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JOSEPH R. BUSIN AND EDRIE M. BUSIN v. FRANCIS L. WHITING AND ELEANOR D. WHITING (12/07/87)

filed: December 7, 1987.

JOSEPH R. BUSIN AND EDRIE M. BUSIN, HIS WIFE, APPELLANTS,
v.
FRANCIS L. WHITING AND ELEANOR D. WHITING, HIS WIFE



Appeal from the Judgment entered October 28, 1986, Court of Common Pleas, Lawrence County, Civil Division at No. 336 of 1984, C.A.

COUNSEL

Charles S. Cusick, Jr., New Castle, for appellants.

Allen L. Palmer, New Castle, for appellees.

Rowley, Johnson and Montgomery, JJ.

Author: Johnson

[ 369 Pa. Super. Page 565]

Joseph and Edrie Busin, appellants, commenced this ejectment action in the Court of Common Pleas of Lawrence County against Francis and Eleanor Whiting. The Busins seek to exclude the Whitings from a disputed section of land and to recover damages. The Busins moved for Summary Judgment. They asserted that they had met their burden of pleading by proving their good title and were therefore entitled to judgment as a matter of law. In its Opinion and Order of October 28, 1986, the trial court denied the Busins' motion and entered summary judgment for the Whitings. We affirm on different grounds.

The Whitings purchased their 175-acre farm from Andy Ratvasky in 1967. In 1981 the Busins acquired what they alleged to be a fee interest in a parcel of land from the trustees of the Erie-Lackawanna Railroad Company. As described in the deed submitted with their complaint, the property is "that portion of the Grantor's right of way known as the New Castle Branch, which commences in the town of Pulaski [and] which extends therefrom in a generally southeasterly direction a distance of 7.86 miles [and is] 50 feet or wider." A portion of this strip of land runs through the Whitings' farm, thus generating the dispute. The Busins claim that the Whitings commit continuing trespass by pursuing their farm activities and by otherwise exercising dominion over the land.

An action in ejectment has been held to be the appropriate form of action for the determination of a question of title to real property. In Re Yarnall's Estate, 376 Pa. 582, 103 A.2d 753 (1954). The right to possession is the central element of the action, and establishing fee ownership is one valid way of proving this right to possession.

[ 369 Pa. Super. Page 566]

    demonstrated their title source to be a 1786 grant from the Commonwealth to John Stay, "duly recorded in the office for recording deeds." The Busins countered with a Reply and a Motion for Summary Judgment accompanied by affidavits, chief among which was the deposition testimony of an expert, Robert M. White, taken March 27, 1986. This testimony purported to establish that the railroad grantors acquired fee title from the defunct Erie Canal Company, which had, the expert claimed, received its fee title by a legislative Act of March 7, 1843. The expert admitted that no recorded deed existed but maintained that the Act, which created the Canal Company, served as an implied conveyance that conveyed a fee title. The issue of whether parol evidence can be accepted to prove paper title was not raised, and therefore we will not address it.

The trial court found this questionable conveyance of title to fee interest from the Commonwealth to the Canal Company to be the dispositive issue: "It becomes necessary, therefore, to decide whether an alleged statutory claim of land transferred to a quasi-public body, without an actual deed of title to that body, will constitute a valid link in a chain of title." (Opinion, 10/28/86 at 4). The court held that, because no recorded deed existed evidencing this transfer, no transfer of title had in fact occurred. "[T]he plain language of statutes going back more than two centuries [requires] the recording of deeds for all valid transfers of land in the Commonwealth." (Opinion, 10/28/86 at 5). The trial court cited the original Pennsylvania statute, the Act of March 18, 1775, the pertinent portion of which has been retained Pa.Stat.Ann. tit. 21 ยง 444 (Purdon 1955). The trial court concluded that the lack of a recorded deed transferring title constituted a fatal defect in the Busin's abstract of title and held that, not having presented prima facie good title, "they cannot maintain this suit in ejectment." (Opinion, 10/28/86 at 8).

We agree both with the trial court's finding that the Busins have not shown good prima facie paper title and with the trial court's ...


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