Plum Hollow Hunting Club v. Dillman, L

• Court: Superior Court of Pennsylvania
• Decided: August 9, 2016
• Docket: 1212 MDA 2015
• Status: Unpublished

Opinion

J-A09019-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PLUM HOLLOW HUNTING CLUB, INC. IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

LARRY J. DILLMAN AND TINA M. DILLMAN, HIS WIFE, BONNIE M. MILLER, WIDOW, AND DUAINE A. RAMSEY, SINGLE

Appellees No. 1212 MDA 2015

Appeal from the Order Dated June 17, 2015 in the Court of Common Pleas of Fulton County Civil Division at No(s): 274 of 2006-C

BEFORE: FORD ELLIOTT, P.J.E., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.: FILED AUGUST 09, 2016

Appellant Plum Hollow Hunting Club, Inc. (“PHHC”) appeals from the

June 17, 2015 order of the Fulton County Court of Common Pleas entering

judgment on behalf of Appellees Larry and Tina Dillman, Bonnie Miller, and

Duaine Ramsey (collectively “Appellees”),1 whom the court previously

determined had acquired property adjoining PHHC’s property by adverse

possession. After careful review, we affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court. 1 Bonnie Miller and Duaine Ramsey, the Dillmans’ neighbors, were added as indispensable parties to PHHC’s quiet title action. Neither Miller nor Ramsey’s land borders PHHC. J-A09019-16

In its February 6, 2014 Interim Non-Appealable Order and Opinion

(“Interim Opinion”), its January 28, 2015 Order and Opinion (“AP Opinion”),2

and its October 22, 2015 Opinion sur Pa. R. App. P. 1925(a) (“1925(a)

Opinion”), the trial court fully and correctly set forth the relevant facts and

procedural history of this case; therefore, we have no reason to restate

them. See Interim Opinion, pp. 2-26; AP Opinion, pp. 1-3; 1925(a)

Opinion, pp. 1-4.3

Appellant raises the following three (3) claims for review:

1. Whether the trial court erred as a matter of law in determining that Dillman proved every necessary element of adverse possession by clear and convincing evidence for the statutory period of 21 years, especially because the trial court abused its discretion when it failed to find as a material fact that the Encroachment Area was an enclosed woodland[?]

2. Whether the trial court abused its discretion and erred as a matter of law in determining that [the] Dillmans established adverse possession through tacking from their predecessor-in- title when the only act constituting adverse possession by that predecessor was placing a residence on real estate to which plaintiff [PHHC] did not have title and so was never entered upon and ousted[?]

3. Whether the trial court abused its discretion and erred as a matter of law in establishing the southern and eastern boundaries of [the] Dillmans[’ property] in common with [PHHC] coextensive with [the] Dillmans’ deed calls, as established by ____________________________________________

2 We follow the trial court’s designation of its January 28, 2015 Order and Opinion as the “AP Opinion”. 3 The AP Opinion incorporates by reference the Interim Opinion. See AP Opinion, p. 3. The 1925(a) Opinion repeatedly incorporates both prior opinions. See 1925(a) Opinion, pp. 5, 6, 7.

-2- J-A09019-16

surveyor Thomas Michael Englerth, when there was no showing of adverse possession along those boundaries, and [PHHC] had superior tittle to [the] Dillmans along these common boundaries[?]

Appellants’ Brief, p. 3.

Appellant challenges the trial court’s entry of final judgment in favor of

Appellees. Specifically, Appellant claims the trial court erred by finding

Appellees established adverse possession by clear and convincing evidence.

We disagree.

When reviewing a trial court’s decision regarding an action to quiet title, [the appellate court is] limited to determining whether the findings of fact that led to the trial court’s conclusions of law are supported by competent evidence. Ordinarily, an appellate court will not reverse a determination of the trial court in a quiet title action absent an error of law or capricious disregard of the evidence.

Birdsboro Mun. Auth. v. Reading Co. & Wilmington & N. R.R., 758 A.2d

222, 225 (Pa.Super.2000) (internal quotations and citation omitted).

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned and thorough opinions of the

Honorable Douglas W. Herman, we conclude Appellants’ issues merit no

relief. The trial court opinions comprehensively discuss and properly dispose

of the questions presented. See Interim Opinion, pp. 26-74; AP Opinion,

pp. 3-9; 1925(a) Opinion, pp. 4-7 (finding: PHHC sufficiently demonstrated

the location of the Mary Trotter Patent, which controls; PHHC sufficiently

demonstrated its chain of title back through the Mary Trotter Patent;

Appellees acquired title to all improved property by adverse possession;

-3- J-A09019-16

Appellees further acquired title to all property intersecting the Mary Trotter

Patent, as set forth in their respective deeds, by adverse possession).

Accordingly, we affirm on the basis of the trial court opinions.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/9/2016

-4- .. Circulated 07/14/2016 01:55 PM )

THE COURT OF COMMON PLEAS OF THE 39th JUDICIAL DISTRICT OF PENNSYLVANIA- FULTON COUNTY BRANCH

Plum Hollow Hunting Club, Inc., and Civil Action Douglas Henry, Plaintiffs No. 376-2008

tf vs.

J. Ronald Fraker, Dulce Burger Hall, Judge Douglas W. H~~- FULTON COUNTY Bonnie M. Miller, Michael R. PEN1fet~ANIA ~· . Weaver and Rhonda R. Weaver, his wife, Duaine A. Ramsey, single, and JAN 2 8 2015 Larry J. Dillman and Tina M. PROTHONOTARY. CLERK OF COURTS, Dillman, his wife, CLERK OF ORPHANS COURl Defendants REGISTER OF WILLS, RECORDER OF DEEDS

Plum Hollow Hunting Club, Inc., Civil Action Plaintiff

vs. ~o. 274-2006

Larry J. Dillman and Tina M. Dillman, his wife, Bonnie M. Miller, Judge Douglas W. Herman widow,and Duaine A. Ramsey, single, Defendants

OPINION

This is a boundary dispute case involving Plaintiffs, Plum Hollow Hunting Club

("Hunting Club") and Douglas Henry ("Henry''), and Defendants, J. Ronald Fraker ("Fraker"),·

Bonnie M. Miller ("Miller''), Michael R. Weaver and Rhonda R. Weaver (''the Weavers"),

Duaine A. Ramsey ("Ramsey"), and Larry J. Dillman and Tina M. Dillman ("the Dillmans").

On February 6, 2014 this Court issued an Interim Non-Appealable Order and Opinion ("Interim

Opinion") which, in part, qecjped that the Defendants have satisfied their burden of proving

adverse possession for the land that has been improved. However, questions remain regarding

SCANNED . )

adverse possession of any unenclosed woodland adjoining the properties. The Court deferred

ruling on where the boundaries between the parties' respective properties lie to allow the parties

to reach an agreement as to those terms. The parties have failed to reach an agreement and so the

issue is now before the Court.

PROCEDURAL HISTORY

This Opinion relates to case nos. 274 of2006 and 376 of 2008. On September 12, 2006

(no. 274 of 2006), November 14, 2008 (no. 376 of2008), and February 5, 2009 (no. 40 of2009)

the Plaintiffs filed complaints. On November 2, 2006 the Defendants Dillmans filed an Answer

in case no. 274 of 2006. On January 20, 2009 the Defendants filed an Answer in case no. 376 of

2008. On March 18, 2009 the Defendants filed an Answer with New Matter and Counterclaim in

case no. 40 of 2009.

The Court convened a bench trial on May 18 to May 20, 2011, July 26, 2011, July 29,

2011 and August 25, 2011. After consideration of the evidence of record and the arguments of

counsel the Court issued an Interim Non-Appealable Order and Opinion on February 6,2014. In

that Opinion we concluded that pursuant to the Mary Trotter Patent the Plaintiffs hold legal title

to those portions of land that overlap With the land described in the Defendants' deeds.

Furthermore, we concluded that the Defendants' were entitled to ownership of the intersecting

property by way of adverse possession of any improved land but the Court purposely left

undecided where the boundaries of the properties obtained by adverse possession would lie to

allow the parties to come to an agreement.1 Specifically, the Court did not decide whether the

Defendants were entitled to ownership of any unenclosed woodland adjoining their properties.

The parties have failed to come to an agreement and therefore the issue is now before the Court.

I Regarding Fraker and his grantees' title the Court stated: "Except for the adverse possession and the doctrine of consentable lines, any interference between the Survey of 1976 and the Mary Trotter patent is resolved in favor of those holding title through Mary Trotter." Interim Opinion at 54.

2 The instant Opinion pertains only to case nos. 274 of2006 and 376 of2008 and focuses on the

issue remaining from the Interim Opinion, i.e., the boundaries between the parties' respective

properties in the context of ownership by adverse possession. This matter is now ready for a·

decision.

DISCUSSION

For purposes of this Opinion we incorporate all findings of fact and conclusions of law

delineated in the Court's Interim Opinion.2 In the Interim Opinion we found that the Dillmans,

· Ramsey, Miller, and Dulce Burger Hall ("Fraker Defendants") have satisfied their burden of

proving adverse possession for the land that has been improved. In order to decide the

boundaries of the properties we now must decide whether the Defendants have obtained title to

any adjoining unenclosed woodland within the Mary Trotter patent ("Encroachment Area") by

adverse possession.

As we expounded upon in the Court's Interim Opinion, adverse possession is defined as

"dominion over the property." Bride v. Robwood Lodge, 713 A.2d 109, 112 (Pa. Super. Ct.

1998). To establish adverse possession, the person asserting it must prove actual, continuous,

exclusive, visible, notorious; distinct and hostile possession of the land which it seeks title to for

a period of 21 years. Moore v. Duran, 687 A.2d 822, 828 (Pa. Super. Ct 1996).

· "Actual possession of property may be established in connection with the maintenance

of a residence, by cultivation of the land, by [ e]nclosure of the land, or by making improvements

to the land and paying property taxes." Moore, 687 A.2d at 828; see also Parks v. Pennsylvania

R.R. Co., 152 A. 682, 684 (Pa. 1930) (''temporary acts on the land, without an intention to seat it

for residence and cultivation or other permanent use consistent with the nature of the property

are riot the actµal possession required"). Proof of "actual possession" is not to be mistaken for

2 Pages 63 to 70 ef'the Interim Opinion discuss adverse possession.

3 ) )

proof of constructive possession under the guise of color of title. Inn Le'Daerda, Inc. v. Davis,

360 A.2d 209, 214 (Pa. Super. Ct 1976). However, importantly for this case, "a disseisor who

enters under 'color of title' and demonstrates actual possession for the requisite twenty-one year

period, of a portion of property described in the invalid instrument, may thereby establish

constructive possession of entire tract described therein." Beck v. Beck, 648 A.2d 341, . 343 (Pa. : .

Super. Ct. 1994); see also Arcadia Co.. v. Peles, 576 A.2d 1114, 1117 (Pa. Super. Ct. 1990)

· ("[a]lthough it contributes nothing to the fiber of title as affecting the adverse character of

possession, id., a disseisor who enters upon and cultivates part of a tract for the limitations period

(i.e., for twenty-one years), may thereby hold constructive possession of the whole tract ifhis

entry was by color of title"). It must be noted however, ''the possession of one who has a

colorable title is co-extensive with the boundaries of the instrument under which he claims only

in the absence of any actual possession by the true owner." Arcadi~ 576 A.2d at 1117.

[and where one party] enters upon unoccupied land, under a deed or title, and holds adversely, his possession is construed to be coextensive with his deed or title, and the true owner will be deemed to be disseised to the extent of the boundaries described in that title. Still, his possession beyond the limits of his actual occupancy is only constructive. If the true owner be·at the same time in actual possession of part of the land, claiming title to the whole, he has the constructive possession of all the land not in the actual possession of the intruder, and this though the owner's actual possession is not within the limits of the defective title.

Id. (quoting Inn Le'Daerd~ 360 A.2d at 213-14).

When the claimed property is woodland, Pennsylvania courts have adopted "a rather

strict standard for proving adverse possession." Shaffer v. O'Toole, 964 A.2d 420, 424 (Pa.

