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N. WILLIAM EDMONDSON AND PHYLLIS EDMONDSON v. FRED DOLINICH AND DOROTHY DOLINICH (11/30/82)

filed: November 30, 1982.

N. WILLIAM EDMONDSON AND PHYLLIS EDMONDSON, HIS WIFE, AND ANDY MALINISH AND LOIS F. MALINISH, HIS WIFE, APPELLANTS,
v.
FRED DOLINICH AND DOROTHY DOLINICH, HIS WIFE



No. 696 Pittsburgh, 1981, Appeal from the judgment of the Court of Common Pleas of Westmoreland County, Civil Action, Law, at No. 12410 of 1979.

COUNSEL

Richard F. Flickinger, Ligonier, for appellants.

Barbara A. Roth, Latrobe, for appellees.

Spaeth, Johnson and Hoffman, JJ.

Author: Spaeth

[ 307 Pa. Super. Page 336]

This appeal is from a judgment granting possession of a fifteen foot wide alley to appellees. The lower court held that appellees had acquired title to the alley by adverse possession. We have concluded, however, that appellees proved only sporadic and non-exclusive use of the alley. We therefore reverse.

Prior to this action both appellants and appellees acquired an easement over the alley by virtue of its description in their deeds. See Hoover v. Frickanisce, 169 Pa. Super. 443, 82 A.2d 570 (1951). On July 12, 1979, however, appellees filed a declaration of adverse possession in the Office of the Recorder of Deeds of Westmoreland County against appellants.*fn1 Appellees responded by filing this action in ejectment. After a hearing the trial judge found that appellee had acquired title to the alley by adverse possession. On appellants' exceptions, the court en banc dismissed the exceptions and adopted the trial judge's opinion.

In Conneaut Lake Park Inc. v. Klingensmith, 362 Pa. 592, 594-95, 66 A.2d 828, 829 (1949), the Court stated:

[O]ne 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 . . . . Each of these elements must exist, otherwise the possession will not confer title . . . .

[Citations omitted.]

And in Parks v. Pennsylvania R.R. Co., 301 Pa. 475, 481-82, 152 A. 682, 684 (1930), it stated:

A sporadic use of land, by one without title to it, will not operate to give him a title, no matter how often repeated . . . . It is true that residence is not necessary to make an adverse possession within the statute of limitation; the possession may be adverse by enclosing and cultivating the land . . . but nothing short of an actual possession, permanently continued, will take away from

[ 307 Pa. Super. Page 337]

    the owner the possession which the law attaches to the legal title; temporary acts on the land, without an intention to seat and occupy it for residence and cultivation or other permanent use consistent with the nature of the property, are not the actual possession required . . . . Such occupation must be exclusive, and of such a character as compels the real owner to take notice of the possession of the disseisor . . . .

[Citations omitted.]

It was the opinion of the lower court that appellees' evidence satisfied these requirements. Thus the trial judge said:

In the testimony taken at the hearing defendants [appellees] established that they, since 1951 to the present, have maintained the portion of the alley adjoining their property, erected and maintained two fences; planted trees and shrubs; left a rail and wood pile on the alley. Neither the plaintiffs [appellants] nor their predecessors attempted to use the alley.

Slip op. at 2.

Also:

It is fundamental that there must be actual, continual, visible, notorious, adverse and hostile possession of the land for twenty-one (21) years to constitute adverse possession. Piper v. Mowris, 466 Pa. 89 [351 A.2d 635] (1976). Defendants have proven all of these through their testimony concerning use of the alley. The photographs introduced and admitted into evidence clearly show the planting, fencing and blocking of the easement. Dates were established for all of the photographs convincing this Court that the adverse use has continued openly for over twenty-one (21) years.

Slip op. at 3.

However, our own review of the evidence persuades us that appellees failed to prove adverse possession. In saying this, we do not mean that we question the lower court's findings of fact. Findings supported by the evidence and approved ...


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