Medved, G. v. Smith, V.

J-A06024-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GERALD M. MEDVED AND SHIRLEY : IN THE SUPERIOR COURT OF
MEDVED, HIS WIFE : PENNSYLVANIA
:
:
v. :
:
:
VERNON SMITH AND SHEILA SMITH, :
HIS WIFE : No. 724 WDA 2020
:
Appellants :
Appeal from the Judgment Entered August 6, 2020
In the Court of Common Pleas of Fayette County Civil Division at No(s):
1898 of 2012 G.D.
BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.
MEMORANDUM BY LAZARUS, J.: FILED: APRIL 16, 2021
Vernon Smith and Sheila Smith (the Smiths), h/w, appeal from the final
judgment entered in the Court of Common Pleas of Fayette County in favor of
Appellees, Gerald M. Medved and his wife, Shirley Medved (the Medveds).
After careful review, we affirm.
The instant quiet title action involves a wedge-shaped 8.0691 acre tract
of land (Property) located in Springhill Township, Fayette County. The
Property is situated directly to the south of the Smiths’ property and to the
east and west of other land owned by the Medveds. The Property was initially
part of a farm (Robinson Farm), which was acquired in 1952 from the Smiths’
J-A06024-21
predecessor, Jules J. Quertinmont, Jr. In the mid-to-late 1940s,1 Gerald’s
parents, George and Charlotte Medved (George and Charlotte), purchased
land (Medved Farm) from John Brajokovich. George and Charlotte utilized the
Property as if it were part of the Medved Farm. Gerald Medved testified that
a barbed-wire fence encloses the entire Medved Farm, including the northern
portion of the Property. The Medveds obtained title to the Medved Farm in
November 2001, when Charlotte Medved passed away. The Property was not
described in the deed conveying the land from Charlotte to the Medveds; it
was, however, described in the Smiths’ deed.
The northern edge of the Property is separated from the Smiths’ land by
a four-strand barbed wire fence attached to posts. The fence was erected in
the early 1940s and maintained by George and Charlotte, their agents, and
other Medved family members. The fence has never been removed and there
is no gate on the fence line between the Property and the Smiths’ land.
Additionally, no fence borders the east or west sides of the Property.2
Gas transmission lines were installed south of the northern edge of the
Property in 1962; George and Charlotte received compensation from gas
____________________________________________
1 George and Charlotte acquired the Medved Farm in two separate
transactions. N.T. Non-Jury Trial, 11/19/19, at 31-32. In 1945, they
purchased twenty-four acres and, in 1949, they purchased the remaining
twelve acres. Id. at 32. The land purchased in 1949, which included the
Property, was never surveyed. Id. George and Charlotte and their family
moved onto the Medved Farm in 1945. Id. at 30.
2 A now-unoccupied house, that was once occupied by Gerald, his parents,
siblings and Brajokovich, and later by Charlotte until her death, is located
within the perimeter of the Medved Farm, but not on the Property.
-2-
J-A06024-21
companies for rights-of-way across the Property in order to install the lines.
George mined coal on the Property from the 1940s through 1962. In the mid-
1950’s, a lumber company timbered the entire Medved Farm, including the
Property. Some backfilling and excavation work was conducted on the
Property in the 1970s and 1990s, respectively. A farm road, running east-
west, bisects the southern portion of the Property. The land below the
Property’s southern boundary line is wooded land. A surveyor, hired by the
Medveds for trial, testified that although there are some trees on the Property,
it is properly classified as pastureland, not woodland.3
On August 17, 2012, the Medveds filed an action to quiet title to the
Property against the Smiths, asserting4 their right based on two legal theories:
adverse possession and boundary by recognition and acquiescence (or,
consentable boundary). During a three-day non-jury trial held in November
2018, the Medveds presented over 25 witnesses and 40 exhibits, including tax
____________________________________________
3 “Woodland” is often just another name for a forest. See
https://www.nationalgeographic.org/encyclopedia/woodland (last visited
4/6/21). Most of the time, though, geographers use the term to describe a
forest with an open canopy. Id. The canopy is the highest layer of foliage in
a forest[; i]t is made up of the crowns, or tops, of trees. Id. Pastureland, on
the other hand, is a “diverse type of land where the primary vegetation
produced is herbaceous plants and shrubs.” See
https://www.nrcs.usda.gov/wps/portal/nrcs/detail/national/landuse/rangepa
sture/?cid=nrcsdev11_001074 (last visited 4/6/21). These lands provide
forage for beef cattle, dairy cattle, sheep, goats, horses[,] and other types of
domestic livestock. Id.
