Mott Cemetery Association v. Kalinowski, E.

J-A34038-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MOTT CEMETERY ASSOCIATION IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EDWARD KALINOWSKI
Appellant No. 707 MDA 2014
Appeal from the Judgment entered May 28, 2014
In the Court of Common Pleas of Bradford County
Civil Division at No: 2011 CV 0409
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED MAY 27, 2015
Mott Cemetery Association (MCA) owns a cemetery in Leroy Township,
Bradford County. Edward Kalinowski owns land that surrounds the
cemetery. The deed from Kalinowski’s predecessor in interest to MCA (the
1917 Deed) allowed MCA to take up to two additional acres of the
surrounding land for cemetery purposes. In this case, the trial court granted
relief to MCA, allowing it to enforce that provision and to enjoin Kalinowski
from using its access right-of-way from the public road to the cemetery. On
appeal, Kalinowski contends the deed allowed MCA to take only one acre of
his land, and that he has an easement over the access way leading from the
public road to MCA’s cemetery. We affirm.
In 1917, Thomas and Mina Mott deeded one acre of their land to MCA
for use as a cemetery. At the time, the Motts owned the land surrounding
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the cemetery. At issue is a provision of the 1917 Deed from the Motts to the
MCA, which provides as follows:
The privilege is also granted by [the Motts] to the DIRECTORS
OF THE [MCA] the right to take when they think necessary one
Acre more of land and also the second acre when needed for
[c]emetery purposes adjoining Cemetery plot as the Directors
may so desire. By paying One H[u]ndred Dollars for each acre
of land taken to THOMAS Mott his heirs[,] assigns[,] executors[,]
administrators[,] or whosoever should hold the title of the Land
adjoining the above mention[ed] Cemetery plot. The [Motts]
give[] and grant[] unto [MCA] the right to build and maintain a
suitable road leading from [the] main road to the Cemetery[.]
The [Motts] reserve[] the right to use said road at any and all
times[.]
1917 Deed.
Thomas and Mina Mott’s ancestors began to bury family members in
the cemetery in the 1850s. Currently, the cemetery is a one-acre,
rectangular parcel surrounded by Kalinowski’s 40-acre parcel. Kalinowski’s
parcel was part of Thomas and Mina Mott’s land not deeded to MCA in 1917.
At some time in the 1950s or 60s, the Mott family sold the enclosing plot to
unrelated buyers. Not all of the deeds showing subsequent transfers are of
record, but the parties stipulated that Kalinowski is Thomas and Mina Mott’s
successor in interest to the enclosing parcel of land.
The chain of title has carried down the existence of the access way,
and Kalinowski’s deed includes the following clause:
EXCEPTING AND RESERVING, however, from the herein
described premises, all that certain lot, piece or parcel of land
known and described as “Mott Cemetery”, together with a right-
of-way over the State Highway, bounding the hereinbefore
described premises on the south. Said right-of-way to be used
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for the purpose of gaining ingress, egress, and regress in and to
said cemetery by all means of locomotion as to continue as it
presently exists.
Peppers to Kalinowski Deed, 9/12/2005. The access way extends from the
southern end of the cemetery over Kalinowski’s land to a state route known
as Southside Road. The 1917 Deed does not describe the right-of-way’s
dimensions. According to the survey entered into evidence at trial, it is 465′
long. The access way is a slightly improved cart path through a hay field. It
divides in two Kalinowski’s property on the south side of the cemetery.
Kalinowski and his tenant farmers travel over the access way to reach his
field, and in the past their machinery has damaged parts of the roadway.
Kalinowski never asked permission to use the access way, because he
thought he had the right to do so. One of Kalinowski’s predecessors in
interest, Larry Jennings, was a close friend of the Mott family. He also never
asked permission to use the access way.
Seeking to purchase the two additional acres, MCA tendered $200.00
to Kalinowski, who refused to sell. MCA then sued, seeking specific
performance of the 1917 Deed. MCA further sought to enjoin Kalinowski
from using the access way. Kalinowski answered and counterclaimed. In
relevant part, he argued MCA could take only one acre and that he had the
right to use the access way. Following a non-jury trial, the trial court
entered judgment in favor of MCA. It ordered the conveyance of the two
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acres and enjoined Kalinowski from using the access way. After the trial
court denied Kalinowski’s post-trial motion, this appeal followed.1
Kalinowski presents two issues for our review:
1. Whether the lower court erred in determining that the
language of the deed in question gave [MCA] the right to take
two (2) acres of [Kalinowski’s] property without the necessity
of demonstrating the need for the second acre.
2. Whether the lower court erred in failing to find [Kalinwoski]
acquired an easement by prescription.
Appellant’s Brief at 4.
On review of cases arising from a trial court’s decision made after a
non-jury trial, we must “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.” Stephen v. Waldron Elec. Heating &
Cooling, LLC, 100 A.3d 660, 664-65 (Pa. Super. 2014). We accord the trial
court’s factual findings the same weight as a jury verdict, meaning that we
may reject them only if unsupported by competent evidence. Id. In
contrast, we review de novo the trial court’s legal conclusions. Id.Both assignments of error require us to construe the 1917 Deed.
When construing a deed,
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1
Kalinowski improperly appealed from the denial of post-trial motions, a
non-appealable, interlocutory order. See Prime Medica Assocs. v. Valley
Forge Ins. Co., 970 A.2d 1149, 1154 n.6 (Pa. Super. 2009). We ordered
him to praecipe for entry of judgment, which he did, thus perfecting our
jurisdiction. See Pa.R.A.P. 905(a).
