The opinion of the court was delivered by: Judge Caputo
Ariel Land Owners, Inc. ("ALO"), the Plaintiff, is a corporation comprised of a group of homeowners in a lake community which seeks, by this suit, to quiet the title to Lake Ariel ("the Lake"). ALO claims to own the Lake by virtue of a series of deeds, a determination by the Court of Common Pleas of Wayne County as to a boundary fronting on the Lake in which the Defendants were not a party, reputation evidence of the community as to the boundary of the Lake, and that ALO maintained the Lake at the high water mark of 1425.9 feet above sea level.
The Defendants are Lori Dring and Nancy Asaro, residents of New Jersey, who purchased land on the westerly side of the Lake and westerly side of Mud Pond.*fn1 Ms. Asaro and Ms. Dring (hereinafter "Asaro/Dring") defend the ALO claim to the title to the Lake to the boundary of 1425.9 feet contending that there has been no adequate proof of title ownership to such an extent. In addition, Asaro/Dring have filed a counterclaim asserting that they have established prescriptive rights in the Lake by an easement from Robert Swingle, and Asaro/Dring seek to establish rights in the Lake by virtue of activities of Mr. Swingle on the property over a period of years. Asaro/Dring also claim that they own a strip of land between the boundary of the west shore property owners and the Lake that was never conveyed to the current property owners and their predecessors in title. Rather, Asaro/Dring claim that the portion was reserved by virtue of a series of 1862 deeds from Weston to Jones and Barnes, and they claim title to it by deeds of the owners of the reservation. Lastly, Asaro/Dring claim that the Lake and Mud Pond are two separate bodies of water and that there is a non-navigable stream between Mud Pond and the Lake. They contend this stream not only exists, but that their property borders on the stream, and therefore their property extends to the center of the stream.*fn2
The Court has jurisdiction under 28 U.S.C. § 1332(a), diversity of citizenship. The Court will therefore apply the law of Pennsylvania. Erie R. R. Co. v. Tompkins, 304 U.S. 64 (1938).
The case was tried before the Court without a jury, and the following is the Court's discussion of the issues and its findings of fact and conclusions of law.
A. The Quiet Title Action
As noted, ALO claims that it owns the Lake to a level of 1425.9 feet above sea level. Admittedly, this level fluctuates because of a weir, or dam, which maintains a level in the summer time of 1425.9 feet. In the winter, the dam is opened, and the Lake settles at a level of 1423.5 feet. While the date of the construction of the dam/weir is not clear, it is clear, by a preponderance of the evidence, that the dam or weir has been there in excess of fifty years. (Testimony of Michael Malakin and Testimony of Gordon Florey). There were other dams at the Lake, but it is not possible to determine exactly when they existed relative to the issues in this case. Moreover, there is some evidence of dams prior to 1883, and because of references to high and low water marks, it is apparent something caused a significant enough change in the level of the Lake to warrant that reference. ALO claims that it owns the Lake to the extent of the watermark of 1425.9 feet by virtue of a deed that it received from Schrader on April 20, 1964. (Pl.'s Ex. 151R.)
The deed from Schrader to ALO refers to two parcels which emanate from two chains of title. One can be traced back to 1829. It is three hundred (300) acres and is the land conveyed to Thomas Cadwalder from Elizabeth Tilghman. (Pl.'s Ex. 151B.) The other can be traced back to 1833 and is land conveyed to Asa Jones from Elizabeth Tilghman (Pl.'s Ex. 151C.) It is thirteen and one-half (13.5) acres. ALO contends this constitutes record title to Lake Ariel and Mud Pond. There are several problems with this conclusion. First, there is no boundary to Lake Ariel and Mud Pond described in the chains of title. The large parcel in the 1964 deed comes from a chain which includes a deed from John Torrey to Simon Swingle dated 1877. (Pl.'s Ex. 151F.) In this deed, covering three hundred (300) acres, the land is described as "including all or nearly all of the ponds called Jones Pond and Marsh Pond . . ." Id. The second or smaller parcel in the 1964 ALO deed is thirteen and one-half (13.5) acres, and it is unclear whether it is all covered with water or whether upland area was conveyed as well.