Super. Ct. 2009). In "dealing with a woodland, a person must establish actual possession of the

woodland by residence or cultivation of a part of the tract of land to which the woodland

belongs. A property owner can satisfy this requirement by making ordinary use of the

woodlands in connection with their residence or the part of the woodlands that is cultivated.

4 )

Olewine v. Messmore, 18 A. 495, 496 (Pa. 1889); see also Bride v. Robwood Lodge, 713 A.2d

109, 112 (Pa. Super. Ct. 1998) ("[s]ince the disputed parcel is undeveloped woodland, actual

possession is established by either erecting a residence or by enclosing and cultivating the

.' property"); Moore, 687 A.2d at 828 ("[a]ctual possession may thus be established by enclosing

arid cultivating the tract ofland of which the woodland is a part without erecting a residence; or

possession may be established by erecting a residence where there is a clear designation of the

boundaries of the land surrounding such residence"); Hole v. Rittenhouse, 37 Pa. 116, 117

(1860) ("actual possession may be a residence without cultivation, or by enclosure and

cultivation without residence; and where either these is, the use of adjoining woodland by the

disseisor, as farmers generally use woodland adjoining their farms, is actual and not constructive

possession of such woodland").

In determining whether a claimant has established the requisite 21 years of possession the

concept of tacking may be applicable. Inn Le'Daerda, 360 A.2d at 214. Tacking consists of

combining the possession of a claimant with that of his predecessor in title and it is permitted

where the possessions are continuous. Id. Furthermore, "[ e Jach predecessor must have claimed

title to the property in dispute, and in transferring to his successor must have purported to include

it. Id. That is, the deed to the· successor must contain a description of the land claimed. See id.

.In the Interim Opinion we stated "[t]he Court agrees with the Defendants that adverse

possession has been satisfied for the land that has been improved.v' and stated our reasons why,

citing testimony by Allen Henry and Fraker as well as other photographic evidence presented in

Exhibits 1-2 through 1-9. Such improvements on the property of the Fraker Defendants land

include dwellings and structures on theland, driveways, and neatly groomed front and back

yards. Thus, the Fraker Defendants have established the requisite elements of adverse 3 Interim Opinion at 67.

5 possession for improved land. We now discuss purported improvements to any unenclosed

woodland adjoining the Fraker Defendants' properties to determine whether the Fraker

Defendants have obtained title to that property by adverse possession and to set boundaries

between the properties.

Plaintiffs did not actually possess the portions of land where the Encroachment Area

intersects with the Fraker Defendants' properties from the time Fraker acquired the property.

Nor do the disputed areas consist of unenclosed woodland. Therefore, Fraker's and the Fraker

Defendants' actual and constructive possession of the disputed land that is described within their

deeds is sufficient to establish adverse possession of the land, as set forth more fully below.

Beck, 648 A.2d at 343; Arcadia, 576 A.2d at 1117.

I.Bonnie Miller

Fraker acquired his property by deed dated June 28, 1976. On May 9, 1985 Fraker

conveyed the property to Miller by deed ("Miller Deed"). Plaintiffs filed their lawsuit on

November 17, 2008. Therefore, Miller was in possession of her property for over 21 years prior

to the commencement of the action. Exhibit 124,a reconstruction of the. Mary Trotter Patent,

shows that a small portion of Miller's front yard is within the Encroachment Area. As we

alluded to in the Interim Opinion, Miller has established adverse possession of all improved land

by way of photographic evidence in Exhibits I-2 through I-9 and the testimony of Fraker and

Allen Henry. The small portion of the front yard that is within Encroachment Area consists of

land that has been improved: That is, there is no unenclosed woodland within the perimeter

described in the Miller Deed that overlaps with the Encroachment Area. Plaintiffs expert

witness, Mr. Witter testified that Miller's trailer, outbuildings, and other improved areas of her

property are the portions of property that are within the Encroachment Area.

6 ',) )

Plaintiff argues that Inn Le'Daerda stands for the proposition that Miller did not establish

adverse possession. We disagree. In that case the Superior Court noted thattrailers were

installed by Marshall's predecessors in title on a disputed strip of land, they remained there, and

the property was maintained, The Court ruled that adverse possession was established by tacking·

Marshall's possession with that of his predecessors in title which equated to more than 21 years.

Like Inn Le'Daerda, Fraker installed a trailer in the Encroachment Area and Miller maintained it

when she acquired the property from Fraker and therefore Fraker's possession tacks onto

Miller's possession for over 21 years. As such, Miller has acquired title to all land described

within the Miller Deed by adverse possession.

II. Dulce Hall

On May 15~ 2003 Dulce Hall acquired his property from Miller who conveyed part of the

property that she acquired form Fraker; Hall's property is comprised of the property that Miller

acquired from Fraker. Just as Fraker's possession tacked onto Miller's possession of the

property, Hall's possession will tack onto Miller's possession, as the deeds purport to convey the

same property. By way of tacking, Hall has acquired title to all land described within the Miller

Deed by adverse possession.

III. Duaine Ramsey

On January 27, 1989 Fraker conveyed the Ramsey property to Ubertie and Geraldine

Shockey and on October 23, 2001 Shockey conveyed this lot to Ramsey. Plaintiff's expert

witness Mr. Witter testified that the improved areas of Ramsey's property lie within the

Encroachment Area. Mr. Witter did not testify to the exact location of the intersection of the

Encroachment Area and Ramsey's property, as he testified that "we have no exact distance per

se." Based on the testimony of Allen Henry pertaining to the location of the Mary Trotter line

7 •" )

and Exhibit 124, the Mary Trotter line crosses the Ramsey property between Plum Hollow Road

and Ramsey's house, being parallel to Plum Hollow Road. Thus, the portion of the Ramsey

property that is within the Encroachment Area is improved and has been improved since the time

that Fraker owned it as we concluded in the Interim Opinion: Therefore, Ramsey has acquired

title to all land described within the Miller Deed by adverse possession.

IV. The Dillmans

Fraker conveyed the Dillmans property to the Dillmans on September 26, 1986. The

· testimony of Allen Henry, along with the photographic evidence which we discussed in the

Interim Opinion, establishes that the Dillmans own all of the property described in their deed that

intersects with with the Encroachment Area by way of adverse possession. Allen Henry testified

to the following:

Q. Before we move on, who was in actual physical possession of the Dillman property when this action was filed by the plaintiffs in 2009? A. Dillman was in actual physical possession of whatever is inside the Mary Trotter boundary in my opinion, He occupied-it's my understanding he occupied the house and so he was also in physical possession of that house, but at the time he purchased [it] I understand the title was still in someone through Mary Trotter because the house was on the property that was conveyed to him by Fraker. The house is on that property.

N.T. May 19, 2011 at 116. Allen Henry, a plaintiff witness, believes that the Dillmans were in

physical possession of any land within the Encroachment area. His testimony also establishes

that the house was there prior to the Dillmans acquisition of the property. Aside from the

Dillmans' driveway, Mr. Witter did not identify any other portion of the Dillmans' property that

would lie within the Encroachment Area. Exhibit 124 shows that only a portion of the Dillmans'

front yard is within the Encroachment Area. When shown photographs of the Dillmans' house

and garage (Fraker Exhibit 1-1), the Dillmans' side yard (Fraker Exhibit 1-2), and a front view of

the house (Fraker Exhibit 1-3) and asked where the Dillmans' property intersected with the Mary

8 ) .' Trotter line, Allen Henry testified that "it is clear I think it is between the garage and the road."

N.T. May 19, 2011 at 115. Thus, the Court concludes that the area of the Dillman's property that

intersects with the Encroachment Area is improved and therefore the Dillmans have adversely

possessed the land. As with the other deeds the deed conveying the property to the Dillmans

purported to convey property within the Encroachment Area and therefore the Dillmans'

possession of that property tacks onto the possession of their predecessor in title, Fraker.

There is also a question relating to the boundary of the Dillmans' property and the

Hunting Club's property that is not within the Encroachment Area. Mr. Englerth testified as to

this boundary line. Mr. Englerth testified that he constructed Fraker Exhibit A-1 based upon the

deeds of the Plaintiffs and Defendants in the case, and he further testified in detail regarding his

construction of the line and his testimony was not challenged by the Plaintiffs' expert witness,

Mr. Witter. Mr. Englerth testified that in constructing the exhibit he found numerous field

monuments corresponding to the property lines described in the Hunting Club deed and the

Dillmans' deed. He concluded that the property line between the Hunting Club and the Dillmans

is displayed as the black line on Fraker Exhibit A-1. Mr. Englerth's undisputed testimony

establishes that the boundary between the Hunting Club and the Dillmans that lies outside the

Encroachment Area is the black line on Fraker Exhibit A-1. Accordingly, the Dlllmans have

acquired title to all land described within their Deed that intersects with the·Encroachment Area

by adverse possession. As to the boundary line between the Dillmans and the Hunting Club's

property that lies outside of the Encroachment Area, the boundary is established by the black line

pursuant to Fraker Exhibit A-1.

9 ~ 1 , J

) . . '

CONCLUSION

The boundaries of the parties' respective properties will be set according to the foregoing

discussion. An Order consistent with this Opinion is attached.

10 Circulated 07/14/2016 01:55 PM

•I

IN THE COURT OF OOMMON PLEAS O}i' THE ;39TI-I ronrcnr, DISTRlCT OF PENNSYLVANIA - FULTON COUNTY BRANCH

Plum Hollow Hunting Club, Inc., Civil Action - Law And Douglas Henry> Plaintiffs

vs. No. 40 of2009 C Janot M. Fraker, Defendant Judge: Douglas W. Herman

lN 'l'HE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA FULTON COUNTY BRANCH M

Plum Hollow Hunting Club, Inc., Civil Action -Law And Douglas Henry, Plaintiffli

) vs. No. 376~2008 ~C J. Ronald Fraker, Dulce Burger Hall, Bonnie M. Miller, Dualne A. Ramsay, single Ramsey, single, and Larry J. Dillman and Tina M. Dillman, hts wife, Defendants Judge: Douglas W. Herman

IN THE COURT OF COMMON PiEAS OF THE 39TH JlJ'DlCIAL DISTRJCT · OF PENNSYLVANIA ~ FULTON COlJNTY :BRANCH

Plum Hollow Hunting Club, Inc., Civil Action -Law . Pfointiff

vs. No. 274-2006 C

Larry J. Dillman and Tina M. Dillman,' His wifo, Bonnie M, Mllfo1·, widow and Dualne A. Ramsey, single Defendants Judge: Douglas W. Heiman

INTERIM NON-APPEALABLE ORDER Y/J NOW TffiS . {, day of February 2014, the Court hereby aiders that the attached

l

" i" EXHIBIT

j1------ ) Opinion be filed of record. This is not a final appealable Order for the reason that the Court did

not decide all the issues raised by the parties. Specifically, with regard to the issue of adverse

possession the Court request that the parties attempt to reach a mutual agreements to .the

remaining boundaries.

TRE COURT HEREBY directs that counsel for the parties and the prose defendants will

appear before the Court for a settlement conference on Tuesday, February 25, 2014 at 2:30

o'clock, p,m, in the Courtroom of the Fulton County Courthouse, McConnellsburg,

Pennsylvania.

Pursuant to the requirements of Pa.R.C.P. 236 (a)(2},(b),(d), the Prothonotary shall give written notice of the entry of this Order, including a copy of this Order, to each parties' attorney of record and shall note in the docket the giving of such notice and the time and manner thereof.