4 The complaint was amended, in response to preliminary objections filed by
the Smiths, to plead more specifically.
-3-
J-A06024-21
claim and property maps, photos of the subject property over the years, land
surveys, coal and gas company receipts, plats, and a gas company right-of-
way agreement. Following trial, the court entered judgment in favor of the
Medveds, concluding that they established title to the Property on the basis of
a consentable line by recognition and acquiescence. The Smiths filed post-
trial motions that were denied. They then filed a timely notice of appeal and
court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal. On appeal, the Smiths raise the following issues for our consideration:
(1) Did the trial [court] fail to apply the strict standards set forth
by the Pennsylvania Supreme Court which requires Plaintiffs
to prove a fence as a boundary line by recognition and
acquiescence in order to prevail?
(2) Did the trial [court] err in finding that undeveloped acreage
had been occupied continuously for 21 years when there is
no evidence that any structure or fencing was ever erected
upon the land in question and there was no evidence of
ongoing cultivation of the land in question in contravention
of well-settled adverse possession principles that have also
been incorporated into the doctrine of consentable boundary
line by recognition and acquiescence.
Appellants’ Brief, at 4.
Our standard of review of verdicts in bench trials is as follows:
Our review in a non-jury case is limited to whether the findings of
the trial court are supported by competent evidence and whether
the trial court committed error in the application of law. We must
grant the court’s findings of fact the same weight and effect as
the verdict of a jury and, accordingly, may disturb the non-jury
verdict only if the court’s findings are unsupported by competent
evidence or the court committed legal error that affected the
outcome of the trial. It is not the role of an appellate court to pass
on the credibility of witnesses; hence we will not substitute our
judgment for that of the factfinder. Thus, the test we apply is not
-4-
J-A06024-21
whether we would have reached the same result on the evidence
presented, but rather, after due consideration of the evidence
which the trial court found credible, whether the trial court could
have reasonably reached its conclusion.
Lynn v. Pleasant Valley Country Club, 54 A.3d 915, 919 (Pa. Super. 2012)
(internal citations omitted).
The Smiths allege that the trial court erred by not applying “the strict
requirements . . . regarding the establishment of a binding consentable line
by recognition and acquiescence” and in finding that the Medveds “had
occupied the undeveloped acreage continuously for 21 years when there was
no evidence that any structure or fencing was ever erected” upon the Property
or any evidence of “on[-]going cultivation” of the Property. Appellants’ Brief,
at 13. The Smiths also argue that there was insufficient evidence showing
that they had disclaimed ownership of the Property. Appellants’ Brief, at 16.
Such lack of evidence, they claim, fails to establish the “occupancy”
requirement necessary to prove the doctrine of consentable boundary line by
recognition and acquiescence. Id. at 20.
Instantly, the trial court found that: the Property was in continuous
control of the Medveds and their predecessors in title;5 the Property was solely
used by the Medveds, their family members, and friends; the use of the land
varied at times from cultivation, strip mining, and grazing land for horses and
____________________________________________
5 “[T]acking [of privity of possession] is permitted [under a theory of
acquiescence in a boundary] upon sufficient and credible proof of delivery of
conveyance, which was previously claimed and occupied by the grantor and is
taken by the grantee as successor in such interest.” Zeglin v. Gahagen, 812
A.2d 558, 566 (Pa. 2002).
