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Stark v. Equitable Gas Co., LLC

Commonwealth Court of Pennsylvania

May 14, 2015

David and Kathleen Stark
v.
Equitable Gas Company, LLC, incorrectly named as Equitable Gas, LLC, a division of Equitable Resources, Appellant

Argued April 15, 2015

Daniel E. Krauth, Pittsburgh, for appellant.

William P. Bresnahan, II, Pittsburgh, for appellees.

BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORALBE ANNE E. COVEY, Judge.

Judge McGinley did not participate in the decision of this case. DISSENTING OPINION BY JUDGE LEAVITT. Judge McCullough joins in this dissent.

OPINION

Page 761

DAN PELLEGRINI, JUDGE.

Equitable Gas Company, LLC, incorrectly named as Equitable Gas, LLC, a division of Equitable Resources (Equitable), appeals the order of the Westmoreland County Court of Common Pleas (trial court) overruling its preliminary objections to the Petition for the Appointment of Viewers Alleging a DeFacto Taking (Petition) filed by David and Kathleen Stark (collectively, Landowners). We affirm.

Page 762

In September 1983, Landowners acquired a parcel of property (Stark 1) in North Huntingdon Township (Township), Westmoreland County (County), near the intersection of U.S. Route 30 and Carpenter Lane. (Reproduced Record (R.R.) at 69a). The description of the parcel in the deed begins " at a point on the Westerly right-of-way line of U.S. Route 30, at the Northeast corner of lands now or formerly of George Scheffle," and describes its west boundary line as starting at " a point, said point being the Northerly right-of-way line of an unnamed street 40 feet wide; [1] thence along the Northerly line of the unnamed street a distance of 201.16 feet to a point on the Northerly line of lands now or formerly of George Scheffle...." ( Id. ). The chain of title of the Stark 1 parcel in deeds from 1971, 1975 and 1982 also describe the west boundary line of the property as along " the Northerly right of way line of an unnamed street having a 40-foot right of way...." ( Id. at 79a, 83a, 87a).

In July 1992, Norwin School District (School District) owned the adjoining parcel of property and granted Equitable a right-of-way for the construction of and ingress and egress to a 10-inch gas pipeline to be buried " along the eastern edge of [the School District]'s 40 foot wide private road...." (R.R. at 46a).[2] In January

Page 763

2007, Landowners acquired the School District's adjoining parcel by deed (Stark 2) with the north boundary line described as " BEGINNING at a point at the northwest corner of property deeded to [Landowners] and the center of an unopened 40 foot street and south right-of-line of Carpenter Lane (SR 4019); thence from said point of beginning along the south right-of-way line of Carpenter Lane and line of [the School District] South 72° 12' 12" West a distance of 24.37'...." ( Id. at 96a).

In July 2007, Landowners hired Dennis Dull (Dull) to complete a survey of their properties. Dull determined that Equitable's pipeline had been installed on the Stark 1 parcel because he determined that the western boundary of that parcel extended to the center line of the paper street. As a result, in 2009, Landowners filed a trespass action against Equitable and then, in February 2013, filed the instant Petition alleging a de facto taking and seeking the appointment of a Board of Viewers.[3] In April 2013, the trial court issued an order appointing a three-member Board of Viewers.

In August 2013, Equitable filed preliminary objections to the Petition arguing that it should be dismissed because: (1) Landowners maintained a separate trespass action while pursuing the instant action under the former Eminent Domain

Page 764

Code; [4](2) Landowners failed to state a claim for a de facto taking because they were not the record owners of the property when the pipeline was laid in 1992; (3) Landowners' action is time barred by the five-year statute of limitations in the former Section 5526(4) of the Judicial Code; [5] and (4) assuming Landowners had an interest in the property, they failed to state a de facto taking of their entire property.

At hearing, Landowners withdrew their trespass action. (R.R. at 107a-108a). Dull was qualified as an expert in surveying, but he could not offer a legal opinion on the ownership of paper streets or the meaning of the Stark 1 deed.[6] He testified that he was hired to survey and lay out the property lines for the Stark 1 parcel because Landowners wanted to add a building and a parking lot to their property. He stated that he obtained the deed from the early 1980s which matched a survey that was done in 1961; deeds for the adjoining properties; the tax map; and a survey that the School District had made.

Dull testified that the property lines of Stark 1 and Stark 2 went to the center of the paper street so that an area of 20-feet long by 200-feet wide of the paper street was on each parcel. (R.R. at 126a-127a). He stated that the boundary for Stark 1 went to the center line of the paper street and that the gas line was placed on the Stark 1 parcel in 1992. ( Id. at 140a-142a). He testified that one of the deeds refers to a private road and others referred to an unopened road, and he did not find anything showing that it was intended to be turned over to the Township at any time. ( Id. at 146a, 147a).

