Franceski, J. v. Linde Corp. ( 2022 )

J-A17018-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOSEPH FRANCESKI AND : IN THE SUPERIOR COURT OF
BERNADETTE FRANCESKI, : PENNSYLVANIA
ADMINISTRATRIX OF THE ESTATE OF :
MICHAEL FRANCESKI :
:
:
v. :
:
: No. 1681 EDA 2021
LINDE CORPORATION AND RAIL- :
TRAIL COUNCIL OF NORTHEASTERN :
PENNSYLVANIA, INC. :
:
:
APPEAL OF: RAIL-TRAIL COUNCIL OF :
NORTHEASTERN PENNSYLVANIA, :
INC. :
Appeal from the Judgment Entered December 9, 2021
In the Court of Common Pleas of Wayne County Civil Division at No(s):
71-Civil-2019
BEFORE: PANELLA, P.J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY NICHOLS, J.: FILED DECEMBER 13, 2022
Appellant Rail-Trail Council of Northeastern Pennsylvania, Inc. appeals
from the judgment1 entered in this quiet title action filed by Joseph Franceski
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* Retired Senior Judge assigned to the Superior Court.
1 Appellant filed its notice of appeal on August 17, 2021, after the trial court
issued an amended verdict and order following the hearing on the parties’
post-trial motions. Generally, an appeal to this Court properly lies from the
entry of judgment, not from the order disposing of post-trial motions.
Mackall v. Fleegle, 801 A.2d 577, 580 (Pa. Super. 2002). Nevertheless, a
final judgment entered during the pendency of an appeal is sufficient to perfect
appellate jurisdiction. Drum v. Shaull Equipment and Supply Co., 787
A.2d 1050, 1052 n.1 (Pa. Super. 2001). Because the trial court subsequently
(Footnote Continued Next Page)
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and Bernadette Franceski, Administratrix of the Estate of Michael Franceski
(Appellees).2 Appellant argues that the trial court erred in finding that Linde
Corporation possessed an easement, rather than a fee simple interest, and
concluded that neither Appellant nor Linde Corporation had any right to the
disputed property. For the reasons that follow, we reverse the judgment,
vacate the trial court’s order, and remand with instructions.
The underlying facts of this matter are well known to the parties. See
Am. Trial Ct. Op., 7/21/21, at 2-5. Briefly, Appellees own a 293-acre parcel
of undeveloped land in Wayne County. The disputed property is a 12.8-acre
parcel of land, referred to by the parties as a “railroad right-of-way,” which is
located within the boundaries of Appellees’ property. The primary issue in this
case is whether the 1890 origination deed conveyed a fee simple interest in
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entered final judgment on December 9, 2021, Appellant’s notice of appeal
relates forward to that date. See Pa.R.A.P. 905(a)(5) (providing that a notice
of appeal filed after a court’s determination, but before the entry of an
appealable order, shall be treated as filed after such entry and on the day
thereof). Therefore, there is no jurisdictional impediment to our review, and
we have amended the caption accordingly.
2Linde Corporation has filed a separate appeal, which has been docketed at
1667 EDA 2021.
On December 3, 2021, Appellant filed an unopposed motion to consolidate
both cases. On December 10, 2021, this Court issued an order denying
Appellant’s motion without prejudice and explaining that, if the appeals were
consolidated, Appellant and Linde Corporation would be limited to filing one
consolidated brief. Linde Corporation and Rail-Trail Council subsequently
elected to file separate briefs and neither party renewed the motion for
consolidation.
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the disputed property to OCS Railroad Company, in which case the disputed
property belongs to Linde Corporation as successor-in-title. However, if the
1890 deed granted OCS Railroad Company an easement, and Linde
Corporation subsequently abandoned the easement, then the disputed
property belongs to Appellees and neither Linde Corporation nor Appellant
have any claim to the disputed property.