-5-
J-A06024-21
cows; and that the Medveds have established that they were in possession of
the Property as they maintained dominion over the parcel. Trial Court
Opinion, 9/21/20, at 6. Specifically, the court noted that the Property “was
entirely contained within the fenced area of the Medved farm [and that the
Medveds’] control was open, notorious and hostile.” Id.“One who claims title by adverse possession must prove actual,
continuous, exclusive, visible, notorious, distinct[,] and hostile possession of
the land for twenty-one years. Each of these elements must exist; otherwise,
the possession will not confer title.” Recreation Land Corp. v. Hartzfeld,
947 A.2d 771, 774 (Pa. Super. 2008) (citation omitted). “Generally, ‘actual
possession of land means dominion over the property.’” Bride v. Robwood
Lodge, 713 A.2d 109, 112 (Pa. Super. 1998). However, “[w]hat constitutes
adverse possession depends, to a large extent, on the character of the
premises.” Id.The doctrine of consentable line, which is a separate and distinct theory
from adverse possession, is a rule of repose for the purpose of quieting title
and discouraging confusing and vexatious litigation. Plott v. Cole, 547 A.2d
1216, 1220 (Pa. Super. 1988). In order to establish a binding consentable
line by recognition and acquiescence, a party must prove that: (1) each party
has claimed the land on his side of the line as his own; and (2) that this
occupation has occurred for the statutory period of twenty-one years. Id. at
1221. “[A]cquiescence,” in the context of a dispute over real property,
“denotes passive conduct on the part of the lawful owner consisting of failure
-6-
J-A06024-21
on his part to assert his paramount rights or interests against the hostile
claims of the adverse user.” Zeglin, supra at 562 n.2 (quotation omitted).
“[W]hen a consentable line is established, the land behind such a line becomes
the property of each neighbor regardless of what the deed specifies.” Moore
v. Moore, 921 A.2d 1, 5 (Pa. Super. 2007). See Soderberg v. Weisel, 687
A.2d 839, 843 (Pa. Super. 1997) (citation omitted) (“In essence, each
neighbor gains marketable title to that land behind the line, some of which
may not have been theirs under their deeds.”).
Instantly, the trial court found that the properties owned by the Medveds
and the Smiths have been separated by a fence that has been maintained by
the Medved family over the years. The court found that the fence “completely
separates the entirety of the [Property] from the Smiths’ [p]roperty.” Trial
Court Opinion, 9/21/20, at 2. Moreover, when George and Charlotte moved
onto the Medved Farm in 1945, it was already surrounded by a fence that “has
remained in the same location and has been repaired over the years by both
[George and Charlotte] and the [Medveds].” Id. at 3. See N.T. Non-Jury
Trial (George Medved’s testimony), 11/19/18, at 30, 40, 52-53, 68, 77 (fence
existed on Medved Farm since he was little child in 1945, no one ever disputed
Medveds’ ownership of Property, and he maintained fence since George and
Charlotte acquired farm in early 1940s); id. at 35 (“Well, everybody had their
farms fenced in. And that whole farm had four strands of barbed wire on the
whole thing that I can remember. When we bought it, you know, a fence—
that I can remember. . . . I am sure the whole farm had four strands [of
-7-
J-A06024-21
barbed wire] on it [when we bought it].”); id. at 38 (recalling fence was
continuous and enclosed Property in 1950); see also id. at 7 (land surveyor’s
testimony) (in July 2012 he noticed “[a]long the northern edge of the
delineated area[,] there’s a substantial [barbed] wire fence that runs the
whole length”); id. (beneath fence line multiple gas line rights-of-way
located); id. at 10 (“It’s an old fence, a substantial fence and it looks like it
has been . . . maintained.”); id. (did not remember any gates or openings of
fence line between Property and Smiths’ property); id. (fence on Medved’s
property enclosed or closed off Property from Smiths’ property).