Therefore, I do not find by a preponderance of evidence that the deed into ALO in 1964 conveys title to the Lake and Pond. It is certain that it conveys some of it, but the amount is simply not established by a preponderance of evidence. There are no metes and bounds descriptions of the Lake and Pond in the chain of title, nor are there any other descriptions of the area covered by water.*fn3
Further comment is necessary. All of the parties to this action, including ALO, Asaro/Dring and Karl R. and Alice L. Iffland, trace their titles to a deed to Edward Tilghman from the Sheriff of Wayne County in February, 1801.*fn4 (Pl.'s Ex. 151.) In 1820, Tilghman's executors conveyed approximately two-thirds of Lake Ariel to Asa Jones and the remaining part of the Lake, together with the property on the west shore, which includes Asaro/Dring and Iffland lands to Thomas Cadwalder in 1828.
(Pl.'s Exs. 151B, 151C.) Jones' heirs and Cadwalder's executors transferred their interests in the Lake to Simon Swingle by deeds dated in 1872 and 1883 respectively. (Pl.'s Exs. 151F, 151G.) As a result, Swingle owned the entire interests which were previously owned by Tilghman. As noted, there are no metes and bounds descriptions in any of these deeds, and therefore, the Lake has never been described by metes and bounds or in any other fashion. Moreover, the deed granted to Swingle is a remnant deed, and to be certain of what was conveyed, all prior deeds out of Swingle's grantor would have to be reviewed to determine exactly what Swingle was granted. This exercise was not performed at trial. I am satisfied that there is no proof of record title to Lake Ariel and Mud Pond by ALO by a preponderance of evidence.*fn5
Asaro/Dring argue that even if there were title to Lake Ariel and Mud Pond, there is a cloud on that title because they own a portion of land on the western shore between the high water mark and the natural margin. This claim is centered in a deed from Cadwalder to Edward Weston on the west shore of the Lake in 1859 and conveyances out of Weston in 1862 which Asaro/Dring contend reserved to Weston (through whom they claim record title) land between the high water mark and the natural or normal margin. This issue also impacted on Counterclaim Defendants including ALO and individual owners such as Karl R. Iffland and Alice Iffland. A Settlement Agreement was reached which resolves a portion of the dispute over ownership of the strip of land between the high water mark and the natural margin on the western shore.
Paragraph 2 of the Settlement Agreement executed on August 28, 2006 states that Asaro/Dring agreed to subdivide the strip of land along the western shore of Lake Ariel along the southerly property line of Lot 48, Block owned by Maryanne Gillespie (as shown on the Tax Map No. 12-03, marked for identification as Exhibit DT-70 in the lawsuit). (Jt. Ex. 1, ¶ 2.) In the Settlement Agreement, that portion of the Western Shore Strip north of the subdivision line was thereafter called the North Strip, and that portion of the Western Shore Strip south of the subdivision line was called the South Strip. (Id.) In Paragraph 3 of the Agreement, Asaro/Dring agreed to execute and deliver to ALO a quit claim deed of all of their right, title, and interest in and to the North Strip, subject to a permanent easement to be granted in favor of the owners of lots near the western shore of Lake Ariel for access over the North Strip and to maintain docks and/or boathouses on the North Strip. (Id. ¶ 3.) While the Agreement disposes of any dispute concerning the North Strip, the Court must still address the issue of whether there was a reservation of a strip of land along the western shore of Lake Ariel and Mud Pond on the South Strip (now owned by Asaro/Dring), and, if so, the dimensions of this reservation.
