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R. CARL PENCIL AND ANNABEL L. PENCIL v. LESTER L. BUCHART AND ELAINE L. BUCHART (09/13/88)

submitted: September 13, 1988.

R. CARL PENCIL AND ANNABEL L. PENCIL, HIS WIFE
v.
LESTER L. BUCHART AND ELAINE L. BUCHART, HIS WIFE, APPELLANTS



Appeal from the Judgment Entered March 31, 1988, in the Court of Common Pleas of Bedford County, Civil Division, at No. 1064 for the year 1979.

COUNSEL

W. David Slomski, Pittsburgh, for appellants.

John B. Koontz, Bedford, for appellees.

Cavanaugh, Tamilia and Hester, JJ.

Author: Hester

[ 380 Pa. Super. Page 207]

Appellants, Lester L. Buchart, and his wife Elaine L. Buchart, appeal from the judgment entered by the Court of Common Pleas of Bedford County on March 31, 1988, wherein the court found that title to disputed real property was in appellees, R. Carl Pencil, and his wife Annabel L. Pencil.

The Bucharts and the Pencils are owners of adjoining tracts of land. The exact location of the boundary line dividing their properties is the issue involved in this appeal. The common source of title of the two properties was Adam and Catherine Samuels, who originally owned an undivided parcel of land encompassing both properties. The property

[ 380 Pa. Super. Page 208]

    now owned by the Bucharts was the first portion of the Samuels' land to be conveyed.

On February 28, 1867, the Samuels transferred what is now the Buchart property to Jacob W. Miller. The deed, which was recorded in Bedford County Deed Book AN at page 383, on March 13, 1867, specifically described the conveyance with reference to metes and bounds as follows:

Also one other tract of timber land situated in St. Clair Township, County and state aforesaid. Containing thirty-one acres to be cut off of the following described tract of land on a parallel with the line North nine and one-half degrees West one hundred fifty eight perches or on a parallel with the line separating this tract from lands of Daniel Walters the whole of which tract of land is described as follows:

Beginning at a stone corner thence South 88 1/4 degrees East 56.4 perches to a post; thence by lands of John Zimmers, South 13 1/2 degrees East 146.7 perches to stones; thence South 52 1/4 degrees West 59.7 perches to stones; thence North 35 1/2 degrees West 30 perches to stones; thence North 9 1/2 degrees West 158 perches to the place of Beginning, the part conveyed to the taken from the end next to Walters' land . . . .*fn1

On April 1, 1874, Jacob Miller conveyed this property to Benjamin Troutman. The deed was recorded on June 4, 1874, in deed Book AY, at page 76. The tract therein conveyed was described as 31 acres, to be cut off from a larger tract of timberland described by metes and bounds.

Troutman conveyed title to this tract to Albert E. Smith by deed dated March 18, 1911. The tract therein conveyed was described as 31 acres, to be cut off from a larger tract of timber land described by metes and bounds.

On April 21, 1911, George W. Blackburn surveyed an adjacent tract owned by George Bush. The survey indicated distances along the southern boundaries of the Smith tract and the Zimmers (now Pencil) tract and showed the

[ 380 Pa. Super. Page 209]

    southern corner of the dividing line between the two tracts. No monument was indicated on the survey of the location of the dividing line.

Albert Smith died testate, April 29, 1946. His heirs conveyed title to this tract to Austin L. Smith and Bertha Smith, his wife, by deed dated August, 1947. The tract therein conveyed was described by joinder only as containing 31 acres, more or less.

On November 22, 1977, Norman Van Why surveyed this tract. His survey showed the tract as containing 40.29 acres. Smith conveyed title to this tract to Bucharts, appellants, on April 27, 1978. The tract conveyed was described as follows:

Beginning at a stone corner, in common with lands now or formerly of Joseph H. Shannon and Paul Wagner; thence North 26 degrees 46' West 500.97 feet to a stone; thence by land now or formerly of May Beth King, and then Eleanor J. Green and Paul Geisler, crossing over stones and witness trees at 445.03 feet to an iron pin in stones; thence by lands now or formerly of Miriam S. Beckner, and then by lands of the Joseph W. Tate estate, crossing over a stone corner at 259.31 feet, South 80 degrees 45' 40" East 614.56 feet to a stone corner, thence by lands now or formerly of Carl R. Pencil South 0 degrees 20' 10" East 2,738.78 feet to an iron pin and stone; thence by lands now or formerly of Joseph H. Shannon South 61 degrees 18' 15" West 452.78 feet to a stone corner, the place of BEGINNING. Containing 40.29 acres according to a survey by Norman S. Van Why, R.S., dated November 22, 1977.

This is the first conveyance in appellants' chain of title wherein the land conveyed is not referred to as containing 31 acres.

Appellees, Pencils', chain of title to their property is as follows. Samuels conveyed what is now the Pencil property to Zimmers on February 26, ...


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