Good Will Hunting v. Shipman, J. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GOOD WILL HUNTING CLUB : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES R. SHIPMAN :
:
Appellant : No. 2057 MDA 2018
Appeal from the Judgment Entered January 29, 2019
In the Court of Common Pleas of Lycoming County Civil Division at
No(s): 16-0819
BEFORE: STABILE, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED FEBRUARY 18, 2020
James R. Shipman appeals from the judgment entered in this quiet title
action establishing a boundary line between the properties owned by Shipman
and Good Will Hunting Club (“Good Will”). Shipman argues the court erred in
excluding certain evidence, in crediting the report of Good Will’s expert
surveyor, and in concluding a boundary was established under the doctrine of
consentable line. We affirm.
Good Will acquired 300 acres of wooded land in 1949. Opinion and
Verdict, 6/13/18, at 1. Shipman acquired an adjoining parcel of wooded land
to the southwest of Good Will’s property in 1984. Id. at 1-2. Since the 1960s,
members of Good Will have marked what they believe to be the boundary
between the two properties by attaching “No Trespassing” or “Posted” signs
to trees in a line facing Shipman’s property (the “poster line”). Id. at 3-4.
Good Will members placed the signs 30 to 100 feet apart, approximately eight
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to ten feet from the line, along the entire line. Id. at 4. The prior owners of
Shipman’s property marked the same line using similar signs, often on the
same trees, facing the other direction. Id. at 4. After Shipman acquired the
property in 1984, and until 2012, he placed the same signs in the same places.
Id.
Good Will constructed a road adjacent to the northeast side of the poster
line in the 1970’s and extended it in the 1980’s. Id. at 4. Good Will has used
the road continuously since it was constructed. Id. Since the 1990’s, Good
Will has paid Shipman to do work on a portion of the road. Id. at 5. Sometime
after acquiring his property, Shipman constructed a road adjacent to the
southwest side of the poster line, which he has since used continuously. Id.
Good Will constructed two tree stands on the northeast side of the boundary,
and Shipman constructed three tree stands on the southwest side. Id.
In 2012, Shipman constructed an oil well on the southwest side of the
poster line. Id. He then began removing the posters, placed a barricade across
the road that Good Will constructed, and placed a “No Trespassing” sign in the
middle the road. Id.
Good Will brought an action to quiet title to determine the boundary line
between the two parcels. Prior to trial, Good Will filed a Motion in Limine to
preclude Shipman from introducing evidence related to a settlement offer.
Good Will asserted that in 2012, after Shipman blockaded its road, it retained
the services of Michael Maneval, a professional land surveyor, who initiated
discussions with Shipman’s counsel in an attempt to resolve the dispute.
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Motion in Limine, 8/3/17, at ¶ 2-3. Good Will sent Shipman a letter in January
2013, claiming Good Will owned and/or utilized two roads that Shipman had
blockaded, and offered to enter into a mutual boundary agreement in
exchange for a written right-of-way to use one of the roads. Id. at Ex. 1, 1-
2. In August 2013, Good Will sent another letter to Shipman, along with a
drawing by Maneval showing a proposed boundary line. Id. at ¶ 6-7. In the
letter, Good Will proposed the parties adopt the boundary line shown in
Maneval’s drawing, as it was “in the interests of both parties” to establish “a
clear boundary line between their respective parcels,” and to “prevent any
litigation regarding the rightful owner of the area in proximity to the boundary
line.” Id. at ¶ 7; Id. at Ex. 2.
Good Will asserted that because it had hired Maneval in order to secure
a settlement, the drawing showing his proposed boundary line and testimony
related to his proposed boundary line should be excluded under Pa.R.E.
408(a). Id. at ¶ 13-15. Good Will requested the court enter an order
prohibiting Shipman from introducing Maneval’s drawing, Maneval’s
testimony, and any testimony concerning Maneval’s opinions. Id. at ¶ 25.
Shipman did not file a written response to the Motion. The court held
argument on the Motion, but there is no transcript of the hearing in the
certified record. Following the hearing, the court granted the Motion. Its order
stated, “The motion is GRANTED. The drawing prepared by Mr. Maneval is
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clearly an offer to settle and thus precluded by Pa.R.E. 408(a).” See Order,
10/9/17.1
The court held a three-day bench trial. Good Will’s expert surveyor,
Richard Trowbridge, and Shipman’s expert surveyor, Daniel Vassallo, each
testified. Opinion and Verdict at 2. The court also considered Warrant 1672,
an 1860 deed, a 1901 survey, a 1915 deed, a 1923 deed, a 1924 deed, a
1989 survey, and a 2006 survey. Id. at 2-3. The court heard additional
testimony from Good Will’s president and two other club members; Shipman;
and three former guests of Shipman’s.
