Walk, G. & E. v. Wolanski, J. & K.

J-A09020-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GRANT D. AND EMOGENE WALK, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellees
v.
JOHN G. WOLANSKI AND KAREN A.
WOLANSKI,
Appellants No. 1203 MDA 2016
Appeal from the Judgment Entered July 28, 2016
In the Court of Common Pleas of Centre County
Civil Division at No(s): 2014-3132
BEFORE: SHOGAN, OTT, and STABILE, JJ.
MEMORANDUM BY SHOGAN, J.: FILED AUGUST 09, 2017
John G. Wolanski and Karen A. Wolanski (“Appellants”) appeal from
the judgment entered on July 28, 2016, in favor of Grant D. Walk and
Emogene Walk (“Appellees”). This judgment was entered after the April 15,
2016 verdict in favor of Appellees following a nonjury trial.1 We affirm.
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1
Appellants improperly purport to appeal from the June 24, 2016 order
denying their motion for post-trial relief. An appeal properly lies from the
judgment entered after post-trial relief is denied. Growall v. Maietta, 931
A.2d 667, 669 n.1 (Pa. Super. 2007). Here, Appellants filed their notice of
appeal prematurely on July 21, 2016, prior to the entry of judgment.
However, we note that a judgment entered during 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). In the case at
bar, Appellants filed a praecipe for the entry of judgment on July 28, 2016,
and judgment was entered that same day. Therefore, Appellants’ appeal is
properly from the July 28, 2016 judgment. See Pa.R.A.P. 905(a)(5) (stating
(Footnote Continued Next Page)
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On August 18, 2014, Appellees filed a complaint to quiet title and for
ejectment against Appellants. On October 10, 2014, Appellants filed an
answer, new matter, and counterclaim to quiet title and for ejectment. The
matter was heard by the trial court sitting without a jury on December 17,
2015.
After consideration of the testimony from December 17, 2015, and the
parties’ proposed findings of fact and conclusions of law, the trial court found
as follows:
1. The parties are owners of adjoining parcels of real property
located in Taylor Township, Centre County, Pennsylvania.
2. The parties dispute which side of Goss Hollow Lane the
boundary between their properties is located, and the right of
[Appellants] to use a roadway across the disputed area to access
their property from Goss Hollow Lane.
3. The area in dispute is trapezoidal in shape, approximately
319.55 feet in length on the longest side and varying in width
from approximately 50 feet to the center of Goss Hollow Lane (or
approximately 34 feet to the edge of the right of way of Goss
Hollow Lane) on one end to approximately 40 feet to the center
of Goss Hollow Lane (or approximately 24 feet to the edge of the
right of way of Goss Hollow Lane) on the other end.
4. The disputed area consists of unenclosed woodland.
5. [Appellees] acquired their tract of land by a deed dated June
15, 1993, which is recorded in the Office of the Recorder of
Deeds of Centre County at record Book 700, Page 1136.
[Appellees’] Exhibit 1.
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(Footnote Continued)
that a notice of appeal filed after the trial court’s determination but before
entry of appealable order shall be treated as filed after such entry and on
date of entry). We have amended the caption accordingly.
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6. Following a retracement survey, [Appellees] issued a deed
dated September 26, 2008, describing the property in
accordance with the boundary retracement survey, which is
recorded at Record Book 2021, Page 181. [Appellees’] Exhibit 3.
7. [Appellees’] deed describes the disputed boundary line as
“South four (4) degrees and thirty-nine (39) minutes West
seventeen and five-tenth (17 5/10) rods to a stone at the edge
of the public road. . . .” [Appellee’s] Exhibit 3.
8. [Appellants] acquired their tract of land pursuant to an
Agreement of Sale dated 1998, and by a deed dated September
22, 2003, which is recorded in the Office of the Recorder of
Deeds of Centre County at Record Book 1605, Page 477.
9. [Appellants] also recorded a corrective deed dated August
11, 2009, at Record Book 2041, Page 912. [Appellants’] Exhibit
2.
10. [Appellants’] deed describes the disputed line as, “N 3 ½°
W, 37 perches to stones at public road; thence by said public
road, N 4 ½° E, 17.5 perches to a chestnut. . . .” [Appellants’]
Exhibit 2.
