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June 24, 1997


Appeal from the Decree of the Court of Common Pleas, Blair County, Civil Division, at No. 392 C.P. 1991. Before CALLAN, J.

Before: Ford Elliott, Schiller and Brosky, JJ. Opinion BY Brosky, J.

The opinion of the court was delivered by: Brosky


Filed June 24, 1997

This is an appeal from the final decree entered in this declaratory judgment action. Appellant presents the following issues for review: (1) whether the trial court erred in determining that appellee had title to the land; (2) whether appellant acquired the property by adverse possession; (3) whether the trial court erred in denying appellant's petition requesting that other landowners be notified of this action and permitted to intervene; (4) whether the trial court was bound by the factual findings and Conclusions of law made by a different Judge in a prior action involving the same parties; (5) whether the procedure followed by the trial court was arbitrary and prejudicial; and (6) whether the doctrine of estoppel by deed bars a finding for appellee. For the reasons set forth below, we affirm.

Before addressing these claims, it is necessary to recount the pertinent history of this case. During the late 1700's, the parties' predecessors in title, Ludwick Sells, William Allen and John Porter, began to settle the Pennsylvania wilderness in what is now Blair County. *fn1 Ludwick Sells was granted a warrant in 1786, but did not have his property surveyed until 1794. The Porter and Allen tracts were respectively warranted and surveyed in 1795 and 1796. However, both the Porter and Allen warrants noted that there were improvements on the land and that the owners' respective interests commenced as of 1792. Patents were later issued for the Porter, Allen and Sells tracts in 1800, 1808 and 1834, respectively.

The surveys of the Porter, Allen and Sells tracts were all performed by the same individual, John Canan. *fn2 The Sells survey identified William Allen and Michael Fetters as adjoining landowners. Neither the Porter nor Allen surveys referred to Sells as an adjoiner, however. *fn3 For reasons which are unclear, Sells did not settle on the land identified in his survey as adjoining that of Allen and Fetters. He instead located to the southwest on a tract adjoining John Porter's land.

Appellee, Brush Mountain Sportsmen's Association (Brush Mountain), acquired the land formerly owned by John Porter by two separate conveyances in 1948 and 1949. Appellant, Fred E. Young, Inc. (Fred Young) subsequently purchased the former Sells tract in 1965. After appellant bought the property, a dispute arose between the parties as to the ownership of approximately forty acres of land encompassed within the metes and bounds descriptions of both the Sells and Porter tracts. Consequently, appellant commenced a quiet title action against appellee in April of 1966.

The Honorable Samuel Jubelirer conducted hearings thereon in September, 1967, March 1968 and July, 1968. For reasons which do not appear of record, the case languished in the Court of Common Pleas until 1981. *fn4 On June 10, 1981, Judge O'Kicki issued an order denying appellant's quiet title action, but this order was not entered upon the docket until April 16, 1984. Appellant timely filed exceptions, as well as post-trial motions and supplemental post-trial motions to the trial court's order. Judge O'Kicki dismissed the exceptions in October of 1986, but a final judgment was never entered. No appeal was taken.

Appellant renewed its request for relief by filing the instant declaratory judgment action against appellee in February of 1991. Appellee filed preliminary objections asserting that the action was barred by reason of the doctrine of res judicata. Judge Jolene Grubb Kopriva agreed and dismissed appellant's complaint. Appellant timely appealed to this court. In an unpublished memorandum, we reversed and remanded for trial. See Fred E. Young, Inc. v. Brush Mountain Sportsmen's Association, 424 Pa. Super. 658, 617 A.2d 399 (1992) (No. 02000 Pittsburgh 1991). The Supreme Court declined to grant allocatur. Id., 533 Pa. 611, 618 A.2d 401 (1992).

Upon remand of the case, appellant filed a motion for summary judgment as well as a petition for rule to show cause why certain other property owners should not be notified of this litigation and permitted to intervene therein. The trial court denied both motions. The Honorable Norman D. Callan, sitting as the sole trier of fact, conducted a three day trial on September 27 and 28, 1995 as well as on December 27, 1995.

