Herr v. Herr

957 A.2d 1280, 2008 Pa. Super. 227, 2008 Pa. Super. LEXIS 3059, 2008 WL 4368602
CourtSuperior Court of Pennsylvania
DecidedSeptember 26, 2008
Docket1109 MDA 2007
StatusPublished
Cited by8 cases

This text of 957 A.2d 1280 (Herr v. Herr) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Herr v. Herr, 957 A.2d 1280, 2008 Pa. Super. 227, 2008 Pa. Super. LEXIS 3059, 2008 WL 4368602 (Pa. Ct. App. 2008).

Opinion

OPINION BY

SHOGAN, J.:

¶ 1 Donald C. Herr and Cynthia T. Evans-Herr (collectively “the Donald Herrs”) and Brian J. Evanko and Dawn R. Evanko (collectively “Evankos”) appeal from the order granting the motion for summary judgment filed by Marvin E. Herr and Yvonne S. Herr (collectively “the Marvin Herrs”) and denying the motion for summary judgment filed by the Donald Herrs and Evankos. We reverse and remand.

¶ 2 The trial court stated the factual and procedural background of this case as follows:

[The Marvin Herrs] own a tract of land located at 133 Sprecher Road, Pe-quea Township, Lancaster County, consisting of approximately 146 acres. They acquired title to the premises pursuant to a deed recorded in the Office of the Recorder of Deeds for Lancaster County at Deed Book B, Volume 47, page 541 in 1959. [The Donald Herrs] own the property located at 642 Mill-wood Road, Pequea Township which Donald C. Herr originally acquired by a deed dated June 13, 1986 and recorded in Deed Book C, Volume 95, page 353. [Evankos] are the owners of property located at 646 Millwood Road, Pequea *1283 Township which they acquired by deed dated August 31, 1998 and recorded at Deed Book 5882, page 0034.
There were several other defendants named in this action when it was originally begun but by reason of the failure of those defendants to respond to the complaint, judgment has been entered against them by default.
The case involves ownership of a portion of the bed of an abandoned railroad. On May 26, 1875, John and Elizabeth Sener conveyed to the Lancaster and Reading Narrow Gauge Railroad a tract of land containing approximately two acres which formerly was part of the premises at 133 Sprecher Road to be used for railroad purposes. That deed contained a reversion clause in favor of the Seners, their heirs and assigns, to be effective upon the abandonment of the use and cessation of railroad purposes on this strip of land in which event it would automatically revert back to the Seners, their heirs and assigns. On May 25, 1876, the Seners conveyed their property to G.W. Smith, the deed for which excepted to the Seners the land conveyed to the Railroad. Subsequently, George W. Smith conveyed a two plus acre portion of the tract to Milton K. Sener on April 19,1883. On June 14, 1884, Milton K. Sener transferred 40 perches to Catharine K. Wertz, a predecessor in title to [the Donald Herrs], and 40 perches to Benjamin F. Dagen, the [Evankos’] predecessor in title. Subsequently, the balance of the Smith property was conveyed on January 22, 1888 by Smith’s Executors to William and Martha Sprecher, who in turn conveyed it to Abraham Herr on April 1, 1895. Ultimately, this tract known as 133 Sprecher Road, which was the original tract owned by the Seners, was conveyed to Esther M. Herr who in turn later conveyed it to [the Marvin Herrs 1 ] on January 9,1959.
The legal description in the deeds to both [the Donald Herrs] and [Evankos] describes the rear property line as being 20 feet east or beginning at a stake 20 feet east of the centerline of the Railroad. ...
The Pennsylvania Railroad, the successor in interest to the Lancaster and Reading Narrow Gauge Railroad, abandoned the property which triggered the reversionary interest and automatically vested title to the property in the Seners or their heirs and assigns. The Pennsylvania Railroad attempted to convey its interest to the property to J. Donald Mylin and Sandra J. Mylin. At that point, the Railroad had no right or title to convey due to the reversionary interest in the Seners ... [All parties to this litigation] agree that the deed into J. Donald Mylin and Sandra J. Mylin who were originally defendants in this action is a nullity.
At some point after acquiring title, [Evankos and the Donald Herrs] started to use the 20 foot strip between their property line and the center line of the Railroad as their own. [Evankos and the Donald Herrs] are claiming that they obtained title to that portion of the property within their own chain of title from the Seners and that such property reverted to and vested in them upon the abandonment of the Railroad.
This action was commenced on January 4, 2006 as an Action to Quiet Title *1284 and alternatively for Ejectment, seeking a declaration by the court that [the Marvin Herrs] own the property in fee simple. Of the original Defendants, only [the Donald Herrs and Evankos] defended the action. The balance of the Defendants chose not to be involved and default judgments were entered against them and titled determined to be in [the Marvin Herrs] with respect to that portion of the tract in issue which those Defendants were attempting to utilize as their own.

Trial Court Opinion, 9/5/07, at 2-4.

[The Marvin Herrs] initiated this suit on January 4, 2006 seeking to quiet title to or, in the alternative, for ejectment from, a strip of land located adjacent [the Donald Herrs’] property and to the property of [Evankos]. On March 1, 2007, [the Marvin Herrs] filed a Motion for Summary Judgment. On March 26, 2007 [the Donald Herrs and Evankos] responded to [the Marvin Herrs’] Summary Judgment Motion and also filed their own Motion for Summary Judgment to which [the Marvin Herrs] responded on April 5, 2007. By the order of May 22, 2007, this Court granted [the Marvin Herrs’] motion and denied that of [the Donald Herrs and Evankos]. This appeal followed.

Trial Court Opinion, 9/5/07, at 1.

¶ 3 On appeal, the Donald Herrs and Evankos present three issues:

A. Does a “save and except” clause following the description of land in a deed refer to land excluded from the track being conveyed?
B. Does a grantor’s reversionary interest appurtenant to a tract of land which is divided by separate deeds out, each having essentially the same habendum clause referring to reversionary interests, pass to each grantee?
C.Where title to a portion of an abandoned railroad bed is disputed by the reversionary interest assigns of a common grantor, one of which owns property adjacent to the bed and one who does not, does the adjacent owner have a claim superi- or to the non-adjacent owner?

The Donald Herrs and Evankos’ Brief at 4. 2

¶ 4 The Donald Herrs and Evankos argue that the trial court erred in granting the Marvin Herrs’ motion for summary judgment, thereby quieting title to the disputed portion of the abandoned railroad bed in favor of the Marvin Herrs. We are guided by the following principles:

When faced with a motion for summary judgment, the non-moving party must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

Ertel v. Patriot-News Co., 544 Pa.

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Cite This Page — Counsel Stack

Bluebook (online)
957 A.2d 1280, 2008 Pa. Super. 227, 2008 Pa. Super. LEXIS 3059, 2008 WL 4368602, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herr-v-herr-pasuperct-2008.