Appeal from the Order of the Court of Common Pleas of Allegheny County, in the case of Moon Township v. Findlay Township, No. GD 86-13702.
W. Theodore Brooks, with him, Matthew J. Carl, Tucker Arensberg, P.C., for West Allegheny School District and James W. Dunn, Jr., for Findlay Township.
Robert E. Durrant, Meyer, Darragh, Buckler, Bebenek & Eck, for Moon Township.
Judges Doyle, Colins and Palladino, sitting as a panel of three. Opinion by Judge Palladino.
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Findlay Township (Findlay)*fn1 appeals from an order of the Court of Common Pleas of Allegheny County adopting and confirming the report of the Border Commission establishing a boundary between Findlay and Moon Township (Moon) that was in dispute.
Findlay was created out of Moon Township in 1822. A portion of the boundary between the two was indicated, in Findlay's charter, to be a meandering stream,*fn2 most recently known as McClaren's Run. Between 1936 and 1952, aerial photographs show McClaren's Run to contain a meander loop. Sometime after 1952, the
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stream's course was modified to accommodate construction of the Parkway West*fn3 and the loop was removed. Since 1955, the stream's course has been immediately adjacent to the Parkway West. The property between the location of the stream when it contained the loop and the current location of the stream is at the heart of this boundary dispute.
Since 1957, the property has been treated as being in Findlay Township.*fn4 In 1986 construction of a Marriott Hotel was commenced on the property. Moon acknowledges that the economic impact of the taxes which will result from the Marriott Hotel caused Moon to question the use of the current location of McClaren's Run as the boundary between Findlay and Moon. If the location of McClaren's Run with the loop in it were to constitute the boundary between Findlay and Moon, a large portion of the Marriott property, including most of the hotel itself,*fn5 would be in Moon.
Moon, on August 8, 1986, petitioned the court of common pleas, pursuant to section 302(c) of The Second Class Township Code (Code),*fn6 to appoint a commission,
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as authorized by section 303 of the Code,*fn7 to ascertain and establish the boundary between Moon and Findlay that was disputed. Findlay answered Moon's petition and agreed that a commission should be appointed. In April 1987, the trial court appointed the Border Commission to ascertain and establish the boundary. On September 16, 1987, the Border Commission visited the property on which the Marriott Hotel was being constructed. A two day hearing was then held at which Moon and Findlay presented testimony and evidence concerning the proper location of the boundary. The Border Commission presented its report to the trial court on February 11, 1988. The Border Commission ascertained and established the boundary at the location of McClaren's Run in 1952, prior to the rechanneling of the stream, placing a large portion of the property in Moon.
The trial court, pursuant to section 303 of the Code, confirmed nisi the report. As permitted by section 304 of the Code,*fn8 Findlay filed exceptions to the report. After
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a hearing, the trial court, on August 8, 1988, dismissed the exceptions, confirmed absolutely the report, and ordered the boundary to be marked.
Findlay appealed to this court, contending that: (1) the Border Commission inappropriately allocated the burden of proof by requiring Findlay to prove that the loop, known to exist in essentially the same position from 1936 to 1952, was not present at the time of Findlay's creation in 1822 nor created by accretion; and (2) Moon Township, by failing to challenge the use since 1957 of McClaren's Run's current location as the boundary between Findlay and Moon, acquiesced in the current location of McClaren's Run as the boundary and, therefore, is barred from disputing that location as the boundary between the townships. We will first set forth the relevant law for determining the location of the stream boundary in this case and then address each of Findlay's arguments.
The parties do not dispute the Border Commission's determination of the law to be applied to ascertain the location of the boundary in dispute. Our review of the pertinent law ...