Dull conceded that each of the 1971, 1975, 1982 and 1983 deeds described the west boundary of the Stark 1 parcel as the northerly line of the paper street so that the gas pipeline as outlined was not laid within the parcel. (R.R. at 148a-154a). However, he testified that the 1983 deed stated that the boundary for the Stark 1 parcel was 180 feet from the westerly side of Route 30, and when he measured 180 feet as called for in the deed, the

Page 765

boundary line fell in the center line of the paper street so his field evidence shows that the deed is incorrect. ( Id. at 154a-155a, 161a-162a, 172a-173a).[7] He stated that the metes and bounds show that the boundary of the Stark 1 parcel went to the center of the paper street, and that the original tax map also showed that the boundary went to the center of the street. ( Id. at 162a). He testified that he never found any evidence of a dedication of the paper street. ( Id. at 146a, 174a).

In December 2013, the trial court issued an order: (1) overruling the preliminary objection that Landowners were not the record owners at the time of the taking because Dull " presented compelling evidence based upon actual measurements made in the field, that [Landowners] owned property up to the center line of the unopened road at the time [Equitable]'s gas line was installed; " (2) overruling the preliminary objection based on the statute of limitations " in that [Landowners'] cause of action is governed by the 21-year statute of limitations set forth in [the former Section 5530(a)(3) of the Judicial Code, 42 Pa. C.S. § 5530(a)(3) (repealed by the Act of May 4, 2006, P.L. 112) (imposing a 21-year statute of limitations for " [a] proceeding in inverse condemnation, if property has been taken and the condemnor had not made payment in accordance with section 407(a) or (b) (relating to possession and payment of compensation)" of the former Eminent Domain Code)]; " and (3) overruling the preliminary objection that Landowners failed to state a de facto taking of their entire property " in that the extent of the taking and the damages resulting are matters to be determined by the Board of Viewers." (Trial Court 12/17/13 Order; R.R. at 216a-217a). The trial court also directed the Board of Viewers appointed in April 2013 to determine the amount of damages that Landowners sustained. ( Id. ).

On appeal,[8] Equitable argues[9] that the trial court erred in overruling its

Page 766

preliminary objections because its finding that the boundary of the Stark 1 parcel extended to the middle of the paper street is not supported by competent evidence and Landowners' claim is time-barred because they failed to show that they owned the property on which the pipeline was laid in 1992. We do not agree.

As indicated above, the 2007 deed by which the School District conveyed the Stark 2 parcel to Landowners describes the north boundary line as " BEGINNING at a point at the northwest corner of property deeded to [Landowners in Stark 1] and the center of an unopened 40 foot street and south right-of-line of Carpenter Lane (SR 4019); thence from said point of beginning along the south right-of-way line of Carpenter Lane and line of [the School District] South 72° 12' 12" West a distance of 24.37'...." (R.R. at 96a) (emphasis added). Dull corroborated the foregoing boundary line because he testified that the 1983 deed stated that the boundary for the Stark 1 parcel was 180 feet from the westerly side of Route 30, and that when he measured 180 feet as called for in the deed, the boundary line fell in the center line of the paper street. ( Id. at 154a-155a, 161a-162a, 172a-173a). He stated that the metes and bounds show that the boundary of the Stark 1 parcel went to the center of the paper street, and that the original tax map also showed that the boundary went to the center of the street. ( Id. at 162a). Moreover, it is undisputed that Equitable buried the gas line " along the easterly edge of the [School District]'s 40 foot wide private road...." ( Id. at 46a). ( See also Supplemental Reproduced Record at 1b; Plaintiff's Exhibit 3).

Based on the foregoing, there is ample competent evidence supporting the trial court's findings that the boundary for the Stark 1 and Stark 2 parcels extended to the center of the paper street and that Equitable buried the gas line on Landowners' Stark 1 parcel in 1992. We simply will not accede to Equitable's request that we reweigh the conflicting evidence that was presented to the trial court showing a different boundary line. As a result, the trial court also did not err in determining that Landowners' Petition was not time-barred.[10]

Accordingly, the trial court's order is affirmed.

McGinley, Judge did not participate in the decision of this case.

ORDER

AND NOW, this 14th day of May, 2015, the order of the Westmoreland County Court of Common Pleas dated December 17, 2013, at No. 2013-597, is affirmed.

Page 767

DISSENTING OPINION

LEAVITT, JUDGE

Respectfully, I dissent. This is a straightforward case about the boundary of David and Kathleen Stark's property (Stark I) in 1992, when Equitable Gas Company installed its gas line south of the " Northerly" line of a paper street. The trial court disregarded the language of the deed to Stark I, which states that Stark I is bounded by the " Northerly" line of the paper street, in favor of a surveyor's testimony that the property is bounded by the middle of that paper street. This was error.

The language in the 1983 deed to Stark I describes the boundaries of the property through courses and distances:

BEGINNING at a point on the Westerly right-of-way line of U.S. Route 30, at the Northeast corner of lands now or formerly of George Scheffle, and the Southeast corner of herein described premises; thence North 31° 15' West along the Westerly right-of-way line of U.S. Route 30, a distance of 136.22 feet to a point; thence by an arc curving to the left, along the combined right-of-way lines of U.S. Route 30 and Carpenter Lane, by a radius of 50 feet and an arc distance of 67.84 feet to a point on the Southerly right-of-way line of Carpenter Lane; thence continuing along the Southerly right-of-way line of Carpenter Lane South 71° 16' West, a distance of 136.33 feet to a point, said point being the Northerly right-of-way line of an unnamed street 40 feet wide; thence along the Northerly line of the unnamed street, a distance of 201.16 feet to a point on the Northerly line of lands now or formerly of George Scheffle; thence along said Scheffle line North 61° 45' East, a distance of 180 feet to a point on the Westerly right-of-way line of U.S. Route 30 at the place of beginning.