By the Court,

The Prothonotary shall give notice to: J. McDowell Sharpe, Esquire William C. Cramer, Esquire Joseph A. Macaluso, Esquire David A. Ody, Esquire, for Tina M. Dillman Pro Se Defendant Larry J. Dillman Pro Se Defendant Bonnie M. Miller Matthew Sembach, Esquire

) 2 ,·

IN THE COURT OF COMMON PLEAS OF THE 39™ JUDICIAL DISTRICT OF PENNSYLVANIA-FULTON COUNTY BRANCH

Plum Hollow Hunting Ch1b, Inc., and, Civil Action - Law Douglas A. Hem,y Plaintiffs

v. Janet M. Fraker Defendant . Honorable Douglas W. Herman

IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT OF PENNSYLVANIA'- FUl,TON COUNTY BRANCH:

Plum Hollow Hunting Club, Inc., and, Civil Action .; Law Douglas A. H~ Plaintiffs

v. No. 376 of 2008-C

J. Ronald Fraker, Duke Burger Hall, · Bonnie M. Miller, Michael R. Weaver and Rhonda R. Weaver, his wife, Duaine'A. Ramsey, single, and Larry J. Dillman and . Tina NI\ Dillman, his wife, Defendants Honorable Douglas W. Herman'

lN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT . OF PENNSYLV.ANfA..:::FULTON COUNTY .BRANCH

Plum Hollow Hunting Club, Inc., and, Civil Action - Law Plaintiff

v. No, 274 of2006-C

Larry J. Dillman and Tina M. Dillman, his wife, Bonnie M. Miller, widow, and Duiane A. Ramsey, single Defendants Honorable Douglas W. Herman

PPINJON ) Procedural Histocr

Before the Court are three separate causes of action that are being considered

simultaneously. On September 12, 2006 (No. ~006-274)1 November 14, 2008 (No, 376-

2008), and February 5, 2009 (No. 40-2009) the Plaintiffs filed Complaints, The

Defendant's Answer with New Matter and Counterclaim in No. 40~2009 was filed March

18! 2009. In No. 376-2008 Defendant's Answer was filed on January 2(), 2009. In No.

200~-274 Defendant LarryDlllman's Answer was filed November 2, 2006.

The Court convened a bench trial on May 18 to May 2012011, July 26, 2011, July

29, 2011 and August 25, 2011. Throughout trial Plaintiffs, Plum Hollow Hunting Club,

Inc. and Douglas A. Henry were represented by J. McDowell, Sharpe and the law firm of

Sharpe and Sharpe, LLP. Defendant Janet M, Fraker was represented by Joseph A· ) Macaluso, Esqulre and Defendant J. Ronald Fraker was represented by William C.

Cramer, Esquire. While Defendants, Larry J. Dillman and Duaine Ramsey did not

actively participate in tho cross examination of witnesses or present any witnesses of their

own, they did testify on their own behalf, See Notes of Testimony, July 29, 2011, p, 74

to 114 for Defendant Larry J, Dillman and Notes of Testimony) July 29, 2011, p, 114 to

131 for Defendant Duaine Ramsey. The remaining defendants, despite proper notice, did

not appear or present any testimony. Upon consideration of all evidence of record and

the arguments of counsel, the Court enters the following findings of fact and conclusions

law:

Findings of l?act1

I As more fully discussed irfra, the Defendants have done nothing to rebut the foregoing conclusions of fact.

2. I. An application for thirty (30) warrants, including John Trotter, Mary .. Trotter, and Elwin Fish was processed by the Land Office on March 1, 1794 and resulted · I in the issuance of a warrant for John Trotter, Mary Trotter, and Elwin Fish. Plaintiffs

Exhibit 25.

2. John Trotter, Mary Trotter, and Elwin Fish (hereinafter "Irotter-Fish'')

each secured a warrant for 400 ecres of land in Dublin Township, Bedford County (now Fulton County), Pennsylvania.

3, The warrant issued to John Trotter on March 1, 1794 was for 409 acres of

land adjoining land granted to William Rhea the same day in Dublin Township, Bedford

County. Plaintiffs, Exhibit 42.

4. The warrant issued to Mary Trotter on March 1, 1794 was for 400 acres of

land adjoining land granted to John Trotter the same day in Dublin Township, Bedford

County. Plaintifft' Exhibit 2 3.

5. The warrant issued to Elwin Fish on March 1, 1794, was for 400 acres of

land adjoining land granted to Mary Trotter the same day in Dublin Township, Bedford

County. Plaintiffs' Exhibit JOO.

6. The Trotter-Fish warrants were indexed and registered in the Warrant

Register under :fue heading "Bedford County". Plaintiffs' Exhibit 24.

7. · George Woods Jr., in his capacity as Deputy Surveyor for Bedford

County, completed a survey of the Mary Trotter Warrant on March 12, 1794. Plainftffe'

Exhibit 22.

3 8. The Mary Trotter Warrant was patented for 440 acres plus a six percent

(6%) allowance for roads, Said patent was enrolled on June 261\ 1805. Plaintiffs'

Exhibit 20.

9. George Woods Jr., in his capacity as Deputy Surveyor for Bedford

County, completed a survey of the John Trotter Warrant on Match 12, 1794. Plaintiffs'

Exhibit 41.

10. The John Trotter Wan-ant was patented for 425 acres plus a six percent

(6%) allowance for roads. Said patent was entered on September 30th, 1805. Plaintiffe'

Exhibtt40.

11. George Woods Jr., in his capacity as Deputy Surveyor for Bedford

County, completed a survey of the Elwin Fish Warrant on March 12, 1794. Platntiffs'

)· Exhibit 100, p. 2. ·

12. The Elwin Fish Warrant was patented tor 436 acres and 34 perches plus a

six percent (6%) allowance for roads. Said patent was enrolled on June 25th, 1805.

Plaintiffs' Exhibit 100, p. 1.

· 13. The Trotter-Fish patents were indexed and entered into the Patent

Register. Plaintiffs' Exhibit 21, p. 1-2.

14. The description in the patent of the M1:11y Trotter Warrant to Ezekiel King

contains. errors such that the patent does not close. All calls, courses and distances in the

Mary Trotter survey are the same as those in the Mary Trotter patent. Plaintiffs 'Exhibits

20, 22.

15. The Mary Trotter survey and the John Trotter survey share a part of a

common boundary with the bearing in the John Trotter survey calling for North 56 West.

4 ) The bearing in the MaryTrotter survey calls for South 56 West Plaintiffs' Bxhibtts 39,

40.

16, On the depiction shown on the Mary Trotter survey, the angle between the

line with bearing North 25 East and the line with bearing North 46 West is nearly right

angle in the official survey. Plaintiffi' Exhibits 22J 121.

17. A plot of the Mary Trotter patent using North 46 West shows an angle that

is not a right angle but rather an obtuse angle. Holding that course to North 46 West

moves the property lines on the adjacent boundary between Mary Trotter and Elwin Fish

to the error and changing the course to North 64 West makes the line match the historical

and existing property lines. Plaintiffs' Bxhibit 146.

18. The Thomas Stinson Patent, which Hes to the south of this course and

bearing, as more tuily described Infra, made the transposition from North 46 West to

North 64 West. The Deed. of 1827 and the Deed of 1865 make a similar change.

l 9. Transposition of digits in a number is a common error in drafting a survey.

Notes of Testimony, July 26, 2011, p. 15. 20. After the course is corrected to match the John Trotter bearing and the

course is transposed to mirror the angle on the survey, there is an error of closure of

25.77 perches along the eastern boundary of the Mary Trotter boundary. Plaintiffs'

Exhibit 121. 21. By making the adjustments in the courses and adjusting for the closure

error, the Mary Trotter patent description closes, the survey is minored, and the plotted

acreage of the patent is 467.67 acres. Plainli/fe' Bxhibit 146.

5 ) 22. The Mary Trotter Patent is the final link in the chain of title for Plaintiff

Plum Hollow Hunting Club, Inc., Plaintiff Douglas A. Henry and Defendant Janet M.

Fraker.

Relating to the-location of the Mary Trotter Patent

23. George Woods Jr. in his capacity as Deputy Surveyor for Bedford County,

completed the surveys on March 12, ·1794 upon 1:he "Trotter-Fish" warrants issued on

March I> 1794, with the Mary Trotter warrant depending on the John Trotter warrant and

the Elwin Fish depending on the Mary 'Irotterwerrant; the John Trotter warrant calls for

the Mary Trotter warrant and the Mary Trotter warrant calls for the Elwin Fish warrant.

Plaintiffs' Exhibit 121. 24. Plaintiff's expert, Timothy Witter, was able to locate sufficient points to

) locate the Mary Trotter patent, and the John Trotter and Elwin Fish patents, which he

used to locate the Mary Trotter patent. More specifically:

a. He located a point at a common comer, referred to as the "Four

Corners" in which the northwest corner of the Mary Trotter patent and the southwest

comer of the Elwin Fish patent meet the northeastern comer of the Thomas Stinson

patent and the southeastern comer of the Charles Sewell patent. Plaintiffs' Exhibit 123.

b. He located a planted stone in the western boundary of the Elwin

Fish patent. Plaintiffs' Exhibit 122.

c. The existence of fence fragments adjacent to the area described by

too Deed of 18652• Plaintiffs' Exhlbtts 124,_ 127, 13 3 d, The location of the Survey of 1865, Platntiffs 'Exhibits 60, 123.

l Referred to as tho "Hom"

6 e. He surveyed along the southern border of the John Trotter patent

and was able ~o establish the location of that boundary line. Plaintiffs' Exhibit 125

· f. · His location of the tributary of the f.lum Run in the area that would

cross the eastern boundary of the Thomas Stinson patent/westeni boundary of the Mazy

Trotter patent at the Horn on the South 25 W~st (North 25 East).16 perch line, Plaintiffs'

Exhibtt 124 ,. g, The location of the Holland tract. Plaintiffs' Bxhibits 54, 123, JI 7;

and :r.

h. · The comer agreed on, with Defendant J ...Ronald Fraker at a white I

oak. Plaintiffs' ExhfbJt 123. · ,, I ) '

25. Mary Trotter's northwest comer ls the same as the southwest comer of

Elwln Fish and the uorthem boundary of'the Mary Trotter patent runs along the southern

boundary of the Elwin Fish patent. Plaintiffs' Bxhibit 131.

. 26. · A survey made for Ephraim Ramsey by A.J. Fot~ on November 24, l 865

(Plaintiffs' Exhibit 60) subdivided a parcel ;of land out of the Thomas Stinson survey into

a tract with three (:3~·courses in the· Littleton Road as a new monument, operating as the

common boundary 'between the two tracts. Ramsey conveyed the parcel south of the

Littleton Road to :tl;.omas Walkeu_ln the Deed of 1865 as demonstrated by Plaintiff's

Exhibit 58. On Febt.t:1ary 26, 1869, Ramsey conveyed to William, Peters the parcel north

of the road ~th a- description using adloiners, Plaintiffs' Exhibit 59. This parcel is now

in the chain oftitl~ referred to as the "Henry Farm".

27. The existence of the stream as shown on the Survey of Mary Trotter

(Plaintiffs' Exhibit 22) and as still exists on the ground now provides a physical limitation

7 I t ')

that requirea the stream to intersect the western boundary of the Hom of Mary Trotter,

Platntiffe J E.thibJi 124.

28. The courses describing the eastern boundary of the Walker tract match

those in the western boundary of the Mary Trotter survey. Plaintljfs' &hibit J33. The

Walker descriptiot1 includes the Littleton Road as a monument on the north but is silent

regarding the road in the Hom area thereby concurring with his processor Thomas

Stinson 's survey which also failed ta include the road frontage.

29. Defendants' expert Thomas Englerth> specifically agreed to the Plaintiffs'

expert location.of the Deed of 1865 which constitutes, until ths Survey of 1916, the most

recent metes and bounds description of Defendant J. Ronald Fraker' s title; See Notes of :~ . Testimony, July 26, 2011, p. 148. · ) 30. · The location of.the Mary Trotter patent is fixed as set forth on Exhibit A

of Plaihtiffe' Exhibit J21 and supported by Platntiffs 'Bxhibits 1'22~ 125.

3 I. All of Defendant-Janet M. Fraker's real estate ls located within the Mary

Trotter patent as discussed i:iffea and the northern portion of'theAppleby Tract of Plum

Hollow's real estateis also located within the boundary of the Mary Trotter patent as

discussed irfra..

