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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)

SUPERIOR COURT OF PENNSYLVANIA


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, 362 Pa. 592, 594, 66 A.2d 828, 829 (1949) (citations omitted; emphasis added).*fn5

The legislature extended the holding period for acquiring title by adverse possession to forty years by the Act of April 14, 1851, P.L. 612, § 15, 12 P.S. § 77 (repealed) (hereinafter cited as section 77). That act provided:

From henceforth, no person or persons whatsoever shall make entry into any manors, lands, tenements, or hereditaments, after the expiration of forty years next after his, her or their right or title to the same first descended or

[ 289 Pa. Super. Page 349]

    accrued, nor shall any person or persons whatsoever have or maintain any writ of right or any other real or personal writ or action for any manors, lands, tenements, or hereditaments, of the seizure or possession of him, her or themselves, his, her or their ancestors or predecessors, than within forty years next before such writ, action or suit so hereafter to be sued, commenced, or brought: Provided, That any person, never having right or title of entry as aforesaid, and who is now by law excepted from the general provisions of the act of March 26, 1785, for the limitation of actions, and the heir or heirs of such person, may, within five years from this time, enter or commence any action or suit, as he, she or they, or his, her or their ancestors or predecessors might have done before the passage of this act.

(emphasis added). The extension proved short-lived, however. The very next year the legislature limited the effect of section 77 by passing the Act of May 4, 1852, P.L. 569, § 7, 12 P.S. § 78 (repealed) (hereinafter cited as section 78), which provided:

The fifteenth section of an act entitled "An act relative to the commencement of actions, and for other purposes," approved the 14th day of April, 1851, [section 77,] is hereby construed to extend to and apply only to writs of right and other writs pertaining to manorial lands in the city and county of Philadelphia.

(emphasis added). It is the precise nature of the limitation which section 78 effected upon section 77 which is at issue in this case. Appellant contends that by its use of the term "manorial lands," the legislature limited the forty-year holding period to certain discrete lands in the city and county of Philadelphia. The lower court disagreed with this contention and concluded that "manorial lands" is not itself a limiting term, and that the forty-year holding period applied to all land within the city and county of Philadelphia.*fn6

[ 289 Pa. Super. Page 350]

The precise extent to which section 78 limits the applicability of the forty-year holding period has not previously been decided by our appellate courts. Indeed, despite being a part of our law for more than 125 years, the forty-year holding period has rarely been at issue in the reported decisions. See Philadelphia Electric Co. v. Philadelphia, 303 Pa. 422, 154 A. 492 (1931) (plaintiff sought to establish title to Philadelphia property which it had acquired from grantor who had lacked title; Court noted that despite fact that plaintiff's deeds were more than forty years old, section 77 was of no assistance to plaintiff because it had failed to prove actual possession of the property); Aldine Realty Co. of Pittsburgh v. Manor Real Estate & Trust Co., 297 Pa. 583, 143 A. 56 (1929) (in approving claim of title to Pittsburgh property by adverse possession, Court noted in dictum that even under forty-year holding period of section 77, claimant would have acquired valid title). In several

[ 289 Pa. Super. Page 351]

    cases involving adverse possession and prescriptive easement claims in Philadelphia,*fn7 there is no mention at all of the forty-year holding period, apparently because of the parties' failure to consider its applicability. See Robin v. Brown, 308 Pa. 123, 162 A. 161 (1932); Baxter v. Girard Trust Co., 288 Pa. 256, 135 A. 620 (1927); Martin v. Jackson, 27 Pa. 504 (1856); Adshead v. Sprung, 248 Pa. Super. 253, 375 A.2d 83 (1977). In Abrams v. Uenking, 81 Pa. Super. 422, 426 (1923), this Court acknowledged in dictum that section 77 "was limited in its application by the legislature in 1852 . . . to manorial lands in the City and County of Philadelphia." The Court had no occasion, however, to consider the meaning of "manorial lands." See also 2 Standard Pennsylvania Practice, chapt. 7, § 187 (rev. ed. 1956); 22 P.L.E. Limitation of Actions § 22 (1959); Ladner on Conveyancing in Pennsylvania § 3.03 (3d ed. 1961); Fallon, The Law of Conveyancing in Pennsylvania § 15 (1902) (all acknowledging the restriction of the forty-year holding period to Philadelphia without considering whether the term "manorial lands" further limits the land to which the period applied).*fn8

