Long Run Timber Company, LP v. DCNR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Long Run Timber Company, :
Limited Partnership, :
Petitioner :
:
v. : No. 2313 C.D. 2015
: Argued: June 6, 2016
Department of Conservation and :
Natural Resources, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION BY
JUDGE COHN JUBELIRER FILED: August 30, 2016
Long Run Timber Company, Limited Partnership (Company) petitions for
review of the Order of the State Board of Property (Board) that dismissed
Company’s Complaint to Quiet Title (Complaint) in which it sought a
determination regarding its right, title, and interest in approximately 56.97 acres in
Tioga County (Disputed Property). The Complaint also sought to preclude the
Commonwealth of Pennsylvania (Commonwealth), Department of Conservation
and Natural Resources (DCNR) from asserting any interest in the Disputed
Property.1 At issue here is the boundary line between tracts of land known as
1
The Complaint was filed pursuant to Section 1207 of The Administrative Code of 1929,
Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 337. Section 1207 provides, in pertinent
part, that “[t]he Board . . . shall . . . have jurisdiction to hear and determine cases involving the
(Continued…)
Warrant 1180, owned by DCNR, and Warrant 1179, owned by Company. Because
the Board accepted DCNR’s evidence as credible and rejected Company’s
evidence as not credible, it concluded that the boundary was located where DCNR
asserted; Company’s action to quiet title therefore failed and so the Board
dismissed the Complaint. On appeal, Company argues2 that: (1) the Board erred
in using a natural monument not described in the original patent and artificial
monuments associated with a subsequently conveyed property to identify the
location of the boundary line of the Disputed Property; (2) the Board’s
determination of the boundary line between Warrant 1179 and Warrant 1180 is not
supported by substantial evidence; and (3) the Board’s finding that there was no
settlement agreement between the Commonwealth and a prior record owner of
Company’s property that established a compromised boundary line (Compromise
Line) is not supported by substantial evidence. Although we conclude that the
Board did not err on the first two issues, we must vacate the Order and remand for
further proceedings for the Board to consider Company’s parol evidence regarding
the existence of a Compromise Line which it did not consider in its initial
determination.
I. Background
Company filed the Complaint on January 18, 2012, DCNR responded with
an Answer with New Matter, and Company filed its answer to the New Matter.
title to land or interest therein brought by persons who claim an interest in the title to lands
occupied or claimed by the Commonwealth.” Id.
2
Company raises five separate issues on appeal, which we have consolidated into these
three main issues.
2
Formal hearings were held before the Board in February 2015.3 At the hearings,
Company presented documentary evidence and the testimony of its general partner,
Robert Sher, and professional land surveyor K. Robert Cunningham, PLS (P.S.
Cunningham), whom Company offered as an expert witness. DCNR presented
documentary evidence and its own expert witnesses, Rodger O. Cook, PLS (P.S.
Cook) and Justin J. Daubert, PLS (P.S. Daubert). The documentary evidence
included the original Patents for Warrant 1179 and Warrant 1180,4 a current survey
by P.S. Cunningham and five historical surveys of Warrant 1179 and Warrant
1180, deeds, current and historic maps, computer-aided design (CAD) calculations
and drawings, tax records, photographs, and surveyors’ notes. From that evidence,
the Board found the following facts.
Warrants were issued to Charles Willing on April 21, 1792 for adjacent,
rectangular parcels of land of approximately 1,100 acres each in what became
Tioga County. Both Warrant 1179 and Warrant 1180, which share a north/south
border, were surveyed by James Ellis (Surveyor Ellis) in June 1793. These surveys
(Ellis Surveys) showed that each parcel was “432 perches along the east/west axis
and 431 ½ perches along the north/south axis, and the common boundary was
3
At the time of the hearings, the Board consisted of Chairperson Karen L. Cummings,
Esq., Christopher C. Houston, Esq., and Gretchen S. Wisehart, Esq. (Final Adjudication at 1.)
Following the hearings but prior to deliberation, Mr. Houston was replaced by Arthur F.
McNulty, Esq., who became the designee of the Secretary of Community and Economic
Development. (Id. at 1 n.1) Following the hearings and the deliberation but prior to the Board
making its Final Adjudication, Ms. Wisehart was replaced by Tyrone A. Powell, Esq., who
became the designee of the General Counsel. (Id. at 1 n.2.) Both Mr. McNulty and Mr. Powell
reviewed the entire record prior to their participation in issuing the Final Adjudication in this
matter. (Id. at 1 nn.1-2.)
4
This Court set forth a detailed history of the use of land patents in Pennsylvania in
Dutch Corner Historical Soc’y v. Stahl, 78 A.3d 1201, 1202-03 (Pa. Cmwlth. 2013).
3
marked by a birch tree to the west and a beech tree to the east.”5 (Final
Adjudication, Findings of Fact (FOF) ¶ 4.) In his accompanying drawing,
Surveyor Ellis identified “a waterway crossing the western side of Warrant 1179
very close to the northwest corner.” (Id. ¶ 5; R.R. at 719a.) The Ellis Surveys
were not returned to the land office until March 1806. Mr. Willing transferred
Warrant 1179 and Warrant 1180 to William Bingham, who owned significant
amounts of surrounding real estate, in July 1793. Mr. Bingham died in 1804, and
the Bingham Estate became the common owner of Warrant 1179 and Warrant
1180. (FOF ¶¶ 6-7.) The Bingham Estate received the Patents for Warrant 1179
on May 26, 1806, and for Warrant 1180 on May 26, 1807. The Patent for Warrant
1179 does not reference any waterways in describing the property, but does refer to
various trees at the corners of the property, courses from each of those trees, and
that Warrant 1179 runs “thence by land of John Barron.” (R.R. at 724a.)
