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


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  • J-A17016-22
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 1667 EDA 2021
    LINDE CORPORATION AND 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 Linde Corporation1 appeals from the judgment2 entered in this
    ____________________________________________
    *   Retired Senior Judge assigned to the Superior Court.
    1 Appellant conveyed an easement to Rail-Trail Council, which maintains a rail
    trail on the disputed property. Rail-Trail Council has filed a separate appeal,
    which has been docketed at 1681 EDA 2021.
    On December 3, 2021, Rail-Trail Council filed an unopposed motion to
    consolidate both cases. On December 10, 2021, this Court issued an order
    denying Rail-Trail Council’s motion without prejudice and explaining that, if
    the appeals were consolidated, Appellant and Rail-Trail Council would be
    limited to filing one consolidated brief. Appellant and Rail-Trail Council
    subsequently elected to file separate briefs and neither party renewed the
    motion for consolidation.
    2 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
    (Footnote Continued Next Page)
    J-A17016-22
    quiet title action filed by Joseph Franceski and Bernadette Franceski,
    Administratrix of the Estate of Michael Franceski (Appellees).            Appellant
    argues that the trial court erred in failing to dismiss Appellees’ quiet title action
    and concluding that Appellant had an easement in the disputed property,
    rather than a fee simple interest. 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
    the disputed property to OCS Railroad Company, in which case the disputed
    property belongs to Appellant as successor-in-title. However, if the 1890 deed
    granted OCS Railroad Company an easement, and Appellant subsequently
    abandoned the easement, then the disputed property belongs to Appellees.
    ____________________________________________
    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
    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.
    -2-
    J-A17016-22
    In 2019, Appellees filed an action to quiet title against Appellant and
    Rail-Trail Council. See Compl., 2/21/19, at 1-7. Therein, Appellees alleged
    that although the 1890 deed conveyed a property interest to Appellant’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 Rail-Trail Council to commence
    an action in ejectment; and (3) compel Appellant and Rail-Trail Council to
    admit the validity or invalidity of Appellees’ claim of ownership interest in the
    disputed property. Id. at 6.
    Appellant filed an answer and new matter in response. See Ans. and
    New Matter, 4/25/19, at 1-16. Therein, Appellant asserted that it was “in
    possession of the disputed property, together with [] Rail-Trail, which [had
    been] granted an easement by [Appellant] to maintain a rail trail.” Id. at 6.
    Further, Appellant 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. Both parties presented
    testimony from lay witnesses and expert witnesses in support of their
    respective positions.
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    At the conclusion of trial, the parties filed proposed findings of fact and
    conclusions of law.     Appellant reiterated that (1) Appellees were not in
    possession of the disputed land; (2) the 1890 deed clearly conveyed a fee
    simple interest to Appellant’s predecessor in title; and (3) because Appellant
    owned the disputed property in fee simple, Appellees had no ownership
    interest.
    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 Appellant’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 extinguished. Id. at 11-12.
    Appellant and Rail-Trail Council 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. Therein, the trial court explained that
    although Appellees did not establish actual possession, they 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
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    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:
    1. Did the trial court err as a matter of law in failing to dismiss
    [Appellees’] quiet title action and require [Appellees] to
    proceed with an action in ejectment when the trial court
    concluded that [Appellees] were not in possession of the
    railroad right-of-way and a plaintiff must be in possession of
    the real property in controversy in order to proceed with a quiet
    title action?
    2. Did the trial court err as a matter of law in relying upon a later
    1891 deed in determining the nature of the interest conveyed
    by an 1890 deed and in concluding that the exception clause in
    the 1891 deed indicates that the interest conveyed by the 1890
    deed is merely an easement when the 1890 deed is not
    ambiguous and the 1891 deed could not retroactively limit the
    fee interest conveyed by the 1890 deed?
    3. Did the trial court err as a matter of law in interpreting an 1890
    deed as granting the railroad company merely an easement
    over a railroad right-of-way and not a fee simple interest when
    the 1890 deed contains a granting clause that uses the words
    “grant, bargain, sell, and convey” in the present tense,
    contains a general warranty clause, a habendum clause, and a
    tenendum clause, does not limit the railroad company’s rights
    to constructing and operating a railroad, does not contain any
    language releasing the railroad company from liability, and
    excepts and reserves for the grantor the coal and right to mine
    it as though the grantor remained the owner in fee simple?
