J-S84024-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
STANLEY BRUZGULIS, RALPH A. : IN THE SUPERIOR COURT OF MOYER, JR., AND CAROL J. MOYER : PENNSYLVANIA : : v. : : : LANDOWNERS WILDLIFE : PROTECTIVE ASSOCIATION : No. 952 MDA 2017 : Appellant :
Appeal from the Judgment Entered June 13, 2017 In the Court of Common Pleas of Luzerne County Civil Division at No(s): 2222-2015
BEFORE: SHOGAN, J., LAZARUS, J., and OTT, J.
MEMORANDUM BY LAZARUS, J.: FILED MAY 04, 2018
Landowners Wildlife Protective Association (“LOWPA”) appeals from the
judgment, entered in the Court of Common Pleas of Luzerne County, granting
the complaint to quiet title and for declaratory judgment filed by Stanley
Bruzgulis, Ralph A. Moyer, Jr., and Carol J. Moyer (collectively, “Plaintiffs”)
and denying LOWPA’s counterclaim to quiet title. Upon careful review, we
affirm.
In 2011, the Moyers filed an action to quiet title and for a declaratory
judgment with regard to a disputed 6.9 acre plot of land located on the
southern border of three contiguous parcels of land owned by the Moyers and
the northern border of a parcel owned by LOWPA. After a full hearing on the
matter, the trial court dismissed the complaint due to failure to join an
indispensable party, Bruzgulis, who owns another tract of property abutting J-S84024-17
the northern border of LOWPA’s parcel. Subsequently, on February 26, 2015,
the Moyers, who now joined Bruzgulis as an additional plaintiff, filed a
complaint seeking the identical relief as in the original action. Plaintiffs filed
an amended complaint on May 12, 2015. LOWPA filed an answer, new matter,
and counterclaim alleging the same defenses and counterclaim for adverse
possession as in the original action. On December 23, 2015, the parties
entered into a stipulation, agreeing to have the court make a determination
based solely on the testimony and exhibits presented in the prior suit. On
January 10, 2017, the trial court issued an order finding that: (1) Plaintiffs
were in possession of the disputed property and (2) LOWPA failed to establish
the requisite elements of adverse possession. Post-trial motions filed by
LOWPA were denied and, on June 13, 2017, the Prothonotary entered
judgment in favor of Plaintiffs. This timely appeal follows, in which LOWPA
raises the following issues for our review:
1. Did the [trial] court err in determining that the evidence demonstrated that [the Moyers] were in possession of a disputed parcel of land?
2. Did the [trial] court err in determining that [LOWPA] did not establish that it had adverse possession of a disputed parcel of land?
Brief of Appellants, at 5.
LOWPA claims that the trial court erred in determining that the Moyers
were in possession of the disputed parcel for purposes of establishing the
court’s jurisdiction to adjudicate this quiet title action. Rather, LOWPA asserts
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that it is in possession of the land by virtue of adverse possession. In support
of that claim, LOWPA cites the following factors: (1) Mr. Moyer’s testimony
that he entered the disputed parcel at LOWPA’s invitation; (2) Bruzgulis has
recognized the barbed wire fence1 as the border of LOWPA’s property; (3) the
Moyers’ predecessors-in-title did not dispute that the barbed wire fence was
the boundary; and (4) LOWPA has used the disputed area for hunting and
timbering and has posted the barbed-wire boundary.
Additionally, LOWPA argues that the court erred in declining to award
the disputed parcel to it by virtue of adverse possession. LOWPA argues that
over the years, the conduct of the parties has established a consentable
boundary at the barbed-wire fence line by acquiescence. Specifically, LOWPA
asserts that it has treated the disputed area as its own by hunting, timbering
and granting permission to others for the use of the land. LOWPA also asserts
that, since 1948, it has posted no trespassing signs along the barbed-wire
fence line.
We begin by noting the following legal precepts applicable to the instant
dispute.
A plaintiff in an action to quiet title must be in possession of the land in controversy; if he is not in possession, his sole remedy is an action in ejectment. Plauchak v. Boling, [] 653 A.2d 671, 674 ([Pa. Super.] 1995). An action to quiet title may be brought only where an action in ejectment will not lie. Id.; Pa.R.C.P. ____________________________________________
1 The “barbed-wire fence” referred to by the parties is not an intact fence. Rather, it consists of “old traces of barbed wire . . . grown into the trees over time [that are] definitely remnants of a barb[ed-]wire fence line that ran through there at one time.” N.T. Trial, 11/25/13, at 37.