The Bingham Estate proceeded to convey various portions of Warrant 1180
and Warrant 1179, including approximately 48.5 acres, identified as Lot 67, to
Martin Repherd by deed dated June 1, 1850 (Repherd Tract). (FOF ¶ 8; R.R. at
727a.) Various maps show the Repherd Tract straddling Warrant 1179 and
Warrant 1180. (Id. ¶ 29; R.R. at 731a, 760a, 1043a, 1123a, 1125a, 1322a, 1362a,
1366a-67a, 1459a.) Thereafter, on December 28, 1875, the Bingham Estate
conveyed land, including the unsold remainder of Warrant 1180, to the Blossburg
Coal Company (Blossburg) without performing a survey. (FOF ¶¶ 10-11.) The
deed to Blossburg (Blossburg Deed) referenced the Repherd Tract as abutting
Warrant 1180’s southern border on its eastern and western borders. (Id.; R.R. at
5
A “perch” or “rod” is a linear unit of measure that is equal to 16.5 feet. (Final
Adjudication at 2 n.3.)
4
918a.) Blossburg transferred its interests in Warrant 1179 and Warrant 1180 to the
Commonwealth by deed dated November 10, 1954, and recorded November 12,
1954. (FOF ¶ 12; R.R. at 957a, 965a.) Prior to the sale, in October 1952, Allen R.
Fine, Jr. (Surveyor Fine) surveyed the area at the direction of John C. Rex, P.E.
(Fine Survey). (FOF ¶¶ 13, 16.) The Fine Survey supports the finding “that the
northern edge of the disputed area constitutes the boundary between Warrant 1180
and Warrant 1179, because [Surveyor Fine] found stone piles at the endpoints of
this line consistent with the corners of the . . . Repherd [Tract] and property to the
east of that lot.” (Id. ¶ 13.) In particular, Surveyor Fine “found a stone pile
marking the northern-western corner of the . . . Repherd [Tract] approximately 50
rods north of a stone pile he found marking the boundary between Warrants 1180
and 1179 [that] abutted against the western side of the . . . Repherd [Tract], and he
found a stone pile along that same line at the eastern side of the . . . Repherd
[Tract].” (Id. ¶ 14.) The Fine Survey also “shows a waterway crossing the western
boundary of Warrant 1179 . . . near [its] northwest corner.” (Id. ¶ 15.)
The Bingham Estate conveyed, without a survey, the unsold portions of
Warrant 1179 to William, Oliver and Mark Hoyt (the Hoyts) on June 23, 1882.
(Id. ¶¶ 17-18.) This deed (Hoyt Deed) likewise mentioned the Repherd Tract in
relation to the southern border of Warrant 1180. (Id. ¶ 17; R.R. at 729a.) Through
various deeds and tax sales between 1893 and 2001, these portions of Warrant
1179 were conveyed to multiple, successive owners, with Company eventually
purchasing the land in 2001. (FOF ¶¶ 19-28, 38-40, 44.) The deeds continued to
reference the southern line of Warrant 1180 abutting the Repherd Tract. (Id. ¶¶ 21,
24, 26-28.) At one point, in August of 1952, the owner of Warrant 1179 conveyed
a portion of property along its southern edge to an adjoining landowner to form a
5
consented boundary. (FOF ¶ 37.) In 1969, the Commonwealth and the owner of
Warrant 1179 at the time, L.G. Niles Lumber Company (Niles), discussed a
possible compromise line that would run diagonally from the upper left to the
lower right of the Disputed Property. (Id. ¶ 45.) There was no deed executed and
recorded reflecting that a settlement was reached and that land was transferred, but
the alleged compromise line did appear in the Township’s Tax Map, and the tax
card for Mr. Niles suggested that a reduction of property had occurred. (Id.; R.R.
at 1321a-22a.) Further, photographs were offered at the hearings that showed
white paint marks or blazes on trees and rocks that would have been consistent
with the Compromise Line asserted by Company. (R.R. at 1170a-1205a.)
In addition to the Ellis Surveys and Fine Survey, surveys of the area were
performed in: 1910 by L.M. Otto, Jr. (Otto Survey); 1952 by Tom O. Bietsch
(Bietsch Survey); 1998 by Boyer Kantz, PLS (Kantz Survey) (of the southern
boundary of Warrant 1179); and 2004 by P.S. Cunningham (Cunningham Survey).
(FOF ¶¶ 22-23, 31-36, 41-43, 49-52.) All the surveys, except the Bietsch Survey
and the Cunningham Survey, show a waterway crossing the western border of
Warrant 1179 near its northwestern border and reference the stone piles along the
Repherd Tract at the southern boundary of Warrant 1180. (Id. ¶¶ 5, 15, 23, 42, 48.)
In contrast, the Bietsch Survey shows the water crossing significantly south of the
northwestern border of Warrant 1179, the Cunningham Survey does not show a
waterway crossing Warrant 1179 at all, and neither survey references the Repherd
Tract. (Id. ¶¶ 33, 36, 51-52; R.R. at 804a, 1043a.) After counsel for the owner of
Warrant 1179 in 1952 could not “locate . . . a definite point whereby [Surveyor
Bietsch] would be able to fix the Northern line of Warrant . . . 1179,” Surveyor
Bietsch placed the northern line 431 ½ perches/rods “north of the identified
6
southern line without any reference to the . . . Repherd [Tract] and showed this
boundary of [Warrant 1179] as a single straight line.” (FOF ¶¶ 32-33.) The
Cunningham Survey relied on the Bietsch Survey. Mr. Sher presented CAD
calculations that showed the waterway crossing Warrant 1179’s western border
south of the Disputed Property and significantly south of the northern boundary of
Warrant 1179. (Id. ¶ 48; R.R. at 916a.)