In 2019, Appellees filed an action to quiet title against Appellant and
Linde Corporation. See Compl., 2/21/19, at 1-7. Therein, Appellees alleged
that although the 1890 deed conveyed a property interest to Linde
Corporation’s predecessor in title, it was “only a right-of-way,” as Appellees
retained “interest in the surface area below” the disputed property. Id. at 5.
Therefore, Appellees sought to (1) confirm that Appellees were the owners of
the disputed property; (2) confirm Appellees’ ownership interest in the
disputed property by compelling Appellant and Linde Corporation to
commence an action in ejectment; and (3) compel Appellant and Linde
Corporation to admit the validity or invalidity of Appellees’ claim of ownership
interest in the disputed property. Id. at 6.
Appellant filed an answer to Appellees’ complaint. Linde Corporation
filed an answer and new matter. See Ans. and New Matter, 4/25/19, at 1-
16. Therein, Linde Corporation asserted that it was “in possession of the
disputed property, together with [] Rail-Trail, which [had been] granted an
easement by Linde Corporation to maintain a rail trail.” Id. at 6. Further,
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Linde Corporation argued that the disputed property “remained vested in fee
in the OCS Railway Company and its successors and assigns since 1890.” Id.
The matter proceeded to a non-jury trial on November 23, 2020. At
trial, Appellees introduced a copy of an 1891 deed, which referred to the
interest conveyed in the 1890 deed as an easement. The parties presented
testimony from lay witnesses and expert witnesses in support of their
respective positions.
On April 28, 2021, the trial court issued an opinion and verdict in favor
of Appellees. See Trial Ct. Op., 4/28/21, at 1-13. Therein, the trial court
explained that the 1891 deed provided “the necessary background in order to
demonstrate the grantor’s intent” with respect to the 1890 conveyance of the
disputed parcel. Id. at 10. After considering the language in both deeds, the
trial court concluded that the 1890 deed conveyed an easement to Linde
Corporation’s predecessor in title, that the easement was abandoned after the
rails and superstructure were removed, and that, as a result, the encumbrance
on the property was removed and neither Linde Corporation nor Appellant had
any interest in the disputed property. Id. at 11-12.
Appellant and Linde Corporation filed a joint post-trial motion in which
they claimed, among other things, that the trial court erred in ruling on
Appellees’ action to quiet title despite the fact that Appellees failed to establish
possession. See Post-Trial Mot., 5/7/21, at 3. In response, the trial court
issued an amended opinion and verdict and order. Therein, the trial court
explained that although Appellees did not establish actual possession, they
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were entitled to relief because they established a right to immediate
possession. Am. Trial Ct. Op., 7/21/21, at 11. The trial court also noted that
the 1890 deed was ambiguous and that, therefore, it was necessary to
consider the language in the 1891 deed. Id. at 13. Ultimately, the trial court
reached the same conclusions regarding the rights conveyed by the 1890
deed. Id.
Appellant filed a timely notice of appeal. The trial court did not order
Appellant to file a Pa.R.A.P 1925(b) statement and did not file a Rule 1925(a)
opinion.
On appeal, Appellant raises the following issues, which we have
reordered as follows:3
1. Must this Court reverse the [order] of the trial court when it
committed an error of law by looking to the 1891 contextual
deed when there was no basis to do so, since there was no
evidence of fraud, accident, or mistake, or any other ambiguity
that would allow the court to look beyond the clear meaning of
the words of the 1890 deed of origination, and when it further
erred in misinterpreting the legal meaning of the 1891
contextual deed, concluding that the interest conveyed by the
1890 deed of origination was only an easement and not fee
title.
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3 As noted previously, Appellees filed an action to quiet title, rather than an
action in ejectment. However, in Sutton v. Miller, 592 A.2d 83, 88–89 (Pa.
Super. 1991), this Court held that that although the trial court erred in failing
to dismiss a quiet title action filed by an out-of-possession plaintiff, the error
was not fatal to the claim because this Court may amend the pleadings to
include an action in ejectment sua sponte. Therefore, rather than reversing
the trial court’s order, we will consider the claims of the parties solely in the
context of an action in ejectment. See id.-5-
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2. Must this Court reverse the [order] of the trial court when it
committed an error of law by failing to apply the well-
established rules of deed construction, and erroneously
concluded that the 1890 deed of origination conveyed only an
easement, when the express terms of the deed, the clear intent
of the parties, and the deed read as a whole clearly and
unambiguously indicate that fee title was conveyed.
