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JOSEPH W. NORWICH v. BENJAMIN BEAVER AND MICHAEL REESE (04/06/84)

filed: April 6, 1984.

JOSEPH W. NORWICH, APPELLANT,
v.
BENJAMIN BEAVER AND MICHAEL REESE, THEIR HEIRS, SUCCESSORS AND ASSIGNS, AND COLUMBIA SPORTSMEN CLUB, INC. COLUMBIA SPORTSMEN CLUB, INC. V. TENCH COXE ESTATE, CHARLES S. COXE, IN TRUST EXECUTOR OF THE LAST WILL AND TESTAMENT OF TENCH COXE, THE HEIRS, SUCCESSORS AND ASSIGNS OF ENOCH KESTER: DANIEL FETTERMAN, HIS HEIRS, SUCCESSORS AND ASSIGNS: MARY E. KESTER ESTATE, LAWSON LEE, EXECUTOR OF THE ESTATE OF MARY E. KESTER, THE HEIRS, SUCCESSORS AND ASSIGNS OF MARY E. KESTER. APPEAL OF JOSEPH W. NORWICH



No. 465 Philadelphia 1982, No. 466 Philadelphia 1982, Appeal from the Decree of the Court of Common Pleas of Columbia County, Pennsylvania, Civil Division at Nos. 870 of 1978 and 163-1979.

COUNSEL

William S. Kreisher, Bloomsburg, for appellant.

Robert Spielman, Bloomsburg, for appellees.

Spaeth, President Judge, and Popovich and Hoffman, JJ. Spaeth, President Judge, files a concurring statement.

Author: Popovich

[ 326 Pa. Super. Page 457]

This is an appeal from the January 5, 1982, Final Decree of the Court of Common Pleas of Columbia County dismissing

[ 326 Pa. Super. Page 458]

    appellant's, Joseph W. Norwich's, exceptions to the trial court's opinion and decree nisi.

In 1978, appellant filed an action to quiet title to two parcels of unimproved mountainous timberland. Appellee, Columbia Sportsmen Club, petitioned for and was granted leave to intervene; appellee also filed a separate action to quiet title. The two cases were consolidated, and, after a non jury trial, Judge Myers ruled in favor of appellee as to both parcels of land. Appellant is appealing this ruling only as to the ownership of one of these tracts, hereinafter "parcel A".

Appellant claims title to parcel A through a 1950 conveyance from James Cherrington, et al for a total of approximately 208 acres. In the early 1950's, without benefit of a survey, appellant erected a telephone wire fence enclosing approximately 257 acres. Parcel A, consisting of an additional 36 acres, lies outside of this fence. Appellant used this fence as a boundary line (N.T. 29) and posted "no hunting" signs on the land within the fence (N.T. 27). Appellee became the owner in 1958 of several adjacent tracts of land by virtue of a deed from Florence Rhoads and posted "no hunting" signs on its property, including parcel A. The parties have used their respective lands primarily for hunting purposes. Since 1960, appellee has paid the taxes on parcel A. In 1971, Pennsylvania Power and Light Company (PP & L) paid appellee $7,000 for a right of way through parcel A. Appellant was paid $15,000 by PP & L for a right of way through the property enclosed by the fence. A dispute as to the true property line arose in 1978 resulting in the cases now before us.

At trial each side presented testimony from professional surveyors, each reaching a substantially different conclusion. The trial court found "the testimony of Columbia's surveyor to be more pursuasive [sic]" and concluded "that Columbia is the record owner of, and therefore holder of title in fee to [parcel A]." Trial Court Opinion of August 3, 1981, p. 5.

[ 326 Pa. Super. Page 459]

The trial court's findings where supported by credible evidence will not be reversed on appeal. See Bigham v. Wenschhof, 295 Pa. Super. 146, 148, 441 A.2d 391, 392 (1982). This court has also repeatedly said "[t]he question of what is a boundary line is a matter of law, but where a boundary line, or corner, is actually located is a question for the trier of fact." Murrer v. American Oil Co., 241 Pa. Super. 120, ...


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