The experts testified as follows. P.S. Cunningham testified, based on his
survey, the Bietsch Survey, and other evidence, that the boundary between Warrant
1179 and Warrant 1180 was at the northern part of the Disputed Property and,
therefore, the entire Disputed Property belonged to Company. (R.R. at 340a-52a,
360a.) P.S. Cunningham further questioned aspects of the Otto Survey and Fine
Survey. (R.R. at 367a-69a.) DCNR’s director of field engineering, P.S. Cook,
testified that he had advised Company’s prior counsel that, based on the
monumentation identified in the Fine Survey and not the inconsistent Bietsch
Survey, DCNR considered Company’s actions an encroachment on
Commonwealth property. (FOF ¶ 53.) P.S. Cook opined that the Otto Survey and
Fine Survey were consistent with the Ellis Surveys and the physical features of the
land, based on data collected by the Bingham Estate. (Id. ¶ 54.) Accordingly, P.S.
Cook considered the boundary between Warrant 1179 and Warrant 1180 to be the
more southern line identified by Mr. Sher and P.S. Cunningham, which meant that
the Disputed Property is owned by DCNR. P.S. Cook explained that P.S.
Cunningham “placed the southern boundary of Warrant 1179 too far north, thereby
pushing” Warrant 1179’s northern boundary too far north and encroaching on
Warrant 1180. (Id. ¶ 55; R.R. at 502a.) DCNR also presented the testimony of
P.S. Daubert, who opined, using various surveys and survey notes, that the
7
Disputed Property was located within Warrant 1180 and belonged to DCNR. (R.R.
at 648a-49a.)
After reviewing the entire record, the Board rejected the Bietsch Survey as
not credible because Mr. Bietsch could not obtain any assistance from the deeds
provided to find the dividing line, placed the northern line simply based upon a
measurement from a southern line, did not reference the Repherd Tract, ignored
the Repherd Tract by drawing the northern boundary of Warrant 1179 as a straight
line, did not reflect any stones on the boundary line (unlike the other surveys), and
placed the waterway crossing significantly farther south on Warrant 1179’s
western border than the other surveys. (Final Adjudication at 12-13.) The Board
further noted that Surveyor Bietsch had also “overlooked considerable evidence in
running lines in the disputed area.” (Id. at 13.) The Board similarly rejected P.S.
Cunningham’s opinion, which relied on the Bietsch Survey for its starting point, as
not credible because he “notes that the western end of the southern boundary of
the [D]isputed [Property] is marked by an existing stone pile.” (Id. (emphasis in
original).) The Board further cited the facts that P.S. Cunningham’s survey did not
reference any waterway crossing the northwest corner of Warrant 1179 and that
P.S. Cunningham’s aerial photograph has the waterway crossing south of the
southern boundary of the Disputed Property and significantly south of the northern
boundary. (Id.; R.R. at 1043a, 1358a.) The Board concluded that “[t]hese facts are
inconsistent with placing the dividing line on the northern boundary of the
[D]isputed [Property], as [P.S.] Cunningham has opined is the correct line.” (Final
Adjudication at 13.) The Board credited the Otto Survey and Fine Survey as being
consistent with the Ellis Surveys, based on the location of the waterway crossing
Warrant 1179 and the contemporaneous Bingham Estate maps. (Id. at 13-14.) The
8
Board also noted that the stone piles marking various lines on the Repherd Tract
were consistent with the boundary line. (Id. at 13.) Because P.S. Cook’s opinion
was based on the Ellis Surveys, Otto Survey, Fine Survey, and the Bingham Estate
maps and data, the Board found it more credible. (Id. at 14.)
The Board then reviewed what it considered the relevant deeds, which were
the deeds conveying the various properties from the Bingham Estate, the common
grantor, to Blossburg and the Hoyts. Citing Baker v. Roslyn Swim Club, 213 A.2d
145, 149 (Pa. Super. 1965), the Board recognized that natural and artificial
monuments6 normally take precedence over record monuments, such as the
boundary of an adjoining property. (Id. at 14-15.) However, the Board observed
that neither the 1875 Blossburg Deed nor the 1882 Hoyt Deed identified any
natural or artificial monument that can be found but do reference a common
adjoiner, the Repherd Tract. (Id. at 14.) Like the Blossburg Deed and Hoyt Deed,
the Repherd Tract deed (Repherd Deed) did not identify a natural or artificial
monument that could be found, but in the years after it had been deeded, the
Repherd Tract became well identified, and the Blossburg Deed and Hoyt Deed
directly refer to and specify distances along the boundary that are consistent with
the Repherd Deed. (Id.) The Board concluded that, because the stone piles, which
are considered artificial monuments, found where the boundary between Warrant
1179 and Warrant 1180 crosses the Repherd Tract are consistent with the courses
and distances cited in the Blossburg Deed and Hoyt Deed, the stone piles marked
the appropriate boundary line between Warrant 1179 and Warrant 1180. (Id. at
15.) This line represents the southern boundary line of the Disputed Property.
6
Monuments are visible markers or indications left on natural or other objects indicating
the line of a survey. Grier v. Pa. Coal Co., 18 A. 480, 482 (Pa. 1889).
9
(Id.) The Board rejected Company’s arguments that the northern boundary line
was correct because those arguments were based on the courses and distance from
the southern border of Warrant 1179, and the monuments took precedence over the
courses and distances. (Id.) Further, the Board noted that the southern boundary
of Warrant 1179 had been disputed and subject to consented lines and, therefore,
the Board did not accept that the current southern boundary of Warrant 1179 was
the original southern boundary. (Id. at 16.) Finally, the Board held that there was
no evidence that the Commonwealth ever entered into a settlement agreement with
Mr. Niles to accept the Compromise Line and, therefore, it could not enforce that
agreement and give a part of the Disputed Property to Company. (Id.) For these
reasons, the Board dismissed Company’s Complaint seeking to quiet title in the
Disputed Property. Company now petitions this Court for Review.7
II. Discussion
A. Whether the Board erred in using a natural monument not referenced
in the original Patent and artificial monuments associated with a
7
“Our scope of review, as statutorily mandated, requires us to affirm the Board’s
adjudication unless the adjudication is in violation of the petitioners’ constitutional rights, or it is
not in accordance with law, or if any finding of fact made by the Board and necessary to support
its adjudication is not supported by substantial evidence.” Northrup v. Pa. Game Comm’n, 458
A.2d 308, 309 (Pa. Cmwlth. 1983). However, we exercise de novo review over questions of law.