Good Will argued that the boundary, as established by Trowbridge’s
survey, was to the southwest of the poster line. Opinion and Verdict at 6.
Goodwill alternatively argued that the boundary was the poster line, under the
doctrine of “consentable line.” Id. Shipman argued that the boundary, as
established by Vassallo’s survey, was to the northeast of both the poster line
and the adjacent road Good Will had constructed. Id. at 11 n.8. Shipman
disagreed that a consentable line had been established by the poster line.
The court found Good Will’s expert surveyor had determined the proper
placement of the boundary line as set forth in the deeds. Opinion and Verdict
at 6-8. However, the court also found the parties had acquiesced to the
boundary being the poster line for at least 21 years, and thus the poster line
constituted the boundary under the doctrine of consentable line. Id. at 11-13.
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1 The order is dated October 5, 2017, but was filed on October 9.
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The court held that this latter boundary takes precedence, and declared the
poster line to be the boundary between the two properties. Id. at 13-14.
Shipman filed motions for post-trial relief. The court denied the
motions.2 Shipman appealed,3 and raises the following:
I. Was it reversible error to disallow [Shipman]’s presentation at
trial of the opinion of [Good Will]’s prior surveyor[,] Mr. Maneval?
II. Was it reversible error to declare that a “Consentable
Boundary” had been established?
III. Was it reversible error for the [c]ourt to rely on [a] purported
survey of [Shipman]’s property to determine [Good Will]’s
boundary[,] and was it error when doing so to prefer an angle
correction over a foot measure correction, and to consider and
rely on “monuments” that were not, however, referenced in any
deed and whose origin was unknown?
Shipman’s Br. at vi (reordered, suggested answers omitted).
I. Motion in Limine
Shipman argues that the court erred in excluding Maneval as a trial
witness. Shipman’s Br. at 8. Shipman alleges that Maneval had been Good
Will’s surveyor since 1995, prior to the instant dispute between the parties.
Id. According to Shipman, the January 2013 letter shows that the parties were
disputing Good Will’s use of the road at that time, not the boundary line, and
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2 The court held a hearing on the post-trial motions. The transcript is not in
the certified record.
3 Shipman prematurely appealed from the order denying post-trial relief. The
trial court has since entered judgment on the docket. Thus, Shipman’s appeal
has been perfected, and we have amended the caption accordingly. See
Pa.R.A.P. 905(a)(5).
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the letter proposes he give Good Will a written right-of-way to use the road,
proving that Good Will acknowledged his ownership of the road. Id. at 9.
Shipman asserts that Good Will did not claim to own the road until 2016. Id.
Shipman proposes that Maneval’s 2013 drawing predated the instant action,
and the exclusion of Maneval’s expert testimony relating to the ownership of
the land surrounding the road was extremely prejudicial.4
“Questions concerning the admissibility of evidence lie within the sound
discretion of the trial court[.]” Parr v. Ford Motor Co., 109 A.3d 682, 690
(Pa.Super. 2014) (en banc) (quoting Keystone Dedicated Logistics, LLC v.
JGB Enters., Inc., 77 A.3d 1, 11 (Pa.Super. 2013)). We therefore review the
grant or denial of a motion in limine for an abuse of discretion. Id. “An abuse
of discretion may not be found merely because an appellate court might have
reached a different conclusion, but requires a manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly
erroneous.” Id. (quoting Keystone, 77 A.3d at 11).
Rule 408(a) of the Pennsylvania Rules of Evidence states that evidence
of “offering . . . a valuable consideration in . . . attempting to compromise [a]
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4Shipman also argues the court erred in concluding, when deciding Shipman’s
post-trial motion on this issue, that Shipman had waived the issue of
admission of Maneval’s direct testimony by failing to attempt to introduce him
as a witness at trial. However, given that Good Will’s Motion in Limine
requested the exclusion of Maneval’s testimony in addition to the drawing,
and given that the pre-trial order of the court stated the Motion in Limine was
granted and did not expressly limit itself to excluding Maneval’s drawing, we
conclude that the court excluded Maneval’s direct testimony prior to trial, and
Shipman did not waive the issue by failing to re-raise it during trial.