Relating to Plum.Hollow Hunting Club, Inc. 's Chain of!ltle to Owen Anderson

32. The record title for Plum Hollow Hunting Club, Inc, (hereinafter "Plum

Hollow") can be traced to two (2) adjoining tracts of land first described by a subdivision

made by Owen H. Anderson and Opal, his wife, with one tract conveyed to A.G. Kerlin

(hereinafter ''A.G. Kerlin Tract") in 1917, containing ninety (90) acres, more or less, and

a second tract to the north conveyed to James Appleby (hereinafter "Appleby Traer) in

8 • t

) · 1919, containing 180 acres, more or less. The Appleby Tract actually contains 230 acres,

more or less, as discussed trfra.

33. The deed for the Appleby Tract (hereinafter "Appleby Tract") (Plaintiffs··

Exhibit8), dated Match 22, 1919, and each subsequent deed thereafter, in an unbroken

chain of title (hereafter "Appleby Chain"), calls for adjoiner found in the J. Ronald Fraker

grantees chain of title (hereinafter "JRF grantee chain"), and also calls for an adjoin er In

the JMF chain of title (hereinafter "JMF chain"). See Platnttffs I Exhibit 8.

34. The deed for the A.G. Kerlin Tract (hereinafter "A.G. Kerlin Deed")

(Plaintiffs' Exhibit 34), dated May 29, 1917, calls for Elijah Baldwin on the east, but each

subsequent deed in an unbroken chain of title (hereinafter "A.G. Kerlin Chain") does not

call for any adj oiner in Defendants' chains of title. The deed does not call for other lands

of Owen Anderson (later the Appleby Tract) on the north. PlaintiffsI Exhibit 34.

,Relating to Plum Hollow Hunting Club. Inc:s Chain of Title from Owen Anderson through James Kerlin 35. Owen H. Anderson acquired title from his mother Celia Anderson by

deed, containing 140 acres, more or less, and a second deed for an adjoining tract of land

from Job L. Garland, High Sheriff of Fulton County (hereinafter "Garland Deed,')

(Platntiffe 'Exhibit 9), containing 180 acres, more or less, sold as the land of Celia Sipes

(formerly Celia Anderson), The Garland deed called for the Elliott Fleming heirs as an

adjoiner who is in the JRF grantee chain and Elijah Baldwin who is in the JRM chain. These two (2) tracts were combined and subdivided using a different common boundary 2, into the Appleby Tract and the A.G. Kerlin 'Iract as dis~ / ,j ~

36. Celia Anderson acquired title to the real estate described supra from

Harrison Grove Adm. CTA of Ephraim Anderson by deed dated June 25, 1911,

9 ,. ) containing 286 acres, more 01· less, and consisting of two (2) adjoining parcels, See

Plaintiffs' Exhibit I J. The Grove deed called for T,B. Fleming heirs or devisees as

adjoiners to the north in the JRF grantee chain and for Elijah Baldwin as adjoiner on the

east in the JRM chain. Plaintiffs' Exhibit 11.

37, No deed of record was found into Ephraim Anderson, but the following

recitals found in the respective deeds reference the deed(s) from James Kerlin to Ephraim

Anderson for the two (2) adjoining tracts in the Grove Deed.

a. The Anderson deed, identified as Plaintiff's Exhibit Number I 0,

recites, "being the same land which was conveyed by Samuel Kelso, Executor of John P.

Baker to James Kerlin by deed dated April 6, AD., 1869 and conveyed by James Kerlin

to Ephraim Anderson and the said Anderson died seized of the same land after having

made his last wi1I and testament." Plaintiffs' Exhibit Number 10..

b, The Appleby Deed, labeled as Plaintiff's Exhibit 8, recites that it is

identified as Plaintiffs Exhibit 8, "part of the same land which James Kerlin died seized

and afterwards becoming the property of Celia Anderson and later Celia Sipes."

Plaintiffs' Exhibit Number 8, p. 2.

c. The A.G. Kerlin Deed, labeled as Plaintiffs Exhibit 34, recites that

it is "part of the same land which was conveyed by James Kerlin To Ephraim Anderson

by deed dated April ·6, 1869 and the said Ephraim Anderson having died testate the same

lands became vested in Celia Anderson." Plaintiffs' Exhibtt Number 34.

38. Celia Anderson', who is a remote granter for all of Plum Hollow's real

estate, was the daughter of James Kerlin and the mother of Owen Anderson. See

Plaintiffs' Exhibtt Number 9, p. 4 and Plaintiffs' Exhibit Number 12, p. 3.

10 I I'

}

Relating to Plum Hollow Hunting Club. Inc.' s Chain of Title from Kerlin to Mary Trotte~ · and John Trotter 39. James Kerlin had an unbroken chain of title to real estate designated as

Purpart No. 1 and Purpart No. 3 in the partition of the estate of Dennis O 'Conner in

Bedford County, Pennsylvania, as contained in Bedford County Orphans Court Book 8,

page 53. Plaintiffs' Exhibtt Number I 7, p. 4. There are no recorded deeds for these tracts

from him during his lifetime and that there was no record that he owned these tracts at the

time of his death. The O'Connor partition called for Thomas Stinson> from the JRF

grantee chain, as an adjoiner on the north and for Mary Trotter, now George Chestnut,

from the JRM chain, as the adjoiner to the east.

40. Dennis O'Conner had an unbroken chain of title back to a patented tract of.

real estate surveyed in the name of Mary Trotter and to an adjacent patented tract of real

estate surveyed in the name of John Trotter and that Purpart No. 1 and Purpart No. 3 in

his estate conveyed all his remaining intereat in those two tracts lying within what is now

Dublin Towship, Fulton County. Pennsylvania. Plaintiffs' Exhibit 19.

41. Prior to his death, Dennis O'Connor conveyed 315 acres of the Mary

Trotter tract to two (2) of his sons, Bernard and James, in trust for his two (2) grandsons

(Dennis of James O'Conner and Dennis of Bernard O'Conner), by deed dated December

28, 1827 (hereinafter "Deed of 1827") as recorded in the Bedford County Deed Book R,

page 68-3. Plaintiff's Exhibit 18. There is no record of any other conveyance of lands of

Mary Trotter by Dennis O'Connor.

Relating to What and Where the Boundary of the Deed of 1827 is a Matter of Law

42. The Deed of l 827 contains a description using adjoiners, metes and

bounds, and quantity. The description for the Deed of 1827 started with the northern

11 ~· .. )

boundary; then the eastern boundary, followed by the southern boundary, and finally

western boundary. A plot of that description does not close. Plaintiffs' Exhibit Number

106, p. 1.

43. The habendum clause in the Deed of 1827 recites inter alia, "To have and

to hold the said part of Mary Trotter containing three hundred and fifteen acres of land ..

.U Plaintiffs' Exhibi; ]06, p. 1. The plot includes only 194.4018 acres, This is part of the

tract situated on the eastern side of Clear Ridge, Dublin Township, Bedford County.

44. The description in the McDowell Mortgage, the oldest record in JMF's

chain bears distinct similarities in its courses and distances to the Deed of 1827 from

Dennis O'Conner, so that JMF's boundary encompasses the portion of the Deed of 1827

along its eastern boundary which had conveyed· a total of 315 acres of the Mary Trotter

tract, less the portions in the northwest corner which were occupied by Simpson C.

Carmack, Plaintifft' Exhibit Numbers 18, 75, 116.

45. The description in the Deed of 1827 recites, "Beginning at a white oak,

thence by land of Elwin Fish South Sixty degrees East three hundred and sixteen perches

to a white oak." Plaintiffs' Exhibit 18. This length is the same length as the Elwin Fish

patent and represents the total division line between the Mary Trotter Warrant and the

Elwin Fish Warrant. Plaintiffs' Exhibit 116, p. I.

46. The description of the Deed of 1827 goes outside of the eastern boundary

of the Mary Trotter patent but does not end at the land of Robert Lodge which is the

purported owner of the junior patent to the south oftbe Mary Trotter patent. Thus, the

eastern boundary of the Deed of 1827 runs the entire length of the eastern boundary of

the Mary Trotter patent. Platntiffs' Exhibit 116, p. 2.

12 I 11

) 47, The northern boundary of Robert Lodge has a bearing ofN 56 W,

however, the description in the Deed of 1827 does not contain a boundary line with this

bearing, but instead contains as its next course, "North twenty five and one half degrees

East one hundred and thirty perches to a Chestnut Oak, thence by the residue of Land of

Mary Trotter North fifty six degrees West sixty nine perches to a white oak , , •. "

48. The next course is "North twenty five degrees East sixteen perches to a

white oak, thence by land of William Justice dec'd, ... "

49. The last three (3) courses in the Deed of 1827 match three of the courses

in the Mary Trotter survey calling "along William Justice." The boundary lines that call

for William Justice dec'd are N 64 W 36 perches (594 feet) N 15 W 38 perches (627

feet). and N 8 E 110 perches (1815 feet), Plaintiffs· Exhibit Number 18.

Relating to the extent of Plum Hollow Hunting Club, Inc. 's Chain of Title

50. The deed from Anderson to Appleby (hereinafter "Appleby Deed")

contains 'a description that includes monuments, adjoiner, metes and bounds, and

quantity, See Plaint{ffe' Exhibit 8, 105. This.description encompasses Clear-Ridge Road,

. The plot of the description in the deed, calculates a quantity of230.0716 acres as opposed

to the quantity stated in the deed as 180 acres, more or less. Plaintiffs' Exhtblt l 05, p. 4.

Neither the metes and bounds given for the boundary in common with the Elliot Fleming

heirs, from JRF'8 chain of title, nor the metes and bounds given for the boundary in

common with Elijah Baldwin, from JMF's chain of title match.

51. The recitals in each deed in the chain of title subsequent to the Appleby

Deed recite that each granter conveyed the same land as the granter had acquired.

Platntifft 'Exhibits J .:7.

13 52, Plum Hollow's deed description encompasses all of Purpart No. 1 and the

northern portion of PurpartNo. 3 from the Estate of Dennis O'Connor (elder) through the

Appleby chain.' Plain tiffs' Exhibit 105, p. 11.

· 53. At the time of Dennis O'Connor's death, the Orphan's Court portioned all

the real estate he still owned from the Mary Trotter patent (hereinafter the "Residue") as

well as all real estate he still owned from the John Trotter patent, as part of his estate.

Plaintiffs' Exhibit 17, p. 4. 54. Purpart No. 1 and Purpart No. 3 comprise all the land that Dennis

O'Connor (elder) owned in what is now Dublin Township, Fulton County, Pennsylvania.

Plaintiffs' Exhibit 17, p. 4. 55. The partition survey does not accurately depict the boundaries of the

) residue of the Mary Trotter patent as owned by Dennis O'Conner at the time of his death

and the partition of his real estate in his Estate. Plaintiffs 'Exhibit 17, p. 4. On its face,

the east-west boundary line on the eastern boundary of the partition breaches the southern

boundary of the Mary Trotter patent by 40 perches and is outside the eastern boundary of

the John Trotter patent.

56. The partition survey adopted the lines of the Thomas Stinson patent as

controlling instead of the lines of the Mary Trotter patent. Plaintiffe' Exhibits 17, p. 4,

105,p.12. . . 57. Purpart No. I contains the entire residue of the Mary Trotter p~tent, except

for a small triangle of uncertain and undefined size at the north eastern comer of Pnrpart

No. 3. Plaintiffs' Exhibit 17, p. 4.

. I • Jl

58. The Deed of 1865, identified as Plaintiffs' Exhibit 58, from JRF's chain of

title calls for James Kerlin as at least a southern adjoiner and the deed of 1868 from

Foster M. Bergstresser to Elijah Baldwin Jr. in the JMF chain of title calls for James

Kerlin as an adjoiner on its western boundary establishing the relative historical boundary

position of Plum Hollow as successor to James Kerlin.

59. The most recent survey for the real estate to which Plum Hollow has

record title, the survey of 1969 by Albert Larserr' (hereinafter "Survey of 1969") shows

JRF's granter, JMF,s predecessor in title, and Henry's predecessor in title as adjoiners,

but also locates part of Plum Hollow's southern and eastern boundary with its corner at a

stone pile in land outside the boundaries of both the Mary Trotter patent and John Trotter

patent to which Plum Hollow has no known evidence of title. Plaintiffs' Exhibits 121,

125, 130.