The subdivision line at the southerly property line of Lot 48 falls well within the parcel of land originally conveyed from Weston to Jeremiah Barnes. (Defs.' Ex. 5.) In the Weston-Joel Jones deed, there is explicit language attempting to make a reservation of a strip of land bordering Jones Pond/Lake Ariel. (Defs.' Ex. 4.) It cannot be disputed, due to the inclusion of the parenthetical language in the Weston-Joel Jones deed*fn6 , that Weston intended to reserve a narrow strip of land between the so-called 'highest flow of water' and the 'natural margin' of Jones Pond for his own possession. However, the Weston-Jeremiah Barnes deed, executed on the very same day, includes no such parenthetical language.*fn7 (Defs.' Ex. 5.) The parties are in dispute, therefore, over whether Weston intended to make a similar reservation of a strip of land on the parcel conveyed to Barnes. The Court is tasked with resolving this dispute.
Generally, construction of a deed must be governed by the intention of the parties at the time of the transaction, as gathered from a reading of the entire deed. In re Estate of Quick, 905 A.2d 471, 474-75 (Pa. 2006) (citing Hindman v. Farren, 44 A.2d 241, 242 (Pa. 1945) (citation omitted in original)). In interpreting a deed, unless contrary to the plain meaning of the instrument, an interpretation given it by the parties themselves will be favored. Lawson v. Simonsen, 417 A.2d 155, 158 (Pa. 1980) (citing Brookbank v. Bendum-Trees Oil Co., 131 A.2d 103, 107 (Pa. 1957)). In order to determine the intention of the parties, the language of a deed should be interpreted in the light of the subject matter, the apparent object or purpose of the parties, and the conditions existing when it was executed. Id. (citation omitted).
When the language of the deed is clear and free from ambiguity, the intent of the parties must be determined solely from the language of the deed. Teacher v. Kijurina, 76 A.2d 197, 200 (Pa. 1950). If a deed is ambiguous, however, then all the attending circumstances at the time of execution should be considered to aid in determining the intent of the parties. Amerikohl Mining Co., Inc. v. Peoples Natural Gas Co., 860 A.2d 547, 550 (Pa. Super. Ct. 2004) (citation omitted). Every deed should be so construed as to give effect to the intent of the parties unless it is inconsistent with some rule of law or repugnant to the terms of the grant. This is the ultimate guide by which all deeds must be interpreted. Rice v. Shank, 115 A.2d 210, 214 (Pa. 1955) (citation omitted).
While noting that the intent of the grantor is the most important consideration in our analysis, where the words contained in a grant or deed are ambiguous, as is the case here, the deed or grant is to be construed most strongly against the grantor. Smith v. Hickman, 14 Pa. Super. 46 (1900) (citing Klaer v. Ridgway, 86 Pa. 529 (1878)). "This [rule] applies with especial force to a reservation or restriction in a deed whereby there is a withholding of something from the grant." Klaer, 86 Pa. at 529. This rule, mandating construction against the grantor, is limited to situations where the intent of the parties is ambiguous so that it cannot be ascertained from the four corners of the instrument. Hardes v. Penn Charcoal & Chem. Co., 107 A.2d 176, 178 (Pa. Super. Ct. 1954). Thus, for example, the rule will not be applied where the language is sufficiently clear to define the character and extent of any exception or reservation. In re Condemnation by County of Allegheny of Certain Coal, Oil, Gas, Limestone, Mineral Props., 719 A.2d 1, 4 (Pa. Commw. Ct. 1998). Where a deed or agreement or reservation in a deed is obscure or ambiguous, the intention of the parties is to be ascertained in each instance not only from the language of the entire written instrument in question, but also from a consideration of the subject matter and the surrounding circumstances. Merrill v. Mfrs. Light and Heat Co., 185 A.2d 573, 575 (Pa. 1962).
