Laurel Crest v. Cowan, T. v. Bueche, T. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LAUREL CREST DEVELOPMENT, INC. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
TIMOTHY COWAN AND MARGARET :
COWAN :
:
v. :
:
THOMAS BUECHE : No. 919 WDA 2017
Appeal from the Order Entered May 26, 2017
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD 10-012098
BEFORE: BOWES, J., DUBOW, J., and MURRAY, J.
MEMORANDUM BY BOWES, J.: FILED AUGUST 27, 2018
Laurel Crest Development, Inc. (“Plaintiff”) appeals from the May 26,
2017 order that dismissed its complaint against Timothy and Margaret Cowan
and Thomas Bueche (collectively “Defendants”). We vacate the order and
remand for further proceedings consistent with this memorandum.
The facts of the case are straightforward, and largely agreed-upon by
both sides. Defendants own plots of land along Melrose Avenue in the Wilburt
Park Plan of Acres (“Wilburt Park”) that, per their deeds, run 226 feet deep.
Plaintiff’s land, the Laurel Crest Development of multi-family dwellings
(“Laurel Crest”), lies directly to the west of Wilburt Park. Deeds for Plaintiff’s
and Defendants’ properties reference a forty-foot-wide right-of-way for a
street, commonly referred to as Tucker Street. Had the paper road been
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opened as a thoroughfare, it would have separated Wilburt Park from Laurel
Crest. However, Tucker Street never was opened, and, hence, Wilburt Park
and Laurel Crest abut one another, with Laurel Crest’s easternmost boundary
constituting Wilburt Park’s westernmost boundary, and vice versa. The
purpose of the instant litigation is to determine where precisely that boundary
is situated.
Neither Plaintiff nor Defendants were able to produce a document that
created the Tucker Street right-of-way across all the affected properties
simultaneously. Plaintiff, however, produced the deeds for various properties
on both sides of the boundary, indicating that the forty-foot-wide Tucker
Street right-of-way is composed of the westernmost twenty feet of the Wilburt
Park properties and the easternmost twenty feet of Laurel Crest. Therefore,
Plaintiff avers, trees that it had planted in the easternmost twenty feet of its
property were wrongfully removed by Mr. Bueche, and both Defendants have
erected structures that encroach upon Laurel Crest’s land. Hence, Plaintiff
brought claims of ejectment and trespass against Defendants.
Defendants, on the other hand, produced surveys indicating that the full
forty feet of Tucker Street lies west of, and outside of, Wilburt Park.
Accordingly, Defendants maintain, when Tucker Street was not timely opened
and each party became the owner of the land in fee to the center of the paper
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street,1 Defendants added an additional twenty feet to their back yards,
making them now 246 feet deep. Therefore, although their fence and sheds
are outside of the land described in their deeds, Defendants claim that they
are not on Laurel Crest’s land.
For ease of visualization, we offer the following diagrams representing
the positions taken by Plaintiff and Defendants, respectively, as to the location
of Tucker Street.2
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1 See 36 P.S. § 1961; Rahn v. Hess, 106 A.2d 461 (Pa. 1954).
2 We have modified Plaintiff’s trial Exhibit 1, based upon the testimony and
other evidence offered at trial, purely to help illustrate the parties’ positions.
It does not necessarily reflect the precise locations of all items therein, such
as Mr. Cowan’s shed and Mr. Bueche’s decorative fence.
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The trial court adopted Defendant’s position, determining that the right-
of-way for Tucker Street was located on the forty-foot strip of land west of
and adjacent to the Wilburt Park boundary, and did not cover any of
Defendants’ 226-foot-deep yards. Trial Court Opinion, 11/19/14, at 4. It held
that, because Tucker Street was not opened or accepted by the township,
Defendants acquired title in fee to the center line of Tucker Street. Id. at 5.
