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decided: September 22, 1975.


Appeal from order of Court of Common Pleas of Westmoreland County, April T., 1971, No. 884, in case of Seven Springs Farm, Inc. v. Theopholis F. King and Catherine King, his wife, their heirs, devisees and assigns, generally and Winona Eicher Wheat.


Charles N. Thorp, III, with him Thorp, Reed & Armstrong, for appellant.

Carl E. Fisher, with him Wilbert H. Beachy, Jr., and Robinson, Fisher, Long & Rigone, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Hoffman, J., concurs in the result.

Author: Jacobs

[ 235 Pa. Super. Page 452]

This appeal concerns an action to quiet title to a 32 1/4 acre tract of unimproved land situated in Westmoreland County, brought by plaintiff-appellee Seven Springs Farm, Inc., against Theopholis and Catherine King, their heirs and assigns,*fn1 and appellant Winona Wheat. The amended complaint avers that Seven Springs is in possession of the tract in question, that the appellant is out of possession, and that Seven Springs has title to the land by virtue of a conveyance of an adjoining parcel of land, the deed for which conveyance does not describe the subject tract,*fn2 or, alternatively, by virtue of adverse possession.*fn3

[ 235 Pa. Super. Page 453]

After the pleadings were filed and depositions taken, the lower court entered an order directing the appellant to file her action of ejectment or quiet title within 30 days or be forever barred from asserting any right, lien, title or interest inconsistent with that of the plaintiff. On appeal from this order, appellant asserts that the plaintiff, Seven Springs, has failed to prove actual possession of the disputed tract and therefore is not entitled to the relief available under the Act of March 8, 1889, P.L. 10, § 1, as amended, 12 P.S. § 1543 and Pa. R.C.P. 1061(b)(1).*fn4 We agree and reverse the order below.

[ 235 Pa. Super. Page 454]

Under the Act of March 8, 1889, a possessor of land is entitled to bring an action against one who, although not in possession, has some claim or interest in the land, compelling that person to assert his interest by bringing his own action of ejectment. The provisions of this Act were suspended as to practice and procedure by Pa. R.C.P. 1455 and superseded in that respect by Pa. R.C.P. 1061-66. The substantive requirements of the Act, however, continue to remain in force. Hoffman v. Bozitsko, 198 Pa. Superior Ct. 553, 182 A.2d 113 (1962). Thus it is still necessary, in order to prevail under the Act of March 8, 1889, for the plaintiff to prove that it is in possession, that the defendant is out of possession, and that there is a dispute as to the title of the land in question. Hemphill v. Ralston, 278 Pa. 432, 123 A. 459 (1924); Clark v. Clark, 255 Pa. 574, 100 A. 457 (1917); Hoffman v. Bozitsko, supra; 13 Standard Pennsylvania Practice 566-70 (1957).*fn5 If the plaintiff can establish these three elements, the court can grant relief under

[ 235 Pa. Super. Page 455]

Pa. R.C.P. 1061(b)(1) by ordering the defendant to commence an action of ejectment within 30 days from the date of the order or be forever barred from asserting any right, lien, title or interest in the land inconsistent with the interest of the plaintiff as set forth in the complaint. Pa. R.C.P. 1066. The merits of the dispute, the title and right to possession, are not determined in an action brought under these rules. Notley's Petition, 263 Pa. 377, 106 A. 716 (1919); Clark v. Clark, supra; Hoffman v. Bozitsko, supra. The issue to be decided is simply whether or not either of the parties claiming an interest in the land was in actual possession at the filing of the complaint. Girard Trust Co. v. Dixon, 335 Pa. 253, 6 A.2d 813 (1939); Spangler v. Trogler, 228 Pa. 217, 77 A. 495 (1910). Because the appellant admitted in her answer that neither she nor her predecessors in title had ever been in possession, we need only decide whether the actions of plaintiff-appellee, Seven Springs Farm, in regard to the subject tract were sufficient to constitute actual possession.