3. Must this Court reverse the [order] of the trial court when it
committed an error of by failing to properly analyze the 1890
deed of origination under the controlling case of Brookbank,
and erroneously concluded that the 1890 deed of origination
conveyed only an easement, when application of the
Brookbank factors clearly and unambiguously indicate that
fee title was conveyed[?]
4. Must this Court reverse the [order] of the trial court when it
committed an error of law by incorrectly equating conveyance
of the “surface” rights with mere ownership of the surface
crust, and erroneously concluded that the 1890 deed of
origination conveyed only an easement.
5. Must this Court reverse the [order] of the trial court when it
committed an error of law by concluding that fee title reverted
to the Franceskis upon abandonment of use as a railway, when
fee title was previously vested in Linde and Rail-Trail Council’s
predecessor in title by the 1890 deed of origination.
Appellant’s Brief at 4-5.
Interpretation of the 1890 Deed
Appellant argues that the trial court erred in relying on the 1891 deed
to determine the nature of the interest conveyed by the 1890 deed.
Appellant’s Brief at 44. In support, Appellant asserts that the trial court failed
to identify any facts to support a finding that the 1890 deed “was executed
and delivered as the result of fraud, accident or mistake, or that [the deed
was] ambiguous[.]” Id. at 46-47. Further, although the trial court discusses
the habendum clause contained in the 1890 deed, Appellant contends that
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“the granting clause and the habendum are consistent and unambiguous.” Id.
Therefore, Appellant concludes that the trial court erred in relying on evidence
outside of the language contained in the deed. Id. at 51-52.
Appellees respond that the 1890 deed did not include the term “in fee.”
Appellees’ Brief at 16. Further, Appellees assert that the 1890 deed was
ambiguous because (1) it did not use terms such as “in fee, easement, and/or
right-of-way;” and (2) it conveyed “an interest in only the ‘surface’ of the
[disputed] property.” Id. at 15-16. Therefore, Appellees conclude that the
trial court properly relied on the 1891 deed to determine the grantor’s intent.
Id. at 17.
When interpreting a deed, this Court has explained:
[A] court’s primary object must be to ascertain and effectuate
what the parties themselves intended. The traditional rules of
construction to determine that intention involve the following
principles. First, the nature and quantity of the interest conveyed
must be ascertained from the deed itself and cannot be orally
shown in the absence of fraud, accident or mistake. We seek to
ascertain not what the parties may have intended by the language
but what is the meaning of the words they used. Effect must be
given to all the language of the instrument, and no part shall be
rejected if it can be given a meaning. If a doubt arises concerning
the interpretation of the instrument, it will be resolved against the
party who prepared it. . . . 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. . . .
In the absence of fraud, accident or mistake, the nature and
quantity of the real estate interest conveyed must be ascertained
from the deed itself and cannot be shown by parol. 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.
With respect to unambiguous deeds, a court must ascertain what
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is the meaning of the words used, not what may have been
intended by the parties as shown by parol.
Wright v. Misty Mt. Farm, LLC, 125 A.3d 814, 818-19 (Pa. Super. 2015)
(citations omitted).
“Whether an ambiguity exists is a question of law subject to plenary
review. However, resolution of conflicting parol evidence relevant to what the
parties intended by an ambiguous provision is for the trier-of-fact.” PARC
Holdings, Inc. v. Killian, 785 A.2d 106, 112 (Pa. Super. 2001) (citations
omitted).
The terms of the instrument conveying the interest are interpreted
by applying general principles of contract law. Clear contractual
terms that are capable of one reasonable interpretation must be
given effect without reference to matters outside the contract.