Mercury Trucking, Inc. v. Pa. Pub. Util. Comm’n, 55 A.3d 1056, 1082 (Pa. 2013). Where this
Court reviews the record to determine whether substantial evidence exists to support the
findings, we must review the evidence in the light most favorable to the prevailing party. Adams
Outdoor Adver., Ltd. v. Dep’t of Transp., 860 A.2d 600, 605 n.8 (Pa. Cmwlth. 2004).
“[S]ubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. “It is irrelevant whether the record contains evidence to support
findings other than those made by the fact-finder; the critical inquiry is whether there is evidence
to support the findings actually made.” Ductmate Indus., Inc. v. Unemployment Comp. Bd. of
Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008).
10
subsequently conveyed property to identify the location of the
boundary line of the Disputed Property.
Company first argues that the Board erred in relying on the location of the
waterway crossing and the stone piles associated with the Repherd Tract to
ascertain the location of the boundary between Warrant 1179 and Warrant 1180,
where the stone piles and waterway crossing were not referenced in any deeds or in
the Ellis Surveys. According to Company, if there is no conflict in the calls of the
deed, here the Patents, there is no need to choose one call over the other. Pencil v.
Buchart, 551 A.2d 302, 307 (Pa. Super. 1988) (citing cases that applied the general
rules of hierarchy where there are “conflicts between acreage or courses and
distances and monuments recognized or described in the deed”). Moreover, it
asserts that the general rule of hierarchy of calls, i.e., natural monuments, artificial
monuments, adjacent boundaries, and then course and distances, will yield if its
use would be inconsistent with the intention of the parties establishing the
boundaries. Id. at 306. Company maintains that there is no inconsistency in the
calls in the Patents, which are the monuments, distances, acreage, and adjoiner
with John Barron warrants to the south of Warrant 1179. Rather, Company claims
that the problem is that the original monuments set forth in the Patents for the
boundary between Warrant 1179 and Warrant 1180, the trees on the corners, no
longer exist. Thus, the Board should have used the courses and distances, based on
the clearly established northern boundary of the John Barron warrants (which is the
southern boundary of Warrant 1179) as the starting point, to find that Warrant
1179’s boundary with Warrant 1180 was the northern boundary of the Disputed
Property, as opined by P.S. Cunningham. Company argues that the Board’s
finding that it could not use the current southern boundary of Warrant 1179, as
11
used by Surveyor Bietsch and P.S. Cunningham, because it had been subject to
historical disputes is not supported by substantial evidence.
DCNR responds that the Board did not err in relying on the natural
monument (the waterway crossing), the artificial monuments (the stone piles on
the adjoining Repherd Tract), and the common adjoining property (the Repherd
Tract) to find that the boundary between Warrant 1179 and Warrant 1180 was the
southern boundary of the Disputed Property. According to DCNR, the waterway
crossing was reflected in the original Ellis Surveys, in the survey notes of the
Bingham Estate, and in the Otto Survey. (R.R. at 685a-86a, 1362a, 1459a, 1466a.)
Further, P.S. Daubert’s testimony and exhibits, which relied on both the Bingham
Estate survey notes and the Otto Survey, support the Board’s boundary
determination. That testimony also demonstrated how the Bietsch Survey and
Cunningham Survey were inconsistent with the natural and artificial monuments,
as described in the Bingham Estate survey notes. Finally, DCNR asserts that the
Board’s decision not to rely on the current southern boundary of Warrant 1179 as
the starting point to measure the 431 ½ perches north to find the northern boundary
of Warrant 1179, which is the Disputed Property’s boundary with Warrant 1180, is
supported by the testimony of P.S. Daubert and P.S. Cook indicating that there was
an encroachment of the original southern boundary of Warrant 1179 by the owners
of Warrant 1968, located directly south and adjoining Warrant 1179. Such
encroachment was depicted as early as the Otto Survey in 1910 and observed in
subsequent survey maps, as well as in other documents.
In an action to quiet title, the plaintiff (here, the Company) bears the burden
of proof to establish title by a fair preponderance of the evidence. Kaiser Energy,
Inc. v. Com., Dep’t of Envtl. Res., 535 A.2d 1255, 1257-59 (Pa. Cmwlth. 1988).
12
“Moreover, whether the matter sounds in ejectment or quiet title, the moving party
must recover on the strength of its own title and not upon the weakness of the
Commonwealth’s.” Id. at 1257.
In boundary dispute matters, the purpose of the adjudicator “is to ascertain
the intent of the grantor at the time of the original subdivision.” Pencil, 551 A.2d
at 305-06. The general rule provides that “[w]here the calls for the location of
boundaries to land are inconsistent, other things being equal, resort is to be had
first to natural objects or landmarks, next to artificial monuments, then to adjacent
boundaries (which are considered a sort of monument), and thereafter to courses
and distances.” Baker, 213 A.2d at 149 (emphasis omitted). “[W]here there is a
conflict between courses and distances or quantity of land and natural or artificial
monuments, the monuments prevail.” Pencil, 551 A.2d at 306. However, the rules
of construction with regard to boundaries “[are] not . . . imperative or exclusive”
but are aids in construction “to ascertain, or to aid in determining, the intention of
the parties” that must yield to a contrary showing. Stark v. Equitable Gas Co.,
LLC, 116 A.3d 760, 765 n.7 (Pa. Cmwlth. 2015) (citing Baker, 213 A.2d at 149).