11. The parties do not dispute each other’s chains of title to
their respective properties.
12. Both parties have used their respective properties for
general recreational purposes such as hunting and cutting
firewood.
13. [Appellants’] driveway was previously a logging path, and
the portion of the driveway that connects to Goss Hollow Lane is
located within the disputed area.
14. After becoming aware of [Appellants’] claimed ownership of
the disputed area, [Appellees] had their attorney send two
letters notifying [Appellants] that [Appellees] owned the
disputed area and to cease using the roadway to access their
property. [Appellees’] Exhibits 6, 7.
15. After receiving the letters, [Appellants] continued using the
driveway and moved forward with their plans to build a cabin on
their property.
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16. [Appellees] expert, Fred Henry, PLS, was retained in 2008
to perform a retracement survey of [Appellees’] property.
[Appellees’] Exhibit 10, 11.
17. Mr. Henry relied on pins, old witness trees, and abandoned
fence lines to establish the boundary on the eastern side of Goss
Hollow Lane.
18. [Appellants’] expert, Edward Heary, PLS, created a
Surveyor’s Report dated October 15, 2014. [Appellants’] Exhibit
1.
19. Mr. Heary relied on stone row and the historical deed
descriptions to establish the boundary on the western side of
Goss Hollow Lane.
20. Old “No Trespassing” signs are located in the vicinity of
where [Appellees] allege the boundary line to be located on the
eastern side of Goss Hollow Lane. [Appellees’] Exhibit 5.
21. [Appellee] Grant Walk testified that, at some point after
2003, [Appellant] John Wolanski inquired about purchasing a
triangle of [Appellees’] property, including the area currently in
dispute.
Trial Court Opinion, 4/15/16, at 1-3. On April 15, 2016, a verdict and order
was entered in favor of Appellees. The order provided, in relevant part, as
follows:
1. The Court finds in favor of [Appellees].
2. The common boundary line between [Appellees’] property and
[Appellants’] property is as described and located on the
Boundary Retracement Survey performed by Fred L. Henry, PLS,
[Appellees’] Exhibit 11.
3. [Appellants] have not acquired an easement by prescription
over the roadway across the disputed area, and [Appellants] are
barred from travelling across said roadway to the extent it
crosses [Appellees’] property.
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4. [Appellants] are barred from asserting any right, title, lien, or
interest inconsistent with the lawful ownership and title of
[Appellees’] property using the boundary as depicted in
[Appellees’] Exhibit 11.
Trial Court Opinion, 4/15/16, at 9. As noted earlier, judgment was entered
on July 28, 2016, and this timely appeal followed. Both the trial court and
Appellants have complied with Pa.R.A.P. 1925.
On appeal, Appellants raise the following issues for this Court’s
consideration:
A. Where adjoining property owners’ deeds both refer to a public
road as a boundary (with words of “by said public road” and
“at the edge of the public road”), is the title established for
both parties to extend to the middle of the public street?
B. Where Appellants’ deed originated prior to the Appellees’,
should the description in the Appellants’ deed be superior to
the Appellees’ deed description?
C. In the alternative, if it is held that Appellants do not hold title
to the public roadway, will use by the Appellants and their
predecessors in title of the entrance constitute a prescriptive
easement through a narrow strip of land now claimed by the
Appellees?
Appellants’ Brief at 5.
As this matter was decided by the trial court without a jury, our
standard of review is as follows:
Our appellate role in cases arising from non-jury trial verdicts is
to determine whether the findings of the trial court are
supported by competent evidence and whether the trial court
committed error in any application of the law. The findings of
fact of the trial judge must be given the same weight and effect
on appeal as the verdict of a jury. We consider the evidence in a
light most favorable to the verdict winner. We will reverse the
trial court only if its findings of fact are not supported by
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competent evidence in the record or if its findings are premised
on an error of law. However, where the issue concerns a
question of law, our scope of review is plenary.
The trial court’s conclusions of law on appeal originating from a
non-jury trial are not binding on an appellate court because it is
the appellate court’s duty to determine if the trial court correctly
applied the law to the facts of the case.