60. The location of Plum Hollow's real estate through the Appleby Deed is

fixed by the location of the Clear Ridge Road on the west, real estate of Plum Hollow

through Barnhart as we all Dale Henry on the south, the common boundary of the Mary

Trotter patent and the Thomas Stinson patent on the north (as articulated by the Deed of

186.5), and the boundary established by the Deed of 1827 on the east and northeast,

6 I. The actual eastern boundary is dependent upon the location of the western

boundary of JMF.

Relating to the acreage o:ymed by: Plum Hollow Hunting Club1 Inc., s from Mary Trotter

62. The southwestern corner of the Mary Trotter patent, as defined by the plot

is bounded on the north by lands of JRF and his grantees as defined by the Deed of 1865,

on the east by a line extending from the 16 perch line on the edge of the Hom a dis~ce 3 The survey Is identitled as Plaintiffs Number 105, p. 2.

15 ) of 1688 feet, on a bearing of S011th 25 Y2 degl'ees West; and then on the south by the

southern boundary of the Mary Trotter patent a distance of 2951 feet and contains

49.9414 acres. This land is located within Plum Hollow's boundary as part of the Residue.

63. At the time of his death, Dennis O'Conner (elder) of Bedford County.

owned 152 acres more or less in the southwestern corner of Mary Trotter, being the

residue after the conveyance in the Deed of 1827. Plaintiffs' Exhibit 18.

64. The partition in the Estate of Dennis O'Connor (elder) of Bedford County

failed to account fol' 01· adequately describe the residue he owned within the Mary Trotter

patent by metes and bounds. Plaintiffs' Exhibit 17. p. 4.

Relatill_g to Douglas Henry's Title

65. The record title for Douglas Henry (hereinafter "Henry") Isfor a parcel of

land (hereinafter "Henry Parcel") first described in a deed from Collins M. Shade and

Julia A. Shade, his wife, dated November 13, 1970, and was part of a larger tract of land

(hereinafter "Shade Tract"). Plaint(fls 'Exhibit 44.

66. The description for the Shade Tract can be traced through Lavada Kerlin

to a deed (hereinafter "Myers Deed"), dated October 2, 1903, from George .w. Myers and

Jennie Myers, his wife, to A.G. Kerlin. Plainttffs' Exhibit 48.

67, The Myers Deed recites, "[cjontaining twenty nine acres and seventy three

perches (29 A 73 P) and allowances. This being a partof a tract of land conveyed by

deed to Benjamin F. Myers and Barbara Myers by Mary A. Carmack the thirteenth day of

Dec AD 1871 and properly acknowledged before James Fields, a Justice of the Peace

and conveyed to George W. Myers party hereto by the last wil1 and testament of his

16 • to

mother Mrs. Barbara J. Myers by deed dated May,25, A.D. 1880 and recorded in

McConnellsburg Pa. in the deed book then from George W. Myers.and Jennie Myers his

wife as shown by this deed." Plaintiffs' Exhibit 48,

68. The original description of the Myers Tract is established in the aforesaid . . will of Barbara J. Myers, as found in Fulton County Will Book 2, page 58 that recites inter alia, "[fjirst I bequeath to my son George W. Myers Twenty-nine and 1/3 acres of

land off of the South end of my farm commencing at a point on the line between me and

Thomas B. Fleming and running back to the line between me and Elijah Baldwin so as to

include the Buildings [sic] on my farm." -Plaintiffi:' &htbit 49.

69. The Mary A. Carmack listed in Paragraph 65 was the widow of Simpson

B. Carmack also known as S.B. Carmack. Platnttffs' Exhibit 50.

Relating to the Extent of Douglas Hew.'s Title

70. AB part of the real estate formerly occupied by Simpson B. Carmack, also

known as S.B. Carmack, the southern boundary oftpJ~ tract would lie along either the

Fleming Tract, as defined in paragraph 72 below, or the Appleby Tract. The Deed of

1865 in the JRF grantee chainthrough Fleming specifically calls-for Simpson B.

Carmack as an adjoiner,

71. The Shade Tract was subdivided into two adjoining parcels based on an

unrecorded survey by Albert M. Larsen (hereinafter "Survey of 19651') on November 2,

1965. The courses and distances in this survey do not match the legal description of the

Myers Deed. Plaintiffs' Exhibit 117, p. 2.

72. The Survey of 1965) calls for "Fleming Land), which is in the JRF

grantees' chain of title, but does not call for owners of the Appleby Tract as an adjoiner

17 ' j \ j

of Shade. The Survey of 1969, identified as Plaintiffs' Exhibit Number J OS, p, 2, shows

Shade as an adjoiner of the Appleby Tract. The same surveyor, Albert Larsen P.E.,

performed or supervised both surveys.

73. Collins M. Shade and Julia A. Shade, his wife, conveyed aspeciflc parcel

of land (hereinafter "Cecil Fraker Parcel") as shown on the Survey of 1965, by deed to

Cecil Fraker dated November 13, 1965. Plaintiffs' Exhibit Number 117, p, 2.

74. Cecil Fraker subsequently subdivided his parcel into two parcels and used

the Plum Holiow Road as the common boundary. By a regular chain of conveyances, the

parcel north of the Plum Hollow Road, which was first conveyed to Angelo Kaleyias

which is now owned by Lonnie D. Henry. The parcel south of the road was retained and

is now included in lands of JMF as the last of the four chains identified in Paragraph 93. ) 75. The northwest comer, labeled incorrectly as northeast, of Mary Trotter

contained 53.4468 (53.45) acres. Plaintfffe' Exhibit Number 120, p. 3. John Holland

owned 11.6057 (11.60) acres as calculated in the plot of his deed, identified as PlatntJ.jfs'

Exhibit 117, and the rest was owned by Simpson B. Carmack, also known as S .B.

76, The description in the Baldwin Deed excluded the northwest (labeled .

incorrectly on theplot as northeast) corner of Mary Trotter that contains 53.4468 acres.

P laint{ffe 'Exhihtt 120, p. 3.

77. . The earliest record of ownership of the JMF Chain, namely the mortgage

from John S. McDowell to John James, dated October 2, 1865 (hereinafter "McDowell

Mortgage") contains a metes and bounds .description and recites, "containing between

two and three hundred acres be the same more or less excepting the tract or part of a tract )

18 t ,,

) I

conveyed by Geo. Chestnut & wife to Thos, Hust~(~~-;-in the possession of Simpson

B. Carmak containing about fifty acres," Plaintiffs' Bxhibt: Number 75.

78. The fifty (50) acre reservation to Simpson B. Carmack, as denoted supra;

is in addition to the real estate already possessed by S.B. Carmack in the Northwest

corner, giving Carmack and his grantees approximately 103.45 acres in the Northwest

corner of Mary Trotter outside the scope of the Mcllowell Mortgage metes and bounds

description.

79 The precise boundary between Plum Hollow and Henry has never been

and cannot be defined through the existing descriptions, monuments or adjoiners.

80. The call in Mary Trotter is for 34 perches; the call of Thomas Stinson is

for .41 perches and Larsen extends the call of Shade to 60 perches. ) 81. To the extent that the there is a gap between the lands of the Dennis

O'Connor's partitioned real estate and the Mary Trotter patent boundary confirmed by the

Deed of I 865 which conveyed the lands of Thomas Stinson, Henry owns all lands not

owned by Plum Hollow.

Relating to J. Ronald Fraker and his Grantees' Title

82. The description of the real estate, and the plot thereof with adjoiners listed,

for which J. Ronald Fraker (hereinafter,~ JRF'')' held record title, and subsequently which

he later conveyed to his grantees, is first described as a result of an unrecorded survey

made in 1976 (hereinafter "Survey of 1976") after the real property of Zelpha G.

Fleming, deceased, was sold at public sale by her estate (hereinafter "Fleming Tract").

Plaintiffs' Exhibit Number 52.

19 ) 83. AU conveyances with the Zelpha G. Fleming chain of title back to the

deed from Robert J. Fleming, Executor of Thomas E. Fleming, dated January 13, 1912,

recite that they were conveying the same tract of land as the prior deed and used a .

description by adjoiners only, and called the tract the "old mansion farm,'. Plaintifft'

&hibft Numbers 52~55.

84. Thomas E. Fleming acquired his title by will of Thomas Welker, also

known as Thomas Walker as found in Fulton County Will Book 1, page 457 and recites

inter alia, "Item i. Bequeath unto my beloved friend Thomas E. Fleming the mansion

property that I now live on to have and bold it and to be his own property." Plaintiffs'

Exhibit 56.

85. By deed dated December 16, 1865, a~ found in Fulton County Deed Book ) 4, page 506 (hereinafter "Deed of 1865"), Ephraim Ramsey conveyed all that tract or

parcel of land situate in Dublin Township, County of Fulton, Pennsylvania to Thomas

Walker. A plot of the Deed of 1865 with the designated adjoiners represents the

shape/configuration of the description in the deed. Plainttffs' Exhibi; 58.

86. Ephraim Ramsey obtained his tract from the real estate patented in the

name of Thomas Stinson. The warrant issued to Thomas Stinson on September 12, 1839

was for 155 acres of land acljoining lands of John Holland on the North, Dennis

O'Connor Jr, on the west, Dennis O'Connor Sr. on the South, and the heirs of Patrick

Coulter on the East in Dublin Township, Bedford County. Plaintiffs Exhibit Number 66.

The survey for the "Thomas Stinson warrant" was completed by Michael Reed, Deputy

Surveyor, Bedford County on November 21 & 22, 1839. The Draft of Survey appears in

the Pennsylvania State Archives, Copied Survey Book C20~. page 226 as containing 168

20 . ,.

acres and 138 perches with percent allowance for roads. Plaintiffs' Exhibit 65. Tho

"Thomas Stinson Wan·ant''was patented by Thomas Stinson on January 13, 1845. A

copy of the patent appears in Pennsylvania State Archives Patent Book H45, page 285. I Plaintiffs Exhibit 64.

Relating to the extent ofJ. Ronald Fraker's Title

87. The Survey of 1976 upon which the boundary claimed by JRF and his

grantees is based does not use the monuments from the Survey of 1969 which is used to

describe the real estate of Plum Hollow. Likewise, Plum Hollow's deed descriptions

have never used the monuments from the Survey 1976. The Survey of 1976 does not

conform to the description of the real estate set forth in the Deed of 186.5.

88. The adjoiners in the Fleming Deed are consistent with the actual adjoiners. ) A plot of the Surveyof 1976 with the designated adjoiners represents the

shape/configuration of the description for the survey, Plalntifft I Exhibit 108.

89. Defendants failed to show how the record title held by Zelpha G, Fleming

at the time of her death produced the description established by the Survey of 1976.

90. The common source of title between JRF grantees and Plaintiffs is the

Commonwealth of Pennsylvania and the title for the JRF grantees can be traced through

the Thomas Stinson patent and Plaintiffs title can be traced through the Mary Trotter

· patent.

91. The description in the Deed of 18 65, was made more than 70 YeEU's after

the Mary Trotter survey and Its eastern boundary conforms to the western boundary of

Mary natter around the Hom with the exception of a monument being a white oak

21 instead of a dogwood and a bearing of S 64 E instead of S 46 E. Plairutffs' Exhibits ·127,

133.

92. There is no record or documentary evidence of record that shows any title to JRF or his grantees to lands that come from the patent of Mary Trotter.

Relating to Janet M. Fraker's Title

93. The record title for Janet M. Fraker, also known as Janet L. Fraker

(hereinafter "JMF") is first described as a result of an unrecorded survey made in 1984

(hereinafter "Survey of 1984") when Kenneth L. Fraker and Cecil F. Fraker divided their

jointly owned property. Platntlffs 'Exhibit 67.