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1061(b)(2). “Ejectment, being a possessory action, can be maintained if the plaintiff has a right to immediate possession with the concomitant right to demand that the defendant vacate the land.” Id. An out-of-possession plaintiff may not maintain an action to quiet title because it constitutes an enlargement of that party’s substantive rights as defined by the statute, and thus exceeds the court’s jurisdiction to proceed. Id.; accord Sutton v. Miller, [] 592 A.2d 83, 88–89 ([Pa. Super.] 1991).
There is no precise definition of what constitutes possession of real property; the determination of possession is depend[e]nt upon the facts of each case, and to a large extent upon the character of the land in question. Schimp v. Allaman, [] 659 A.2d 1032 ([Pa. Super.] 1995). In general, however, actual possession of land means dominion over the property; it is not the equivalent of occupancy. Glenn v. Shuey, [] 595 A.2d 606 ([Pa. Super.] 1991). Thus, the trial court must determine which party exercised dominion and control over the property before determining what is the proper form of action in such a case.
Moore v. Duran, 687 A.2d 822, 827 (Pa. Super. 1996). Actual possession is
presumed to be in him who has the record title. Overly v. Hixson, 82 A.2d
573, 575 (Pa. Super. 1951).
The question of where a boundary line is located is one for the trier of
fact. Murrer v. American Oil Co., 359 A.2d 817 (Pa. Super. 1976). In an
action to quiet title, the burden of proof is on the plaintiff to prove, by a fair
preponderance of the evidence, that the actual boundaries of its property are
located so as to include the disputed area. Cox’s Inc. v. Snodgrass, 92 A.2d
540, 542 (Pa. 1952); Poffenberger v. Goldstein, 776 A.2d 1037, 1021 (Pa.
Cmwlth. 2001). Our review of a decision in a quiet title action is confined to
determining whether the trial court’s findings are supported by competent
evidence and its decree is in conformity with applicable law. Moore v.
Moore, 921 A.2d 1, 4 (Pa. Super. 2007), citing Corbin v. Cowan, 716 A.2d
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614, 617 (Pa. Super. 1998). We will not reverse its decree on appeal unless
the court committed legal error or its findings are not supported by credible
evidence. See 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. Baylor v. Soska, 658 A.2d 743, 744 (Pa. 1995),
citing Conneaut Lake Park, Inc. v. Klingensmith, 66 A.2d 828 (Pa. 1949).
Each of these elements must exist; otherwise, the possession will not confer
title. Smith v. Peterman, 397 A.2d 793, 796 (Pa. Super. 1978). “[O]nly
acts signifying permanent occupation of the land and done continuously for a
twenty-one year period will confer adverse possession.” Id.
Here, the disputed parcel consists largely of wooded acreage. To
adversely claim woodland property, more than sporadic use of the land is
required, no matter how often such sporadic use is repeated. Hoover v.
Jackson, 524 A.2d 1367, 1369 (Pa. Super. 1987); Bigham v. Wenschhof,
441 A.2d 391, 393 (Pa. Super. 1982). Thus, occasional timbering and/or
hunting, being necessarily sporadic, are, alone, inadequate to establish title
by adverse possession. Niles v. Fall Creek Hunting Club, Inc., 545 A.2d
926, 929 (Pa. Super. 1988). Rather,
[t]o maintain an actual possession to woodland as such, it is necessary that the person entering take actual possession by residence or cultivation, of a part of the tract to which the woodland belongs. Hole v. Rittenhouse, 37 Pa. 116 [(1860)]; Olewine v. Messmore, [] [18 A. 495 ([Pa.] 1889)]. Actual possession may be taken by enclosing and cultivating, without residence[,] or by residence without cultivation, under a bona fide
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claim where there is a designation of the boundaries with the ordinary use of the woodland. This possession accomplishes an ouster, and is entirely different from the occasional or temporary use of the land without an intention to permanently cultivate or reside thereon or use it in some other manner consistent with the condition of the property.
