Fried v. Sulewski

25 Pa. D. & C.3d 580, 1982 Pa. Dist. & Cnty. Dec. LEXIS 247
CourtPennsylvania Court of Common Pleas, Luzerne County
DecidedSeptember 9, 1982
Docketno. 4172 of 1976
StatusPublished
Cited by1 cases

This text of 25 Pa. D. & C.3d 580 (Fried v. Sulewski) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Luzerne County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fried v. Sulewski, 25 Pa. D. & C.3d 580, 1982 Pa. Dist. & Cnty. Dec. LEXIS 247 (Pa. Super. Ct. 1982).

Opinion

TOOLE, J.,

In this ejectment proceeding the court is asked to determine the ownership of a parcel of land apparently created by the receding waters of Harvey’s Lake, Luzerne County, Pa. The complaint filed by A. David Fried and Goldie Swartzbarth, his wife, claims ownership and seeks to eject defendant, Mary Sulewski, who they claim is presently occupying their land without right. Mary Sulewski, on the other hand, claims ownership of the land in question by virtue of adverse possession, and further that her ownership rights were recognized and adjudicated by this court in a prior proceeding.

Plaintiffs and defendant are the record owners of adjoining lots at Harvey’s Lake, Luzerne County, Pa. It would appear that the lake shore in the area of the parties’ lots has receded approximately 195 ft. [581]*581between 1916 and 1981. For the reasons hereinafter stated, we are not inclined to enter an order of ejectment in this proceeding.

A review of some applicable legal principles would be beneficial in understanding our deoision not to order ejectment in this proceeding. In an ejectment action, the issue to be tried is the right of possession: Valachos v. Witherow, 383 Pa. 174, 118 A. 2d 174 (1955). When that right of possession depends upon the disputed title to boundary line property, ejectment is generally regarded as a proper remedy: Buck et al. v. Brunner, 167 Pa. Super. 142, 74 A. 2d 528 (1950).

As a general rule, in order to recover in an ejectment action, plaintiff must show title at the commencement of the action and can recover, if at all, only on the strength of his own title, not because of the weakness or want of title in a defendant: Harbor Marine Co. v. Nolan, 244 Pa. Super. 102, 366 A. 2d 936 (1976); Ratajski v. West Penn Mfg. & Supply Corp., 198 Pa. Super. 588, 182 A. 2d 243 (1962). This rule places upon plaintiff the burden of proving a prima facie title, which proof is sufficient until a better title is shown in the adverse party; that is, proof of prima facie title in plaintiff shifts the burden of going forward with the evidence to defendant. However, until and unless plaintiff has made a prima facie case by showing title sufficient upon which to base a right of recovery, defendant is not required to offer evidence of his title. If plaintiff fails to establish proof with the required clarity of his title, he cannot recover however defective defendant’s title may be: Babcock Lumber Co. v. Faust, 156 Pa. Super. 19, 39 A. 2d 298 (1944); Ratajski, supra.

It is also clear that to support an action in ejectment, the evidence must be sufficient to identify [582]*582the land in dispute and establish plaintiffs’ right to possession thereof. When there is a controversy over a specific piece of land, the burden is upon plaintiff to identify the tract to which he claims title. The burden of identifying and locating the land clearly rests upon plaintiff: Beals v. Allison, 161 Pa. Super. 125, 54 A. 2d 84 (1947); Seitz v. Penna. R.R. Co., 272 Pa. 84, 116 A. 57 (1922); 25 Am. Jr. 2d, Ejectment, §113. In this regard, plaintiff has the burden of presenting definite and certain evidence of the boundary of the property in controversy. The boundary lines must be so identified that they can be located with accuracy by anyone. See Hakim v. Solomon Realty Co., Inc., 65 Luz. Leg. Reg. 202 (1975); Rodgers et al. v. Pittsburgh, Fort Wayne, and Chicago Railway Co. et al., 255 Pa. 462, 100 A. 271(1917). Where plaintiff in an action in ejectment is unable to establish his boundary line by adequate legal proof, his action must fall and he is not entitled to relief: Parks v. Schaffer, 61 Lackawanna Jur. 149 (1959).