Thus, these rules do not apply “where the monument claimed is so manifestly
wrong as to lead to an absurd result.” Post v. Wilkes-Barre Connecting R.R. Co.,
133 A. 377, 378 (Pa. 1926); Stark, 116 A.3d at 765 n.7. Monuments not
mentioned in a deed may be utilized if “said monuments are afterward erected by
the parties with intent to conform to the deed.” Pencil, 551 A.2d at 306 (internal
quotation omitted). Nevertheless, if “the monuments are doubtful, a resort will be
had to the courses, distances, and quantity.” Post, 133 A. at 378. “Before a
physical monument is accepted as a boundary line, there must be evidence other
than its mere existence that the monument was intended for that purpose” which
13
may be shown if it is mentioned in deeds related to the chain of title or there is
“evidence that any past parties erected it as a monument to mark the boundary.”
Pencil, 551 A.2d at 307. These general rules will yield “‘where, in any given case,
a consideration of all the facts and circumstances shows’” that one method would
“‘be the more reliable or certain.’” Stark, 116 A.3d at 765 n.7 (quoting Baker, 213
A.2d at 149). Questions regarding the location of boundaries are a question of fact
for the fact-finder. Baker, 213 A.2d at 148.
We first address Company’s contention that, pursuant to the Patent, the
Board should have used the current, identified southern boundary of Warrant 1179,
cited by P.S. Cunningham, as the original southern boundary, which would make it
the northern boundary of the John Barron warrant, and result in Company being
the owner of the Disputed Property. We have carefully reviewed the record, and
the surveys, maps, and testimony which the Board credited, support the Board’s
finding that the southern boundary of Warrant 1179 had been encroached upon and
subject to a compromise. (R.R. at 461a-63a, 687a-90a, 694a-95a, 804a, 1362a,
1459a, 1475a.) The Board could therefore find that the current southern boundary
of Warrant 1179 is an unreliable place from which to ascertain the northern
boundary of Warrant 1179 at issue in this matter. Moreover, to the extent that the
use of the more northerly boundary proposed by DCNR would result in Warrant
1179 being smaller in acreage than Warrant 1180, that result likewise could be the
result of the encroachment and compromise of the original southern boundary of
Warrant 1179. Thus, none of the Patents’ calls were of assistance in ascertaining
the boundary between Warrant 1179 and Warrant 1180.
The Board relied on the Blossburg Deed and Hoyt Deed for assistance in
ascertaining the intent of the grantor at the time of the original subdivision. Pencil,
14
551 A.2d at 305-06. Both deeds mention the prior common adjoiner, the Repherd
Tract, as do the subsequent deeds transferring those properties. The fact that the
stone pile monuments were not mentioned in the original deeds is not dispositive,
id. at 307, as it appears from the credited evidence that several stone piles were
erected that correspond with the calls and distance in the Repherd Deed, as well as
numerous other deeds that followed which conveyed Warrant 1179 and Warrant
1180. In addition, although the waterway crossing is not expressly mentioned as a
natural monument in the Patent for Warrant 1179 or in Surveyor Ellis’ written
survey, its location is identified in Surveyor Ellis’ drawing accompanying his
survey, subsequent surveys, and survey notes of Warrant 1179 that show, among
other things, the various natural features of the land being surveyed in conjunction
with the land’s boundaries. As noted by the Board, the waterway crossing’s
location as being near the northwest corner of Warrant 1179 is consistent
throughout the surveys, survey drawings, and survey notes, with the exception of
the Bietsch Survey and Cunningham Survey. The location of the boundary is a
question of fact for the Board, Baker, 213 A.2d at 148, and the Board weighed the
evidence of the consistency of the identification of the waterway crossing and the
references to the Repherd Tract in the surveys, survey drawings, survey notes, and
deeds against P.S. Bietsch’s and P.S. Cunningham’s use of the compromised
southern boundary of Warrant 1179 and determined that the former was worthy of
more weight and credibility. Viewing the evidence in the light most favorable to
DCNR as the prevailing party, Adams Outdoor Advertising, Ltd. v. Department of
Transportation, 860 A.2d 600, 605 n.8 (Pa. Cmwlth. 2004), the Board’s
determination is supported by substantial evidence. Thus, given the consistency of
the credited evidence relied upon the Board, “the monument[s] claimed [by DCNR
15
and the Board are not] so manifestly wrong as to lead to an absurd result.” Post,
133 A. at 378.
B. Whether the Board’s determination of the boundary between Warrant
1179 and Warrant 1180 is supported by substantial evidence.
Company asserts multiple reasons why the Board’s findings are not
supported by substantial evidence. According to Company, the Board erred or
abused its discretion in: (1) relying on the waterway crossing, the location of the
Repherd Tract, and the Fine Survey because this evidence does not constitute
substantial evidence when reviewed; (2) relying on hearsay statements regarding
the Bietsch Survey to reject that survey; and (3) by making credibility
determinations regarding P.S. Cunningham’s testimony where two of the three
Board members were not present during his live testimony. We address each
argument in turn.
1. Whether the location of the waterway crossing Warrant
1179 and location of the Repherd Tract constitute
substantial evidence to support the Board’s findings.
Company asserts that the Board’s reliance upon the location of the waterway
crossing is not supported by substantial evidence because, in addition to it not
being mentioned in the Patent, there is no indication that Surveyor Ellis intended it
to be a monument and various reproductions of the drawings show the waterway
crossing at slightly varied locations on northwestern boundary of Warrant 1179.