This dispute requires the Court to interpret the Weston-Barnes deed to determine the boundaries of a reservation of land on the so-called South Strip. The relevant language of the Weston-Barnes deed describes the boundaries of the conveyed parcel as ". . . to a post corner on the margin of the flow of 'Jones Pond', Thence along the margin of the highest flow of water in 'Jones Pond' and 'Marsh Pond' . . . ." (Defs.' Ex. 5.) Though there is no explicit attempt at a reservation, as there was in the deed from Weston-Joel Jones, the description has only conveyed to Mr. Barnes the parcel along the 'highest flow of water' in Jones Pond/Marsh Pond, leaving the strip between the natural and highest flows of water reserved to Weston. (Defs.' Ex. 5.) ALO argues, however, that because various terms such as 'western margin' and 'high water mark' are used interchangeably in the several deeds, it was likely not Weston's intention to make any reservation on the parcel conveyed to Barnes. They supported this theory at trial by providing the testimony of Daniel Penetar, Esquire, an attorney experienced in title searching. Mr. Penetar testified that he reviewed all of the deeds, and that several seemingly diverse terms were nonetheless used interchangeably in the various deeds. Specifically, Mr. Penetar stated that in the deeds from Cadwalder-Weston and Weston-William Jones, executed roughly ten (10) months apart, a particular white birch tree is described as being located on the 'western margin', the 'natural western margin', and along the 'high water mark'. (Penetar Dep. 9:16-10:22, Aug. 28, 2006; Doc. 228 pp. 9-10.) Mr. Penetar posited, therefore, that the terms 'high water mark' and 'western margin' must refer to the same line. (Penetar Dep. 10:21-22; Doc. 228 p. 10.) Mr. Penetar testified that the deed from Cadwalder to Weston used the language "to a post corner in the western margin of Jones Pond", and "thence northward along the natural western margin of Jones Pond", and that the deed from Weston to Barnes described the same course from a "post corner on the margin of flow of Jones Pond", then "along the margin of the highest flow of water . . . ." After reciting this language, Mr. Penetar concluded that the deed from Weston to Barnes contained the same property that the deed from Cadwalder to Weston contained. (Penetar Dep. 7:7-8:1, Doc. 228 pp. 7-8.)
While it may be argued that there is an inconsistency between the inclusion of explicit language making a reservation in the Weston-Joel Jones deed and exclusion of similar language in the Weston-Barnes deed, the language contained in the Weston-Barnes deed unambiguously describes the eastern boundary of the parcel Weston intended to convey as bound by the "highest flow of water", therefore reserving the strip of land lying between the natural and highest flows of water to Weston. Moreover, given the specific reservation in the Weston-Joel Jones deed, given the simultaneousness of the two transfers and given that the Cadwalder-Weston deed conveyed Weston land upland of the "natural western margin", the conclusion that Weston intended to and did reserve the strip is the most sensible conclusion.
This strip of land passed to Weston's successors, later to Rensselaer Polytechnic Institute and Wells College, and eventually to Asaro/Dring. (Defs.' Exs. 23, 24, 53.)
Having found that Weston did in fact reserve a strip of land along the Lake, the Court must now, as the trier of fact, determine the dimensions of the strip. See Grace Bldg. Co., Inc. v. Parchinski, 467 A.2d 94, 96 (Pa. Commw. Ct. 1983) (citations omitted) (holding that the location of a boundary line is a question to be determined by the trier of fact). None of the deeds contained any statement as to the width of the reservation. As a matter of law, we must construe any ambiguous language against the grantor (Weston) intending to make a reservation of land. See Hickman, 14 Pa. Super. 46.
