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SUGARLOAF TOWNSHIP APPEAL (11/17/66)

decided: November 17, 1966.

SUGARLOAF TOWNSHIP APPEAL


Appeal from order of Court of Quarter Sessions of Luzerne County, Sept. T., 1962, No. 559, in re disputed boundary between Conyngham Borough and Sugarloaf Township in Luzerne County.

COUNSEL

Conrad A. Falvello, for appellant.

Richard I. Bernstein, with him Falvello, Ustynoski, Giuliani & Bernstein, for appellee.

Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Ervin, P. J., absent). Opinion by Montgomery, J.

Author: Montgomery

[ 209 Pa. Super. Page 53]

A dispute having arisen between the Borough of Conyngham and Sugarloaf Township, both in Luzerne County, as to the easterly boundary line of said borough, the Court of Quarter Sessions of that county, on petition, appointed a Commission "to ascertain and establish" said line. Subsequently it was also directed to make recommendations as to an alleged error in the southerly line description as set forth on the map attached to the original petition for the incorporation of said borough. This action was taken under the Act of

[ 209 Pa. Super. Page 54]

July 10, 1947, P. L. 1621, § 7, amending § 502 of The Borough Code, Act of May 4, 1927, P. L. 519, 53 P.S. § 45502. Under this provision the court has the power to (a) alter the lines of a borough and any adjoining township, borough or city to suit the convenience of the inhabitants thereof, (b) to cause the lines and boundaries of boroughs to be ascertained and established, and (c) to ascertain and establish disputed boundaries between two or more boroughs, between boroughs and cities, or between boroughs and townships. No questions as to procedure or the general right of the court to entertain this petition is raised in this appeal. The only issue is the sufficiency of the evidence to support the report of the Commission, which was accepted and approved by the court.

After hearing, view of the boundaries on the ground, and examination of records, the Commission, one member of which was a registered surveyor and the other two members of the Luzerne County Bar, made its report in which it recommended corrections in the description of the northerly line from N. 54 degrees W. to S. 54 degrees W., and of the southerly line from S. 80 degrees E. as written, to N. 80 degrees E., as plotted. The Commission also recommended that the easterly and westerly lines remain the same as written and plotted, and it adopted the original plot with the suggested corrections as correctly establishing the lines of the borough.

By utilizing the bearings as actually drafted on the incorporation plot the description closed without difficulty. Utilizing the bearings as written thereon a distortion arose which resulted in an outline of an area that did not close, the terminal of the final bearing being far removed from the beginning point. It appeared to the Commission that the original surveyor by inadvertence had made an error in transposing two letters in the bearings, not an uncommon error, and that their transpositions were the cause of the dispute.

[ 209 Pa. Super. Page 55]

The conclusion reached by the Commission is supported by the testimony of Mr. John X. J. Callahan, a registered engineer and surveyor who was retained by the Borough of Conyngham to make a survey of the southeasterly corner and southern boundary of said borough. Mr. Callahan made a paper and field survey of said area in 1962. His report was based on studies made of old records, including an original log and field notebook of the original surveyor, Mr. Jacob H. Bliem, compiled when he made a resurvey of the borough in 1902 for the purpose of laying out streets, from minutes of the borough council, from the location of streets which had been in use for over 60 years, and from adjoining properties, including buildings, all of which he reconciled. Further, a witness, Mr. Abner Minnich, age 73, identified a stone marker on Main Street with which he had been familiar for 60 years, which had been considered as indicating a boundary line. This stone also marked a point which was consistent with the Commission's findings.

Although the township did not offer any evidence or a conflicting survey to refute that of Mr. Callahan, it now argues that the Commission's report should not have been accepted by the court because the beginning point marker described as "a stone planted for a corner on the land of W. A. Roth" in the original petition for incorporation had not been located. It also asserts that it was error to admit the testimony of Mr. Callahan since his survey was based largely on the resurvey of 1902 and not the notes of the original survey made prior to 1901 in preparation for the petition for incorporation. Thirdly, it argues that without reference to landmarks or monuments, or to a genuine, undisputed starting point, and without a resurvey of the borough ...


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