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GEORGE W. BAKER AND MARIE A. BAKER v. MARGARET DEBOW ZINGELMAN (10/25/78)

decided: October 25, 1978.

GEORGE W. BAKER AND MARIE A. BAKER, HIS WIFE, APPELLEES,
v.
MARGARET DEBOW ZINGELMAN, APPELLANT



No. 376 April Term, 1977, Appeal from the Decree Dated November 30, 1976, of the Court of Common Pleas of Crawford County, Pennsylvania, Civil Division at Number 2 September Term, 1975 (Equity).

COUNSEL

Douglas W. Ferguson, Meadville, for appellant.

Mark D. Prather, Meadville, for appellees.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, President Judge, concurs in the result. Spaeth, J., files a concurring opinion. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Cercone

[ 259 Pa. Super. Page 443]

This is an appeal from a Decree Nisi entered by the Court of Common Pleas of Crawford County in a boundary dispute. Appellants' exceptions to the decree were dismissed

[ 259 Pa. Super. Page 444]

    by two judges on the court and this appeal followed. We affirm the decree of the lower court.

The finding of facts that were established by the chancellor are as follows. Appellant, Margaret DeBow Zingelman (Margaret), and appellee, Marie A. Baker, are sisters. Margaret and her deceased husband, Carl DeBow, owned a parcel of land known as the Lakeland Allotment via an unrecorded plan of lots dated 1953. The land was mostly farmland, and appellant and her late husband lived in the farmhouse and operated an antique shop in the barn behind their house. There were several other sheds and garages on their property. In 1968, appellant and her late husband built a new home west of the land here in question and moved there. It was only after the death of Carl DeBow, in 1971, that any problem concerning the Lakeland Allotment arose.

The testimony of the appellees, Marie Baker and her husband, states that appellant asked them to leave their Cleveland, Ohio home and move to the farmhouse on the Lakeland Allotment and operate the antique shop. Based on this inducement, a deed to the property was prepared by Margaret conveying the property to her sister and her husband. Margaret allegedly "walked off" (measured) the land Marie and her husband were to receive and asked if they thought it was sufficient footage to clear the buildings located on the land. Margaret opined that if the land she measured off was not sufficient to include the buildings, "we can clear it up later." The deed prepared by Margaret began at "a point where the east line of the proposed Michigan Avenue intersects the south line of West Erie Street" and then follows the directional and distance description matching an unnumbered lot on the unrecorded plan. Michigan Avenue is an unopened street, which, Margaret admitted, she did not know exactly where it began when she prepared the deed. The deed carried a consideration of $10.00, which was never paid, although the value of the property stated in the deed was $5,000.

[ 259 Pa. Super. Page 445]

Based on this conveyance in 1971, Marie and George Baker moved into the farmhouse and reopened and operated the antique shop in the barn. Sometime in 1973 George Baker became upset with Margaret parking her truck in the garage which the Bakers claim is located on their property.*fn1 There was a falling out between the families about this time. Margaret informed the Bakers that part of the barn, the garage, and sheds located on the land extended onto her adjacent land. By early 1975, Margaret's attorney informed the Bakers that the part of the barn which projected onto the appellant's property would be forcibly removed unless the appellees chose to purchase for a sum of $10,000 the strip of property which would clear up the location problem of the buildings. The Bakers then brought this suit to enjoin Margaret from parking her truck in the garage and from cutting off part of the barn.

At the trial, the testimony of two reputable surveyors disclosed that all of one shed and garage and a portion of another shed and 13 feet of the barn extended onto Margaret's property. The lower court, however, enjoined Margaret from any further trespass and ordered her to convey to the Bakers the strip of land which would then place the buildings on Baker ...


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