94. The deed with the description taken from the Survey of 1984 (hereinafter

'~JMF Deed"), labeled as Plaintifft' Exhibit 67, represents that the source of title comes

from four (4) different chains of title more explicitly recited in the deed as "Being a

portion of Tract #1 in the Deed from John Jere Baldwin and Margaret L. Baldwin, his

. wife, to Cecil F. Fraker and Kenneth L. Fraker dated September 12, I 957, recorded in

Fulton County Deed Book 64, page 189 (hereinafter "Baldwin Deed"); Being a portion of

Tl'act#l in the Deed from Lois Stevens, widow, to Kenneth L. Fraker and Cecil F. Fraker

dated June 28, 197.5, recorded in Fulton County Deed Book 81, page 384 (hereinafter

"Stevens Deed"); Being all the same lands conveyed by Mason-Dixon Council, Inc., Boy

Scouts of America to Cecil F. Fraker and Kenneth L. Fraker by Deed dated 1978,

recorded in Fulton County Deed Book 89, page 218 (hereinafter "Scouts Deed"); and

Being a portion of the lands conveyed by Collins M. Shade and Julia A. Shade, his wife,

to Cecil Fraker by Deed dated November 13, I 965, recorded in Fulton County Deed

22 ' I

Book 71, page 52." The last deed listed is accounted for in Paragraph 72 above as part of

Henry's chain.

95. Defendant JMF did not show how the four (4) chains of title cited in the

JMF Deed explained in the preceeding paragraph, produced the description established.

by the Survey of 1984,

96. Neither the chain of title for the Stevens Deed nor the chain of title for the

Scouts Deed include lands within the Mary Trotter survey, and are not affected by this

litigation. Likewise, the tract of land from Shad is not affected by this litigation, although

it does lie within the bounds of the Mary Trotter patent. The only title impacted through

this litigation is the Baldwin Deed. Platntijfs 'Exhibit Number 68.

97. JMF' s record title for the Baldwin Deed can be traced by a regular chain

of conveyances back to the deed from John S. McDowell to F.M. Berkstresser dated

April 2~ 1866. See Platntiffi 'Exhibit 74. The deed from McDowell to Berkstresser

recites, "containing between two and three hundred- acres, There is reserved from this

tract, a tract of fifty acres more or less, which was conveyed by Geo. Chestnut and wife

to Thomas Huston, now occupied by S.B. Carmack (2 tracts)." S.B. Carmack, who is the

remote granter of Henry, is referred to as Simpson B. Carmack in the McDowell

Mortgage as set forth supra. See Plr.,intiffi' Exhibits 68-74.

98. A mortgage from John S. McDowell to John James, dated October 2, . . 18654 (heremafter=Mclfowell Mortgage") recites> "containing between two and three

hundred acres be [sic J same more or Jess excepting the tract or part of a tract conveyed by

Geo. Chestnut & wife to Thos. Huston, now in the possession of Simpson B. Carmack

containing about fifty acres. The whole having been conveyed by Geo. Chestnut & wife 4 Identified as Plain,t(fft' Exhibit 75

23 to John Cessna Esq. by deed dated 13th Sept. 1859, who by deed dated the 19th of

September 1859, conveyed the same to John James, who this day hath conveyed the same

to the within named mortgagor, and being part of a survey in the name of Mary Trotter."

There is no recordof'the deed from James to McDowell, the deed from Cessna to James,

the deed from Chestnut to Cessna, or a deed from O'Conner to Chestnut. Plaintiffs'

.Exhibit 75.

99, There is no record evidence showing any title into George Chestnut, but

the description in the McDowell Mortgage bears striking similarities in its c~urses and

distances to the Deed of 1827 from Dennis O'Conner, so that this title encompasses the

portion of'the Deed of 18275 along its eastern boundary which had conveyed a total of

315 acres of the Mary Trotter tract. Plainttffs' Exhibit 116, p. 10.

100. Dennis O'Conner is the common source of title of JMF as well as Plum

Hollow.

Relating to the extent of Janet M. Fraker's TitJe ·

101. The deed from Kenneth L. Fraker-and Daphne Fraker, husband and wife,

and Cecil F. Fraker and JMF, husband and wife to Cecil F. Fraker (now deceased) and

JMF, husband and wife, dated September 4, 19846 (hereinafter 'fJMF Deed 2'') recites,

"Being a portion ofTract#l in the Deed from John Jere Baldwin and Margaret L.

Baldwin, his wife, to Cecil F. Fraker and KennthL. Fraker." Plaintiffs' Exhibit 68. The

JMF Deed 2 describes a tract of land adjacent to the JMP Deed with the Plum Hollow

Road as a common boundary. Plaintiffs' Exhibit 116, p. S.

5 Identified as Pla/nt(ffe' Exhibit 18. 6 Identifled as Plalnt!ffe' Exhibit I 16, p. S.

24 I '

102. The descriptions in the McDowell Mortgage and the Baldwin Deed are

identical after adjusting for different units of measurement (i.e. rods versus perches) and

the call for a red oak instead of a rock oak.

I 03. The description· in the Baldwin Deed chain remain fixed for more than

ninety years, before the Survey of 1984 distorted the configuration produced by the

description and substantially increased the number of acres without resolving the issues

associated with the ambiguities found in the Deed of 1827.

104. The Survey of 1984, which establishes JMF's record boundary, bears no

semblance to the legal description set forth in the deeds of conveyance in JMF's chain of ..,..,. title from John Jere Baldwin or his predecessors, and further, like the record boundary of

Plum Hollow, encroaches into land outside the southern boundary of the Mary Trotter

patent without any evidence of a grant from anyone other than John Jere Baldwin.

105. Notwithstanding any contrary record boundary, the actual legal boundary

of JMF on the west as shown in the JMF Deed 2 is limited to the boundary of the Deed of

1827, less that land in the northwest portion of the Deed (?f 1827 of approximately 103

acres that became possessed and later owned by Simpson B. Carmack as set forth supra.

106. The northwest boundary of the Baldwin Deed, after accounting for the

fifty (50) acre exception in favor of S .B. Carmack, north of the Plum Hollow Road, is

fixed by the current boundary between Karen S. Grissinger, et al. and Lonnie D. Henry.

107. JMF owned not more than approximately 212 acres in the 'eastern portion

of the Mary Trotter patent, which is part of the tract acquired in the Baldwin Deed.

Plcrintiffs' Exhibit 68.

) Relating to Adverse Possession of JMF

25 I I

)

108. There is 110 residence on the real estate owned or claimed by JMF which

was acquired by her predecessors in the Baldwin Deed. There is no evidence that a

residence ever existedon this tract of real estate.

109. The real estate owned or claimed by J1'4F which was acquired by her predecessors in the Baldwin Deed is not and has never been fenced.

110. The real estate owned or claimed by JMF which was acquired by her

predecessors in the Baldwin Deed is woodlands.

I 11. Until the genesis of this action, there is no evidence of a boundary dispute

between JMF or her precessors and Plum Hollow or its predecessors along the common

boundary,

112. The common source of title among JMF (Deed of I 827), Plum Hollow

(Estate of'Dennis O''Conner, the elder), and Henry (Deed of 1827).is Dennis O'Conner

(the elder).

-Coneluslons of Law and Diseussion

Historical Perspectives

The matter before the Court is a boundary dispute and the Court will use

boundary dispute principles to resolve this case. See Hermansen, Knud Everett, 7, Boundary Retracement Principles and Procedures for Pennsylvania, (1986) p. 5~2

("Fl'om the surveyor's viewpoint, evidence has two purposes: (1) to help determine the

position of the boundary and (2) to explain any ambiguity in the boundary location

information or field data. The focus of all the information is to determine the location of

the original boundary.") The Plaintiffs concisely state the nature of this case when they.

write, ''this case involves the proper legal title [of] boundaries befuddled by more than a 1 All books cited in the opinion were obtained from the Widener University Schoo! of Law library system.

26 century of errors in description and survey. '1 Plaintiffs' Proposed Finding of Fact and

Conclusions ofLaw, p. 42. Defendant J.R. Fraker frames the case as simply "that he and

his successors in title (Dillman, Ramsey, and Miller) are bona fide purchasers who paid a

valuable consideration for the ground specifically described (by bearings, distances,

monuments and surveys) within their title deeds of record, after title searches conducted

by attorneys, and in reliance upon the property descriptions specifically set forth within

the Fulton County deed records for some sixty (60) years and more." J.R. Fraker's

Proposed Ftndtngsof Pact and Conclusions of Law, p. 3.

Prior to getting into the specifics of the c~se, it ls important to understand the

evolution of boundary dispute law from the beginning. On March 4, 1681, William Penn

was granted 47,000,000 acres by King Charles II in satisfaction a I 6,000 pound debt ) owed to Penn's father, Admiral Penn. Nicholson, Vincent D., A Treatise on the Law Relating to Real Estate in Pennsylvania (1929), p. 4. Following the grant, Penn began to

sell the land to settlers. Hermansen, p. 3-1. To effectuate the land transfers, Penn

established the Land Office. Id.

Under the Divesting Act of 1779 title to the 47,000,000 acres was transferred

from William Penn's heirs to the Commonwealth of Pennsylvania in exchange for

130,000 pounds. Nicholson, p. 5, 10; See also Hermansen, p. 3M2. The Divesting Act

was passed because following the Revolutionary War Hit was considered incompatible

with the democratic institutions of the new country for such vast real estate holdings to

remain in the Penn family." Nicholson, p. 10.

On April 3rdi 1792, the legislature passed an Act ('~1792 Act") which sold those

remaining lands owned by the Commonwealth of Pennsylvania. Commonwealth v.

27 Coxe, 4 U.S. 170 (Pa. 1800). The purpose of the 1792 Act was to encourage settlement

of rural areas and to fend off hostilities from Native American tribes who, being a threat

to the land owners, were also deemed a threat to the development and cultivation of rural

lands. Coxe, 4 U.S. at 196, 199. To accomplish this purpose, the proceeds from the

wan-ant were used to pay for the militaryto fend off the Native Americans. ~ at 19~.

The Act further provided that the land purchaser, with limited exceptions, was required to

make improvement to the land within two (2) years from the date of the warrant. Id. at

196.

In Coxe, the Pennsylvania Supreme Court explained the process of the' 1792 Act.

First the land was surveyed, and then) in exchange for paying money to the

Commonwealth and the submission of an appropriate survey, a land purchaser was issued

a warrant by the land office. Id. at 199, 196, The warrant was considered to be a "sales

agreement between the proprietors or the Commonwealth on one hand and the citizen

(applicant) on the other. It also served as an order or authorization for the deputy

surveyor to perform a survey on behalf of the applicant (warrantee)." Hermansen, 3w9

( citing Tryon v. Munson, 77 Pa. 250 (1874)).

At the county level, a "public and official record" was made of all of the

submitted surveys. Reilly v. Mountain Coal Co., 54 A. 29, 30 (Pa. 1903). The role of the

land office was merely to act as the local agent for the Commonwealth because the land

was owned by the Commonwealth. Kelly v, Graham, 9 Watts 116, 117 (Pa. I 839) ('1'he

officers of the land office are not the proprietors of the lands granted by them, that they

can grant them without regard to quantity or price. The lands belong to the state; and the

land officers act only as the agents of the state in disposing of them; and are limited in

28 •• )

their action by the authority granted to them in this behalf."), In addition to the land a

purchaser obtained via the survey and warrant process, all property owners were given an

additional six percent (6%) of land free of charge to allow for the construction of roads in ,,,_.

what is commonly referred to as the "incorporeal burden," In re Opening Private Rd for

Benefit of O'Reill}'., 5 A.3d 246, 257 (Pa. 2010).

Following the warrant, a patent was issued by ~e Governor of the

<;ommonwealth. Coxe, 4 U.S. at 196. The patent served as prtmafacleevidence of title

to the patent holder and "the patent conveys the full legal title of the state, and is evidence

of title, especially against one who relies on possession alone, who shows no title> and

whose tights, if any, accrued a-ft~r the date of the patent," Olewine v, Messmor~, 18 A.

495, 495 (Pa. 1889). Stated another way, ) [t]he patent purports to convey the interests of the Commonwealth or the proprietors (granters) to the applicant or his vendee. The patent is evidence to all other applicants that the land is no longer vacant and no longer part of the public domain. To receive a patent, an applicant was judged by the Commonwealth to have complied with all the requirements for appropriating vacant land. The patent stands as a resolution regarding the previous proceedings and a dis so Iution of the Commonwealth's interest in the land described by the patent. It bars the Commonwealth from intervening into future proceedings questioning the title. As such, it operates as a quitclaim deed. Hermansen, 3-15, 3~17.