Stephan v. Waldron Electric Heating & Cooling LLC, 100 A.3d 660, 664-
665 (Pa. Super. 2014) (citation omitted).
Moreover, it is well settled that “the primary function of the trial court
resolving a boundary dispute is to ascertain the intent of the grantor at the
time of the original subdivision.” Pencil v. Buchart, 551 A.2d 302, 305-
306 (Pa. Super. 1988).
As a general rule, where there is a conflict between courses and
distances or quantity of land and natural or artificial monuments,
the monuments prevail. Moreover, natural monuments2 normally
take preference over artificial marks or monuments. These
rules, however, are not imperative but are aids in construction
that must yield to a contrary showing.
2
Monuments are visible markers or indications left
on natural or other objects indicating the line of a
survey. Natural objects, such as the bank of a
stream, the shore of a lake, a precipice or ledge or
rocks, a fountain or spring of water, may be adopted
as monuments fixing the location of lines and
corners.
Id. at 306 (internal citations, quotation marks, and ellipses omitted).
Ultimately, the question concerning where a boundary line is located is a
question for the fact-finder. Schimp v. Allaman, 659 A.2d 1032, 1034,
(Pa. Super. 1995). “Where, as here, the trial court sat as the fact-finder,
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we will not reverse on appeal unless the court’s findings are not supported
by credible evidence.” Id.
Additionally, in a nonjury trial, the trial court sitting as the finder of
fact is free to believe all, part, or none of the evidence, and this Court will
not disturb the trial court’s credibility determinations. Voracek v. Crown
Castle USA Inc., 907 A.2d 1105, 1108 (Pa. Super. 2006). “The trial
court’s findings are especially binding on appeal, where they are based
upon the credibility of the witnesses, unless it appears that the court
abused its discretion or that the court’s findings lack evidentiary support or
that the court capriciously disbelieved the evidence.” Shaffer v. O’Toole,
964 A.2d 420, 422-423 (Pa. Super. 2009).
In their first issue on appeal, Appellants allege that because both
parties’ deeds refer to the disputed boundary as a public road, the boundary
should be the middle of that public road. Appellants’ Brief at 12. Appellants
argue that The Pennsylvania Society of Land Surveyor’s Boundary
Retracement Principles and Procedures for Pennsylvania is the “gospel” for
land surveyors and compels this result. Id. However, this document was
not mentioned in Appellants’ proposed findings of fact, it was not admitted
into evidence, and there is no indication of this writing’s precedential value.
Thus, this writing was never before the trial court, and Appellants have not
established that the trial court was in any way bound by this document.
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Therefore, we cannot conclude that there was any error in the trial court not
considering this writing.
However, while The Pennsylvania Society of Land Surveyor’s Boundary
Retracement Principles and Procedures for Pennsylvania was not properly
before the trial court, Appellants direct our attention to a quote in that text
which cites Firmstone v. Spaeter, 25 A. 40 (Pa. 1892). Appellants’ Brief at
12. In Firmstone, the Pennsylvania Supreme Court stated:
If the land is described as ‘bounded on,’ ‘running along,’ the
highway, and the like, the boundary line is the center of the
highway, although the dimensions of the lot would exclude the
highway; and in all cases of doubt the presumption is always in
favor of the boundary being in the center of the road . . . where
a street is called for as a boundary, the middle line of the street
is always intended, unless the contrary plainly appears.
Firmstone, 25 A. at 41 (internal citation and quotation marks omitted).
Thus, while Firmstone mentions a presumption that the center of the road
is the boundary, in the case at bar, the trial court was not constrained by
that language. As noted, that point is a presumption, and the trial court was
permitted to review other evidence including monument evidence of stones,
pins, and trees. Pencil, 551 A.2d at 305-306. Indeed, the trial court
noted:
Here, the deeds conveying the properties allow for two
different interpretations as to the location of the boundary
between the two tracts of land. Both parties relied on expert
testimony to explain language in the deeds and the monuments
found on the properties. Both deeds reference the public road
(“edge of the public road,” “at the public road,” and “by said
public road”) and both proposed boundaries are near the public
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road, Goss Hollow Lane. As such, the road alone does not end
the Court’s inquiry.
