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INN LE'DAERDA v. BENJAMIN I. DAVIS ET AL. INN LE'DAERDA (06/28/76)

decided: June 28, 1976.

INN LE'DAERDA, INC., A PENNSYLVANIA CORPORATION, ET AL., APPELLANTS,
v.
BENJAMIN I. DAVIS ET AL.; INN LE'DAERDA, INC., A PENNSYLVANIA CORPORATION, ET AL., APPELLANTS, V. WILBERT F. MARSHALL AND THELMA M. MARSHALL, HIS WIFE. CLYDE EDWARD SEIGLER, JR., ET AL., APPELLANTS, V. ROBERT H. PHILLIPS ET AL.



COUNSEL

Frank Kernan, C. Francis Fisher, Pittsburgh, for appellants.

James Arensberg, Tucker, Arensberg & Ferguson, Pittsburgh, Ira F. Bradford, Jr., Coraopolis, Philip R. McLaughlin, Campbell, Thomas & Burke, Pittsburgh, for appellees.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.

Author: Spaeth

[ 241 Pa. Super. Page 156]

These appeals involve six actions of ejectment brought by appellants to establish the proper northern boundary line of a tract of land located in Findlay Township, Allegheny County.*fn1 Appellants James F. Farland and Elsie

[ 241 Pa. Super. Page 157]

M. Farland are the record owners of this tract, and appellant Inn Le'Daerda, Inc., is by virtue of an assignment of an agreement of sale between the Farlands and one William Hallam the equitable owner. The appellees are the respective owners of six lots to the north of and abutting appellants' tract.

At one time all of the land involved in this dispute was the easterly part of a patent given to Robert Greenlee in 1792. This part was last conveyed in a single tract in 1832, when one Moses Ewing took the land by deed of Thomas Greenlee's heirs. By subsequent transfers, Moses Ewing's land was divided into northern and southern portions, of which appellants now hold the southern. The northern portion eventually, in 1946, came to be owned by one Frank Alimena, Sr., who by a series of conveyances divided it into the lots now owned by appellees.*fn2

During the course of the above transfers, there developed three different deed descriptions of the common boundary line between appellants' tract to the south and appellees' several lots to the north: (1) the description used in 1879, when the land was first divided; (2) the description used in the deeds to the southern tract -- including appellants' deed -- from the time of a deed by Mary McCallister to George McCallister in 1902; and (3) the description used in the deeds to the northern tract and its subdivisions -- including appellees' deeds -- from the time of a deed by A. D. McCabe to Elizabeth Gundelfinger in 1919. Of these three lines, the one described

[ 241 Pa. Super. Page 158]

    in the last description is the most southerly; also, it runs relatively close to an old fence and tree line.*fn3

The trial judge did not attempt to locate the proper boundary line according to the deeds; instead he concluded that each of the appellees with their respective predecessors in title had established title to the most southerly line of adverse possession. The court en banc affirmed the trial judge's decision, and adopted his opinion as its own.

Because the trial judge did not make specific findings of fact as to each appellees' proof of adverse possession*fn4 we have made an independent examination of the record for the underlying facts necessary to support his conclusion. Cf. Lewkowicz v. Blumish, 442 Pa. 369, 275 A.2d 69 (1971).*fn5 Before discussing the results of that examination, however, it is necessary to untangle a number of legal principles.

I

A. Proof of Adverse Possession

The requirements that must be met by one claiming title by adverse possession are settled. In Conneaut Lake Park, Inc. v. Klingensmith, 362 Pa. 592, 594-95, 66 A.2d 828, 829 (1949), the Court stated:

[O]ne who claims title by adverse possession must prove that he had actual, continuous, exclusive, visible,

[ 241 Pa. Super. Page 159]

    notorious, distinct, and hostile possession of the land for twenty-one years. Each of these elements must exist, otherwise the possession will not confer title.

And in Parks v. Pennsylvania R. R. Co., 301 Pa. 475, 481-82, 152 A. 682, 684 (1930) (citations omitted), it is stated:

A sporadic use of land, by one without title to it, will not operate to give him a title, no matter how often repeated. . . . It is true that residence is not necessary to make an adverse possession within the statute of limitation; the possession may be adverse by enclosing and cultivating the land . . . but nothing short of an actual possession, permanently continued, will take away from the owner the possession which the law attaches to the legal title; temporary acts on the land, without an intention to seat and occupy it for residence and cultivation or other permanent use consistent with the nature of the property, are not the actual possession required. . . . Such occupation must be exclusive, and of such a character as compels the real owner to take notice of the possession of the disseisor. . . .

B. Appellees' Claims Under Color of Title

The opinion of the trial judge indicates that he gave weight not only to appellee's acts of possession but also to the fact that each appellee claims under color of title. That fact, however, did not relieve appellees of the burden of proving actual possession for twenty-one years.

It is true that when a person enters upon unoccupied land, under a deed or title, and holds adversely, his possession is construed to be coextensive with his deed or title, and the true owner will be deemed to be disseised to the extent of the boundaries described in that title. Still, his possession beyond the limits of his actual occupancy is only constructive. If the true owner

[ 241 Pa. Super. Page 160]

    be at the same time in actual possession of part of the land, claiming title to the whole, he has the constructive possession of all the land not in the actual possession of the intruder, and this though the owner's actual possession is not within the limits of the defective title.

Hunnicutt v. Peyton, 102 U.S. 333, 368, 26 L.Ed. 113 (1880). Here, not only appellees but also appellants claim under color of title, and the record shows that during the period that appellees claim, appellants were in actual possession of their tract. Therefore, if in fact the correct location of the boundary line pursuant to the deeds is -- as appellants assert -- north of the line to which appellees claim, the law would place appellants, as rightful owners, in constructive possession to the line of all and not in appellees' actual possession. Deputron v. Young, 134 U.S. 241, 10 S.Ct. 539, 33 L.Ed. 923 (1890); McArthur v. Kitchen, 77 Pa. 62 (1874); Potts v. Everhart, 26 Pa. 493 (1856). It follows that as the parties claiming title by adverse possession, appellees were required to prove actual possession of the overlap; proof of constructive possession under color of title was not enough. Deputron v. Young, supra; McArthur v. Kitchen, supra; Potts v. Everhart, supra.

The fact that appellees' deeds purport to include the disputed overlap is, however, significant to the extent that it enables each appellee to tack his possession to that of his predecessors in title in order to establish the requisite twenty-one years. Tacking to the possession of predecessors in title is permitted where the possessions are continuous. Shaffer v. Lauria, 50 Pa. Super. 135 (1912). Each predecessor must have claimed title to the property in dispute, and in transferring to his successor must have purported to ...


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