(R.R. at 719a, 1324a-25a.) It further argues that the Board also should not have
relied upon the location of the Repherd Tract to ascertain the location of the
boundary because the Repherd Deed did not reference stone piles, trees, or
monuments, there was no definitive evidence showing that the Repherd Tract was
located in both Warrant 1179 and Warrant 1180, and did not change the length of
16
the western boundaries of Warrant 1179 and Warrant 1180. Company challenges
the Fine Survey and its reliance on the stone piles because such piles were not
mentioned in the Repherd Deed and Surveyor Fine, himself, built and witnessed
one of the stone piles, thereby creating one of the corners of the Repherd Tract. It
further asserts that, contrary to the Board’s findings, the distances did not comport
with those in the subsequent deeds and that the Otto Survey, and other surveys,
relied upon by the Board are flawed.
DCNR maintains that the Board’s credibility and evidentiary weight
determinations are not subject to review on appeal and that it relied upon prior
relevant surveys and associated credible testimony of DCNR’s expert witnesses to
make its determination as to the location of the boundary between Warrant 1179
and Warrant 1180. Here, the Board chose to credit and give more weight to the
surveys of Surveyor Ellis, Surveyor Otto, Surveyor Fine, and the testimony of
Surveyor Cook, and that evidence supports the Board’s findings. Notably,
Surveyor Otto noted in his survey that there was an “Old Birch Stump” on the
northwest corner of Warrant 1179 and southwest corner of Warrant 1180, which
was the type of tree referenced in the Patent, as well as in the Hoyt Deed, as being
in that corner. (R.R. at 729a-31a, 956a-88a, 1362a-68a.) Like the Ellis Surveys,
the Otto Survey visibly references the waterway crossing; thus, the Otto Survey is
consistent with the Ellis Surveys. (R.R. at 389a-90a.) The Otto Survey also
references the Repherd Tract, and that he found “posts & stones” along that tract
consistent with the measurements in the Repherd Deed and placed the boundary of
Warrant 1179 and Warrant 1180 where the Board ultimately found it to be. (R.R.
at 1362a.) Such monuments and measurements were consistently mentioned or
identified in the subsequent surveys and deeds, with the exception of the Bietsch
17
Survey and Cunningham Survey. This boundary is consistent with the subsequent
deeds conveying Warrant 1179, as well as P.S. Cook’s 2005 letter to Company
regarding the Disputed Property. (R.R. at 431a, 763a-75a, 1373a-74a.)
Initially, we observe that Company made these evidentiary challenges
regarding the accuracy of the depictions of the waterway crossing and Repherd
Tract to the Board, the Board weighed the conflicting evidence, and the Board
gave DCNR’s evidence more weight and credibility than Company’s evidence. To
the extent that the maps show the waterway crossing at slightly varied locations on
the northwestern corner of Warrant 1179, these variations are minimal, Surveyor
Bietsch placed the location significantly farther south on Warrant 1179’s western
border than the other surveys, and P.S. Cunningham did not include the waterway
crossing in his survey. Moreover, “[i]t is irrelevant whether the record contains
evidence to support findings other than those made by the fact-finder; the critical
inquiry is whether there is evidence to support the findings actually made.”
Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338, 342
(Pa. Cmwlth. 2008). Accordingly, there was substantial evidence to support the
Board’s reliance on these items in determining the location of the boundary.
2. Whether the Board improperly relied upon hearsay
evidence to reject the Bietsch Survey.
Company next argues that the Board’s rejection of the Bietsch Survey as not
credible was based on its conclusion that Surveyor Bietsch “overlooked
considerable evidence in running lines in the disputed area.” (FOF ¶ 34.) This
conclusion was based on a hearsay statement contained within a memo from
Surveyor Fine, drafted in 1958, in which he states that Mr. Rex discussed the
surveys with Surveyor Bietsch and told Surveyor Fine that Surveyor Bietsch left
Mr. Rex “with the distinct impression that it is possible that he overlooked
18
considerable evidence in running lines in this area.” (R.R. at 1382a.) Company
therefore argues that what Mr. Rex told Surveyor Fine about what Surveyor
Bietsch said is hearsay and should not have been used to reject the Bietsch Survey,
particularly where the memo goes on to say that Surveyor Bietsch continued to
believe that his survey was correct.
“One of the exceptions to the hearsay exclusionary rule pertains to
declarations by a surveyor.” Niles v. Fall Creek Hunting Club, Inc., 545 A.2d 926,
933 (Pa. Super. 1988). “This exception holds that declarations of a deceased
surveyor regarding a line surveyed are admissible in boundary disputes.” Id.
(citing Laidley v. Rowe, 119 A. 474, 477 (Pa. 1923)). “Authenticated field notes
of a deceased surveyor are also admissible,” but “the deceased surveyor exception
applies only to observations and notes made by the surveyor which relate to his
surveying duties.” Niles, 545 A.2d at 933. In other words, “the declarant must
have been on the land at the time the declaration was made and engaged at the time
in pointing out the boundaries of the land.” Id. (citing Collins v. Clough, 71 A.
1077, 1080 (Pa. 1909)). Here, the statement referenced in Surveyor Fine’s memo
was not made in his role as a surveyor in his notes relating to his surveying duties,
i.e., on the ground during the survey. Rather, it was made in a memo related to
disputed property. Therefore, it would not fall within this exception to the hearsay
rule. However, the Board gave several other objective reasons for not crediting the
Bietsch Survey, including the more southerly location of the waterway crossing
and the lack of reference to the Repherd Tract in that survey. Accordingly, there
was no abuse of discretion in the Board finding the Bietsch Survey not credible.
3. Whether the Board abused its discretion in making
credibility determinations regarding P.S. Cunningham’s
testimony.
19
Company acknowledges that credibility determinations are typically a matter
firmly for the fact-finder, but argues that the Board here abused its discretion in
rejecting P.S. Cunningham’s testimony as not credible. First, Company asserts that
the Board could not base its credibility determination on P.S. Cunningham’s
demeanor because two of the three Board members were not present at the
hearings. Second, Company argues that the Board could not rely on the location of
the waterway crossing as an objective reason for rejecting P.S. Cunningham’s
testimony because the Board should not have considered the location of the
waterway crossing in the first instance and the reasons given are not supported by
substantial evidence and can be reversed on appeal. Aetna Life Ins. Co. v.