There is no width dimension to that parcel in any of those three deeds, nor does it exist in any other deeds in the chain of title. There is testimony that the natural margin of the Lake was 1423.5 feet above sea level in 1862, the time of these conveyances. There is no historical evidence of this fact, but there is undisputed engineering evidence which establishes this as a fact by a preponderance of evidence. There is credible testimony based on old topographical maps, history, principles of hydrology, and expert opinion that the natural level of the Lake is 1423.5 feet, and that it was the same in 1862, the time of the Weston deeds to Jones and Barnes. There is evidence of the existence of an "old stone dam" in and about 1862 which could account for a difference between the natural margin and the highest flow of water. Moreover, it is clear from the language of the deeds that Edward Weston reserved to himself a strip of land between the highest flow of water and the natural margin of the Lake. Therefore, in 1862, something caused the water level to fluctuate. There was some evidence that when the "old stone dam" was in existence, the highest level of the Lake was 1426.9 feet. This argues for a reservation width of 3.4 feet (1426.9 - 1423.5). There is also testimony from William F. Schoenagle, the Defendants' expert land surveyor, that he could not presently determine the dimensions of the old stone dam. However, since a determination beyond 1425.9 feet, the high water mark for in excess of fifty years, only affects Asaro/Dring, the Court will not consider any dimensions in excess of 1425.9 feet, the high water level claimed by ALO.
While there is evidence of a dam in 1862 which could change the level of the Lake, there is also testimony from Mr. Stover that the level of the Lake never changed through the 1800's. Indeed, he testified the high and natural water level were the same measurement. Mr. Stover, a wood or tree expert, so concluded because the trees could not have survived if inundated, and they did, so there was no inundation through the 1800's of the Lake to a level higher than the natural level. However, Mr. Stover testified that the level of the Lake could change, but not for long periods of time such as six months, and have the trees still survive. Thus, his testimony does not negate that it changed; only the duration of change. The summer-winter change is consistent with Mr. Stover's testimony, however, his testimony adds nothing to the dimension issue.
There is no where in ALO's chain of title where ALO received a grant of the strip reserved to Edward Weston in the 1862 deeds. There is testimony that by virtue of calculations done today, the reservation of the so-called South Strip is 2.4 feet wide. I therefore conclude that a reservation width of 2.4 feet of the South Strip is established by a preponderance of the evidence.
Given the foregoing, I conclude that the reservation owned by Asaro/Dring poses an impediment to ALO's claim of ownership to the Lake to a level of 1425.9 feet above sea level.
ALO has offered other theories to establish its claim. I will now deal with those.
1. Adverse Possession / Easement by Prescription
As an alternative to its claim by deed, ALO rests its claim to title of the Lake to a level of 1425.9 feet on the basis that ALO has maintained the Lake to this water mark for in excess of fifty years. The testimony is unrefuted that in the summer time the Lake is dammed so that the water level does rise to a level of 1425.9 feet above sea level, and in the winter the weir is opened and the Lake level is reduced to 1423.5 feet above sea level.
Title by adverse possession may be established by proof of actual, continuous, exclusive, visible, notorious, distinct and hostile possession for twenty-one (21) years. Kaminski Brothers v. Grassi, 352 A.2d 80, 81 (Pa. Super. Ct. 1975). The word "hostile" does not mean "ill will" or "hostility", but implies an assertion of ownership rights adverse to the true owner and all others. Schlagel v. Lombardi, 486 A.2d 491, 494 (Pa. Super. Ct. 1984) (citing Vlachos v. Witherow, 118 A.2d 175 (Pa. 1955)). If all the elements of adverse possession are established, hostility is implied. Id.
There is uncontradicted evidence that for at least fifty (50) years, the Lake Ariel Homeowners raised the level of the Lake from 1423.5 feet to 1425.9 feet for six months every summer. The other six months, it was at 1423.5 feet. There is no question this conduct caused most of the reservation to be inundated with water and that it was used for water sports, fishing, docks, etc. The conduct was visible, notorious, exclusive and hostile, but was it continuous? The question is whether six months per year of a high water mark of 1425.9 feet is sufficient to satisfy the element of continuity.
One could conclude that the presence of the dam, which was known, visible and continuous for over fifty years was evidence the plaintiffs and their predecessors exercised dominion and control over the Lake's water level. The fact that it only inundated defendants' "reservation" for six months of the year does not mean that possession was not continuous. Since the level of the Lake was controlled by the Plaintiff and its predecessors and the reservation's owners had no control over whether the reservation would be inundated, it could be argued that the element of continuousness is satisfied.