Trial Court Opinion, 4/15/16, at 6.
Appellants next point to Nesbit v. Eichelberger, 67 Pa. D. & C.2d
254 (C.P. York County 1974), as support for their argument. However, we
point out that this Court is not bound by decisions of the courts of common
pleas. U.S. Bank Nat. Ass’n v. Powers, 986 A.2d 1231, 1233 n.3 (Pa.
Super. 2009). Additionally, we agree with Appellees that the trial court’s
conclusion in Nesbit, wherein the trial court found that a boundary followed
the contours of a road, was a factual finding based on all of the evidence
presented in that case, and not a conclusion of law. Appellees’ Brief at 21.
For these reasons, we discern no error of law in the trial court declining to
find the entirety of Goss Hollow Lane was the boundary. As noted, the
survey relied upon and adopted by the trial court placed the boundary at the
edge of the roadway. Trial Court Opinion, 4/15/16, at 2, 9.
Appellants also argue that Appellees’ expert, Fred Henry, P.L.S., relied
on an erroneously placed pin. Appellants’ Brief at 20. This assertion is
based on a survey that was conducted in another matter on adjacent
property owned by Charles Rider II. In that matter, Appellants filed an
ejectment action against Mr. Rider at Centre County Civil Division Number
2006-1889. However, that matter ended in a settlement agreement. The
trial court addressed the issue of the pin at the corner of the Rider property
as follows:
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The [c]ourt took judicial notice of the lawsuit between John
and Karen Wolanski and Charles Rider. The 2006 litigation,
however, is not dispositive in this case. The case filed at 2006-
1889 concluded with the entry of an order upon joint praecipe
for settlement after [Appellants] and Mr. Rider reached a
property line agreement. Mr. Henry did not rely on the pin
placed marking the agreed boundary; rather, Mr. Henry relied on
a different pin, among other things, to determine the boundary
between [Appellees] and [Appellants]. [Appellees] were not a
party to the 2006 litigation or subsequent boundary agreement,
and the agreed-to-pin is not in the area of the instant dispute.
As such, the [c]ourt did not commit an error of law in finding the
Henry Survey to be accurate.
Pa.R.A.P. 1925(a) Opinion, 8/26/16, at 2.
We agree with the trial court. Appellees were not a party to that 2006
litigation. Moreover, Appellants cite no relevant authority for their
argument, and this Court is aware of no basis in law upon which Mr. Henry
was required to rely upon a boundary or marker from a lawsuit that ended in
a settlement between Appellants and Mr. Rider regarding the location of a
pin. We conclude that the argument regarding the pin is meritless.
Ultimately, in disposing of the instant case, the trial court relied on
the survey conducted by Mr. Henry and based its decision principally on a
determination of credibility. Trial Court Opinion, 4/15/16, at 6-7. The trial
court gave significant weight to Mr. Henry’s use of physical monuments as
indicators for the property boundary. Id. Specifically, the items upon
which Mr. Henry relied were iron pins within stone piles on the
southwestern and southeastern corners of Appellees’ property, wire fence
running along the eastern and western sides of the property, and several
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trees in the northeastern corner. Id.; N.T., 12/17/15, at 44-48. Mr. Henry
used GPS positioning to determine the angle of the missing side. Trial
Court Opinion, 4/15/16, at 6-7; N.T., 12/17/15, at 48. Additionally, the
trial court was compelled by old “No Trespassing” signs that were located
near Mr. Henry’s proposed border. Trial Court Opinion, 4/15/16, at 7.
Edward Heary, P.L.S., conducted a survey for Appellants and also
relied on physical monuments around the property. N.T., 12/17/15, at 79-
81. Much of the survey relied on the presence of a stone row located north
of the property in question. Id. However, the trial court found the reliance
on the stone row more speculative than the monuments used by Mr. Henry
in Appellees’ survey. Trial Court Opinion, 4/15/16, at 7. The trial court
came to its conclusion largely by finding Appellees’ survey more compelling
than Appellants’ survey, as it was free to do. Schimp, 659 A.2d at 1034;
Voracek, 907 A.2d at 1108. Moreover, there is no indication that the trial
court capriciously disbelieved the evidence. Shaffer, 964 A.2d at 423.