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a court’s primary object must be to ascertain and effectuate
what the parties themselves intended. The traditional rules of
construction to determine that intention involve the following
principles. First, the nature and quantity of the interest
conveyed must be ascertained from the deed itself and cannot
be orally shown in the absence of fraud, accident or mistake.
We seek to ascertain not what the parties may have intended by
the language but what is the meaning of the words they used.
Effect must be given to all the language of the instrument, and
no part shall be rejected if it can be given a meaning. If a doubt
arises concerning the interpretation of the instrument, it will be
resolved against the party who prepared it . . . . To ascertain
the intention of the parties, the language of a deed should be
interpreted in the light of the subject matter, the apparent object
or purpose of the parties and the conditions existing when it was
executed.
Pa. Servs. Corp. v. Tex. E. Transmission, LP, 98 A.3d 624, 630 (Pa.
Super. 2014) (quoting Consolidation Coal Co. v. White, 875 A.2d 318,
326 (Pa. Super. 2005)). Whether a deed is ambiguous is a question of law
for the court. Pa. Elec. Co. v. Waltman, 670 A.2d 1165, 1169 (Pa. Super.
1995). Furthermore, in interpreting an unambiguous deed, a court is limited
to the deed itself, and cannot consider parol evidence. Id.Kalinowski concedes he must transfer one acre to MCA, based on the
1917 Deed language allowing MCA to take one acre “when it may so desire.”
He argues that MCA must show that it needs the second acre for the
cemetery before MCA can take it from him. Pointing to available cemetery
plots, he argues MCA cannot meet that standard. We disagree with
Kalinowski’s construction of the 1917 Deed.
Kalinowski’s focus in reading the relevant clause is too narrow. He
does not consider the clause in context. The operative language is “The
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privilege is also granted by [the Motts] to the DIRECTORS OF THE [MCA] the
right to take when they think necessary one acre more of land and also
the second acre when needed for Cemetery purposes adjoining Cemetery
plot as the Directors may so desire.” 1917 Deed (emphases added). In
context, the plain, unambiguous meaning of this clause gives MCA a right to
take up to two additional acres. The only limitation on that right is that it
must be “for cemetery purposes.” No party disputes that MCA, which exists
only to oversee the cemetery, will use the additional land to expand the
cemetery and build a parking lot. Nothing in the 1917 Deed requires, as
Kalinowski argues, MCA to demonstrate that it needs the second acre
because the existing cemetery is full. Rather, MCA is unambiguously
granted the right, when its directors so desire and when they think
necessary, to acquire up to two additional acres for use by MCA. The trial
court correctly found that, as a matter of law, the above-quoted provision of
the 1917 Deed is unambiguous.
We next address Kalinowski’s second argument, that he has a
prescriptive easement to travel over the right-of-way. We are constrained
to find that Kalinowski has waived this argument for lack of development.
“A prescriptive easement is created by (1) adverse, (2) open, (3)
notorious, (4) continuous and uninterrupted use for a period of twenty-one
(21) years.” Walley v. Iraca, 520 A.2d 886, 889 (Pa. Super. 1987).
Moreover, the party asserting the easement must demonstrate “clear and
positive” proof. Id. Permissive use defeats a claim of a prescriptive
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easement. Morning Call, Inc. v. Bell Atl.-Pa., Inc., 761 A.2d 139, 143
(Pa. Super. 2000). However, absence of objection by the landowner is not
equivalent to a grant of permission precluding acquisition of title to an
easement by prescription. Kaufer v. Beccaris, 584 A.2d 357, 359 (Pa.
Super. 1991).
An appellant must provide legal authority to support his or her claims.
Pa.R.A.P. 2119(a) and (b). “‘The Rules of Appellate Procedure state
unequivocally that each question an appellant raises is to be supported by
discussion and analysis of pertinent authority.’ Failure to do so constitutes
waiver of the claim.” Giant Food Stores, LLC v. THF Silver Spring Dev.,
L.P., 959 A.2d 438, 444 (Pa. Super. 2008) (quoting Estate of Haiko v.
McGinley, 799 A.2d 155, 161 (Pa. Super. 2002) (citing Pa.R.A.P. 2119(b)).
Kalinowski did not set forth the test for creation of a prescriptive
easement or explain how he meets it. Indeed, he cites no pertinent
authority in support of his argument. Instead, he advances only the
irrelevant claim that the provision concerning the access way in the 1917
Deed is an exception running with the land, and not a reservation personal
to Thomas and Mina Mott. This argument is puzzling, because it is self-
defeating. If Kalinowski is correct that the 1917 Deed contains an exception
granting him the right to use the access way, his use is under color of title,
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i.e., not adverse. Use under legal right cannot be prescriptive. 2 See
Flannery v. Stump, 786 A.2d 255, 260 (Pa. Super. 2001) (holding tenant
farmer’s use of land was not adverse during the period of the tenancy).
We have thoroughly reviewed the parties’ briefs and the record, and
Kalinowski’s assignments of error do not entitle him to relief. Accordingly,
we affirm the trial court’s judgment.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/27/2015
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2
We will not address Kalinowski’s exception/reservation argument, which he
did not include as a separate question presented in his brief or in his concise
statement of errors complained of on appeal. See Pa.R.A.P. 1925(b)(4);
2116, 2119.
Additionally, upon our review of Kalinowski’s prescriptive easement
claim, it is unclear who owns the land over which the access way runs. The
terms of the 1917 Deed appear to grant MCA an easement over the Mott’s
remaining lands now owned by Kalinowski. Thus, on the record before the
Court, it appears that Kalinowski owns the land under the access way.
However, this claim was not raised in the trial court and it has not been
raised on appeal. Therefore, we express no opinion as to the ultimate merits
of such an argument.
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