If the· survey, following the distances and calls, was found to contain more land

than what was called for in the warrant, the Commonwealth was paid the excess amount

of land upon the issuance of the patent. Hagerty v, Mathers, 31 Pa. 348, 355 {1858),

However, if the disparity between the survey and the warrant was so great, the

Commonwealth had the authority to order a resurvey of the warrant, 14:. Case law hes

held that if the patent contains land not em braced by the survey, the patent must be

29 considered void. Kelly, 9 Watts at 117. In sum, as concisely stated by Nicholson the

process is as follows:

A warrant was issued calling for a certain amount of land. If the warrant gave the exact location, no further documents were necessary. If the description were lacking 01· insufficient, a survey was made by a deputy of the Surveyor General's Office. Upon a return of the survey a patent (i.e., a deed) was issued to the purchaser, provided the purchase price had been paid in full. The purchase price theoretically was due when the warrant was issued, but the eagerness of the proprietors to have the colony settled, and thepoverty of most of the settlers led to the sale of most of the land on credit. In such cases the warrant gave an equitable title which wasconflrmed as against all persons excepting the proprietors by seven years actual residence. The prices and the conditions varied greatly. Quit-rents were usually reserved in addition to the purchase price, but discharged by the Divesting Act ofl 779, Section 9, except as to the Proprietary Manors. Six per cent of the amount ofland purchased was often added on account of roads to be opened later. Most warrants contained a provision that there must be an actual settlement by residence within two years.

Nicholson, p. 8-9.

From the beginning, the first surveys had problems. Many of the deputy

surveyors were known to sacrifice precision in exchange for haste in an effort to maintain

progress on all of the survey requests. Hermansen, p, 3-5. In addition to speed, the ' ·. . surveyors were hampered by "Indian harassment and battles with nature." Hermansen, p.

3-6, Timothy Witter, who testified on behalf of the Plaintiffs, testified that the surveying

methods used in the 181h century had inherent problems because if the surveyor had metal

in his pockets or there was metal in the ground this could affect the reading of the

compass. Notes of Testimony, May 20, 20118, p. 12. Frequently the surveyor did not

have a long enough chain to reach end to end so the surveyor and his crew would be

required to move the chain, re-read the compass and then extend the line. N.T. May 20,

20 I1, p. 14. Likewise, Hermansen notes,

8 Hereinafter "N.T. May 20, 2011 ".

30 , I

· [t]he deputy surveyor (or assistant) worked with two or more chain-carriers and axmen. Many times the chain-carriers and axmen were supplied by the applicant requesting the survey, Frequently, they were people from the local neighborhood or drifters passing through 'the area. Although the tasks performed by the survey crew did not require much survey knowledge, the measurements did require some care and diligence. From prior experience, it was generally proven that poor chain-carriers meant poor surveys. Therefore, deputy surveyors were instructed to choose their chain-carriers carefully from men of good standing. In 1803, the legislature required all chain-carriers to take oaths to ensure that they would perform measurements diligently and carefully .... However, it is general knowledge that the work of the early chain-carriers left much to be desired. 'It is a well-known fact that but few of the recorded distances of the early surveys were often found correct, when run between the monuments on the ground.' Hermansen, 3"7 quoting Prlngle v. Rogers, 44 A. 275 (1899) ..

As a. result of the problematic surveys, this issue has been litigated time and time

again since 1792. As stated in Martz v. Harlex, 4 Watts 261, 263 (Pa. 1835)

There is no survey of ordinary size, the lines of which will measure exactly to the corners, or to the places where they once stood; hence every surveyor in tracing old surveys expects to find and does find the length of every line differing more 01· less from his draft.

Hermansen notes

[bJy the mid-I BO Os, much of the public domain had been sold to private individuals. At times, small, unappropriated tracts are still uncovered by survey and title search. These tracts, when found, are available for appropriation provided the Department of Forests and Waters (Department of Environmental Resources) waives their first-purchase option. Today, the Land Records Division, Pennsylvania Historical andMuseum Commission (formerly the Land Office) is-responsible for maintaining the original records and disposing of vacant land found unclaimed. It has also been delegated the responsibility to make connected drafts of all the original surveys. Hermansen, p. 3-3, 3-4.

Modem day jurisprudence

In modem day jurisprudence, the correct method of resolving a land dispute is

through an action to quiet title pursuant to Pa. R.C.P. 1061 et. seq: In such an action, the

Plaintiff has the burden of proving by a "fair preponderance of the evidence" they have

31 title to the land. Poffenberger v. Goldstein, 776 A.2d 1037, 1021 (Pa. Cmwlth, 2001 );

See also Commonwealth v. Pennsylvania Game Commission, 565 A.2d 859, 861 (Pa.

Commw, 1989). Upon this showing, the Plaintiffis deemed to have title to. the land until

a better title is shown by an adverse party, Poffenberger, 776 A.2d at 1021. The Court

,} finds that the Plaintiffs have'satisfied their burden and the Defendants have not

demonstrated they have better title.

Unlike an action to quiet title, in an ejectment action, a plaintiff has the burden to

establish "the right to immediate exclusive possession." Doman v. Brogan, 592 A.2d

104, l 08 (Pa. Super. 1991); See also Roberts v. Pursley, 700 A.2d475, 480 (Pa. Super.

1997) ("'Ejectment is a possessory action wherein a plaintiff must prove the right to

exclusive possession vis-a-vis proof of paramount title.!") (quoting Sutton v. Miller, 592

A.2d 83, 89 (Pa. Super. 1991)). "It is too clear for argument and too well settled to

require the citation of authority that in ejectment the plaintiff must recover upon the

strength of his own ai1d not upon the weakness of his adversary's title," Crist v. Boust, 26

Pa, Super. 543, 544 (1904).

The Defendants argue the Plaintiffs have failed to comply with Pa. R.C.P. 1'065

"which requires that they describe the lands to which they seek to quiet title." However,

the Court concludes that the Plaintiffs have complied with Pa, R.C.P. 1065 because as

~ discussed tnfia, the Plaintiffs, through the testimony of their expert, have sufficiently.

described the lands to which they seek to quiet title.

The Deeds do not need to be Refonned

There is a significant amount of dispute as to whether the deeds in question need

to be "reformed". Defendant J.R. Fraker's first two arguments; consisting of seventeen

32 ,I'

) (17) pages, and Defendant JanetM. Fraker's fourth, eighth and tenth arguments all relate

to this single Issue, The Plaintiffs do not dispute the requirements of reformation. More

specifically, the Plaintiffs aver, "[rJ~fonnation is an equitable remedy reserved for cases ·

of mutual mistake 01· fraud where the court re-writes the parties' agreement or deed."

Platnttjfs' Proposed Findings ofFact and Conclusions ofLaw, p. 43. On the contrary,

the Defendant Janet M. Fraker argues> "Plaintiffs maintain that they do not seek a deed

reformation, however, they do seek for the Court to re-draw the boundaries of PHHC's

lands. In reality, if the Court were to re-draw any of the boundaries of PHHC's lands as .

set forth in its deeds, it would constitute a deed reformation." Proposed Findings of Fact

and Conclusions ofLaw of Defendant Janet M Fraker, p. 31. For the foregoing reasons,

the Court concludes that what the Plaintiffs demand does not constitute a "reformation", r"

As a general rule, for a court to allow reformation of a deed, there rnu~t be a

mutual mistake in the description of the landed intended to be conveyed, See Uniontown . Savings & Loan Co. v. Alicia Land Co., 13 A.2d 65, 66' (Pa. 1940) (allowing reformation

of a deed when a land company thought it was conveying a parcel described as "lot No.

22'1 but in fact was conveying "lot No: 21."); Armstrong·County Building and Loan Assn of Ford City v. Guffey, 200 A. 160, 163 (Pa. Super. 1938). A unilateral mistake may

justify reformation of a deed or mortgage only when the party opposing the reformation

had '" such knowledge of the mistake as to justify an inference of fraud or bad faith.?'

Regions Mortgage, Inc, v. Muthler, 889 A.2d 39, 42 (Pa. 2005)9 (guoting Dudash Y, Dudash. 460 A.2d 323 (Pa. Super, 1983)).

9 In Regions the court refused to reform a mortgage where the mortgage company unilaterally and ) mistakenly removed a spouse's name from the mortgage because there was evidence that the mortgagors committed any type of bed faith or fraud, Rather, It was the bank, as the mortgagee who made the mistake.

33 ) Where a Plaintiff is relying on reformation of the deeds based on the grantee's

intention of the quantity of land conveyed, the Plaintiff must demonstrate mutual mistake.

Bosler v. Sun Oil Co., 190 A. 718, 719~20 (Pa. 1937); See also Bosler, 190 A. at 721

(Plaintiff "wholly failed to produce clear and positive proof that a mistake on

[ defendant]' s part existed. Therefore, a case for reformation was not made out."). To

establish mistake wit must clearly appear by the testimony of witnesses who distinctly

remember the facts that a mistake was made and that the writing does not express the

agreement.": Bosler, 190 A. at 721 (quoting Graham v. Carnelri.e Steel Co,, 66 A. 103

(Pa. 1907)),

Since 1839, cases have repeatedly held that the survey must match the patent. See

Hole v. Rittenhouse. 25 Pa. 491, 497 (Pa. i855) (''The Commonwealth and her agents

and vendees are bound to take notice of a valid survey marked upon the ground and

returned into the land office, The parties who ~ttempt to violate the right of property, by

making a second and illegal survey, deserve no favorable . ., consideration . J whatever."); •

(Kelly, 9 Watts at 117) ("And wherever it happens, from mistake or otherwise, that this is

not the case, the patent must be corrected and reformed by the survey, and made to

correspond with it as to quantity and boundary."); Hermansen, 5-3 ('~For a retraeement

survey, a 'preponderance' or majority of evidence is required to reestablish a boundary.

Given several possible locations for a boundary, the correct location is determined from

the weight of evidence, taking into consideration judicial preference."), Courts following

Rittenhouse and Kell}". have noted,

' [wJhere the return has Iain for years in the office undisturbed, without any opposing claim or possession, more particularly where the owner has paid the public taxes, the presumption is a "violent>' one, and so ought always to be left to ) -the jury, of the survey being a regular one, though all the marked lines are not, at

34 ' )

a distant day, to be found on the ground; and after twenty-one years, by analogy to all presumptions, I would consider it a presumption of law; and, like livery of seisin, it ought to be pres urned.' Onnsbv v. Ihmsen, 34 Pa, 462, 470 (1859) (quoting Mock v. Astley, 13 Serg. & Rawle

3 82 (Pa. 1825) ). The Ormsby court noted the difficulty of attempting to find the

surveyors original marks and further held "[tjitles would be insecure, indeed, if, after

such a period, the absence of visible marks were held sufficient to invalidate a returned

survey." Other courts have noted, "[i]n ascertaining the location of a tract the inquiry is

not where it should or might have been located, but where it actually was located."

Northumberland Coru Company y. Clement, 95 Pa. 126, 137 (1880).