Based upon these holdings and its view of the properties, the trial court found
that the Cowan shed was not located on Laurel Crest’s land. However, it
appeared that a shed of Mr. Bueche “was over the line and not on his portion
of Tucker Street.” Id. The trial court indicated that it would “take up” Mr.
Bueche’s encroachment onto Plaintiff’s land after an appeal by Plaintif was
decided. Id. at 6.
Plaintiff appealed following the denial of its post-trial motion. This Court
sua sponte quashed the appeal as interlocutory, as there was a question of
fact remaining regarding alleged encroachment upon Plaintiff’s land. Upon
remand, and the reception into evidence of a survey of Mr. Bueche’s parcel,
the trial court determined that Mr. Bueche’s shed was not on Laurel Crest’s
land, and his removal of Laurel Crest’s trees had been lawful. Memorandum
Order, 5/26/17, at 2-3. Rather than issuing a verdict in favor of Defendants
and entering judgment upon it, the trial court terminated the litigation by
entering an order dismissing Plaintiff’s complaint. Id. at 3. Plaintiff filed this
timely appeal, which this Court dismissed by order of September 29, 2017,
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based upon Plaintiff’s failure to file a brief. Upon Plaintiff’s application, this
Court reinstated the appeal, and the issues are now ripe for determination.
Plaintiff presents the following claims of error for our review.3
A. The determination that the parties’ properties are separated
by a forty[-]foot right[-]of[-]way is not supported by substantial
competent evidence.
B. The right of way appears in the chains of title for the parties’
properties and is entirely on the parties’ properties.
1. The right of way is an easement and therefore, must
be located on the parties’ lots, rather than on a separate
parcel between the parties’ lots.
2. The deeds in the chains of title describe the right of
way as “covering” the land “within” the parties’ properties,
not separate from or adjacent to the parties’ properties.
C. [Mr.] Cowan and [Mr.] Bueche should be ejected from Laurel
Crest’s property and [Mr.] Bueche should pay damages for the
trees located on Laurel Crest’s property that he destroyed.
Plaintiff’s brief at 4.
We begin with the applicable legal principles. “Our standard of review
[from an order] denying a motion for a new trial is to decide whether the trial
court committed an error of law which controlled the outcome of the case or
committed an abuse of discretion.” Corvin v. Tihansky, 184 A.3d 986, 992
(Pa.Super. 2018) (internal quotation marks omitted).
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3Plaintiff additionally takes issue with a number of the trial court’s evidentiary
rulings. See Plaintiff’s brief at 4-5. Given our resolution of the issues listed
above, we need not reach the evidentiary questions.
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Plaintiff stated claims for ejectment and trespass. “Ejectment is a
possessory action wherein a plaintiff must prove the right to exclusive
possession vis-a-vis proof of paramount title.” Roberts v. Estate of Pursley,
700 A.2d 475, 480 (Pa.Super. 1997) (internal quotation marks omitted).
Ejectment is the proper action for determining a disputed title depending on
the true boundary line between adjacent property. Lehigh Valley Coal Co.
v. Midvalley Coal Co., 91 A. 427, 428 (Pa. 1914). “The crux of an ejectment
action . . . rests with the plaintiffs’ ability to identify, by a preponderance of
the evidence, the boundaries of a parcel of land to which they are out of
possession but for which they maintain paramount title.” Moore v. Duran,
687 A.2d 822, 830 (Pa.Super. 1996) (quotation marks omitted).
Trespass liability is established by Restatement (Second) of Torts § 158.
Gavin v. Loeffelbein, 161 A.3d 340, 355 (Pa.Super. 2017). That section
provides as follows.
One is subject to liability to another for trespass, irrespective of
whether he thereby causes harm to any legally protected interest
of the other, if he intentionally
(a) enters land in the possession of the other, or causes a
thing or a third person to do so, or
(b) remains on the land, or
(c) fails to remove from the land a thing which he is under
a duty to remove.