Where a term is ambiguous and susceptible of more than one
reasonable interpretation, however, the court is free to receive
extrinsic, i.e., “parol evidence,” to resolve the ambiguity. A
contract will be found ambiguous: if, and only if, it is reasonably
or fairly susceptible of different constructions and is capable of
being understood in more senses than one and is obscure in
meaning through indefiniteness of expression or has a double
meaning. A contract is not ambiguous if the court can determine
its meaning without any guide other than a knowledge of the
simple facts on which, from the nature of the language in general,
its meaning depends; and a contract is not rendered ambiguous
by the mere fact that the parties do not agree on the proper
construction. Ambiguity within a contract may be latent or
patent. A patent ambiguity appears on the face of the contract
and is a result of defective or obscure language. Although
Pennsylvania law provides that “parol evidence” may not be
introduced unless the language of the written agreement is
ambiguous on its face, extrinsic facts and circumstances may be
proved to show that language apparently clear and unambiguous
on its face is, in fact, latently ambiguous.
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Baney v. Eoute, 784 A.2d 132, 136 (Pa. Super. 2001) (citations and some
quotation marks omitted, emphasis added); see also Metzger v. Clifford
Realty Corp., 476 A.2d 1, 5 n.2 (Pa. Super. 1984) (stating that the latent
ambiguity “exception to the general rule against parol evidence is expectably
limited” and usually arises when “a writing refers to a particular person or
thing and is thus apparently clear on its face, but upon application to external
objects is found to fit two or more of them equally” (citations omitted));
Wysinski v. Mazzotta, 472 A.2d 680, 683 (Pa. Super. 1984) (explaining that
“[t]here can be no latent ambiguity where, as here, there was land owned by
the grantor which satisfied the description contained in the deed of
conveyance”).
Here, the granting clause of the origination deed states, in relevant part,
as follows:
This indenture, made the twenty-fifth day of March in the year of
our Lord one thousand eight hundred and ninety between the
president, managers, and company of the Delaware and Hudson
Canal Company, party of the first part and the Ontario Carbondale
and Scranton Railway Company, party of the second part.
Witnesseth, that the said party of the first part, as well for and in
consideration of the fulfillment of the covenants and agreements
hereinafter mentioned to be kept and performed by and on the
part of the said party of the second part, as for and in
consideration of the sum of Twenty-eight Thousand Six Hundred
and Eighty-eight ($28,688.00) Dollars, lawful money of the United
States of America, unto the said party of the first part will and
truly paid by the said party of the second part, the receipt of which
is hereby acknowledged, have granted, bargained, sold and
conveyed and by these presents do grant, bargain, sell and convey
unto the said party of the second part, its successors and assigns,
the surface or right of soil of the following pieces or parcels of
land, bounded and described as follows . . . .
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Deed at DB 87, P 452, with the Recorder of Deeds of Wayne County (1890
Deed).
The deed also includes the following language which pertains solely to
the disputed parcel:
Another of them[4] being the moiety or undivided one-half interest
(being the interest of the party of the first part) in the
surface of all that certain, piece or parcel of land situate partly in
the Township of Clinton, County of Wayne and State of
Pennsylvania and partly in the Township of Clifford, County of
Susquehanna and State of Pennsylvania . . . .[5] Being part of a
tract of land, an undivided one-half interest in which Anna
M. Olyphant by deed dated 28th May A.D. 1874, recorded in
the office for the recording of deeds [] in and for Wayne
county . . . conveyed to the president, mangers, and
company of the Delaware and Hudson Canal Company in
fee, as by reference thereto will more fully appear.
Id. at 463-65 (emphases added).
Finally, the deed the contains a clause reserving “all the coal and other
mineral” rights to the grantor, which states:
And the said party of the first part hereby except and reserve to
themselves their successors and assigns, all the coal and other
minerals under, in or upon each and every of the above described
parcels of land, together with the unrestricted right and privilege
of mining and removing the same, or any part thereof, and of
making, driving, using an occupying tunnels, passages and weighs
under the surface of said lands, for the purpose of mining and
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4 As mentioned previously, the right-of-way at issue in this case was one of
twenty conveyances made in the 1890 deed. The remaining nineteen
conveyances are not at issue in this case.