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claim” is not admissible “either to prove or disprove the validity . . . of a
disputed claim or to impeach by a prior inconsistent statement or a
contradiction[.]” Pa.R.E. 408(a)(1). Here, both of the letters Good Will sent to
Shipman in 2013, which were attached as exhibits to Good Will’s Motion in
Limine, propose a compromise in determining ownership of the area
surrounding the poster line and use of the adjacent roads. These are subjects
at issue in the instant action, which arose from a dispute that began in 2012.
Good Will sent these letters, along with Maneval’s drawing, as an attempt to
settle the dispute and avoid litigation. Rule 408 clearly excludes this
evidence.5
Although Shipman alleges that Maneval acted as surveyor for Good Will
prior to this dispute, Shipman has failed to establish that any testimony by
Maneval or regarding his opinions would have been unrelated to a settlement
offer. In fact, as Shipman did not file a written response to the Motion in
Limine, and the transcript of the hearing on the Motion is not in the certified
record, Shipman has waived any argument that Maneval’s testimony would
have been unrelated to a settlement offer. We therefore conclude the court
did not abuse its discretion in disallowing the drawing and related testimony.6
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5 Shipman’s citation to Rafter v. Raymark Indus., Inc., 632 A.2d 897 (Pa.
Super. 1993), affords him no relief, as Rafter did not involve the exclusion of
testimony related to a pre-trial offer to settle, and is thus inapposite.
6 We note that given our disposition on Shipman’s second issue, the court’s
exclusion of Maneval’s testimony likely had no bearing on the outcome of the
case.
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II. Consentable Line
Shipman next argues the court erred in finding the poster line was the
boundary under the doctrine of consentable line. Shipmans’ Br. at 18-20.
We review a trial court’s decision in a quiet title action to determine
“whether the trial court’s findings are supported by competent evidence and
its decree in conformity with applicable law.” Moore v. Moore, 921 A.2d 1, 4
(Pa.Super. 2007). Where the trial court sits as fact-finder in determining the
placement of a boundary line, “we will not reverse on appeal unless the court’s
findings are not supported by credible evidence.” Schimp v. Allaman, 659
A.2d 1032, 1034 (Pa.Super. 1995). The trial court is the “sole assessor of
credibility,” and “may believe all, part or none of the evidence presented.” Id.Under the doctrine of consentable line, a boundary may be established
either by (1) “dispute and compromise between the parties,” or (2)
“recognition and acquiescence by one party of the right and title of the other.”
Moore, 921 A.2d at 4. The second of these, recognition and acquiescence, is
proven where “each party has claimed the land on his side of the line as his
own” and has “occupied the land on his side of the line for a continuous period
of 21 years.” Id. at 5. This doctrine “‘has long been recognized in
Pennsylvania’ to quiet title and discourage vexatious litigation.” Id. at 4(quoting Zeglin v. Gahagen, 812 A.2d 558, 561 (Pa. 2002)). Once
established, a consentable line takes precedence over a boundary line
specified by deed. Id. at 5.
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Here, the trial court relied on the following evidence in finding that both
parties recognized and acquiesced to the boundary established by the posters
for a period exceeding 21 years: the testimony of members of Good Will that
they considered the poster line the property’s boundary, and that they
respected that boundary by hunting, riding four-wheelers, and constructing
tree stands on their side of the line; the testimony of Shipman’s guest, who
testified that he stayed on Shipman’s side of the poster line when hunting;
testimony that Shipman placed tree stands and constructed a road adjacent
to the poster line on his side of the line; and testimony that Good Will
constructed a road adjacent to the poster line on its side of the line, and paid
Shipman to perform work on it. Opinion and Verdict at 11. The court found
Shipman’s testimony to the contrary to be incredible. Id. at 12. The facts upon
which the trial court relied is supported by competent record evidence, and
we defer to the trial court’s credibility determinations as fact-finder. Moore,
921 A.2d at 4; Schimp, 659 A.2d at 1034.
Furthermore, we find no merit to Shipman’s attempts to attack the legal
conclusions drawn by the trial court. First, Shipman argues the doctrine of
consentable line only applies where there is evidence of “active occupation”
up to the boundary line. Shipman’s Br. at 18. Shipman claims that here, the
posters were placed in “an area along a ridge on large unpopulated tracts,”
where there was no evidence of occupation. Id. at 18, 20.
Although the boundary ran through wooded land, there was evidence
that each party actively occupied the territory up to the poster line.