Based on the testimony at trial, the court found: that the subject fence,
which admittedly needed repairs over the years, does not include any gate or
opening on to the Smiths’ property; the remainder of the Property is contained
completely within the fenced area of the Medved Farm; and the Property has
no features that distinguish it from the remining land of the Medved Farm.
Id. See also Dimura v. Williams, 286 A.2d 370 (Pa. 1972) (unlike adverse
possession, not essential that fence line as boundary for consentable line be
substantial).
With regard to activity that took place on the Property, the court found
that Gerald Medved’s family conducted strip-mining activity on the Property,
altered the terrain in the 1990s by backfilling, and permitted a gas company
to place lines on the Medved Farm intersecting the Property. See id. at 40
(George Medved testifying his father mined coal from 1949 to 1969 on
Property); id. at 46 (Columbia Gas installed subterraneous gas lines on
-8-
J-A06024-21
Property in 1962); id. at 50 (Medveds had to backfill Property because there
was a “big cut” like a canyon down through land and all around it in 1970s
and 1980s); id. at 52 (George Medved maintained road on eastern boundary
of Property that he consistently used to haul coal). Further, the entire Medved
family raised crops, grew hay, hunted, and grazed animals on the Property;
they also used the Property as a play area for children. Id. (when George and
Charlotte purchased Medved Farm, it was pastureland used to cultivate
soybeans, corn, potatoes and also used to pasture cows and horses).
The court concluded that each party had acted as though the land on
their side of the fence was their own property, that the Medveds had occupied
the Property continuously since George and Charlotte purchased the property
in 1945, and that George and Charlotte controlled the Medved Farm (which
included the Property) continuously and uninterrupted until it was transferred
to the Medveds. Finally, the court found the Medveds established that the
fence line separated the Smith’s property from the Property for “a period in
excess of 21 years.” Id. at 5. See Schimp v. Allman, 659 A.3d 1032,1034
(Pa. Super. 1995) (citation omitted) (question where boundary line is actually
located is for trier of fact; where trial judge sits as fact-finder, appellate court
will not reverse court’s decision on appeal unless trial court’s findings are not
supported by credible evidence).
Here, the trial court found that the Medveds established their “hostile”
occupation of the Property through testimony presented by various witnesses
at trial. Specifically, that testimony showed that the Smiths asked the
-9-
J-A06024-21
Medveds for permission to enter onto the Property to hunt and that the Smiths
never made a demand for the removal of a portion of the fence that separated
the parties’ properties. See N.T. Non-Jury Trial, 11/19/18, at 7-8 (along
bottom part of land survey is farm road that traverses subject property;
Medveds used road without any objections by Smiths to go across subject
Property to other side of Medved Farm). Moreover, the court noted that the
Smiths did not present any evidence that they or their predecessors-in-title
ever had dominion over the Property.
We conclude that the trial court reasonably reached its verdict based
upon credible evidence presented at trial. Lynn, supra. Specifically, the
court’s following findings are supported by the record: the Medveds and their
prior owners possessed the Property to the exclusion of the Smiths or their
predecessors for over 21 years, Moore, supra; the entire Property was
contained within the fenced area for over 21 years; and, the Medveds and
their family openly and hostilely controlled the Property for the requisite length
of time. Zeglin, supra.6
Accordingly, we affirm the trial court’s determination that the Medveds
established the right to the Property based on a consentable boundary line.
Schimp, supra (evidence that claimant grew crops, pastured cattle, and
____________________________________________
6 While these terms are most often associated with traditional adverse
possession, in the case of consentable line by acquiescence “the use or
occupancy of the premises is [also] hostile to and against the interests of the
title owner.” Id. at 562 n.5. Id. at 562 (“doctrinal roots of acquiescence are
grounded in adverse possession theory”).
- 10 -
J-A06024-21
constructed track road over disputed land for period exceeding 21 years,
established dominion over land and boundary by consentable line); Dimura,
supra at 371 (appellant’s long-standing fence line, when joined with other
fences, established appellant’s ownership of strip of land where it was
recognized as boundary line between her property and neighbors’ parcels).
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/16/2021
- 11 -