northerly line of Shaler Township was correct and could not be impeached. Consequently, since the location of the northerly line of Shaler Township is admitted and since this line was a straight line extending in an easterly and westerly direction, and since an extension of the Shaler Township line falls exactly along the line established by the commission in the present proceedings, this court is of the opinion that the commission's findings in regard to the boundary line established in 1809 are correct.
"In the year 1851 the Court of Quarter Sessions created the Township of McCandless out of the southerly portion of Pine Township. The viewers in that proceeding established the northerly boundary line of McCandless Township and the southerly boundary line was established along the northerly boundary line of Ross Township. Consequently, McCandless Township acquired only to the northerly boundary line of Ross Township and since to Ross Township line had been previously established in 1809, McCandless Township was bound by that established boundary line. All of the surveys contained in the records creating McCandless
[ 401 Pa. Page 434]
Township definitely and clearly show a straight line dividing Ross Township and the new McCandless Township. Using these actual surveys which are still in the records of Allegheny County, one cannot arrive at any other conclusion but that the boundary line between Ross Township and McCandless Township was a straight line dividing the two townships at the precise location as has been found by the commission in the present case.
"The confusion concerning the 'jog' in the boundary line first arose in 1876 when a map showing this 'jog' was published. Since that time there has been some confusion as to the precise location of this boundary line but no action was taken to finally establish this boundary line until the present proceedings. Since the rules of adverse possession and prescriptive easements are not applicable as between municipalities, this court is of the opinion that the boundary line established in 1809 is controlling. Since the commission in the present case has very clearly established the 1809 line, and since their findings are amply documented, this court is of the opinion that the Commission's Report should be affirmed."
Mr. Justice COEHN dissents.