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GOLDIE BURNS v. PAUL V. MITCHELL AND HARRIETTE K. MITCHELL (12/28/77)

decided: December 28, 1977.

GOLDIE BURNS, APPELLANT,
v.
PAUL V. MITCHELL AND HARRIETTE K. MITCHELL, HIS WIFE, APPELLEES



No. 742 April Term, 1976, Appeal from the Decree of the Court of Common Pleas of Westmoreland County, Pennsylvania, Civil Division--Equity at No. 2592 of 1975.

COUNSEL

Richard F. Flickinger, Ligonier, with him Flickinger & Flickinger, Ligonier, for appellant.

James N. Falcon, Greensburg, submitted a brief for appellees.

Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion in which Hoffman, J., joins.

Author: Cercone

[ 252 Pa. Super. Page 259]

Appellant, Goldie Burns, brought this action in equity to enjoin appellees from encroachment upon a ten by one hundred and eighty feet strip of land located in a residential district of Westmoreland County. Said strip of land is claimed by both parties, and lies between the properties of appellant and appellees, who are adjoining landowners. The chancellor ruled that neither party had a superior right to the disputed land and ordered equal division of the land between appellant and appellees. Appellant filed exceptions which were dismissed by the court en banc, and the chancellor's decree was entered as a final decree. This appeal followed.

Appellees claim that they acquired title to the disputed strip of land pursuant to an action to quiet title which judgment became final on July 24, 1975, while appellant claims that she acquired title to the same strip by adverse possession prior to appellees' 1975 action to quiet title. Because we find that, as a matter of law, title to the entire disputed property lies in the appellant, we reverse.

Initially, we find that neither appellant nor appellees had record title to the disputed strip prior to final judgment on appellees' action to quiet title.*fn1 Although appellant occupied a tract of land of sixty by one hundred and eighty feet she

[ 252 Pa. Super. Page 260]

    received record title on April 7, 1937 to only fifty by one hundred and eighty feet.*fn2 As to appellees, Paul and Harriette Mitchell, they could only get record title to that land which was owned by their predecessors in title. The record indicates that until 1964 appellees' predecessors in title occupied and had record title to a tract of land of fifty by one hundred and eighty feet and that there was subsequently an error in the description of appellees' property which inaccurately described the property as a tract of sixty by one hundred and eighty feet rather than fifty by one hundred and eighty feet.*fn3

We find, however, that appellant had obtained title by adverse possession prior to appellees' 1975 action to quiet

[ 252 Pa. Super. Page 261]

    title.*fn4 The uncontradicted testimony of appellant's son,*fn5 which was corroborated by present and former neighbors in the area, established that a fence between the Burns and Mitchell properties had been in existence since sometime before 1937, that appellant had occupied up to the fence line since she acquired her land in 1937, that the fence line had not been replaced or otherwise changed since 1937 and, that appellant had maintained her lawn up to the fence line since 1937. Furthermore, appellees admit that the disputed ten feet wide strip of land is located on appellant's side of the fence line. Quoting Miles v. Penna. ...


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