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ROBERT B. REED AND AUDREY E. REED v. FRANK WOLYNIEC (09/23/83)

submitted: September 23, 1983.

ROBERT B. REED AND AUDREY E. REED, HUSBAND AND WIFE
v.
FRANK WOLYNIEC, T/D/B/A WOLYNIEC REAL ESTATE, INC., APPELLANT



No. 365 Harrisburg, 1981, Appeal from Order of the Court of Common Pleas, Civil Division, of Union County, No. 118, 1980.

COUNSEL

Michael J. Casale, Jr., Williamsport, for appellant.

Paul W. Brann, Lewisburg, for appellees.

Wieand, Cirillo and Johnson, JJ.

Author: Wieand

[ 323 Pa. Super. Page 553]

This is an appeal from a judgment declaring appellees, Robert B. and Audrey Reed, to be owners by adverse possession of a fifty feet wide lot adjacent to their residence in the Village of Allenwood, Gregg Township, Union County. The judgment was entered in an action to quiet title to the lot instituted by appellees against Frank Wolyniec, appellant, who by deed dated August 17, 1973 but not recorded until October 24, 1979, had taken record title to a tract of 1.01 acres located to the rear of appellees' home, which tract included the lot in dispute.

In October, 1955, the Reeds purchased at public sale and went into possession of a residential dwelling and garage situated on a lot (56 X 165) on the south side of Bridge Avenue. Adjoining their lot on the west was another lot, known as Lot 152, which contained a driveway, shrubbery and lawn. This lot had been maintained by the Reeds' immediate predecessor in title, and the Reeds continued to maintain it thereafter. The driveway entered the lot from Bridge Avenue and formed a circle at the rear of the lot which covered the entire width thereof. The several tracts were depicted on an engineer's drawing, with driveway and shrubs added, as follows:

[ 323 Pa. Super. Page 554]

After appellees had gone into possession, they continuously used the driveway for purposes of ingress and egress

[ 323 Pa. Super. Page 555]

    to and from the garage behind their residence. They also maintained the adjacent lot by cutting the law and by planting and maintaining thereon various flowering and non-flowering shrubs. They used the land for recreational purposes and placed in concrete thereon a pole to which a birdhouse was attached. In 1979, appellant began to use the lot to move vehicles and equipment from Bridge Avenue to his land at the rear of the Reed property. This caused damage to the driveway, as well to the shrubs and lawn, and generated a dispute which culminated in the present litigation. The trial court found that appellees' possession of the lot had been exclusive, open, notorious, hostile and continuous for more than twenty-one years. The court concluded, therefore, that appellees had established title by adverse possession.

In Smith v. Peterman, 263 Pa. Super. 155, 397 A.2d 793 (1978), this Court said that

"'[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.' Inn Le'Daerda, Inc. v. Davis, 241 Pa. Super. 150, 158, 159, 360 A.2d 209, 213 (1976). An adverse possessor '"'must intend to hold the land for himself, and that intention must be made manifest by his acts'".' Kaminski Brothers, Inc. v. Grassi, 237 Pa. Super. 478, 480, 352 A.2d 80, 81 (1975). He must 'keep his flag flying and present a hostile front to all adverse pretensions.' Commonwealth v. Bierly, 37 Pa. Super. 496, 504 (1908). Building a residence on land or cultivating it in a regular and continuous way may after 21 years result in ownership. See The Susquehanna and Wyoming Valley RR and Coal Co. v. ...


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