5 The conveyance also includes a lengthy description of the property’s
boundaries and geographical location. However, because the parties do not
dispute the description of the property, we need not restate it here.
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removing any coal or other minerals upon or from said lands, or
whom or from any lands adjoining or convenient there to at their
discretion as fully and entirely as if the said party of the first
part their successors or assigns remained the owners in fee
simple of said surface or right of soil.
Id. at 467 (emphasis added).
As noted previously, the trial court concluded that the 1890 deed was
ambiguous and that, therefore, it was necessary to consider the language in
the 1891 deed. Am. Trial Ct. Op., 7/21/21, at 13.
Following our review of the record, we find no basis to conclude that the
language in the 1890 deed was ambiguous. See PARC Holdings, Inc., 785
A.2d at 112. The granting clause clearly states the grantor’s intent to convey
the surface and soil rights for twenty parcels of land to the grantee. See Deed
at DB 87, P 452. With respect to the disputed property, the deed states that
the grantor acquired the parcel from its predecessor in title in fee, and that
it was the grantor’s intent to convey its ownership interest for that parcel to
the grantee. See id. at 463-65. Finally, the grantor included a provision
reserving its sub-surface rights to the property “as if the [grantor] remained
the owners in fee simple of said surface or right of soil.” Id. at 467 (emphasis
added).
Under these circumstances, we conclude that the 1890 deed is not
ambiguous,6 and that the trial court erred as a matter of law in considering
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6 We note that, even if the 1890 deed referred to the disputed property as a
“railroad right-of-way,” it would not have affected our conclusion. As our
(Footnote Continued Next Page)
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parol evidence when interpreting the 1890 deed. See Wright, 125 A.3d at
818-19; PARC Holdings, Inc., 785 A.2d at 112. Accordingly, we will confine
our review of Appellant’s remaining claims to the express language of the
1890 deed.
Linde Corporation’s Ownership Interest
Appellant argues that “the trial court erred as a matter of law when it
failed to analyze the 1890 [deed] under the standards set forth in
[Brookbank],” and erroneously concluded that the 1890 deed conveyed an
easement, rather than a fee interest. Appellant’s Brief at 23. In support,
Appellant emphasizes that the deed (1) “contains the strongest words of a
present conveyance . . . and identifies the interest conveyed as consisting of
parcels of land rather than a series of rights;” (2) includes habendum,
tenendum, and warranty clauses; and (3) did not contain a liability release or
include words that operate to limit fee title. Id. at 26, 28-31, 32. Appellant
also argues that the trial court erred in interpreting the conveyance of surface
rights as granting an easement. Id. at 52. Finally, Appellant concludes that
because the trial court erred in its interpretation of the 1890 deed, “[t]he trial
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Supreme Court noted in Brookbank, “[t]he interest acquired by a railroad
was unknown to the common law. This comparatively new interest in land is
without a technical legal name. Some of the early cases refer to it as an
easement, while later cases call it a base or conditional fee[.]” Brookbank
v. Benedum-Trees Oil Co., 131 A.2d 103, 111 n.23 (Pa. 1957) (citations
omitted). As such, “the vital thing . . . is not the name given to the estate
acquired by the railroad company,” but “the rights acquired. . . .” Id. (citation
omitted).
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court erred when it concluded that fee title to the Railroad Bed reverted to the
adjoining owners, the Franceskis, when the OCS [Railway] ceased use of the
railroad bed as a railroad.” Id. at 60.
A fee simple interest in land endures until the current holder dies without
heirs. See, e.g., Herr v. Herr, 57 A.2d 1280, 1285 (Pa. Super. 2008).
“Pennsylvania law recognizes three discrete estates in land: the surface
estate, the mineral estate, and the right to subjacent (surface) support.
Because these estates are severable, different owners may hold title to
separate and distinct estates in the same land.” Consolidation Coal Co. v.
White, 875 A.2d 318, 326 (Pa. Super. 2005) (citations omitted).
