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MARLIN A. HALLMAN AND WILLIAM D. HALLMAN v. CLARENCE B. TURNS (10/12/84)

filed: October 12, 1984.

MARLIN A. HALLMAN AND WILLIAM D. HALLMAN
v.
CLARENCE B. TURNS, SR. AND MARY E. TURNS, HIS WIFE, APPELLANTS



No. 394 Harrisburg 1982, Appeal from the Judgment of the Court of Common Pleas, Civil Division, of Dauphin County at No. 4665 S 1978.

COUNSEL

J. Stephen Feinour, Harrisburg, for appellants.

James L. Goldsmith, Harrisburg, for appellees.

Wickersham, Olszewski and Hoffman, JJ.

Author: Wickersham

[ 334 Pa. Super. Page 186]

This is an appeal from a judgment in ejectment entered in the Court of Common Pleas of Dauphin County.

We are presented here with a boundary dispute between defendants-appellants Clarence and Mary Turns and plaintiffs-appellees Marlin and William Hallman. The dispute involves a piece of mountainous, unimproved land situated in Fishing Creek Valley, Middle Paxton Township, Dauphin County. The parties do not dispute that appellees' northern boundary line is also appellants' southern boundary line, nor is there a dispute as to the location of the beginning and ending points of this line. It is the course of the boundary between these fixed points which is the subject of this suit.

Originally, the land of both parties was part of a 143 acre tract owned by Sam and Jennie Sweigart. In 1928, the Sweigarts sold approximately nine acres in the northeastern corner of their tract to Clarence and Kathryn Sellers. The southern boundary of that conveyance is the boundary now in dispute. The description of the southern boundary of that parcel (which was ultimately acquired by appellants) is as follows:

(R.R. at 202a). In 1951, the Sellers sold this same parcel of land to George and Mary Swavely, who, shortly thereafter, resold the entire parcel to the Turnses, appellants herein.

Meanwhile, the Sweigarts had retained the larger tract south of the boundary in question. Between 1928 and 1961, the Sweigarts sold off four other tracts of varying sizes. Finally, the remaining tract of approximately 55 acres,

[ 334 Pa. Super. Page 187]

    located to the south of appellants' land, was sold in 1961 to the Trustees of Troop 8, Keystone Area Council, Boy Scouts of America. By two deeds, one in 1976 and one in 1978, the Boy Scouts conveyed their entire tract to the Hallmans, appellees herein. Hence, appellees' property shares a common boundary with appellants' property.

Subsequent to appellees' taking possession of the southern tract, a disagreement arose with appellants as to the exact location of the common boundary. Appellants argue that the deed of 1928, which created the boundary, mistakenly substituted the word "north westernly" when "south westernly" was intended. Appellants claim that, instead of proceeding north westwardly and then westwardly from the easternmost common point, the boundary actually runs first south westwardly and then northwestwardly. This would give appellants an additional 3.94 acres in the shape of a diamond.*fn1 In recent years, appellants have made use of this disputed property, hence the action in ejectment by appellees in 1978.

The case was tried before a jury in March of 1982, which returned a verdict in favor of appellees. Motions for judgment non obstante veredicto and a new trial were filed, argued, and ultimately denied by the court en banc. Judgment on the jury's verdict was entered on November 24, 1982. Appellants filed this timely appeal.

Appellants raise the following issues before us:

A. Was not the admission into evidence of the Quitclaim Deed from the Troop No. 8 "Trustees" to Hallmans and the exclusion of newly discovered documentary and oral evidence of the dissolution of said Trustees and resultant lack of capacity to execute said Deed prejudicial error?

B. Did not the trial court commit prejudicial error in admitting hearsay evidence in the form of reputation and alleged declarations of a deceased owner as to the location of the disputed boundary line and in subsequently

[ 334 Pa. Super. Page 188]

    instructing the jury that it could use such evidence to determine the boundary line where the decedent's statements were not made to one with an ownership or other legal interest in the property or at a time when the declarant was on the property for the express purpose of identifying the boundary and where the title is not so remote or the monuments and natural boundaries so uncertain as to be incapable of more direct proof?

C. Did not the trial court commit prejudicial error in refusing to charge the jury that the plaintiff in a possessory action of ejectment has the burden of proving by clear and convincing evidence his right to immediate and exclusive possession of the disputed property under his title?

D. Did not the trial court err in its refusal to enter Judgment N.O.V. in [appellants'] favor where the jury's verdict was contrary to law and not supported by the evidence; or alternatively, to grant [appellants] a new trial where the jury's verdict was against the weight of the evidence?

Brief for Appellants at 3.

After a thorough examination of the record and the briefs of the parties, and having had the benefit of oral argument, we find that the well-reasoned opinion of the Honorable Warren G. Morgan thoroughly discusses and disposes of all but one of the issues raised in this case. We see no need to further discuss issues A, B, and D, and affirm those issues on the basis of Judge Morgan's opinion [See Appendix A]. We will briefly address issue C.

Appellants argue that the court erred in refusing to charge the jury that appellees, as plaintiffs in an ejectment action, had the burden of proving their case by clear and convincing evidence. Because of this ...


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