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    Appellant’s Brief at 4-5 (some formatting altered).
    Dismissal of Quiet Title Action
    In its first issue, Appellant argues that the trial court erred by granting
    Appellees relief on a quiet title action despite Appellees’ failure to establish
    that they had actual possession of the right-of-way. Id. at 36. Appellant
    contends “because [Appellant and Rail-Trail Council] were in undisputed
    physical possession of the [right-of-way], the correct procedure was for
    [Appellees] to seek ejectment and not quiet title.” Id. at 37. Accordingly,
    Appellant asserts that the court should have dismissed Appellees’ complaint
    and required Appellees to proceed with an action in ejectment. Id.
    Appellees concede that they did not have possession of the right-of-way
    at the time they filed the action to quiet title. Appellees’ Brief at 18. However,
    Appellees claim that they are nonetheless entitled to pursue a quiet title action
    under Pa.R.Civ.P. 1061(b)(2). Id. at 19.
    In reviewing Appellant’s claim, we are guided by the following principles:
    When reviewing an equitable decision, like a quiet-title action, our
    scope and standard of review are deferential. As this Court has
    explained, we will reverse only where the trial court was palpably
    erroneous, misapplied the law, or committed a manifest abuse of
    discretion. Where there are any apparently reasonable grounds
    for the trial court’s decision, we must affirm it. Moreover, the
    function of this Court on an appeal from an adjudication in equity
    is not to substitute our view for that of the lower tribunal; [we
    are] to determine whether a judicial mind, on due consideration
    of all the evidence, as a whole, could reasonably have reached the
    conclusion of that tribunal . . . . when reviewing the results of a
    non-jury trial, we are bound by the trial court’s findings of fact,
    unless those findings are not based on competent evidence.
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    Calisto v. Rodgers, 
    271 A.3d 877
    , 881 (Pa. Super. 2022) (en banc) (citation
    and footnote omitted, formatting altered).
    An action to quiet title may be brought either to compel an adverse party
    to commence an action of ejectment, or, where an action of ejectment will not
    lie, to determine the interest in a title in the land. See Pa.R.C.P. 1061(b)(1)-
    (2).
    Ordinarily, the plaintiff in an action to quiet title must be in
    possession of the land in controversy; if he is out of possession,
    his sole remedy is an action in ejectment. An action to quiet
    title may be brought only where an action in ejectment will not lie.
    Ejectment, being a possessory action, can be maintained if the
    plaintiff has a right to immediate possession with the concomitant
    right to demand that the defendant vacate the land.
    Plauchak v. Boling, 
    653 A.2d 671
    , 674 (Pa. Super. 1995) (citations omitted
    and emphasis added).
    “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)
    (citations omitted). “The purpose of an ejectment action as opposed to quiet
    title is not to determine the relative and respective rights of all potential title
    holders, but rather the immediate rights between plaintiff and defendant
    involved in that particular litigation.” 
    Id. at 1049-50
     (citations omitted). “The
    crux of an ejectment action, therefore, rests with the plaintiffs’ ability to
    identify, by a preponderance of the evidence, the boundaries of a parcel of
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    land to which they are out of possession but for which they maintain
    paramount title.” 
    Id. at 1050-51
     (citations omitted).
    This Court has explained that “[p]ermitting an out-of-possession
    plaintiff to maintain an action to quiet title is impermissible because it
    constitutes an enlargement of the plaintiff’s substantive rights as defined by
    statute, and thus exceeds the court’s jurisdiction to proceed.” Plauchak, 
    653 A.2d at 674
     (citation omitted). However, while it is procedurally improper for
    an out-of-possession plaintiff to commence an action to quiet title, this Court
    has stated that “[e]ven where a plaintiff mistakenly institutes an action to
    quiet title instead of an action in ejectment, the appropriate remedy is to
    permit the plaintiff to amend his or her pleadings to conform to the proper
    action.” 
    Id.