Nevertheless, adverse possession requires continuous uninterrupted use. I have found no Pennsylvania case which has specifically addressed this issue, and I predict that the Pennsylvania Supreme Court would not find the conduct by ALO and its predecessors to be continuous for purposes of adverse possession.
Therefore, I conclude that title of the "reservation" which is inundated for six months a year is not established by a preponderance of the evidence.
The inquiry does not end there. It is my view that the conduct of ALO and its predecessors constitutes the acquisition of an easement by prescription in the reservation to the extent of 1425.9 feet above sea level. While the elements of acquisition of an easement by prescription are much the same as those relating to adverse possession, the element of continuity may be established by a course of conduct indicating an attitude of mind by users that the use is the exercise of a property right. See, Matakitis v. Woodmansee, 667 A.2d 228 (Pa. Super. Ct. 1995). See also, Cooper v. Smith, 1822 WL 1976 (Pa. 1822) (when lower riparian owner erects dam and overflows land of upper riparian owner with latter's knowledge; and maintains dam for over fifty (50) years, upper riparian owner acquires prescriptive easement to flood land, but does not acquire title by adverse possession). Here the conduct of ALO and its predecessors (building and maintaining a dam and weir and regularly inundating the "reservation" with water which was used for water sports, fishing, docks, etc.) evidences a "settled course of conduct" which satisfies the element of continuity. Newell Rod and Gun Club, Inc. v. Bauer, 597 A.2d 667, 670 (Pa. Super. Ct. 1991) (". . . a settled course of conduct indicating an attitude of mind on the part of the user or users that the use is the exercise of a property right.") (quoting Minteer v. Wolfe, 446 A.2d 316, 319 (Pa. 1982)). Stated another way, the "continuous use" required for adverse possession is the equivalent of "constant use", whereas for the purpose of "establishing a prescriptive easement, constant use need not be demonstrated in order to establish the continuity of the use." Id.
Therefore, I find that ALO has not established adverse possession of the "reservation" by a preponderance of evidence, however, I do find ALO and its predecessors have established acquisition of a prescriptive easement to raise the level of the Lake to 1425.9 feet above sea level in the summer months as has been done for in excess of fifty (50) years. As noted, the presence of the dam was known, visible and continuous. The dominion and control exercised over the lake level was under the sole control and dominion of ALO and its predecessors. Id.
By the force of the same evidence, ALO and its predecessors have acquired title to the Lake to its natural level of 1423.5 feet above sea level by adverse possession in the face of the presence of the water in open, hostile, continuous, notorious, exclusive and visible possession.
It should be noted that insofar as ALO is concerned, since it was incorporated in 1964 and received purported title to the Lake in 1964, it is then that ALO, as an entity, began to maintain the Lake. It is fair to say that the prescriptive easement dates back to 1964, which is well in excess of the twenty-one (21) years required for the accomplishment of a prescriptive easement by adverse activity. It is also established that ALO's predecessors did the same thing for in excess of thirty-five (35) years.
Although I have found the existence of a prescriptive easement in favor of Plaintiff to a level of 1425.9 feet and title, by adverse possession, to the natural level of 1423.5 feet, I will consider the other bases ALO asserts as establishing title to the Lake.
ALO also relies on community reputation evidence to establish ownership of the Lake to the high water mark. ALO cites Federal Rule of Evidence 803(20) which provides as follows:
Reputation concerning boundaries or general history. Reputation in a community arising before the controversy as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or state or nation in which located.
This is an exception to the hearsay rule. ALO presented many witnesses at trial who indicated from their experience in living at the Lake that the reputation was that the Lake was owned by ALO up to the high water mark. This evidence is admissible under Federal Rule of Evidence 803(20) and is for the support that the boundary of the Lake is at 1425.9 feet above sea level. I am not convinced that this evidence is any more than an awareness that the Lake was raised in the summer and lowered in the winter. I am convinced those who testified gathered that ...