Judge Callan filed an adjudication and decree nisi in February, 1996. Appellant timely filed post-trial motions which were ultimately dismissed. A final decree was thereafter entered upon the docket. Appellant timely appealed therefrom.

When reviewing the decision of the trial court in a declaratory judgment action, our scope of review is narrow. O'Brien v. Nationwide Mutual Insurance Co., 455 Pa. Super. 568, 573, 689 A.2d 254, 257 (1997). Consequently, we are limited to determining whether the trial court's findings are supported by substantial evidence, whether an error of law was committed or whether the trial court abused its discretion, Walker v. Ehlinger, 544 Pa. 298, 300 n.2, 676 A.2d 213, 214 n.2 (1996).

The test is not whether we would have reached the same result on the evidence presented, but whether the trial court's Conclusion can reasonably be drawn from the evidence. Where the trial court's factual determinations are adequately supported by the evidence we may not substitute our judgment for that of the trial court.

Clearfield Volunteer Fire Department v. BP Oil, 412 Pa. Super. 29, 31-32, 602 A.2d 877, 879, allocatur denied, 531 Pa. 650, 613 A.2d 556 (1992) (citations omitted). We shall evaluate the decision of the trial court with these considerations in mind.

Appellant contends that the trial court erred in concluding that appellee rather than appellant was the owner of the disputed land. In support of this claim, appellant relies upon the fact that his predecessor in title, Sells, was the first to survey the land in question. Appellant thus asserts that it has superior title. Appellant's assessment is erroneous.

Contrary to appellant's belief, the Sells survey did not cover the disputed land. Sells' survey calls for the land as being adjoined by the London land as well as the property of William Allen and Michael Fetters. *fn5 See Plaintiff's Exhibit 5 (Survey of Ludwick Sells' Tract). Based on the description set forth in this survey, the Sells tract was situated northeast of the parcel in dispute here. See Plaintiff's Exhibit 2 (Connected Draft of 17 tracts of land, which depicts the location of the Sells, Porter, Allen and other tracts pertinent to this case). Porter's survey, however, specifically includes the contested land. See Defendant's Exhibit 15 (Survey of John Porter's Tract).

We recognize that the precise location of the Sells tract was a matter that was vigorously contested by the parties, with each supplying expert testimony as well as documentary evidence on this matter. It thus fell to the trial court to evaluate the conflicting evidence and testimony on this subject. The trial Judge resolved this issue in favor of appellee by concluding that the Sells survey did not describe the land at issue here and, therefore, did not include the disputed tract. Having thoroughly examined the testimony of the witnesses and the other evidence presented at trial, we find that the trial Judge's decision is amply supported by the record. Because appellee's predecessor, John Porter, had superior title and was the first to record a survey covering the disputed property, the trial court did not err in finding in favor of appellee. See, e.g., Parshall v. Jones, 55 Pa. 153, 159 (1867) (affirming judgment in favor of defendant, because he had older paper title and was the first to accurately survey the land in dispute).

Even were we to assume, purely for the sake of argument, that Sells' survey covered the disputed parcel appellant still would not be entitled to any relief. Although Sells' survey was completed before the Allen and Porter surveys and Sells seemingly has the older title, appellee nonetheless must prevail because Allen and Porter held their land by improvements which predated Sells' survey. To explicate why appellant's title is inferior to that of appellee, it is necessary to review the pertinent law.

All of the parties' predecessors in title acquired land directly from the Commonwealth pursuant to the statutes which were then in effect. See 64 P.S. § 1- § 616 (describing the allodial system in Pennsylvania devolving from the rights of former proprietaries). Pursuant to these acts, "there were but two modes of acquiring title to public lands -- -- one by settlement and improvement, the other by warrant and survey. And when either is adopted, due diligence in perfecting the right was always required." Parshall v. Jones, 55 Pa. at 157. Where land was acquired by the former method, "the title of the settler related back to the time of entry, and the first stroke of the axe," provided that he followed up his inceptive title with that degree of due diligence which the law requires of settlers, i.e., applying for a warrant and returning a survey on the land. ...

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