     (citation omitted); see also Moore v. Duran, 
    687 A.2d 822
    , 827
    (Pa. Super. 1996) (stating that “[t]his Court has previously determined that,
    even on appeal, we may amend the pleadings when necessary to conform to
    the proper form of action as established by the evidence” (citations omitted));
    Sutton v. Miller, 
    592 A.2d 83
    , 88–89 (Pa. Super. 1991) (holding 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).
    Here, because Appellees did not have actual possession of the disputed
    land, their sole remedy was an action in ejectment. See Plauchak, 
    653 A.2d at 674
    . As such, the trial court should have directed Appellees to amend the
    complaint accordingly. See id.; Sutton, 
    592 A.2d at
    88–89. In any event,
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    J-A17016-22
    Appellees’ failure to use the appropriate form of action is not fatal.    See
    Sutton, 
    592 A.2d at
    88–89. 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.; see also Moore, 
    687 A.2d at 827
    .
    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 54. In support, Appellant contends that the “1890 deed
    clearly and unambiguously grants and conveys an interest ‘in fee’” for the
    railroad right-of-way. 
    Id.
     Further, Appellant argues that although the trial
    court implied that the 1890 deed was ambiguous in its amended opinion, the
    court “failed to make any findings of fact regarding the alleged ambiguity, nor
    did the court “specify what language [it found] ambiguous.”         Id. at 30.
    Therefore, Appellant concludes that the trial court “should not have resorted
    to an examination of any evidence beyond the four corners of the deed in
    determining the intent of the parties.” Id. at 54.
    Appellees respond that the trial court found 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.”    Appellees’ Brief at 19-20.      Therefore, Appellees
    conclude that the trial court properly relied on the 1891 deed to determine
    the grantor’s intent. Id. at 23.
    When interpreting a deed, this Court has explained:
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    [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
    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
    - 10 -
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    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.
    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”).
    - 11 -
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    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 . . . .
    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[3] 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
    ____________________________________________
    3 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.
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    J-A17016-22
    Susquehanna and State of Pennsylvania . . . .[4] 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
    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
    ____________________________________________
    4  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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    J-A17016-22
    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,5 and that the trial court erred as a matter of law in considering
    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.
    ____________________________________________
    5 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
    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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    Appellant’s Ownership Interest
    Appellant argues that the trial court erred by “interpreting the 1890
    deed as granting the railroad company merely an easement over the railroad
    right-of-way and not a fee simple interest.”         Appellant’s Brief at 38.    In
    support, Appellant argues that (1) “the parties themselves referred to the
    interest conveyed as being a fee simple interest[,] and included words like
    ‘successors and assigns’ and ‘forever’ [which] clearly indicate the parties
    intent to convey a fee simple interest;” (2) “the Brookbank factors clearly
    indicate that the interest conveyed was a fee simple interest and not merely
    an easement;” (3) the description of the property as a “right-of-way” does not
    appear in the 1890 deed and could refer equally to both an easement and a
    fee interest; (4) the trial court erred in interpreting the term “surface” as
    granting an easement; (5) the trial court erred in concluding that the words
    “in fee” did not appear in the 1890 deed because the description for the right-
    of-way states that the grantor received it “in fee.” Id. at 39, 41, 48, 50, 52.
    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).
    - 15 -
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    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:
    (1) the amount of consideration paid;6 (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
    ____________________________________________
    6 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.
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    J-A17016-22
    inclusion or omission of habendum,7 tenendum,8 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
    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
    ____________________________________________
    7 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 (citations omitted and some formatting
    altered).
    8“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. 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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    J-A17016-22
    attempting to determine the parties’ intent.”     
    Id.
     (footnote 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
    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
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    J-A17016-22
    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:
    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.
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    J-A17016-22
    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
    cutting down or limiting, directly or indirectly, the estate conveyed[.]”9 See
    Brookbank, 131 A.2d at 109. Therefore, the trial court erred in concluding
    that Appellant 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
    ____________________________________________
    9 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)).
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    J-A17016-22
    ejectment action10 and award Linde Corporation a fee simple interest in the
    disputed property.
    Judgment     reversed    and    order      vacated.   Case   remanded   with
    instructions. Jurisdiction relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/13/2022
    ____________________________________________
    10   See Sutton, 
    592 A.2d at 89
    .
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