Accordingly, we conclude that the trial court committed no abuse of
discretion or error of law in determining the boundary of the property.
Next, Appellants assert that because their deed originated prior to
Appellees’ deed, the description in Appellants’ deed should be superior.
Appellants’ Brief at 25 (citing Walleigh v. Emery, 163 A.2d 665 (Pa. Super.
1960)). In Walleigh, this Court held that when a conflict in a boundary
description occurs as result of conveyances from a common grantor, the title
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of the grantee in the first conveyance is superior. Id. at 668. However, in
Walleigh, this Court further explained that an earlier deed “is therefore
superior where the boundaries clash, but superior only upon the basis of
their own deed calls reconciled with the monuments on the ground and
proceeding from the point of beginning established in their own deed.” Id.
Thus, the fact that Appellants’ deed was first in time is a factor insofar as
that deed can be reconciled with monuments on the ground, but it is not
alone dispositive. We reiterate that the location of a boundary line is a
question for the fact-finder. Schimp, 659 A.2d at 1034.
Here, after considering all of the evidence, the trial court concluded
that the boundary was consistent with the description in the survey
conducted by Mr. Henry and based its decision primarily on the weight of the
evidence. Trial Court Opinion, 4/15/16, at 6-7. As set forth above, the trial
court, sitting as the finder of fact was free to believe all, part, or none of the
evidence. Voracek, 907 A.2d at 1108. The fact that Appellants’
predecessors’ deed predated Appellees’ predecessors’ deed from a common
grantor was not the only determining factor in this matter. As discussed in
our disposition of Appellants’ first issue above, the trial court carefully
weighed and considered all of the evidence in making its determination, and
we discern no error.
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In their final issue, Appellants aver that, even if they are not deemed
to hold title, their use of the land created a prescriptive easement over the
disputed property. Appellants’ Brief at 25. We disagree.
“It is well-settled that a prescriptive easement is created by (1)
adverse, (2) open, (3) notorious, (4) continuous and uninterrupted use for a
period of 21 years.” PA Energy Vision, LLC v. South Avis Realty, Inc.,
120 A.3d 1008, 1014 (Pa. Super. 2015) (citation omitted). However,
prescriptive easements on unenclosed woodlands are prohibited by statute.
Sprankle v. Burns, 675 A.2d 1287, 1289 (Pa. Super. 1996); 68 P.S. § 411.
“The character of the land itself is determinative of the application of the Act
of 1850.[2]” Minteer v. Wolfe, 446 A.2d 316, 320-321 (Pa. Super. 1982)
(internal citation and quotation marks omitted).
The trial court concluded that the evidence established the property in
dispute was unenclosed woodland. Trial Court Opinion, 4/15/16, at 8. This
determination was made after the trial court judge had an opportunity to
view the property in person. N.T., 12/17/15, at 5. Moreover, Appellant
John Wolanski testified on cross-examination that the disputed area was
“vacant woodland,” and photographs depict the trees and brush adjacent to
the path on the edge of wooded, undeveloped property. N.T., 12/17/15, at
120; Appellees’ Exhibit 8, 1-3. Additionally, in contrast to Minteer, there is
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2
“The Act of 1850” refers to what is now 68 P.S. § 411.
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no evidence that the trees and brush were planted as a fence or barrier that
would indicate some degree of enclosure. Appellees’ Exhibit 8, 1-26;
Minteer, 446 A.2d at 321 (where the growth that the appellees alleged was
woodland consisted of a fence row of trees and brush, which is commonly
used in rural areas to mark boundary lines, and, therefore, the property was
not unenclosed woodland).
Accordingly, we discern no error of law or abuse of discretion in the
trial court’s conclusion that the property was unenclosed woodland. Thus,
Appellants were prohibited from establishing a prescriptive easement.
Sprankle; 68 P.S. § 411.
For the reasons set forth above, we conclude that Appellants are
entitled to no relief. Therefore, we affirm the July 28, 2016 judgment
entered on the April 15, 2016 verdict in favor of Appellees.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/9/2017
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