Appeal from the Order of September 15, 1983 in the Court of Common pleas of Warren County Civil Division, at No. 239 of 1981
Joseph E. Altomare, Tionesta, for appellant.
David W. Swanson, Warren, for appellee.
Cirillo, Hoffman and Rosenwald, JJ.*fn*
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The basic issue on appeal is: "[W]hat is the appropriate method of allocating, between adjoining riparian owners, property situate between the high water mark and the low water mark where the deeds contain descriptions terminating at the top of the bank, and accordingly offer no guidance whatsoever as to how such allocation should be accomplished." (Brief for Appellant at 8). For the reasons stated herein, we affirm the order below.
The relevant facts are as follows (see Diagrams A and B for illustration): The parties own adjoining parcels of land situated along a riverfront in Warren County. Each parcel is roughly rectangular in shape and, according to their respective deeds, each is bounded on the north by Clark Street and on the south by the Allegheny River. However, the stated distances in the deeds cause the southern boundary
[ 342 Pa. Super. Page 526]
of each parcel to terminate at or about the original location of the top of the river bank. Thus, because the respective sidelines of each parcel run at angles oblique to one another, if the sidelines were extended to the water's edge, they would intersect within the expanse of land lying between the original top of the bank and the low water mark. This expanse of land had once been subjected to seasonal flooding with resultant changes in the river level but by 1977 had become high, dry and usable land. The common boundary line between the two parcels was created by James Clark and his wife when they conveyed their lot (now owned by defendant-appellee) to M. Beecher in 1885. Beecher, in turn, conveyed the lot to defendant-appellee in 1976. Plaintiff-appellant claims title to two adjoining parcels of land, namely, the "Carlson" and "Bacon" lots, which he acquired from James L. Sturdevant and his wife in 1979. These lots had been created in 1905 and 1903, respectively, as part of a subdivision by the Helping Hand Building and Loan Association. Helping Hand had received its title by sheriff's deed from William Kline and his wife in 1896.
In 1977, defendant-appellee constructed a building which extended beyond the southern boundary of the original deed description of its parcel and onto the disputed area lying between the original top of the bank and the water's edge. Consequently, plaintiff-appellant filed an action in ejectment with a demand for damages against defendant-appellee, alleging that this building encroached upon his land. On September 9, 1982, the lower court entered an Opinion and Decree Nisi granting ejectment relief to plaintiff-appellant. Upon defendant-appellee's filing exceptions, the court took testimony on August 8, 1983, and granted the exception concerning the proper rule of shoreline apportionment. Plaintiff-appellant then filed a supplemental brief in opposition to the exceptions. On September 15, 1983, the lower court entered an order (1) granting defendant-appellee's exceptions to the September 9, 1982 Decree Nisi, (2) dividing the disputed land between the parties in accordance with defendant-appellee's Exhibit A-13, see Diagram A, and
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(3) entering Final Decree in favor of defendant-appellee. This appeal followed.
The parties each espouse a different rule of shoreline apportionment. Under appellant's rule, appellee's building would be an encroachment upon appellant's land thereby entitling appellant to ejectment relief; but under appellee's rule, the building would properly be situated on appellee's land. See Lakeside Park Co. v. Forsmark, 396 Pa. 389, 395, 153 A.2d 486, 489 (1959) (patentee of ...