With these general legal principles in mind, we turn to the instant controversy. Plaintiff, Goldie Swartzbarth, and late husband, Israel Swartzbarth, purchased a parcel of land at Harvey’s Lake in 1951. Mr. Swartzbarth died in 1965 and title to the purchased property vested in plaintiff, Goldie Swartzbarth, as the surviving tenant by the entireties. Goldie Swartzbarth married A. David Fried in 1969, but he holds no record title or interest in the aforementioned parcel. Mrs. Swartzbarth contends that by virtue of her acquisition of the lot in 1951, and so called “riparian rights,” that she is the owner of the extended lake front parcel that lies between the property originally conveyed to her and the present lake front. On the basis of this claim, [583]*583she seeks to prevent defendant from the possession or use of the parcel.

Plaintiffs claim, as noted, riparian rights. Riparian rights have been broadly defined as the title which an owner of land, on the border of a stream or other navigable water, acquires to the additions made to his land by the imperceptible action of the water; the rights incidential to such title being called riparian rights: Freeland v. Pa. Railway Co., 197 Pa. 529, 47 A. 745 (1901); Ladner on Conveyancing in Pa., Accretion, §7.01.

The extent of a riparian owner’s title to the newly formed land depends upon the navigability or non-navigability of the waterway on which his lands border: Ladner on Conveyancing in Pa., Accretion, § 5.02. For land bordering on anavigable waterway, a riparian owner’s absolute title in Pennsylvania extends only to the high water line, and the riparian owner has no rights as a landowner beyond the low water mark. Between the high and low water lines, his title to the soil is qualified, being subject to public rights of navigation and fishing and subject to improvement of the stream as a public highway. Title to the low water line remains in the Commonwealth for use of all citizens, as does the title to the bed of the navigable waterway: Shaffer v. Baylor’s Lake Assoc., 392 Pa. 493, 141 A. 2d 583 (1958); City of Philadelphia v. Pa. Sugar Co., 348 Pa. 599, 36 A. 2d 653 (1944).

On the other hand, the owner of land on the shore of a non-navigable lake or pond takes title to the center of the body of water, or as commonly referred to as the bed of the waterway: Lakeside Park Co. v. Forsmark, 396 Pa. 389, 153 A. 2d 486 (1959); Loughran v. Matylewicz, 367 Pa. 593, 81 A. 2d 879 (1951).

In this case, the parcel in controversy was [584]*584created some time between the creation of a spillway to the original dam of Harvey’s Lake in the summer of 1916 and the day of hearing. During that period, the lake receded uncovering approximately 190 to 195 feet of land which is the parcel now in question.

The subject parcel is clearly the product or result of the process of either accretion (the increase of riparian land by gradual deposit, by water, of solid material) or reliction (the increase of riparian land made by the withdrawal of the waters by which it was previously covered). Whether the land in dispute was formed by accretion or reliction is a question of fact usually for a jury: Houseman v. International Nav. Co., 214 Pa. 552, 64 A. 379 (1906). Persons seeking to establish title by accretion or reliction to land in possession of another have the burden of showing the accretion or reliction by which they claim title: Schafer v. Schnabel, 494 P. 2d 802 Alaska (1972); Wright v. Counsel Bluffs, 130 Iowa 274, 104 N.W. 492 (1905).

An initial question arises in the court’s mind whether plaintiffs are riparian owners or have any riparian rights. The record discloses that plaintiffs may have conveyed all of their property on the lake side of the highway to the Municipal Authority of Harvey’s Lake.1

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Bluebook (online)
25 Pa. D. & C.3d 580, 1982 Pa. Dist. & Cnty. Dec. LEXIS 247, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fried-v-sulewski-pactcomplluzern-1982.