In Lisowski v. Mastromarco, supra, this Court concluded that the required holding period to establish title to land in Philadelphia by adverse possession was, before the present Judicial Code, forty years. The Court's conclusion, however, was in response to a contention "that Section 77 only applies to those Philadelphia landowners who suffer under the enumerated disabilities of 12 P.S. § 73, and that its forty year required holding period cannot be construed to extend to all landowners in Philadelphia." 281 Pa. Super. at 307, 422 A.2d at 182 (emphasis in original). The appellant did not raise, nor did the Court consider, the question of whether section 78's use of the term "manorial lands" limits the lands in

[ 289 Pa. Super. Page 352]

Philadelphia to which the forty-year holding period applied. Accordingly, the broad statement in Lisowski that "the forty year period of § 77 is the required time of possession before one may acquire title by adverse possession in Philadelphia," id., 281 Pa. Super. at 310, 422 A.2d at 184, cannot be considered determinative of the question presented in this appeal.

Faced with this dearth of authority, we have resorted to an examination of the origins of land ownership in Pennsylvania to determine the meaning of "manorial lands" in the context of section 78. "What is now the State of Pennsylvania was granted to William Penn on March 4, 1681, by King Charles II, in satisfaction of a debt of 16,000 pounds due Admiral Penn, father of the founder." V. Nicholson, A Treatise on the Law Relating to Real Estate in Pennsylvania § 5 (2d ed. 1926) (hereinafter cited as Nicholson). By the terms of the charter setting forth the grant, Penn and his successors were made absolute proprietaries of all lands within Pennsylvania, with power to dispose of such lands as they saw fit. 1 R. Bushong, Pennsylvania Land Law § 367 (1938) (hereinafter cited as Bushong); E. Price, The Act for the Sale of Real Estate 3 (1874). Penn subsequently established "Certain Conditions or Concessions" governing the disposition and settlement of land in the province, one of which was a reservation of one-tenth of the proprietary lands for himself and his successors. Wheeler, Richard Penn's Manor of Andolhea, 58 Pennsylvania Magazine of History and Biography 193, 194 (1934) (hereinafter cited as Wheeler). See also Nicholson at § 6. Thus, "[t]here were two kinds of titles in the Penn family, -- that which they held as proprietors, and which later became public land, and that which each one owned in his private right." Nicholson at § 6.

Section 19 of the charter empowered Penn and his successors "to erect any parcels of land within the Province aforesaid into manors." Bushong at § 367. Pursuant to this authority, Penn and his sons established on their private lands what were referred to as "proprietary tenths or manors."

[ 289 Pa. Super. Page 353]

Nicholson at § 6; Wheeler at 194. These were not manors in the English feudal sense;*fn9 rather, they "were only manors in name, as so much land reserved or taken out of the general jurisdiction of the land office, so that grants could not be made within the terms."*fn10 R. Cadwalader, A Practical Treatise on the Law of Ground Rents in Pennsylvania 33 (1879) (footnote omitted) (hereinafter cited as Cadwalader). See also E. Mitchell, The Law of Real Estate and Conveyancing in Pennsylvania 88 (1890); Wheeler at 195 ("Strictly speaking a proprietary manor means a tract of land set aside for the use of some member of the Penn family."). The Penns erected many such manors throughout the province. "Volume IV. of the Third Series of Pennsylvania Archives contains drafts of nearly fifty manors and gives a list of about seventy such tracts. An even larger list is given in the text connected with The Historical Map of Pennsylvania published by [the Pennsylvania Historical] Society in 1875." Wheeler at 194. A number of these manors were situated in Philadelphia. IV Pennsylvania Archives, 3d Series (1894).