Herman Dupre, president of plaintiff, testified that Seven Springs was incorporated in 1959 by his mother, Helen Dupre, who transferred all her real property to the corporation. He stated that the family and the corporation always used the 32 1/4 acre tract as if it belonged to them. In the past, he testified, the use involved pasturing cattle and raising grain on the tract. However, at the time the complaint was instituted, the land was no longer cultivated and the barbed-wire fence that had been put up along one side of the property had gone unmaintained for 14 years and was in a bad state of disrepair with many openings in it. Currently, plaintiff's resort guests use the land for hunting and fishing, a portion of a one acre pond constructed on plaintiff's adjoining property covers a small fraction of the disputed tract, and plaintiff from time to time will remove occasional trees and surface rock for its own use.

[ 235 Pa. Super. Page 456]

None of these acts constitute actual possession of the land at the time the complaint was filed. A fence, in order to support a claim of possession of the property it encloses, must be substantial. One which shows the neglect of 14 years, overgrown and with numerous gaps, merely demonstrates abandonment, not possession. See Dimura v. Williams, 446 Pa. 316, 286 A.2d 370 (1972). Furthermore, the fence upon which Seven Springs relies did not enclose the property. The testimony of plaintiff's president seemed to indicate that the fence simply ran along a road bordering the property.*fn6 In order to demonstrate possession of a parcel of land by means of a fence, it would be expected that the fence would define and enclose the acreage to which possession is asserted. See Camp Chicopee v. Eden, 303 Pa. 150, 154 A. 305 (1931); Welsh v. Clough, 216 Pa. 276, 65 A. 677 (1907).

Other acts upon which plaintiff seeks to establish its possession of the land include the cutting and taking of timber and removing of stone.*fn7 Taking timber from unenclosed woodland, and even constructing roads to facilitate its removal, does not constitute actual possession.

[ 235 Pa. Super. Page 457]

Henry v. Huff, 143 Pa. 548, 22 A. 1046 (1891); Wickham v. Sutton, 33 Pa. Superior Ct. 368, allocatur refused, 34 Pa. Superior Ct. xxxiii (1907). Where the land is not cultivated, or permanent improvements erected thereon, occasional removal of timber and surface stone only amounts to repeated acts of trespass, insufficient to show possession. Lackawanna Lumber Co. v. Kelley, 221 Pa. 238, 70 A. 724 (1908).*fn8

Finally, plaintiff asserts that its resort guests have been using the land for recreational purposes: hunting, fishing and picnicking. Ordinarily, use of land for recreational purposes, such as hunting and fishing, does not show actual possession. Camp Chicopee v. Eden, supra; Matthews v. Bagnik, 157 Pa. Superior Ct. 115, 41 A.2d 875 (1945). Where the recreational use is extensive and apparent, as where systematically conducted for commercial purposes, it can be sufficient to show possession.

[ 235 Pa. Super. Page 458]

Miller v. Lutheran Conference & Camp Ass'n, 331 Pa. 241, 200 A. 646 (1938).*fn9 However, hunting and fishing parties, or groups of picnickers on a largely wooded tract of considerable size, do not represent the extensive, systematic use which would provide an exception to the general rule. Even though the recreational use in the present case was in furtherance of plaintiff's business, it would not be apparent from an inspection of the land that such activity was in progress. If such an invisible use were enough to establish actual possession, no owner of uninhabited wild lands would be safe from the encroachment of strangers against his claim to his property. Cf. Dougherty v. Welshans, 233 Pa. 121, 81 A. 997 (1911); Brewer v. Curtis, 130 Pa. Superior Ct. 270, 197 A. 780 (1938). We are compelled to hold that the insubstantial use currently made by the plaintiff of the subject land does not constitute possession of the tract, and is not sufficient to support an action under the Act of March 8, 1889 and Pa. R.C.P. 1061(b)(1).

Order reversed.


Order reversed.

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