Rest. (2d) Torts § 158. “A trespass on land subjects the trespasser to liability
for physical harm to the possessor of the land at the time of the trespass, or
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to the land or to his things . . . caused by any act done, activity carried on, or
condition created by the trespasser[.]” Id. at § 162.
Hence, if Plaintiff establishes title to the twenty-foot strip of land
adjacent to the west of the boundary line for Wilburt Park (i.e., the line in
Defendants’ back yards 226 feet from the front of their parcels), Plaintiff is
entitled to eject Defendants from that land (i.e., the removal of the sheds and
fence). If Plaintiff establishes that Defendants damaged that land (e.g., by
removing the trees therefrom), Plaintiff is entitled to damages for the
trespass. The primary question, thus, is the location of the Tucker Street
easement as described in the deed, and the current boundary between Wilburt
Park and Laurel Crest. Accordingly, we consider the legal principles applicable
to that determination.
The purpose of the legal rules regarding boundaries “is to ascertain the
actual location of the boundary as made at the time.” Appeals of Borough
of Dallas, 82 A.2d 676, 679 (Pa.Super. 1951). “The important and controlling
consideration, where there is a conflict as to a boundary, is the parties’
intention, whether express or shown by surrounding circumstances.” Id.
(internal quotation marks omitted). “The general rules of construction applied
to deeds and grants are applicable in the case of boundaries.” Id. Those
rules include the principles that “the nature and quantity of the interest
conveyed must be ascertained from the instrument itself and . . . and we seek
to ascertain not what the parties may have intended by the language but what
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is the meaning of the words;” that “effect must be given to all the language
of the instrument and no part shall be rejected if it can be given a meaning;”
and that “to ascertain 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.”
Murphy v. Karnek, 160 A.3d 850, 858-59 (Pa.Super. 2017) (quoting
Mackall v. Fleegle, 801 A.2d 577, 581 (Pa.Super. 2002)). “As with any
question of law, we review the trial court’s construction of a deed de novo.”
Id. at 859.
At trial, Plaintiff offered into evidence deeds for Laurel Crest and its
predecessors in title. Starting in 1946, those deeds contain the following
language.
THIS conveyance is made and accepted under and subject
to an easement or right of way in, on and over the second herein
described lot or piece of ground and in, on and over the abutting
easterly twenty feet of the first herein described lot or piece of
ground both of which together with a strip of like and equal width
off the westerly sides of Lots Nos. 1 to 6, both included, of the
Wilburt Park Plan of Acres, is hereby dedicated to the use of the
public by the parties hereto, to be used as and for a public road
or street the same as other roads and streets in [Harrison]
Township are used, Said road or street being bounded and,
described as follows, to-wit:
BEGINNING at the centerline of the Burtner Road as shown
in said plan end extending northerly of even width, throughout, of
40 feet with the westerly line of said plan as the center line of said
road or street to the northerly line of said Hawthorne Street.
Plaintiff’s Trial Exhibit 19n.
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Also before the trial court were the deeds of Defendants and their
predecessors in title back to the time before the Wilburt Park plan was
recorded. Although Tucker Street does not appear on the recorded plan,
starting in the 1940s, the deeds contained language which is the mirror- image
of the right-of-way description in the relevant Laurel Crest deeds. Specific to
the parcels at issue in the instant case, the Cowans’ deed includes the
following provision.
THIS CONVEYANCE is made under and subject to the easement of
right of way for the easterly half of Twenty (20) feet of a Forty
(40) foot street or road extending or to extend northerly from the
Burtner Road and covering or to cover the westerly Twenty (20)
feet of the within described lot or piece of ground adjacent to the
westerly line thereof which strip of ground Twenty (20) feet wide
is hereby dedicated to the use of the public as and for a part of
the public street or road to be used by the public as other streets
and roads in the vicinity are used.
Plaintiff’s Trial Exhibit 19a. Mr. Bueche’s deed contains nearly-identical
language.
