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Borough of Ulysses v. Mesler

December 18, 2009

BOROUGH OF ULYSSES
v.
BARRY J. MESLER, APPELLANT



The opinion of the court was delivered by: Judge Butler

Submitted: November 6, 2009

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE JIM FLAHERTY, Senior Judge.

OPINION

Barry J. Mesler (Mesler) appeals the May 13, 2009 order of the Court of Common Pleas of Potter County (trial court) ejecting him from a tract of real property (the tract) in favor of the Borough of Ulysses (Borough), formerly known as the Borough of Lewisville.*fn1 The issue before us is whether the trial court erred in ejecting Mesler from the tract in favor of the Borough. Mesler argues on appeal that the trial court erred by: denying him a jury trial, changing the meaning of J.W. Spencer's express conveyances, voiding a contractual agreement due to a perceived ambiguous error, relying on a survey not physically conducted, and awarding the Borough a presumptive grant. Based upon the following, we affirm the order of the trial court.

Initially, we recognize that the southern line of Mesler's property meets the northern line of the Borough's property. Both properties are bordered on the east by Main Street. In 1920, the Grange National Bank deeded the property to the north of the boundary line to J.W. Spencer. The relevant history of how the Borough ultimately came to own its property south of the boundary line can be traced back to 1925.

In 1925, due to overcrowding at the vocational high school of the School District of Lewisville Borough (School District), it was determined that an auditorium needed to be built. Since the School District did not have the financial means to pay for the addition, bondholders agreed to furnish the money to build it, and the School District agreed to rent it from the bondholders until the bonds were retired. By Memorandum Agreement dated December 17, 1925 (1925 Agreement), the bondholders identified George Nickerson (Nickerson) as trustee for the purpose of acquiring and holding title to the real estate and carrying out the purposes of the 1925 Agreement. In 1926, the Grange National Bank deeded the property to the south of the boundary line to Nickerson pursuant to the 1925 Agreement. In 1929, a similar deed was recorded, the only difference being that it more specifically named as grantee, Nickerson as trustee for the School District and the bondholders in accordance with the 1925 Agreement. When Nickerson died, pursuant to the 1925 Agreement, Wilbur Wagner and, thereafter, L.W. Angood were designated trustees.

After the terms of the 1925 Agreement had been satisfied, on July 3, 1956, L.W. Angood deeded the tract to the School District. On December 4, 1962, the School District deeded the tract to the Borough of Lewisville.

The tract at issue here is real property measuring approximately 138 feet by 22 feet. In 1926, J.W. Spencer deeded the tract to the School District so that the School District could complete the auditorium construction. In 1932, J.W. Spencer conveyed his other property north of the boundary line, but specifically excluded the 138 by 22 foot tract previously transferred to the School District. The tract deeded to the School District by J.W. Spencer was specifically excluded from every deed conveying the remaining portions of J.W. Spencer's parcels from that time through the time that Mesler purchased his property in 1993. Notwithstanding, in 1999, Mesler began obstructing the Borough's access to the property.

On February 17, 2005, the Borough filed a complaint against Mesler seeking an order that Mesler remove all obstacles to the public's use of a driveway over Mesler's land. On August 15, 2008, the Borough filed an amended complaint adding to its claims an ejectment action against Mesler seeking a determination that the Borough owns the tract. A non-jury trial was held before the trial court on April 6, 2009. On May 13, 2009, the trial court ordered that the Borough was the owner of the tract, and that Mesler was to cease any occupancy, interference or obstruction of it. Mesler appealed to this Court.*fn2

On appeal, Mesler argues that the trial court erred by denying him a jury trial in this case. Mesler did not raise this issue before the trial court and, despite identifying it in his brief as a question on appeal, he did not further address it in his brief. "Issues not raised in the lower court are waived and cannot be raised for the first time on appeal." Pa.R.A.P. 302. Moreover, Pa.R.A.P. 2119(a) requires that an argument "shall be divided into as many parts as there are questions to be argued . . . followed by such discussion and citation of authorities as are deemed pertinent." The courts deem waived issues raised in a statement of questions involved but not thereafter addressed in the argument. Moses Taylor Hosp. v. White, 799 A.2d 802, 804 (Pa. Super. 2002). Accordingly, Mesler's objection to the trial court's denial of his request for a jury trial is waived.

The remaining issues raised by Mesler on appeal are substantive, and relate to whether the trial court erred in ejecting Mesler from the tract in favor of the Borough. "Ejectment is an action filed by a plaintiff who does not possess the land but has the right to possess it, against a defendant who has actual possession." Billig v. Skvarla, 853 A.2d 1042, 1049 (Pa. Super. 2004) (citing Soffer v. Beech, 487 Pa. 255, 409 A.2d 337 (1979)). Specifically, to support an action in ejectment, the evidence must be sufficient to identify the land in dispute and establish the plaintiff's right to possession thereof. The burden of identifying and locating the land clearly rests upon the plaintiff. In this regard, plaintiff has the burden of presenting definite and certain evidence of the boundary of the property in controversy.

Hallman v. Turns, 482 A.2d 1284, 1288 (Pa. Super. 1984) (citations omitted). "[A] preponderance of the evidence is sufficient to establish that boundary." Id. Since the Borough here claims to have title to the land over which Mesler appears to have possession, the Borough has the burden of proving that it holds a deed purporting to transfer that title to the Borough.

At the heart of the issue in this case is J.W. Spencer's description of the 138 by 22 foot tract in his conveyance to the School District. While J.W. Spencer only owned property to the north of the boundary line, a strict reading of the description makes it appear that he was transferring property to the south of the boundary line to the School District as follows:

[b]eginning in the center of Main Street 309 feet 10 inches North from a corner at the intersection of [M]ain and Academy Sts., thence east one hundred thirty eight (138) feet to an iron post; thence south twenty two (22) feet to an iron post; thence west one hundred thirty eight (138) feet to the ...


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