Reproduced Record at 69a (R.R. ) (emphasis added). The deeds to the Stark I parcel dated 1971, 1975 and 1982 also describe the western boundary line of the property as along " the Northerly right of way line of an unnamed street having a 40-foot right of way...." R.R. 79a, 83a, 87a. The majority uses the 2007 deed to the adjacent parcel, Stark II, to reject the plain language in the Stark I deed.[1] However, the deed to Stark II is irrelevant, as are tax maps. The issue is whether the Starks had a recorded property interest in the property where the pipeline was laid in 1992, and the only evidence relevant to that issue is the deed to Stark I.

I agree with Equitable Gas Company that the trial court erred in finding that the western boundary of Stark I was not " along the Northerly line of the unnamed street," as the deed states. In so holding, the trial court relied solely on the testimony of the Starks' surveyor, Dennis Dull, and not on the deed itself. Dull reviewed the pertinent deed language, which calls for the boundary of Stark I to begin at a point on the right-of-way of U.S. Route 30 and run counterclockwise along the recited course back to the place of beginning. R.R. 69a. Dull conceded that the deeds in the chain of title all describe the western boundary of Stark I as the " [n]ortherly right-of-way" of the unnamed paper street. Id. See also R.R. 147a.

Notwithstanding this unambiguous deed language, Dull testified that, based on his survey, the western boundary of Stark I is actually the center of the unnamed paper street. In explaining how he arrived at that conclusion, Dull revealed that he did

Page 768

not take the 180-foot measurement as called for in the deed. He measured 180 feet from the westerly right-of-way of Route 30 to the center line of the unnamed paper street. However, the call of the deed states that 180 feet is to be measured from the northerly right-of-way of the unnamed paper street to the westerly boundary of Route 30. R.R. 69a.

By reversing the final call of the deed, Dull effectively rewrote the deed. This is contrary to settled Pennsylvania law that " [r]eversing the lines of a survey should be resorted to only when the terminus of a line cannot be ascertained by running forward." Merlino v. Eannotti, 177 Pa.Super. 307, 110 A.2d 783, 787 (Pa. Super. 1955). Further, when the calls of a deed are found to be inconsistent,

resort is to be had first to natural objects or landmarks, next to artificial monuments, then to adjacent boundaries (which are considered a sort of monument), and thereafter to courses and distances.

Doman v. Brogan, 405 Pa.Super. 254, 592 A.2d 104, 110 (Pa. Super. 1991) (quoting Baker v. Roslyn Swim Club, 206 Pa.Super. 192, 213 A.2d 145, 148 (Pa. Super. 1965)). In the case of Stark I, the drafters of the deed used the unnamed paper street as a monument because its location is fixed and permanent. The paper street was also used to define a boundary in the deed of Stark II.

Our Supreme Court has held that an unopened paper street is an artificial monument that is controlling of the description as against the distance. Felin v. City of Philadelphia, 241 Pa. 164, 88 A. 421 (Pa. 1913). In Felin, the deed described one course of a boundary as running " to a point in the middle of a new street about to be laid out." Id. at 422. The Court held that the " reference to the so-called street was simply used to designate an artificial monument so as to fix a definite point for the lines of his lot." Id. at 423 (emphasis added). The Court affirmed the trial court's determination that " the description in the original deed carried the plaintiff's title to a point fixed as a monument." Id.

Significantly, the parties do not dispute the location and width of the unnamed paper street chosen as an artificial monument by the drafters of the Stark I deed. Its location is neither " doubtful" nor will reliance on it lead to " absurd consequences." Majority slip op. at 8 n.7.[2] The unnamed paper street served as a monument in both deeds because it is fixed and unmovable. Under the canons of deed construction, the artificial monument, i.e., the northern boundary of the unnamed street, trumps the recited " 180 feet" distance. The canon is logical because there is more likely to be a mistake in a distance measurement, either by the surveyor or by the person transcribing his measurement. Assuming, arguendo, that the 180-foot call of the deed is, as Dull suggested, in error,

Page 769

that fact is irrelevant to the outcome of this case.

In summary, the terminus of each line of the Stark I parcel can be ascertained by running forward through the courses and distances recited in the deed. Dull's testimony was not competent to establish a different western boundary of the Stark I parcel. In holding otherwise, the majority rejects well-established Pennsylvania canons of deed interpretation. Accordingly, I would hold that the trial court erred in relying upon Dull's testimony to rewrite the deed when it overruled Equitable's preliminary objection to the Starks' condemnation action. The Starks did not prove they were the record owners of the property in question at the time of the alleged taking.[3]

For all of the foregoing reasons, I would reverse the trial court's order overruling Equitable's preliminary objection to the Starks's de facto condemnation action.

McCullough, Judge joins in this dissent.


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