FURTHER, this conveyance is made under and subject to the
easement or right of way for the easterly half, or twenty (20) feet,
of a forty foot road or street extending or to extend northerly from
the said Burtner Road and covering the westerly twenty (20) feet
of the within described lot or piece of ground adjacent to the
westerly one thereof, which strip of ground twenty (20) feet in
width has been heretofore dedicated to the use of the public as
and for a part of a public road or street to be used by the public
as other roads or street in the vicinity are used.
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Bueche Deed, 1/27/10.4
Defendants argued, and the trial court accepted, that the descriptions
in Defendant’s deeds placed the twenty-foot-wide right-of-way adjacent to the
western boundary of Defendants’ parcels, but wholly outside of the metes and
bounds of their land. In other words, the right-of-way extended for twenty
feet to the west of the north-south boundary line located 226 feet from the
front of their lots. See, e.g., N.T. Trial, 5/3-6/14, at 269-70. Plaintiffs
contend that the trial court’s construction is contrary to the plain and
unambiguous language of the deeds. See, e.g., Plaintiff’s brief at 35. We
agree.
Plaintiff’s deed clearly indicates that the right-of-way for the street is
composed of eastern and western halves that are each twenty feet wide. The
eastern half is the twenty-foot-wide strip running across the easternmost
portion of its own land. The western twenty feet is made up of “a strip of like
and equal width off the westerly sides of Lots Nos. 1 to 6, both included, of
the Wilburt Park Plan of Acres[.]”5 Plaintiff’s Trial Exhibit 19n.
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4 The transcript reveals that Mr. Bueche’s deed was offered and admitted at
trial as Defendants’ Exhibit G. See N.T. Trial, 5/3-6/14, at 133, 197-98.
However, Defendants’ trial exhibits are not included in the certified record.
Nonetheless, the deed is properly before us as it is included in the certified
record, inter alia, as exhibits to both Plaintiff’s and Defendants’ pretrial
statements.
5The original Wilburt Park plan has since been further subdivided. The lots of
Bueche and the Cowans are located within lots four and five of original plan.
N.T. Trial, 5/3-6/14, at 97-98.
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The language of the easement in Plaintiff’s chain of title is entirely
consistent with the provisions of Defendants’ deeds. They indicate that the
described properties are subject to “the easement of right of way for the
easterly half of Twenty (20) feet of a Forty (40) foot street or road[.]”
Plaintiff’s Trial Exhibit 19a. That easement extends to the north from Burtner
Road “covering or to cover the westerly Twenty (20) feet of the within
described lot[.]” Id. In other words, the easement runs over the twenty-foot
“piece of ground adjacent to the westerly line” of Defendant’s lots.” Id. The
western half of the right-of-way is on Plaintiff’s land, and the eastern half on
Defendants’ land.6
Defendants’ deeds thus clearly provide that their lands were conveyed
to them subject to a twenty-foot-wide easement on the lands that they
acquired. Even Defendants’ experts agreed that one cannot grant oneself an
easement over someone else’s land. N.T. Trial, 5/3-6/14, at 293. Indeed, it
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6 It is clear that Tucker Street was not the typical paper street. Such usually
are created as part of a subdivision plan, accounted for in determining the
metes and bounds of the individual lots. Accordingly, in the common scenario,
the land set aside for the streets is not included within the description of the
land sold to the buyers of the lots adjacent to the streets. See, e.g., Rahn
v. Hess, 106 A.2d 461, 462 (Pa. 1954) (discussing rights of landowners to
unopened street within plan that had subdivided a tract of land into lots and
streets). Rather, Tucker Street was created after-the-fact between two plans
by establishing easements across lands already owned by residents or
developers. As such, Tucker Street truly existed nowhere but on paper, as
there was no space set aside for it between the properties that would have
abutted it. As Plaintiff’s counsel coined at trial, this was “the poor man’s way
of creating a paper street.” N.T. Trial, 5/3-6/14, at 321.