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“Occupation” in this context does not require “that activities be conducted on
the entire property[.]” Sorg v. Cunningham, 687 A.2d 846, 849, 850
(Pa.Super. 1997). Nor does “occupation” require exclusive possession.
Schimp, 659 A.2d at 1034. Occupation can be proven by such use as
maintaining the land or constructing an access road. See, e.g., Moore, 921
A.2d at 7 (concluding evidence sufficient to prove party established dominion
over disputed land by “paying taxes on it, maintaining an access road over it,
having it timbered, planting it, and later, disputing the activities of [another]
in treating the land as his own”); Schimp, 659 A.2d at 1034–35 (finding party
occupied its side of consentable line by growing crops, pasturing cattle, and
constructing track road). Here, the parties each constructed adjacent roads,
constructed tree stands, and engaged in hunting and other activities only on
their respective sides of the line. Thus, they occupied the land up to the line.
Second, Shipman argues the doctrine of consentable line only applies
where there is “active dispute or mutual uncertainty[,] coupled with a desire
to mutually resolve, permanently, that uncertainty.” Shipman’s Br. at 18.
Shipman argues there was no evidence of 21 years of an active disagreement
over the boundary line, as the dispute did not arise until 2012. Id. at 18, 20.
Shipman’s assertion that a consentable line can only be established in
the face of a 21-year dispute is not founded in the law. Rather, a consentable
line can be established through 21 years of recognition and acquiescence.
Moore, 921 A.2d at 4. “Acquiescence” in this context “denotes passive
conduct on the part of the lawful owner” and a failure “to assert his paramount
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rights or interests” against another’s use of his property. Id. at 5 (quoting
Zeglin, 812 A.2d at 562 n.5). The parties need not have disagreed and then
either specifically consented or expressly agreed to the location of the line.
Plauchak v. Boling, 653 A.2d 671, 676 (Pa.Super. 1995); Niles v. Fall
Creek Hunting Club, Inc., 545 A.2d 926, 931 (Pa.Super. 1988) (en banc).
In fact, a consentable line may be established where the parties simply
mistake the actual location of the property line. Zeglin, 812 A.2d at 562;
Niles, 545 A.2d at 931. Here, despite no express agreement that the poster
line constituted the boundary, the actions of the parties over a 21-year period
indicated their recognition of and acquiescence to utilizing the poster line as
the boundary.
Finally, Shipman argues that the “No Trespassing” signs were
insufficient to give rise to a consentable line. Id. at 18. Shipman argues that
the signs were not placed in a straight line, but were placed along “a long-
existing footpath that ran along the upper edge of a ridge.” Id. at 18, 20.
Shipman argues the posters were conveniently placed along the footpath as a
“general direction to avoid trespass.” Id. at 20. He states the actual boundary
was on the eastern side of the footpath, “along the side of the steep ridge,
and so it only made sense to notify hunters or other guests on the footpath
that further down, behind the signs, lay [Good Will’s] land[.]” Id. at 18-19.
Shipman points out that two of Good Will’s witnesses testified that some of
Shipman’s posters were well within the woods on the eastern side of the
boundary line, and that Good Will’s president testified that the posters
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“sometimes don’t actually reflect where the boundary line is.” Id. at 19 (citing
N.T., 2/14/18, at 117, 118).
Although the line here was marked only by posters, a consentable line
to which the parties acquiesce need not be marked by a fence or other
structure. Nor need any markings extend the entire length of the line. See,
e.g., Sorg at 848-50 (consentable line established by neighbors’ maintenance
of area up to row of pine trees, even though pine trees did not extend over
entire consentable line); Plauchak, 653 A.2d at 673, 676-77 (consentable
line established by neighbors’ maintaining yards and constructing structures
on respective sides of hedgerow); Niles, 545 A.2d at 927-28, 931 (finding
jury could have found consentable line established in “undeveloped
timberland” through evidence that trees along the line had been blazed and
painted, strung with a wire that was broken in places, and posted with “no
trespassing” signs). Regardless of Shipman’s beliefs about where the property
line should lie, and the reasons for the poster line and its location, the parties
observed the line marked by the posters for a period exceeding 21 years, and
thus a new boundary was established.
We find the court did not err in concluding the poster line constituted
the boundary between the properties under the doctrine of consentable line.
We therefore need not reach Shipman’s third issue, attacking the boundary
established by Good Will’s surveyor. Moore, 921 A.2d at 5.
Judgment affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/18/2020
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