Montgomery Cnty. Bd. of Assessment Appeals, 111 A.3d 267, 279 (Pa. Cmwlth.
2015). Third, Company asserts that, unlike DCNR’s expert witnesses, P.S.
Cunningham actually surveyed the lands at issue.
DCNR replies that administrative adjudicators are permitted to determine the
credibility of witnesses from reading a transcript, and administrative agencies
frequently use a system where a hearing examiner takes the evidence, but the
ultimate fact-finder is the board or commission. Cavanaugh v. Fayette Cnty.
Zoning Hearing Bd., 700 A.2d 1353, 1355-56 (Pa. Cmwlth. 1997); Kramer v.
Dep’t of Ins., 654 A.2d 203, 206 (Pa. Cmwlth. 1995). Thus, a board or
commission has the power to make findings of fact solely on its review of the
record. Kramer, 654 A.2d at 206. Such a process does not deny a litigant any due
process rights. R. v. Dep’t of Pub. Welfare, 636 A.2d 142, 145 (Pa. 1994). Here,
all of the Board members reviewed the full record from the two-day hearing before
making the decision to dismiss the Complaint. They were acting within their
authority when they made their credibility determinations, and such determinations
20
are not reviewable by this Court. Moreover, the bases on which the Board rejected
the Bietsch Survey and P.S. Cunningham’s testimony and evidence are supported
by substantial evidence.
As with other administrative agencies, all determinations of witness
credibility and evidentiary weight are solely within the province of the Board. Pa.
Game Comm’n v. K.D. Miller Lumber Co., Inc., 654 A.2d 6, 9-10 (Pa. Cmwlth.
1994). “[I]t is not the function of this court to judge the weight and credibility of
the evidence given before an administrative agency.” Id. at 10. As noted by
DCNR, administrative agencies frequently make credibility determinations on
records made before a hearing officer or administrative law judge. Cavanaugh,
700 A.2d at 1355-56; Kramer, 654 A.2d at 206. As discussed above, the Board did
not err or abuse its discretion in considering the position of the waterway crossing
on Warrant 1179 in ascertaining the location of the boundary or in finding the
Bietsch Survey not credible. Thus, the Board did not abuse its discretion in
utilizing this objective basis as a reason to find P.S. Cunningham’s testimony not
credible. Moreover, that P.S. Cook and P.S. Daubert did not personally survey the
land in question goes to the weight of that testimony, which is within the Board’s
province as fact-finder.
C. Whether the Board’s finding that there was no settlement agreement
between the Commonwealth and Mr. Niles that established a
Compromise Line is supported by substantial evidence.
Company finally argues that the Board’s finding regarding its alternative
argument, that there was no evidence of a settlement agreement between the
Commonwealth and Mr. Niles that established a Compromise Line, is not
supported by substantial evidence. Company observes that establishing a
consentable line by dispute and compromise or by recognition and acquiescence is
21
not subject to the statute of frauds and can be proven by parol evidence of an oral
agreement. Plauchak v. Boling, 653 A.2d 671, 675 (Pa. Super. 1995). Thus,
contrary to the Board’s determination, the absence of a recorded deed transferring
land does not mandate the conclusion that no consentable line existed or that there
is not an agreement the Board can enforce. The Board did not consider the other
evidence in the record that would support the existence of the Compromise Line,
specifically, the 1969 map prepared by the Commonwealth showing the
Compromise Line, Tioga County tax records showing a compromise line, the
deposition of Mr. Niles from a prior case indicating that a compromise had
occurred, and the photographic evidence indicating that trees and rocks were
marked with white paint along what would be the Compromise Line.
DCNR asserts that the evidence does not show that the Commonwealth
agreed to the Compromise Line; at most, the evidence demonstrates that a
Compromise Line may have been a part of a settlement discussion between Mr.
Niles and the Commonwealth. An offer of compromise is not admissible as
evidence to show an admission of that party. Rochester Mach. Corp. v. Mulach
Steel Corp., 449 A.2d 1366, 1370 (Pa. 1982). DCNR asserts, therefore, that given
the unknown context of the alleged Compromise Line, the Board properly declined
to give any credence to the evidence.
“The doctrine of consentable line is a rule of repose for the purpose of
quieting title and discouraging confusing and vexatious litigation.” Plauchak, 653
A.2d at 675. It is an ancient doctrine8 that “is a separate and distinct theory from
that of traditional adverse possession.” Id. Under this doctrine,
8
Reference to the doctrine can be found as early as 1840 in Brown v. McKinney, 9 Watts
565, 566-67 (Pa. 1840).
22
if adjoining landowners occupy their respective premises up to a
certain line which they mutually recognize and acquiesce in for the
period of time prescribed by the statute of limitations, they are
precluded from claiming that the boundary line thus recognized and
acquiesced in is not the true one.
Plauchak, 653 A.2d at 675 (internal citation omitted). It is a form of estoppel,
whereby once “a consentable line has been clearly established . . . , the line
becomes binding under application of the doctrine of estoppel after twenty-one
years.” Plauchak, 653 A.2d at 677; see also Niles, 545 A.2d at 930 (same);
Newton v. Smith, 40 Pa. Super. 615, 616 (1909) (stating “where such a line has
been clearly established and the parties on each side take possession or surrender
possession already held up to that line, it becomes binding, under the application of
the doctrine of estoppel”). In fact, our Supreme Court has considered the equities
in reviewing claims under the doctrine. Miles v. Pa. Coal Co., 91 A. 211, 212 (Pa.
1914). “The establishment of a consentable line is not a conveyance of land within
the meaning of the Statute of Frauds because no estate is thereby created.”
