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LEON G. NILES v. FALL CREEK HUNTING CLUB (07/15/88)

filed: July 15, 1988.

LEON G. NILES, D/B/A L.G. NILES LUMBER COMPANY, APPELLEE,
v.
FALL CREEK HUNTING CLUB, INC., APPELLANT



Appeal from Judgment of the Court of Common Pleas, Civil Division, of Tioga County, No. 800 C.D. 1984.

COUNSEL

Raymond E. Ginn, Jr., Wellsboro, for appellant.

Robert F. Cox, Sr., Wellsboro, for appellee.

Brosky, Wieand, McEwen, Olszewski, Beck, Tamilia, Kelly, Popovich and Johnson, JJ. Olszewski, J., files a dissenting statement.

Author: Wieand

[ 376 Pa. Super. Page 262]

In this boundary dispute, Fall Creek Hunting Club, Inc. (Fall Creek) appeals from the judgment entered following a jury verdict in favor of Leon G. Niles, d/b/a L.G. Niles Lumber Co. (Niles). At issue are 113.4 acres of undeveloped timberland to which Niles claims ownership by virtue of adverse possession or by application of the doctrine of consentable lines. On appeal, Fall Creek argues that it should have been awarded judgment n.o.v. because the evidence was insufficient to permit a finding that Niles had acquired title either by adverse possession or by virtue of a line consented to by the parties. In the alternative, Fall Creek contends that it is entitled to a new trial because of errors committed by the trial court. Our review of the record compels the conclusion that the trial court correctly denied Fall Creek's motion for judgment n.o.v., but that a new trial is required.

[ 376 Pa. Super. Page 263]

By deed dated November 25, 1940, Fall Creek acquired title to a tract of approximately 1,560 acres of unimproved woodland in Liberty Township, Tioga County. The deed description defined the western boundary of the tract as "the line dividing the Townships of Liberty and Morris." To the west of this tract is land owned by Niles. This land had been acquired by Niles from Hammermill Paper Co. by deed dated November 21, 1958. Hammermill Paper, in turn, had purchased the land from Woodhouse Hunting Club (Woodhouse), which had acquired title from C.C. Slaght Lumber Corporation (Slaght).

In 1952, when Woodhouse purchased the land from Slaght,*fn1 uncertainty already existed as to the precise location of the line which divided the properties. Therefore, Woodhouse employed Thomas O. Bietsch to perform a survey. By letter dated April 1, 1952, Warren Spencer, Esquire, an attorney representing Woodhouse, invited the president of Fall Creek to assist Bietsch in determining the physical location of the western boundary of Fall Creek's land. The survey was performed on April 4, 1952. At least two members of Fall Creek and several members of Woodhouse were present when the survey was made. Bietsch located on the ground a line which he believed to be the Morris/Liberty Township line, and a line consistent therewith was blazed and painted in yellow. Bietsch was dead at the time of trial and could not testify. Over objection, Spencer was permitted to testify, and to introduce letters to show, that Bietsch had told him that representatives of Fall Creek had agreed to this line. Such an agreement was disputed by Fall Creek. Its representatives who had been present at the time of the survey testified that the surveyor had misplaced the line and that they had called the error to the surveyor's attention. In any event, the surveyor prepared a map for Woodhouse, and a deed was drafted in accordance therewith to complete Woodhouse's purchase from Slaght. With respect to the location of the common

[ 376 Pa. Super. Page 264]

    boundary line, the deed recited that it was "verbally agreeable to the Fall Creek Hunting Club, the adjacent owners." Woodhouse placed a single strand of wire along the survey line and posted "no trespassing" signs.

For the next thirty-two years, posted signs were maintained along this line. During that period the blaze marks on the trees were observable and the strand of wire, although broken in places from time to time, could generally be found. There was also evidence of selective timber cutting up to the 1952 survey line by Niles. In addition, there was evidence that Fall Creek had posted its land on its side of the 1952 survey line, had detoured an existing logging road to avoid crossing the line, and had leased hunting rights up to the line.

