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MICHAEL KLOS AND ALBINA KLOS v. ANNE MOLENDA (07/31/86)

decided: July 31, 1986.

MICHAEL KLOS AND ALBINA KLOS, APPELLEES,
v.
ANNE MOLENDA, APPELLANT



Appeal from Final Decree of the Court of Common Pleas, Civil Division, of Lackawanna County, No. 84 Equity 56.

COUNSEL

Ann L. Powell, Scranton, for appellant.

J. Brian Foley, Scranton, for appellees.

Cirillo, President Judge, Wieand and Olszewski, JJ.

Author: Wieand

[ 355 Pa. Super. Page 400]

In this appeal from a final decree in equity which (1) held that appellees had acquired title by adverse possession to a thirty inch wide strip of land and (2) enjoined appellant from entering upon or causing damage to the strip of land, appellant argues that appellees failed to prove the elements necessary to show title by adverse possession. We disagree and affirm the decree of the trial court.

The facts are not in substantial dispute. On September 20, 1950, Michael and Albina Klos, the appellees, purchased a tract of land, measuring fifty (50) feet in width and one hundred thirty-five (135) feet in depth, from a larger tract

[ 355 Pa. Super. Page 401]

    owned by John and Anne Molenda on Greenwood Avenue in Scranton. In lieu of a survey, John Molenda and Michael Klos paced off the lot and placed stakes in the ground to mark the boundary between the lot purchased by Klos and the land retained by Molenda. Michael and Albina Klos built a residence on their lot and, in 1952, poured a concrete sidewalk along the front of the property which extended to the property line designated by the stakes previously placed by the parties. The Kloses also installed a concrete driveway on their property, the edge of which was thirty (30) inches from the line designated by the stakes. In the intervening thirty inch strip, they placed top soil and planted grass, which they maintained continuously until the events which led to the instant litigation. In either 1956 of 1957, the Molendas also planted hedge along the staked property line. This hedge line remained in place until 1981 or 1982, when it was partially removed. The remaining hedge plants were removed in 1984.

John Molenda died in 1983.*fn1 His widow employed a surveyor to survey the land which she owned. The surveyor located the property line separating the Klos and Molenda lands along the edge of the Klos driveway. Thereafter, Anne Molenda, the appellant herein, caused a fence to be constructed along the edge of the Klos driveway. This prompted Michael and Albina Klos to commence an action in equity to establish their ownership of the thirty (30) inch strip and to enjoin Anne Molenda's interference therewith.

"It is well settled that he who asserts title by adverse possession must prove it affirmatively." Robin v. Brown, 308 Pa. 123, 129, 162 A. 161, 162 (1932). "[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

[ 355 Pa. Super. Page 402]

    years . . . . Each of these elements must exist, otherwise the possession will not confer title." Conneaut Lake Park, Inc. v. Klingensmith, 362 Pa. 592, 594-95, 66 A.2d 828, 829 (1949) (citations omitted). See also Tioga Coal Co. v. Supermarkets General Corp., 289 Pa. Super. 344, 433 A.2d 483 (1981); Smith v. Peterman, 263 Pa. Super. 155, 397 A.2d 793 (1978); Inn Le'Daerda, Inc. v. Davis, 241 Pa. Super. 150, 360 A.2d 209 (1976). "An adverse possessor must intend to hold the land for himself, and that intention must be made manifest by his acts . . . . He must keep his flag flying ...


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