Plauchak, 653 A.2d at 675 (citing Hagey v. Detweiler, 35 Pa. 409, 412 (1860)
(footnote omitted)). “Therefore such a line may be initiated by oral agreement and
proved by parol evidence.” Id.
There are “two ways in which one may prove a consentable line: [(1)] by
dispute and compromise, or [(2)] by recognition and acquiescence.” Niles, 545
A.2d at 930. A consentable line by dispute and compromise is established by
showing evidence of:
(1) a dispute with regard to the location of a common boundary line,
(2) the establishment of a line in compromise of the dispute, and (3)
“the consent of both parties to that line and the giving up of their
respective claims which are inconsistent therewith.” Newton [. . .], 40
Pa. Super. [at] 616 . . . . “[W]here such a line has been clearly
23
established and the parties on each side take possession or surrender
possession already held up to that line, it becomes binding, under the
application of the doctrine of estoppel.” Id.
Although the parties may be bound if, merely having doubt as to the
correct boundary location, they enter into a compromise, a
“consentable line” is not created “if the parties, from
misapprehension, adjust their fences, and exercise acts of ownership,
in conformity with a line which turns out not to be the true boundary;
or permission be ignorantly given to place a fence on the land of the
party . . . .” Perkins v. Gay, 3 S. & R. 327, 331 (1817).
The establishment of this kind of boundary is always a matter of
compromise, in which each party supposes he gives up for the sake of
peace something to which in strict justice he is entitled . . . . Id. at
332.
Id. (internal quotation omitted).9
“The requirements for establishing a binding consentable line by recognition
and acquiescence are: (1) a finding that each party has claimed the land on his side
of the line as his own; and (2) a finding that this occupation has occurred for the
statutory period of twenty-one years.” Plauchak, 653 A.2d at 675. “In such a
situation, the parties need not have specifically consented to the location of the
line.” Id. at 676. “‘It must nevertheless appear that for the requisite twenty-one
years a line was recognized and acquiesced in as a boundary by adjoining
landowners.’” Id. at 676 (quoting Inn Le’Daerda, Inc. v. Davis, 360 A.2d 209,
9
In Niles, which involved land near Warrant 1179 and Warrant 1180, the consent “line
had been blazed and painted,” was included in the description of the property prepared by the
surveyor, as well as in a deed transferring land along that line from one of the parties to a third
party. Niles, 545 A.2d at 931. A wire was also strung up along the boundary line and the parties
posted signs with the agreed-upon survey line, which all observed as the boundary line. Id.
Although the Superior Court concluded that it was likely that Mr. Niles established that a
consentable line was created, the matter was reversed and remanded due to erroneous evidentiary
rulings and jury instructions made by common pleas.
24
215-16 (Pa. Super. 1976)). “[A]cquiescence in the context of disputed boundaries
denotes passive conduct on the part of the lawful owner consisting of failure on his
part to assert his paramount rights or interests against the hostile claims of the
adverse user.” Zeglin v. Gahagan, 812 A.2d 558, 562 n.5 (Pa. 2002) (case
involving adverse possession). A consentable line by recognition and
acquiescence is typically established by a fence, hedgerow, tree line, or some other
physical boundary by which each party abides. However, the fence line need not
be as substantial as that required for adverse possession. Niles, 545 A.2d at 931.
Notwithstanding this general proposition, in Miles, the Supreme Court observed
that the fact that parts of the consentable line involved were “marked on the
ground,” as well as by fences, and were maintained demonstrated that the
boundary had been acquiesced in by the parties. Miles, 91 A. at 212.
Here, the Board found that “no deed was executed and recorded to show that
a settlement was ever reached” between Mr. Niles and the Commonwealth. (FOF
¶ 45.) Therefore, the Board rejected Company’s argument that there was a
consentable line in relation to the disputed boundary line. (Final Adjudication at
16.) However, the fact that there was no written or recorded document identifying
the line or transferring real estate is not determinative that no agreement was
reached because a consentable line is not a conveyance of land and can be
established using parol evidence. Plauchak, 653 A.2d at 675. Although no deed
was presented showing a transfer of the land, a review of the record reveals that
there is deposition testimony by Mr. Niles given in 1985 regarding a compromise
or agreement with the Commonwealth, a reference in a Tioga County tax record
appearing to be for Mr. Niles’ property, indicating “deed due to reduce acreage to
2119.5 from PA Dept of Forestry & Waters 3/25/71,” maps showing a potential
25
Compromise Line, and pictures of white paint blazes painted on trees and stones
along the suggested Compromise Line. (R.R. at 1163a-1209a, 1236a-38a, 1321a-
22a.) Thus, we disagree that there was no evidence in the record for the Board to
review and consider on Company’s alternative argument. Accordingly, in order to
determine whether there was a consentable line, the Board must consider whether:
(1) the suggested line, white paint blazes marked on trees and stones along the
alleged Compromise Line, are sufficient; and (2) there was actual acquiescence of
the parties to that Compromise Line for the twenty-one year period required. The
Board did not consider the evidence Company presented in an effort to establish
the existence of a Compromise Line. As such, we must vacate the Board’s Order
and remand the matter to the Board to consider that evidence and make a
determination regarding the existence and location of the Compromise Line.
________________________________
RENÉE COHN JUBELIRER, Judge
26
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Long Run Timber Company, :
Limited Partnership, :
Petitioner :
:
v. : No. 2313 C.D. 2015
:
Department of Conservation and :
Natural Resources, :
Respondent :
ORDER
NOW, August 30, 2016, the Order of the State Board of Property (Board) is
hereby VACATED, and the matter is REMANDED for the Board to review the
existing record evidence and issue a new determination in accordance with the
foregoing opinion.
Jurisdiction relinquished.
________________________________
RENÉE COHN JUBELIRER, Judge