Niles, 545 A.2d at 929. The burden of proving adverse possession rests upon
the claimant by credible, clear and definitive proof. Johnson v. Tele-Media
Co. of McKean Cty., 90 A.3d 736, 740–41 (Pa. Super. 2014).
Here, the trial court concluded that “the competent, believable, and
credible evidence of record demonstrates the Plaintiffs are in possession of
the disputed property” and, further, that LOWPA “has not established the
requisite elements of adverse possession[.]” Trial Court Order, 1/10/17.
Accordingly, the court directed that a corrective deed2 be entered by the
parties reflecting the court’s determination that title to the disputed parcel lies
in the Plaintiffs. After our review, we can discern no abuse of discretion or
error of law.
We begin by noting that the trial court found the primary theory
advanced by LOWPA on appeal, that of a consentable boundary3 by
acquiescence, to be waived. Accordingly, it did not address the claim in its
opinion. On appeal, Plaintiffs similarly assert that LOWPA has waived this
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2 A corrective deed is necessary in this matter because, in 1997, LOWPA filed a deed purporting to claim, via adverse possession, the land between the ”Pasonick line” and the barbed-wire fence.
3The doctrine at issue is referred to interchangeably as “consentable lines” and “consentable boundary.”
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theory of relief for failure to raise it in its new matter and/or counterclaim.
We agree.
LOWPA raised the theory of adverse possession in its new matter and in
its counterclaim. Specifically, LOWPA alleged that it “has had actual,
continuous, exclusive, visible, notorious, distinct and hostile possession of the
[disputed tract] for more than twenty[-]one years[.]” LOWPA New Matter,
6/11/15, at 38; LOWPA Counterclaim, 6/11/15, at 40. LOWPA did not,
however, raise the theory of consentable boundaries by acquiescence. Only
after trial, in its proposed conclusions of law, did LOWPA first advance that
theory. Although the doctrinal roots of boundary by acquiescence are
grounded in adverse possession theory, Zeglin v. Gahagen, 812 A.2d 558,
562 (Pa. 2002), it has emerged as a separate and distinct theory from that of
traditional adverse possession. Niles v. Fall Creek Hunting Club, Inc., 545
A.2d 926, 930 (Pa. Super. 1988). In order to establish a binding consentable
line by recognition and acquiescence, a landowner must prove that: (1) each
party has claimed the land on his side of the line as his own; and (2) this
occupation has occurred for the statutory period of twenty-one years.
Plauchak v. Boling, 653 A.2d 671, 675 (Pa. Super. 1995). In contrast, in
order to establish title by adverse possession, a claimant must prove actual,
continuous, exclusive, visible, notorious, distinct and hostile possession of the
land for twenty-one years. Johnson, supra. The two doctrines require
distinct elements of proof; a claimant may prevail on one theory, while failing
to prove the other. See Niles, supra (finding evidence insufficient to
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establish adverse possession, but sufficient to establish consentable boundary
by recognition and acquiescence). Accordingly, because LOWPA did not raise
the theory of consentable boundary until after trial, we find it to be waived.
Pa.R.A.P. 302.
Having framed the specific claims at issue in this matter, we now
proceed with a review of the evidence adduced at trial. Plaintiffs presented
the expert testimony of Francis Miller, a licensed surveyor employed by the
Pennsylvania Game Commission. Miller testified that he was contacted by Mr.
Moyer in 2006 to perform a survey in order to establish the boundary line
between the Moyers’ properties and the parcel belonging to LOWPA. Miller
testified that he reviewed deeds obtained from the courthouse and walked the
property with Mr. Moyer, who showed him the line that he believed
demarcated his properties from LOWPA’s. Miller testified that the previous
deeds to the LOWPA property did not contain bearings and distances, but
merely described the property as consisting of “50 acres.” Miller testified that,
when he followed the deeds in the LOWPA chain back, they “had a description
that described a property that you couldn’t create, but it always said 50 acres.”