In contrast, an easement is “a right in the owner of one parcel of land
by reason of such ownership to use the land of another for a special purpose
not inconsistent with a general property in the owner.” Clements v. Sannuti,
51 A.2d 697, 698 (Pa. 1947) (citations omitted, formatting altered).
In Brookbank, our Supreme Court addressed a property owner’s claim
that the “railroad company had simply a ‘right of way’ across his land for
railroad purposes and, upon the cessation of its use for railroad purposes . . .
the land within the ‘right of way’ reverted to him as the present owner of the
fee.” Brookbank, 131 A.2d at 105-06 (footnote omitted). Initially, the
Brookbank Court explained that “[a]n examination of [the] agreement in its
entirety, including all its language,” was required to determine whether the
parties intended to convey a fee or an easement. Id. at 111. The Court then
identified several factors that may clarify the nature of the property conveyed:
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(1) the amount of consideration paid;7 (2) the operative words of conveyance
and whether they are past or present tense; (3) whether the deed references
a strip, parcel, or tract of land, as opposed to a right to use the land; (4) the
inclusion or omission of habendum,8 tenendum,9 and/or warranty clauses; and
(5) the rights given or retained. Id. at 108-11.
With respect to the words of conveyance, the Brookbank Court noted
that words “used in the past tense, do not, standing alone, compel an
interpretation that a fee was intended to be conveyed,” and that, although
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7 The Brookbank Court stated that “in the absence of any evidence as to
value” of the land at issue, “a finding that the consideration was inadequate
for conveyance of a fee simple title would be based on conjecture and
surmise.” Brookbank, 131 A.2d at 108. Therefore, the Court concluded that
the amount of consideration was “not reflective of the parties’ intent” under
the circumstances of that case. Id.
In the instant matter, the amount of consideration paid for the disputed
property is unclear, as it was only one of twenty parcels conveyed in the 1890
deed for a total sum of $28,688.00. Therefore, like the Court in Brookbank,
we conclude that the amount of consideration is not a deciding factor when
determining the parties’ intent in the instant case.
8 This Court has explained that “a habendum clause is the part of a deed that
defines the extent of the interest being granted and any conditions affecting
the grant.” Herr, 957 A.2d at 1286 (Pa. Super. 2008) (citations omitted,
some formatting altered).
9 “The tenendum clause is the clause wherein the tenure of the land is defined
and limited.” Newman & Co., Inc. v. City of Phila., 249 A.3d 1240, 1248
n. 13 (Pa. Cmwlth. Ct. 2021). While we acknowledge that Commonwealth
Court decisions are not binding upon this Court, we may refer to them for
instructive purposes. See Cunningham v. Cunningham, 182 A.3d 464, 471
n.1 (Pa. Super. 2018).
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present-tense language may convey a fee simple interest, those terms must
be read in the context of the agreement as a whole. Id. at 109.
Regarding the description of the property conveyed, the Brookbank
Court explained:
It is true that in other jurisdictions a judicial ‘yardstick’ has been
established by the application of which conveyances to railroads
granting or conveying a strip, parcel or tract of land are held to
pass a fee simple title whereas conveyances which grant or convey
a ‘right’ are held to pass only a limited estate.
Id. “However, this ‘yardstick’ is only applied in the absence of additional
language cutting down or limiting, directly or indirectly, the estate conveyed,
and is only applicable in this case as one of the factors to be considered in
attempting to determine the parties’ intent.” Id. (footnotes and emphasis
omitted).
Concerning the omission of habendum, tenendum, and warranty
clauses, the Brookbank Court stated: “It seems inconceivable that the
railroad would have omitted these clauses from an instrument of conveyance”
if they intended to receive a fee simple estate. Id. at 110.