"After the Revolution it was considered incompatible with the democratic institutions of the new country for such vast real estate holdings to remain in the Penn family." Nicholson at § 7. Accordingly, the legislature passed the Act of November 27, 1779, 1 Sm.L. 479, §§ 5-13, 64 P.S.

[ 289 Pa. Super. Page 354]

§§ 1-8, commonly known as the Divesting Act. Bushong at § 387. That act divested the Penns of title to all lands which they had held as proprietaries and transferred title to the Commonwealth. In return the Penns were awarded 130,000 pounds.*fn11 The act excepted from divestiture all the private landholdings of the Penns, including "all the lands, called and known by the name of the proprietary tenths or manors, which were duly surveyed and returned into the land office on or before [July 4, 1776]." 64 P.S. § 4. See generally Commonwealth ex rel. Reading v. Commissioners of Berks County, 109 Pa. 214, 217 (1885) ("The Act of Divestiture (27th November, 1779), put an end to all rights of the proprietaries in the public domain, and limited those rights to their private estates and proprietary manors . . . ."); Bushong at § 387; Cadwalader at 49; Nicholson at § 7. Thus, proprietary manors registered in the land office as of July 4, 1776, survived the post-Revolution divestiture and continued to be held by the Penns and their successors. We believe that these are the "manorial lands" to which the legislature referred in section 78. Consequently, we conclude that section 78 limits the forty-year holding period of section 77 to land within proprietary manors established in the city and county of Philadelphia which the Penns retained following passage of the Divesting Act.

Our conclusion is based upon the foregoing historical recitation and a commonsense reading of the statutes establishing the various holding periods for acquiring title by adverse possession. Sections 72 and 77 both expressly apply to actions involving "any manors, lands, tenements, or hereditaments." (Emphasis added.) Section 78 construes section 77 as applying "only to writs of right and other writs pertaining to manorial lands in the city and county of Philadelphia." (Emphasis added.) The use of the apparently limiting term "manorial" makes it unlikely, in our view, that the legislature intended the forty-year holding period of

[ 289 Pa. Super. Page 355]

    section 77 to apply uniformly throughout Philadelphia. Indeed, the Statutory Construction Act of 1972*fn12 expressly provides that "[g]eneral words shall be construed to take their meanings and be restricted by preceding particular words." 1 Pa.C.S.A. § 1903(b). See also Commonwealth v. Buzak, 197 Pa. Super. 514, 517, 179 A.2d 248, 250 (1962) ("It is a canon of statutory construction that where words of a later statute differ from those of a previous one on the same subject, they presumably are intended to have a different construction."). Thus, we cannot agree with the lower court that "'manorial lands in the City and County of Philadelphia' refers to all lands within the City and County of Philadelphia." 3 Phila.Co.Rep. at 62.*fn13 Accordingly, we must vacate the decree of the lower court insofar as it concerns Tioga's claim of adverse possession, and remand for further proceedings. If on remand the court determines that Agate Street is manorial land as defined herein, then it shall apply the forty-year holding period as provided in sections 77 and 78, and deny Tioga's claim of adverse possession. Absent satisfactory proof that Agate Street is manorial

[ 289 Pa. Super. Page 356]

    land, the court shall evaluate Tioga's claim of adverse possession in light of the twenty-one-year holding period currently in effect. See 42 Pa.C.S.A. § 5530.*fn14

No. 1885 October Term, 1979 -- Decree vacated insofar as it denies Tioga's claim of adverse possession; case remanded for proceedings consistent with this opinion.


*fn* Judge Vincent A. Cirillo of the Court of Common Pleas of Montgomery County, Pennsylvania, is sitting by designation.


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