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DIMURA v. WILLIAMS (01/20/72)

decided: January 20, 1972.

DIMURA, APPELLANT,
v.
WILLIAMS



Appeal from decree of Court of Common Pleas of Luzerne County, July T., 1966, No. 4, in case of Rosa Dimura, a/k/a Rosa Demuro v. Albert T. Williams and Minnie F. Williams.

COUNSEL

Richard M. Goldberg, with him Hourigan, Kluger & Spohrer, for appellant.

James Hiscox, for appellees.

Jones, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. Former Mr. Chief Justice Bell and former Mr. Justice Barbieri took no part in the consideration or decision of this case.

Author: O'brien

[ 446 Pa. Page 317]

This case concerns title to a 3 feet by 50 feet parcel of rocky, uncultivatable land located on the border between the City of Wilkes-Barre and the Township of Hanover, Pennsylvania. The parcel is located on appellant's side of an old fence, which formerly stood on the parcel, and when joined with other fences, formed a continuous straight line along the Wilkes-Barre-Hanover Township border.

However, the parcel is on appellees' side of a newer cyclone fence, which appellees had constructed in the year 1964, in accordance with a survey which they had made of their land, which indicated that the 150-square-foot parcel was actually included in the description contained in their deed.

Appellant, claiming that the parcel in question was hers by adverse possession, brought an action in equity to require appellees to remove their new fence, which she alleged was encroaching on her territory, and to replace the fence which had previously stood there. With both parties exercising their territorial imperatives, the case went to trial, and the chancellor ruled

[ 446 Pa. Page 318]

    in favor of appellees, holding that appellant had not proved that the parcel in question was hers by adverse possession.

Appellant filed exceptions to the decree nisi, but those exceptions were dismissed by the court en banc, and the decree nisi was entered as a final decree. This appeal followed.

The court, relying upon our decision in Robin v. Brown, 308 Pa. 123, 162 Atl. 168 (1932), at page 130, where we held that "A fence which has the appearance of being neglected and abandoned . . . falls short of supporting an aggressive assertion of adverse ownership of the land within its lines," emphasized that the old fence was described as "old and tottering" by one of appellant's own witnesses.

Appellant emphasizes, however, that this same witness also testified that "they were old fences and every time they would start to fall they would ...


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