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KAMINSKI BROTHERS v. DOMINICK LUSSI AND CATHERINE LUSSI (12/23/82)

filed: December 23, 1982.

KAMINSKI BROTHERS, INC.
v.
DOMINICK LUSSI AND CATHERINE LUSSI, APPELLANTS



No. 746 Philadelphia, 1981, Appeal from Order of the Court of Common Pleas, Civil Division, of Luzerne County at No. 8708 of 1978.

COUNSEL

Patrick E. Dougherty, Wilkes-Barre, for appellants.

Richard J. Marusak, Hazelton, for appellee.

Cavanaugh, McEwen and Beck, JJ.

Author: Cavanaugh

[ 308 Pa. Super. Page 251]

This appeal involves an action in ejectment brought by appellee Kaminski Brothers, Inc., in which it sought to evict appellants Dominick and Catherine Lussi from a tract of land in Luzerne County, Pennsylvania. The Lussis asserted ownership of the subject property by adverse possession. It was agreed that the Lussis were the owners of a house situated on the subject property irrespective of the status of title to the land on which it is located. The case was tried

[ 308 Pa. Super. Page 252]

    before a jury, and a verdict was rendered in favor of the Lussis. Kaminski Brothers' subsequent motion for a new trial was granted by the lower court. It is from the order granting a new trial that this appeal was taken. Because we find that the lower court abused its discretion in granting a new trial, the order is reversed.

Appellants claim that there was sufficient evidence presented to the jury to support their claim of adverse possession and that the grant of a new trial was therefore improper. We agree. We recently summarized the burden of proof in adverse possession cases as follows:

"It is well settled that he who asserts title by adverse possession must prove it affirmatively." Robin v. Brown, 308 Pa. 123, 129, 162 A. 161, 162 (1932). "[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." Conneaut Lake Park, Inc. v. Klingensmith, 362 Pa. 592, 594-95, 66 A.2d 828, 829 (1949) (citations omitted). See also Tioga Coal Co. v. Supermarkets General Corp., 289 Pa. Super. 344, 433 A.2d 483 (1981); Smith v. Peterman, 263 Pa. Super. 155, 397 A.2d 793 (1978); Inn Le'Daerda, Inc. v. Davis, 241 Pa. Super. 150, 360 A.2d 209 (1976). "An adverse possessor must intend to hold the land for himself, and that intention must be made manifest by his acts . . . . He must keep his flag flying and present a hostile front to all adverse pretensions." Smith v. Peterman, supra, 263 Pa. Super. at 161, 397 A.2d at 796 (quotations and citations omitted).

Flickinger v. Huston, 291 Pa. Super. 4, 7-8, 435 A.2d 190, 192 (1981).

Appellant Dominick Lussi currently lives with his sister, co-appellant Catherine Lussi, in one side of a double block house on the property which is the subject of this suit. Their parents, Frances and Rufino Lussi, first took ...


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