NO. 539 PHILA. 1982, Appeal from the Decree in the Court of Common Ppleas of Montgomery County, Civil No. 78-14472
Marc M. Orlow, Philadelphia, for appellants.
Abraham C. Reich, Philadelphia, for appellees.
Spaeth, President Judge, and Popovich and Hoffman, JJ.
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This is an appeal from a final decree adjudicating the boundary between appellants' property and appellees' property. We affirm.
The parties' arguments concern not the chancellor's findings of fact, which are not challenged, but the conclusions to be drawn from those findings. The findings, and the testimony from which they derive, may be summarized as follows.
Appellants, Joseph and Frida Friedman, owned jointly with Leonard and Bernice Feldman a large tract of land known as part of Kings Oak Estate in Abington Township, Montgomery County. The tract was subdivided into three lots, which were designated on a Lot Location Plan made for the Friedmans and Feldmans in April 1975. The lots here at issue were Lot No. 3 and Lot No. 5, the westerly side boundary of Lot No. 3 being shown as the easterly side boundary of Lot No. 5. The Friedmans and Feldmans had retained the firm of Lam and Buchsbaum as their agent to sell the lots. Findings of Fact Nos. 1 and 2.
In the Fall of 1976, appellees, Victor I. Kasser and Barbara Kasser, consulted Charles Samter, a real estate salesman employed by Lam and Buchsbaum, to learn whether he had any building lots for sale. Finding of Fact No. 3. Samter testified that he showed the Kassers Lot No. 3, and that they expressed interest in it. R.R. 104a. Mr. Friedman testified that he had "left everything to Mr.
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Feldman" so far as the sale of the lots were concerned. R.R. 66a; and see chancellor's Adjudication, Brief for Appellants at 37. Samter therefore told Feldman that the Kassers were interested in Lot No. 3, and he asked Feldman to meet him and the Kassers at the lot to show the Kassers its dimensions. Finding of Fact No. 5. As it happened, the meeting could not be arranged, and Feldman met Samter at the lot alone. Id. There Feldman gave Samter a plot plan, which showed the western portion of the large tract, including Lot No. 3. Exh. D-1. Feldman then paced off the lot's boundaries, which were staked off, proceeding from stake to stake. As Feldman showed Samter a stake, Samter would tear off a strip from a piece of cloth he had gotten from his car, put a number on the strip, tie the strip on the stake, and write the number he had written on the strip on the corresponding place on the plot plan. Finding of Fact No. 6; R.R. 105a-106a; Exh. D-1. Feldman testified that he told Samter that "[i]t's [the staking] probably off a little bit but we aren't sure what" and that "whoever bought the property" "should obtain his own survey." Finding of Fact No. 7; R.R. 141a-142a.
A few days after meeting with Feldman, Samter showed the lot to the Kassers. In his testimony describing the meeting, Samter said that he pointed out to the Kassers the stakes he had tagged to show the dimensions of the lot, and gave them a copy of the plot plan he had numbered to indicate the location of the tagged stakes. R.R. 108a. Samter did not testify that he had told the Kassers anything about the staking "probably [being] off a little bit," or about the possible advisability of getting a survey, and we may take it that he made no such statements; Mr. Kasser in his testimony described the meeting as had Samter, i.e., as "[w]alk[ing] around the property, map in hand, finding each of the numbered stakes", R.R. 84a; and the chancellor describes the meeting in the same way. Finding of Fact No. 9.
After their meeting with Samter, the Kassers conferred with a builder to learn whether it ...