N.T. Trial, 11/25/13, at 13. Miller testified that the discrepancy created by
the “50 acres” description “was always a concern of [his]” when attempting to
recreate LOWPA’s property on paper. Id. at 12-13. Miller testified that the
survey he ultimately produced in 2006 was an attempt to “split the difference”
between where Moyer and LOWPA each believed the boundary to be in order
to resolve the boundary dispute between the parties, and because the 2006
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line was an attempt to produce a compromise, it did not actually represent
what he ultimately came to conclude was the proper boundary line pursuant
to Plaintiffs’ deeds.
After the Moyers and LOWPA were unable to agree on a compromise
boundary line, Miller performed additional research beginning in 2011. Using
county assessment records, additional deed research, and information
gleaned from two previous surveys,4 Miller returned to the property and
located rebar and iron pin boundary markers on the line Mr. Moyer had
believed to be the boundary. He also determined that the Moyers’ property
had senior title. Finally, prior deeds in the chain of title enabled Miller to
reconcile his previous confusion stemming from the description in deeds in the
LOWPA chain of title stating that the property consisted of approximately 50
acres. Miller had long believed that LOWPA’s current property was less than
50 acres. Miller discovered that an 1880 deed had transferred into the
Plaintiffs’ chain of title 20 acres of a 57-acre property that encompassed what
became the LOWPA tract. Subtracting 20 acres from 57 acres, Miller arrived
at 37 acres, which is just one acre less than Miller’s most recent survey
attributes to the LOWPA property. Regarding the barbed-wire fence line
claimed by LOWPA to be the boundary, Miller testified that “the fence is not in
4 The previous surveys referenced by Miller were performed by Michael Pinjar in 1967 and by Michael Pasonick in 1981. Miller ultimately concluded that the “Pasonick line” was the proper boundary between the Moyer and LOWPA properties.
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a straight line, which is uncommon if they’re going to use that for a boundary.”
Id. at 40.
Ralph A. Moyer, Jr., testified that he and his family use the disputed
area for hunting and walking. He testified that, in the late 1950s or early
1960s, he built a tree stand that sits on the disputed property. Moyer testified
that LOWPA timbered its property in the 1980s, but did not go north of the
“Pasonick line.” However, Moyer testified that, within the last 15 years,
LOWPA began cutting trees down within the disputed area. Moyer also
testified that, previously, LOWPA had posted on the Pasonick line. However,
Moyer stated that within the last ten years, LOWPA began posting on the
barbed-wire fence line. Id. at 105. Moyer testified that he always believed
his property included the disputed tract of land.
LOWPA did not present expert testimony from a surveyor. Rather, it
presented the lay testimony of three long-time members of the organization.
William Jones testified that he had been hunting on the disputed parcel for
approximately 43 years and always understood the barbed-wire fence line to
be the northern boundary of LOWPA’s property.5 He testified that LOWPA has
5 During Jones’ testimony, counsel for LOWPA introduced into evidence photographs taken by Jones the week before trial of what remains of the barbed-wire fence. The photographs, however, are not contained in the certified record. “Our review is limited to those facts which are contained in the certified record” and what is not contained in the certified record “does not exist for purposes of our review.” Commonwealth v. O'Black, 897 A.2d 1234, 1240 (Pa. Super. 2006) (citations omitted).
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always posted the barbed-wire fence line and never the Pasonick line. Jones
also testified that members of LOWPA timbered the disputed property between
1989 and 1993. Jones further testified that LOWPA had not farmed or planted
in the disputed area and that he had, in the past, seen members of Plaintiffs’
families on the disputed tract of land.
Raymond Clymer, another member of LOWPA, testified that when he
was 16, his father showed him the barbed-wire fence and told him “as long as
you walk the barb[ed-]wire line and where there’s occasional posters, you’ll
always be alright.” N.T. Trial, 11/25/13, at 161. Clymer testified that, to his
recollection, the barbed-wire fence had been continually posted by LOWPA
since 1950.
Charles Best, also a LOWPA member, testified that he began hunting
with LOWPA in 1950 and that his father showed him the barbed-wire fence
and told him it was the boundary line of LOWPA’s property. Best testified that
“every so many years” the barbed-wire fence would be posted by LOWPA
members and that Plaintiffs never posted the Pasonick line. He further stated
that Plaintiffs and LOWPA allowed each other to use their respective land for
hunting. Best also testified that a surveyor once told him that “the acreages
were never right” on LOWPA’s old deeds. Best acknowledged that there were
stakes located along the Pasonick line.