In 1984, Fall Creek hired its own surveyor to make a survey of its land and to determine the precise location of the Morris/Liberty Township line. This survey concluded that the township line was seven hundred (700) feet west of the 1952 survey line fixed by Bietsch. The relocation of the line caused an increase in acreage to Fall Creek of 113.4 acres and a like decrease in the amount of land owned by Niles. Following completion of this new survey, Fall Creek crossed over the old line, blazed a new line, and posted "no trespassing" signs along the new line.

Niles commenced an action in ejectment and trespass against Fall Creek. He contended that he had acquired title by adverse possession, by a consentable line established after dispute and compromise, or by a consentable line which had come into existence by recognition and acquiescence. The jury which heard the case returned a general verdict in favor of Niles but declined to award damages. Post-trial motions were denied, and judgment was entered on the verdict. Fall Creek appealed.

The entry of judgment notwithstanding a jury verdict to the contrary is a drastic remedy. A court cannot lightly ignore the findings of a duly-selected jury. Thus, in considering a motion for judgment n.o.v., the court must view the evidence and all reasonable inferences that

[ 376 Pa. Super. Page 265]

    arise from the evidence in a light most favorable to the verdict winner. See Handfinger v. Philadelphia Gas Works, 439 Pa. 130, 266 A.2d 769 (1970); Northwest Savings Ass'n. v. Distler, 354 Pa. Super. 187, 511 A.2d 824 (1986); Tonkovic v. State Farm Mut. Automobile Ins. Co., 337 Pa. Super. 123, 486 A.2d 512 (1984). The court can enter judgment n.o.v. only if "no two reasonable persons could fail to agree that the verdict is improper." Northwest Savings Ass'n. v. Distler, supra 354 Pa. Super. at 191, 511 A.2d at 825. See also Olson v. Dietz, 347 Pa. Super. 1, 500 A.2d 125 (1985).

Neal by Neal v. Lu, 365 Pa. Super. 464, 478, 530 A.2d 103, 110 (1987). In deciding a motion for judgment n.o.v. we consider all evidence actually received, whether the trial court's rulings thereon were correct or incorrect. See: Jones v. Treegoob, 433 Pa. 225, 229, 249 A.2d 352, 354 (1969); Rosche v. McCoy, 397 Pa. 615, 619, 156 A.2d 307, 309 (1959); Dorn v. Stanhope Steel, Inc., 368 Pa. Super. 557, 565-566, 534 A.2d 798, 802 (1987); Northwest Savings Assoc. v. Distler, 354 Pa. Super. 187, 191, 511 A.2d 824, 825-826 (1986); Reichman v. Wallach, 306 Pa. Super. 177, 185, 452 A.2d 501, 505 (1982). The erroneous receipt of evidence is corrected by granting a new trial.

One who asserts title by adverse possession must prove that he had actual, continuous, exclusive, visible, notorious, distinct, and hostile possession of the land for twenty-one years. Conneaut Lake Park Inc. v. Klingensmith, 362 Pa. 592, 594, 66 A.2d 828, 829 (1949); Flickinger v. Huston, 291 Pa. Super. 4, 7, 435 A.2d 190, 192 (1981). A sporadic use of land by one who does not have title to it will not operate to give him title, no matter how often repeated. Hoover v. Jackson, 362 Pa. Super. 532, 537, 524 A.2d 1367, 1369 (1987); Bigham v. Wenschhof, 295 Pa. Super. 146, 150, 441 A.2d 391, 393 (1982). Thus, occasional timbering and/or hunting, being necessarily sporadic, are themselves inadequate to establish title by adverse possession. See: Norwich v. Beaver, 326 Pa. Super. 456, 460-461, 474 A.2d 329, 331 (1984).

[ 376 Pa. Super. Page 266]

"To maintain an actual possession to woodland as such, it is necessary that the person entering take actual possession by residence or cultivation, of a part of the tract to which the woodland belongs. Hole v. Rittenhouse, 37 Pa. 116 [(1860)]; Olewine v. Messmore, 128 Pa. 470 [18 A. 495 (1889)]. Actual possession may be taken by enclosing and cultivating, without residence or by residence without cultivation, under a bona fide claim where there is a designation of the boundaries with the ordinary use of the woodland. This possession accomplishes an ouster, and is entirely different from the occasional or temporary ...


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