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would be nonsensical to indicate in a deed that the property conveyed was
“subject to” an easement wholly on different land, and that had absolutely
had no effect on the land described in the deed. Moreover, if the deeds for
some reason were referencing the easement for Tucker Street as existing
outside of the bounds of the lots in question, it stands to reason that they
would reference the entire forty-foot width of the potential street, not merely
the easterly twenty-foot-wide half of it. The indication that the land described
in each Defendant’s deed was subject to an easement that was half of a
forty-foot-wide street covering the westernmost twenty feet of the within
described lot unequivocally indicates that half of Tucker Street was located
within the 226-foot depth of Defendants’ lots, not outside of them.
In ruling in favor of Defendants, the trial court relied upon twenty-first
century surveys and a gas company right-of-way. See Trial Court Opinion,
11/19/14, at 4 (discussing surveys conducted for both Defendants by H.J.
Martone); stating “I find the best determination o[f] how Tucker Street was
created is relative to the Cowans’ garden shed that was involved when a gas
line was installed”). However, those documents are not incorporated by
reference in the parties’ deeds, and in fact post-date by sixty years the
creation of the easement in or prior to the 1940s. See Plan of Survey
(Cowan), 9/22/04 and Plan of Survey (Bueche), 7/12/10 (included in Exhibit
2 of Defendants’ pretrial statement). The fact that a gas company had
obtained a right-of-way for a gas line to run within the Tucker Street
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easement, and that it reached an agreement with Mr. Cowan to re-route that
line around a shed that he built on that easement, has no bearing on whether
the Cowans’ deed describes the right-of-way as being on or outside its
property. Rather, it is axiomatic that, where the language of a deed is clear,
extrinsic evidence cannot trump the deed itself. Pennsylvania Elec. Co. v.
Waltman, 670 A.2d 1165, 1169 (Pa.Super. 1995) (“When the language of
the deed is clear and free from ambiguity, the intent of the parties must be
determined from the language of the deed.”) (internal quotation marks
omitted).
Therefore, we hold that the trial court erred as a matter of law in
concluding that the right-of-way for Tucker Street was wholly outside of
Wilburt Park. The road, if it had been opened, would have run along the
westernmost twenty feet of Defendants’ property and the easternmost twenty
feet of Plaintiff’s property. In other words, the grading and paving of Tucker
Street would have subtracted twenty feet from Plaintiff’s and Defendants’
yards. Hence, the failure of the road to be opened left Plaintiff and Defendants
with only the land described in their deeds; neither gained any land, as there
was no un-owned land between their lots that had been reserved for Tucker
Street.
The record is clear that Defendants’ yards are still 226 feet deep. Thus,
any structures more than 226 feet from the front of their parcels are
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encroaching on Plaintiff’s land. Further, Defendants are subject to liability in
trespass if they did damage to Plaintiff’s land.
It is undisputed that Mr. Cowan’s shed lies beyond the 226-foot
boundary of his property. See N.T. Trial, 5/3/14, at 207, 268 (testimony from
Mr. Cowan that the shed is between 226 and 246 feet from the front of his
property; testimony from Defendants’ expert that the shed is “[o]utside of the
226-foot distance”). Mr. Bueche similarly acknowledged that he felled trees
that were not within his 226-foot-deep yard, and that his decorative fence was
erected past the 226-foot mark. See id. at 228-29, 243-46. Given our
determination that Laurel Crest has title to the land immediately west of that
boundary line located 226 feet from the front of Defendant’s parcels, there is
no question that Plaintiff is entitled to a verdict in its favor on its ejectment
claims. However, a new trial is necessary for the fact-finder to determine
Defendants’ respective liability for damages on the trespass claims.
Accordingly, we vacate the trial court’s May 26, 2017 order that
dismissed Plaintiff’s complaint. We remand for the trial court to enter a verdict
in favor of Plaintiff on the ejectment claims and to conduct a trial to determine
damages on the trespass claims.
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/27/2018
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