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TIOGA COAL COMPANY AND ROBERT FOREPAUGH v. SUPERMARKETS GENERAL CORPORATION. APPEAL TIOGA COAL COMPANY. TIOGA COAL COMPANY AND ROBERT FOREPAUGH V. SUPERMARKETS GENERAL CORPORATION (05/22/81)

filed: May 22, 1981.

TIOGA COAL COMPANY AND ROBERT FOREPAUGH
v.
SUPERMARKETS GENERAL CORPORATION. APPEAL OF TIOGA COAL COMPANY. TIOGA COAL COMPANY AND ROBERT FOREPAUGH V. SUPERMARKETS GENERAL CORPORATION, APPELLANT



No. 1885 October Term, 1979, No. 1934 October Term, 1979, Appeals from the Decree of the Court of Common Pleas of Philadelphia County, Civil Division, No. 1470 September Ter, 1978.

COUNSEL

Joseph J. Carlin, Philadelphia, for Tioga, appellant in No. 1885 and appellee in No. 1934.

Carl S. Primavera, Philadelphia, did not file a brief on behalf of Forepaugh, appellee.

Edward Greer, Philadelphia, for Supermarkets, appellant in No. 1934 and appellee in No. 1885.

Brosky, Hoffman and Cirillo, JJ.*fn*

Author: Hoffman

[ 289 Pa. Super. Page 346]

Appellant contends that the lower court's denial of its claim of title to certain land by adverse possession was based on a misconstruction of statutory law governing such claims. We agree and, accordingly, vacate in part the decree of the lower court and remand for proceedings consistent with this opinion.

[ 289 Pa. Super. Page 347]

Appellant, Tioga Coal Company (Tioga) is a partnership which owns a parcel of land on the corner of Tulip and Tioga Streets in Philadelphia, on which it conducts a retail fuel oil business. Appellee, Supermarkets General Corporation (Supermarkets), owns an adjoining, larger parcel of land on which it operates a Pathmark retail food store. The present dispute arose over the use of "Agate Street," a forty-foot-wide strip of land which lies within Supermarkets' boundaries and is ten inches from Tioga's southern boundary.*fn1 Since 1948, Tioga has used Agate Street for loading and parking its vehicles, as well as for receiving deliveries. In 1978, Supermarkets began to use Agate Street for deliveries to its newly constructed store. Tioga subsequently brought this action to quiet title to Agate Street by adverse possession.*fn2 Following extensive proceedings the lower court concluded that the statutory holding period governing Tioga's claim was forty years, and that since Tioga had used Agate Street for no longer than thirty-one years it had not acquired title by adverse possession. Tioga Coal Co. v. Supermarkets Page 347} General Corp., 3 Phila.Co.Rep. 53 (1979). This appeal followed.*fn3

In Lisowski v. Mastromarco, 281 Pa. Super. 303, 305, 422 A.2d 180, 181 (1980), this Court noted that "[t]he foundation for title by adverse possession in this Commonwealth" is the Act of March 26, 1785, 2 Sm.L. 299, § 2, 12 P.S. § 72 (repealed) (hereinafter cited as section 72). That act provided:

From henceforth no person or persons whatsoever shall make entry into any manors, lands, tenements or hereditaments, after the expiration of twenty-one years next after his, her or their right or title to the same first descended or accrued; nor shall any person or persons whatsoever have or maintain any writ of right, or any other real or possessory writ or action, for any manor, lands, tenements or hereditaments, of the seisin or possession of him, her or themselves, his, her or their ancestors or predecessors, nor declare or allege any other seisin or possession of him, her or themselves, his, her or their ancestors or predecessors, than within twenty-one years next before such writ, action or suit, so hereafter to be sued, commenced or brought.

[ 289 Pa. Super. Page 348]

(emphasis added).*fn4 This act and subsequent judicial decisions established that "one who claims title by adverse possession must prove that he had actual, continuous, exclusive, visible, notorious, distinct, and hostile possession of the land for twenty-one years." Conneaut Lake Park, Inc. v. Klingensmith, ...


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