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THEO PLOTT v. RAYMOND R. COLE. APPEAL LOIS E. PLOTT (06/13/88)

submitted: June 13, 1988.

THEO PLOTT, DECEASED,
v.
RAYMOND R. COLE. APPEAL OF LOIS E. PLOTT, EXECUTRIX



Appeal from the Order Entered October 30, 1987 in the Court of Common Pleas of Dauphin County, Civil No. 1879 S. 1986.

COUNSEL

Richard B. Swartz, Harrisburg, for appellant.

John W. Frommer, Harrisburg, for appellee.

Cirillo, President Judge and Wieand and Del Sole, JJ.

Author: Cirillo

[ 377 Pa. Super. Page 587]

This is an appeal from an order of the Court of Common Pleas of Dauphin County dismissing plaintiff's action in ejectment and declaring defendant the owner of property in dispute. We reverse.

This boundary dispute arises out of the following facts. Theo Plott owned half of a double frame house in Dauphin County. She had lived in the western side of the house, 157 Ann Street, for fifty-six years before her death, which occurred during the pendency of this appeal. Following Theo Plott's death, her daughter, administratrix of her estate, was substituted as appellant in this action. Raymond Cole is in possession of the eastern side of the house, known as 155 Ann Street.

Originally, these two homes were one large home owned by Katie Plott, Theo Plott's mother-in-law. Katie Plott devised the double frame home to her four children. Following a family settlement, title to 157 Ann Street was vested completely in George D. Plott and his wife, Theo Plott, and title to 155 Ann Street was vested in Alice Plott Houser and her husband, Russell S. Houser. This family settlement was made a matter of record by deed of 1953. Mr. Houser died, and Mrs. Houser's death followed in 1982. The premises were then conveyed to Joseph D. Robinson by Paul E. Houser, Executor of Alice Plott Houser's estate, by deed dated March 15, 1982. Mr. Robinson defaulted on his mortgage, and the premises were sold by sheriff William Livingston to the Administrator of Veteran's Affairs, and were conveyed by deed dated April 29, 1983. Early in October, 1983, the Administrator of Veteran's Affairs gave defendant Raymond Cole permission to take possession of 155 Ann Street.

The deed conveying the property known as 157 Ann Street from the devisees (Katie Plott's children) to George and Theo Plott describe the properties as being separated

[ 377 Pa. Super. Page 588]

    by a partition wall, providing for an easement in favor of the owners of 155 Ann Street to use the eastern half of the double stairway located on the western side of the partition wall to travel to and from the second floor of 155 Ann Street. The deed conveying the property known as 155 Ann Street from the devisees to Mr. and Mrs. Houser describes the premises along with the "right to use" the eastern half of the double stairway in the rear of the house known as 157 Ann Street, "along the western side of the aforesaid partition wall."

The area in dispute is located in the rear of the house under the stairway. The area is rectangular, measuring three feet by nine feet. During the mid-1950s, a wall was erected along the western side of the double stairway, screening the stairway for privacy purposes. There is no access from 157 Ann Street to 155 Ann Street.

[ 377 Pa. Super. Page 589]

At trial, Mr. Robert Sherrick, a licensed surveyor, testified that the stairway used by the defendant at 155 Ann Street and the rectangular area under the stairway are within the boundaries of 157 Ann Street, and thus belong to Mrs. Plott. Mr. Sherrick based this statement on his physical reconstruction of the boundary lines from the call of the deeds. Mrs. Plott testified that although previous owners of 155 Ann Street had been permitted to use the area under the stairway as a storage closet, it was understood that the area was within the boundaries of 157 Ann Street. Mrs. Plott also testified that her son-in-law built the screening wall "quite a number of years" ago.

In 1986, defendant installed a water closet (toilet) in the rectangular area under the stairway. The screening wall is all that separates the water closet from Mrs. Plott's kitchen. Mr. Cole testified that there is no ventilation in the water closet.

Mrs. Plott filed the instant action in ejectment, alleging that she and the other inhabitants of her home (her son and daughter) had been subjected to foul odors, noise, insects, and rodents as a result of the installation of the water closet. The defendant claims that the subject area is within his exclusive right, title, interest and control.

Following a hearing and a view of the premises, the trial court found the area in question to be part of the defendant's property. This appeal followed.

Appellant raises the following issue for our review: whether the trial court erred by not giving effect to the clear intent of the parties to the original deeds, as established by the description of the properties in the deeds, the only survey in evidence, and the testimony of Mrs. Plott, all of which were uncontradicted.

"The question of what is a boundary line is a matter of law, but where a boundary line, or corner, is actually located is a question for the trier of fact." Murrer v. American Oil Co., 241 Pa. Super. 120, 124, 125, 359 A.2d 817, 819 (1976). Where, as here, the court ...


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