Appeal from the Order of the Superior Court of Pennsylvania, dated December 15, 1986, Denying Reargument of an Order dated October 22, 1986, Affirming the Order of the Court of Common Pleas of Philadelphia County, Civil Division, September Term, 1978, No. 1470, dated July 16, 1985. 362 Pa. Super. Ct. 630, 520 A.2d 69 (1986).
Joseph J. Carlin, Philadelphia, for appellants.
Edward Greer, Philadelphia, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Larsen, J., files a concurring opinion. McDermott, J., files a dissenting opinion which is joined by Nix, C.j.
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
In September, 1978 Tioga Coal Company filed a complaint in equity against Supermarkets General Corporation seeking title by adverse possession to a strip of land known as Agate Street, located within Supermarkets' property and bordering Tioga's property. Agate Street is a paper street
forty feet wide which was entered on the plan of the City of Philadelphia but was never opened to the public. It was stricken from the city plan in 1966.
The Chancellor originally found that the applicable statutory holding period for claims of adverse possession for lands within the City of Philadelphia is forty years, based on his understanding of Act of April 14, 1851, P.L. 612 Section 15, and Act of May 4, 1852, P.L. 569 Section 7, 12 P.S. Sections 77 and 78.*fn1 The Chancellor also determined that Tioga was unable to demonstrate that it had possessed Agate Street for a continuous period of forty years, and therefore denied the adverse possession claim and declared that Supermarkets General was the beneficial owner of the property in question.*fn2
The Chancellor's determination of the applicable statutory holding period was appealed to Superior Court, which reversed the lower court's determination. Superior Court held that the forty year statutory period applied only to "manorial lands" located within Philadelphia and remanded for a determination of whether the land in question was "manorial." If Agate Street were located on "manorial" land, the applicable statutory period would be forty years; if it were located on nonmanorial land, the applicable holding period would be twenty-one years. This Court initially granted Supermarkets' petition for allowance of appeal from Superior Court's order, but then determined that the appeal was improvidently granted and remanded the case to
the Court of Common Pleas for proceedings pursuant to Superior Court's opinion.
On remand, the Chancellor determined that Agate Street is not "manorial" land, and therefore twenty-one years is the applicable holding period for claims of adverse possession. He also found that some time around 1948 Tioga took control of a gate controlling access to Agate Street by putting its lock on the gate, and maintained the lock until approximately 1978, when the gate was removed. The court found that during the thirty year period between 1948 and 1978 Tioga controlled ingress and egress from Agate Street, with the exception of a spur railroad line which entered Agate Street from Supermarket General's property approximately 150 feet north of the gate (Agate Street runs north and south) and continued northward alongside Tioga's property line and beyond it.
The Chancellor also found that Tioga used Agate Street from 1948 through 1978 for its entire forty feet width from the gate northward for 150 feet, where the railroad spur entered the street, and then for a width of thirty feet from that point north for a further distance of 194 feet 9.5 inches. Although the court found that Tioga's possession was "actual, open, notorious, exclusive and continuous" for a period in excess of the required twenty-one years, it determined that Tioga had failed to establish that its use or possession of Agate Street was hostile or adverse to the true owner of the land. The court, therefore, entered a Decree Nisi denying Tioga's claim to title of Agate Street through adverse possession. Both parties filed exceptions to this decree and the court en banc affirmed. Tioga appealed the en banc court's order and Superior Court ...