C. Francis Fisher, Fisher & McGinley, Pittsburgh, for appellants.
James M. Arensberg, Tucker, Arensberg, & Ferguson, John B. Montgomery, Pittsburgh, for appellee.
Watkins, President Judge, and Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.
[ 241 Pa. Super. Page 123]
I. Appeal No. 379, April Term, 1975.
Appellants brought this action to quiet title on September 5, 1969, with regard to a triangular piece of land located in Findlay Township, Allegheny County. At one time, this land was a part of a patent acquired by one Robert Greenlee in 1792. The patent was later divided into a western and an eastern portion, and then the eastern portion was divided into a northern and a southern portion. On November 6, 1915, one A. D. McCabe acquired the northern portion by sheriff's deed, and on January 6, 1917, his wife Margaret acquired the western portion, also by sheriff's deed. The southern portion was owned by one George McCallister; this portion was also conveyed by sheriff's deed on January 6, 1917, but to one John K. Wymard; it was never acquired by either of the McCabes. The triangular piece in dispute is located approximately at the point at which the western, northern, and southern portions meet. Appellees and appellants both claim ownership under the McCabes -- appellees by virtue of a deed of March 29, 1919, by which the McCabes conveyed to one Elizabeth Gundelfinger, and appellants by virtue of a deed of May 2, 1939, by which the McCabes conveyed to one Ross Potts.
The matter was tried without a jury in October 1971, but at the request of all parties a decision was deferred while a number of other lawsuits that involve boundary disputes arising out of some of the same deeds were filed or brought up to date.*fn1 On January 4, 1973, pursuant to an opinion filed December 29, 1972, judgment was entered for appellees. This appeal followed.
[ 241 Pa. Super. Page 124]
The parties agreed at trial that in 1919 the triangular piece in dispute was entirely owned by Margaret McCabe, and that it was therefore within the power of the McCabes to convey it to Elizabeth Gundelfinger by their deed of March 29, 1919. The point of dispute is whether in fact the triangular piece was included by the description in that deed. The lower court found that it was. From that finding it followed that the McCabes could not by their deed of May 2, 1939, convey the triangular piece to Ross Potts, appellants' predecessor in title.*fn2
The decision whether the triangular piece was included by the description in the Gundelfinger deed depends upon how certain conflicts in the description are reconciled.
It is established that where a conflict in boundaries occurs as the result of conveyances from the same grantor (here, the McCabes), the title of the grantee in the conveyance first executed (here, Gundelfinger) is superior. Will v. Piper, 184 Pa. Super. 313, 319, 134 A.2d 41, 44 (1957). The first grantee's claim is superior, however, "only upon the basis of [his] own deed calls reconciled with the monuments on the ground and proceeding from the point of beginning established in [his] own deed." Walleigh v. Emery, 193 Pa. Super. 53, 60, 163 A.2d 665, 668 (1960).
It is also established that "[t]he question of what is a boundary line is a matter of law, but where a boundary line, or corner, is actually located is a question for the trier of fact." Guerra v. Galatic, 185 Pa. Super. 385, 391, 137 A.2d 866, 869 (1958). ...