In light of the foregoing evidence, we can discern no abuse of discretion
on the part of the trial court in concluding that Plaintiffs were in actual
possession of the disputed land as title-holders of record. See Overly, supra
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(actual possession presumed to be in him who has record title). The sole
expert testimony presented at trial was that of surveyor Miller, who averred
that the correct boundary of the Plaintiffs’ property was the southernmost, or
“Pasonick,” line. This evidence corroborated Ralph Moyer, Jr.’s testimony,
deemed credible by the court, regarding his long-held understanding as to the
correct boundary line.
In addition, LOWPA failed to produce sufficient evidence to prove that it
acquired title by adverse possession. LOWPA was unable to demonstrate that
it did anything more than engage in sporadic use of the disputed parcel. While
the testimony showed that members of LOWPA occasionally hunted and
timbered the property, such use is inadequate to establish title by adverse
possession. See Niles, supra. LOWPA neither resided on nor cultivated the
land, either of which is a prerequisite to establishing actual possession for
purposes of adverse possession of woodland. See id.
Based on the foregoing, the trial court did not commit an error of law or
an abuse of discretion in entering judgment in favor of the Plaintiffs.
Lastly, LOWPA asserts that the verdict of the trial court was against the
weight of the evidence. LOWPA properly preserved this claim by raising it in
its post-trial motion and Pa.R.A.P. 1925(b) statement of errors complained of
on appeal. See Pa.R.C.P. 227.1; Pa.R.A.P. 1925(b)(4)(vii).
Appellate review of a weight claim is a review of the trial court’s exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration
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to the findings and reasons advanced by the trial judge when reviewing a trial court’s determination that the verdict is against the weight of the evidence. One of the least assailable reasons for granting or denying a new trial is the lower court’s conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice.
In re Estate of Smaling, 80 A.3d 485, 490 (Pa. Super. 2013). A new trial
will be granted on the grounds that the verdict is against the weight of the
evidence only where the verdict is so contrary to the evidence it shocks one’s
sense of justice. Thomas Jefferson Univ. v. Wapner, 903 A.2d 565, 576
(Pa. Super. 2006) (citation omitted).
We begin by noting that LOWPA’s argument on this claim, consisting of
less than one full page of text, is little more than a one-sentence summary of
its adverse possession argument, followed by a conclusory statement that the
court’s verdict shocks one’s sense of justice. See Brief of Appellant, at 23.
Generally, the failure to properly develop an appellate argument results in
waiver of the claim. See Pa.R.A.P. 2119(a). See also Commonwealth v.
Ellis, 700 A.2d 948, 957 (Pa. Super. 1997) (failure to develop any argument
or cite any authority results in waiver). However, because our ability to
conduct meaningful appellate review is not substantially hampered, we decline
to find waiver.
The trial court reviewed LOWPA’s weight claim and concluded as follows:
The record, in our judgment, substantially supports our decision. [LOWPA] waived the affirmative defense of consentable boundary and failed to establish any adverse claim. The decision is not contrary to the evidence and certainly does not shock our sense of justice. [LOWPA] has failed to identify anything in the record in support of the claimed error, other than to the extent it
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disagrees with our credibility determinations. Accordingly, we find no merit in [LOWPA’s] claim that the verdict is against the weight of the evidence[,] warranting a new trial.
Trial Court Opinion, 9/7/17, at 13.
Upon review of the record as a whole, we cannot conclude that the trial
court abused its discretion in concluding that the verdict was not contrary to
the weight of the evidence. The trial court listened to all of the testimony and
made credibility determinations based on its ability to observe the witnesses
at trial. A fact-finder is free to believe all, part, or none of the evidence
presented. Commonwealth v. Mosley, 114 A.3d 1072, 1087 (Pa. Super.
2015) (citations omitted). An appellate court cannot, on a weight of the
evidence review, replace the fact-finder’s determination of credibility with its
own determination. See Commonwealth v. Blackham, 909 A.2d 315, 320
(Pa. Super. 2006). Accordingly, we are bound by the trial court’s credibility
determinations, which are supported in the record. The trial court acted within
its discretion in concluding that its verdict did not shock the conscience.
Wapner, supra.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 5/4/2018
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