Finally, the Brookbank Court noted that the deed conferred certain
rights on the grantee, such as “the right of entry, the right to use, construct,
maintain and operate a railroad, the right to use earth, stones and gravel to
grade and fill the roadbed[,]” all of which were “rights which naturally and
lawfully arise from ownership of land in fee simple. If the parties intended the
railroad to receive a fee in this land, this language would give it those rights
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which it already had.” Id. (footnote omitted). Therefore, the Court stated
that “[t]he only rational conclusion from this language is that the parties did
not intend to vest in the railroad any interest in fee simple; any other
construction does violence to the expressed grant of these rights to the
railroad.” Id.
Here, in contrast to the facts in Brookbank, the words “grant, bargain,
sell and convey” are used in both the past and present tense in the 1890 deed,
which refers to the grantor’s rights and the rights being conveyed to the
grantee. See Deed at DB 87, P 462 (stating that the grantor “has granted,
bargained, sold and conveyed and by these presents do grant, bargain, sell
and convey its successors and assigns, the surface or right of soil of the
following pieces or parcels of land, bounded and described as follows . . .”).
Further, the deed conveyed a specific parcel of land to the grantee, as opposed
to certain usage rights. See id.
The 1890 deed also contains a warranty clause, a habendum clause, and
a tenendum clause. The warranty clause states:
[The grantor], for themselves and their successors, do covenant,
promise and agree to and with the [the grantee], its successors
and assigns, . . . in the quiet and peaceable possession of [the
grantee], its successors and assigns, against all and every person
and persons whomsoever lawfully claiming or to claim the same,
by, from, through or under them, they shall and will warrant by
these presents forever defend.
Id. at 469.
The tenendum and habendum clauses state:
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Together with all and singular the tenements, hereditaments,
rights, privileges, and appurtenances, unto the said above
mentioned and described premises belonging, or in any wise
appertaining, and the reversion and reversions, remainder and
remainders, rents, issues, and profits thereof, and also, all the
estate, right, title, interest, property, possession, claim and
demand whatsoever, as well at law, as in equity, of the said party
of the first party, of, in and to the said above mentioned and
described premises, and every part and parcel thereof, with the
hereditaments and appurtenances (exception and reserving
however, as aforesaid).
* * *
To have and to hold the above granted, bargained and described
premises, and every part and parcel thereof, with the
hereditaments and appurtenances unto the said party of the
second part, its successors and assigns, to the sole and proper
use, benefit and behalf of the said party of the second part, its
successors and assigns forever. Subject, however, to the
aforesaid exceptions and reservations.
Id.
Based on our review of the record, we conclude that application of the
Brookbank factors clearly demonstrates that the 1890 deed conveyed a fee
simple interest in the property, rather than an easement. Specifically, we
note that the deed includes both past and present-tense conveyance
language, a warranty clause, a tenendum clause, and a habendum clause that
is consistent with the language in the granting clause. Additionally, the deed
does not contain a liability release, which would be inconsistent with the
conveyance of a fee simple title. Finally, the deed conveyed a parcel of land
to the grantee, rather than a usage right, and did not contain “language
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cutting down or limiting, directly or indirectly, the estate conveyed[.]”10 See
Brookbank, 131 A.2d at 109. Therefore, the trial court erred in concluding
that Linde Corporation had an easement in the disputed property, rather than
a fee simple interest.
Accordingly, we reverse the judgment entered in this matter, vacate the
order holding that Linde Corporation possessed an easement, and remand for
the trial court to enter an order clarifying that Appellees’ complaint is an
ejectment action11 and award Linde Corporation a fee simple interest in the
property.
Judgment reversed and order vacated. Case remanded with
instructions. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/13/2022
____________________________________________
10 As noted previously, the 1890 deed contained a clause in which the grantor
reserved “all the coal and other mineral” rights in the disputed property. See
Deed at DB 87, P 467. However, because the surface estate is distinct from
the mineral estate, the reservation clause does not affect our conclusion that
the grantor conveyed a fee interest in the disputed property to the grantee.
See Consolidation Coal Co., 875 A.2d at 326 (stating that because the
surface estate and mineral estate are severable, “different owners may hold
title to separate and distinct estates in the same land”) (citation omitted).
11 See Sutton, 592 A.2d at 89.
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