Presumptive G1-ant

Both parties rely heavily on Dougherty and argue that both the case and

presumptive grant-doctrine support their respective positions. In that case Anthony Sharp I purportedly owned real estate in Schuylkill County. When Sharp died 184 7, the

administrator of his estate petitioned the orphans' court to sell the real estate to pay for

Sharp's debts. The sale was ordered in 1849 and Mathias Baier purchased the property. I Thereafter, for a sixty (60) year period, there remained an unbroken chain of title. More

specifically, in 1857 the Dougherty family purchased the property and the property was

deeded to different Dougherty family members in an unbroken chain. The evidence

demonstrated that the property was a wild uncultivated mountain that the Dougherty

family timbered on, installed fences, cultivated rye, made a small clearing! and paid the

taxes on the property since at least 1870. However, the dispute arose because it was later

determined that no title was shown in Anthony Sharp, the original grantor from which the

Dougherty family took title. ) .I

35 I l

The Dou@erty court held that the missing deed demonstrating how Sharp

. acquired the property did not preclude Dougherty from asserting title. In ruling the court

noted, m [i]f any principle in the law of Pennsylvania can be regarded as well settled 'by

argument and authority, it is that which affirms that the legal title to uncultivated lands

draws to it the possession, and that this possession is to be deemed actual, for all purposes

of remedy.!" Doughort.y y. Welshans, 81 A. 997, 1000 (Pa. 1911) (quoting Rittenhouse,

25 Pa. at 491 ). The court then analyzed the foundation of the presumptive grant doctrine

and then applied the doctrine to the specific facts to hold

[i]n the present case the facts all point in one direction> and not a single fact indicates anything to the contrary. Anthony Sharp at the time of his death claimed this land. It was sold for the payment of his debts. Record notice was given that the purchaser at that sale took title from the estate of Sharp who held under claim of title from Kantner by sundry conveyances. That purchase and ) those holding under him have had the constructive or actual possession since 1849. The Dougherties [sic] have paid the taxes assessed against it for a period of forty years at least. They have exercised dominion over it fol' more than fifty years. During all these years no one asserted an adverse claim of title under John Kantner, and no one asserts such a claim in the present case -, There is a break in the chain of title from Kantner to Anthony Sharp, but from the time his title passed to Mathias Baier to the present, the successors in title have stood upon this ancient title unchallenged by any adverse claimaint. If anyone else ever claimed adverse title under John Kantner, and there is nothing to even remotely indicate that such a claim was ever made, he hauled down his flag and fled the field long ago.

Doughtery, 81 A at 1001.

In applying the doctrine to the facts of the case the court placed emphasis on the

fact that Baier, as the purchaser of the real estate from Sharp was taking title from the

original patent in 1795. Jd. at 1001. The court also placed emphasis on the fact that an

unbroken chain of title existed from the date of the sale in 1849 to the current date of the

dispute, 1911, a period of over sixty (60) years. kh During that time period Baier or )

36 , I

) Dougherty owned the property unchallenged by any other claimalnt, Both Baier and

Dougherty were paying taxes on the property.

In the present case, Defendant Janet M. Fraker argues, "[ajccording to the

doctrine of presumptive grant, defendant Janet M. Fraker must be presumed to be the

. owner of her entire lands." Proposed Findings of Fact and Conclusions of Law of

Defendant Janet M. Fraker, p. 29.

Block Warrants

In a similar vein, the concept of "block warrants" has a strong foundation in

Pennsylvania jurisprudence. In Hageijy y. Mathers, 31 Pa. 348, 355 (1858) the

Pennsylvania Supreme Court held "where surveys were made and returned into the land

office in blocks, they are to be located on the ground in blocks. If, then, any of them ate . . found to interfere with tracts belonging to the older blocks, the younger gives way to the

elder." In the case, a block of warrsnts were obtained in 1784 (hereinafter "the 1784

warrants"). However, the 1784 warrants were not recorded properly. In 1793 another

block of thirteen (13) warrants were obtained (hereinafter "the 1793 warrants'.'). Again

however, the 1793 warrants were never properly recorded. In 1794 two (2) warrants, the

warrants in question in the case, were obtained by Mary Niel and Thomas Maston

(hereinafter "the 1 794 warrants"). In locating the 1794 warrants, the 1794 warrants relied

on the 1784 and 1793 warrants, which, as previously mentioned, were never properly

recorded. The Court was able to conclude purely on "conjecture" that the distances

between the 17 84 and 1 793 warrants were too far for the 1794 warrant to fit in between

unless the 1794 official distances and calls "were greatly overrun," The Court, in

reversing the lower court, held that the 1794 warrant must be used as the starting point

37 ) for the 1784 and 1793 surveys because the 1794 survey was patented and "her lines and

quantity are fixed, finally and for ever, as between her owner and the Commonwealth."

Mhat 357.

Cases since Hagerty have followed the concept of block warrants and the concept

remains cogent today. See Pruner v. Brisbi~ 98 Pa. 202, 210 (1881) (Finding no error in

the instruction of the trial court "that the thirteen tracts having been surveyed in a block,

and so returned, must be located upon the ground as a block; that neither of them can be

arbitrarily located in disregard of the lines and corners found upon other parts of the

block."); Northumberland Coal, 95 Pa. at 137 CWhen original surveys have been made

and returned as a block into the land office, the location of each tract therein may be

proved by proving the location of the block .... Every mark on the ground tending to

show the location of any tract in the block is some evidence of the location of the whole

block, and therefore of each tract therein"); 6 P.L.B. BOUNDARIES§ 15 ("When

boundaries in the grants from a common granter conflict, the grant :first executed is

controlling, and where the lines of senior and junior surveys conflict, the lines of the

senior survey will control.").

In the present case, this dispute began when Plum Hollow was in negotiations to

acquire additional property from Gene Barnhart. N.T, May 18, 2011, p'. 25. Allen Henry

testified, "Mr. B arnhart thought he owned 120 acres. That's what his deed said, that it

was 120 acres. He wanted to keep·20 acres which meant the club would be able to

purchase approximately 90 acres or 90 plus acres ... " N.T. May 18, 2011, p. 27i <,\,,

However, upon closer inspection. Doug Henry realized that Barnhart's deed description . did not close. N.T. May 18, 2011, p. 27. Allen Henry did some more investigation and

38 ' )

) concluded that Barnhart had only ninety-three (93) acres. As a result Allen Henry

testified that this fact "got me thinking about how can someone not have the acreage to

find their deed, and in my investigation to make a long story short, it took me the next

four or five years, I eventually concluded that there is, in fact, land that is in this are~ of

Plum Hollow that currently remains titled in the Commonwealth of Pennsylvania. , .. "

N.T. May 18, 2011, p. 27. Allen Henry's testimony about his research and the tracing of

title back to the Mary Trotter warrant consists of, with limited objections from the parties,

205 pages o{testimony10•

From the beginning of this opinion, the Court has stated that this case is a

boundary dispute case. The Court is not re-writing any deeds. The Court, using

principles of deed construction, is merely construing what the deeds intended to convey.

Since all of the . lands now ' in dispute are derived from the John . Trotter warrant, the Elwin Fish warrant or Mary Trotter warrant and all of the warrants were returned on March 1,

1794, the warrants must be considered as a block. See Plaintiffs Exhibits 23, 42, 100.

Additionally, all of the warrants were for 400 acres. Id. Since the surveys are considered

a block, all of the deeds now in question, as junior surveys, must give way to the senior

surveys of the John Trotter, Elwin Fish and Mary Trotter warrants, Accordingly, since

the Mary Trotter warrant is incorrect, a fact no one disputes, the Mary Trotter warrant

must be corrected 11 to reflect the correct block. Kelly1 9 Watts at 116.

The Court therefore concludes that correcting Mary Trotter warrant is proper.

Accordingly, the Court corrects Mary Trotter warrant so that final boundary line is

10 Pages 24 through t 82 on the first day of trial, and pages 5 through 52 on the second day of trial. This does not include cross examination. 11 The Court uses the terms "reformation" or "correction" witn a tremendous amount of trepidation, The definition as used in this oplnlon fs simply interpreting what the parties thought they were obtaining had a thorough title search been performed.

39 changed from South 56 West to North 56 West. This change allows the Mary Trotter

warrant to close such that the Mary Trotter tract is now adjacent to the John Trotter

warrant. Secondly, the Court will change the course from North 46 West to North 64 .

West. This change allows the plot of the patent to match the survey exactly. Plaintiffs

Exhibits 146, 147. Finally, the Court will add an additional 25.77 perches to the eastern

boundary so that the boundary closes 12• Once the Court makes these changes. the Mary

Trotter warrant is left with approxi~ately467.6 acres,

Pl~tiffs' have satisfied their . l bJn:den oflocating the ,...- . \Mary ,;;;::. Trotter Patent/· ,., · Once the Court makes the charrges.discussed' above the question becomes rather ·

rudimentary-where is the Mary Trotter Patent located with respect to the property

) owned by the litigants now? "The question of what is a boundary line is a matter of law,

but where a boundary line, or comer, is actually located is a question for the trier of fact,"

Murrer v. American Oil Co., 359 A.2d 817, 819 (Pa. Super. 1976); See also Doman v.

Brogan, 592 A.2d 104, (Pa. Super. 1964), "The object of a description in a deed is to

identify the land conveyed. and need not necessarily be technically accurate, but must be

sufficiently precise for the purpose of identification and to enable a surveyor to locate it,"

Marks v. Ligonier Borough. 82 A. 477, 479 (Pa. Super. 1912).

In RQth v. Halberstadt 392 A.2d 855, 857 (Pa. Super. 1978) the court stated,

"[t]he primary function of a court faced with a boundary dispute is to ascertain and

effectuate the intent of the parties at the time of the original subdivision!' See also Pencil

13 The Court notes that this was used in the past. See fug11te y, Coxe, 4 Serg, & Rawle 293, 294 ("It has been usual for surveyors not to make an actual running of the closing line; they leave that open In order to enable them to correct the survey, if necessary, when they have calculated the quantity of land included in the lines; they then close the survey on paper, and sometimes shorten or lengthen one of the lines in order to make the quantity correspond with the warrant. This practice ts very convenient and has been sanctioned by long usage."

40 1)

v ~J3uchait 551 A.2d 302, 305~06 (Pa. Super. 1988) (11Initially, we note that the primary

function of the trial court resolving a boundary dispute is to ascertain the intent of the

grantor at the time of the original subdivision."); Appeals of Dallas, 82 A.2d 676, 679

(Pa Super. 1951); (The object of the interpretation rules is to "ascertain the actual

location of the boundary as made at the time,"). "The question of what is a boundary line

is a matter of law, but where a boundary line, or comer, is actually located is a question

for the trier of fact." Murrer, 359 A.2d at 819; See also Schimp v. Allaman, 659 A.2d

1012, 1034 (Pa, Super. 1995).

Pennsylvania courts have repeatedly utilized the same general rules in interpreting

deeds. Notably, '"where there is a conflict between courses and distances or quantity of

land and natural or artificial monuments, the monuments prevail. m Dom@, 592 A.id at

110 (quoting Roth, 392 A.2d at 857); See also Merlino v. Eannotti et ux., 110 A2d 7831

787 (Pa, Super. 1955). If a beginning comer is known, "the calls ought not to be

reversed except in order to make the survey close." Merlino, 110 A.2d at 787.

Additionally, "[e]vidence of the acreage of land, especially where ... the number of acres

is followed by the words 'more or less' has little weight against specific boundaries and

is in its nature an uncertain method of description and often a mere estimate." Dawson v.

Coulter, 106 A. 187) 188 (Pa. 1919). However) if'fhere is a mistake in the description,

•Hthe call adopted as the controlling one should be that most consistent with the apparent

intention of the grantor.?' Murrer, 359 A.2d at 820 (gypting Baker v. Roslyg Swim Club,

213 A.2d 145, 149 (Pa. Super. 1965)). Generally, if a map ls referred to in a grant or

conveyance, the map is deemedto be incorporated into the instrument and therefore

41 ) "given considerable weight" in determining the true description of the land. Appeals of

Dallas, 82 A.2d at 680.

Additionally.v'the nature and quantity of the interest conveyed must be

ascertained from the instrument itself and cannot be orally shown in the absence of fraud,

accident or mistake and we seek to ascertain not what the parties may have intended by

the language but what is the meaning of the words," Yuscavage v. Hamlin, 137 A,2d

242, 244 (Pa. 1958). Second, "effect must be given to all language of the instrument and

no part shall be rejected if it can be given a meaning," liL. (emphasis supplied). Lastly,

"the language of the deed shall be interpreted in the light of the subject matter, the

apparent object 01• purpose of the parties and the-conditions-existing when it was

executed." ) The description of the property by courses and distances controls over the

quantity of land. Bosler y. Sun Oil Co., 190 A. 718, 719 (Pa. 1937); See also Deppen v.

Bogar, 7 Pa. Super. 434, 445 (1898) (mQuantity is a circumstance of slight, often of no.

weight in a question of title, but it may have a marked effect where the question is one of

boundary. If there be two lines, one corresponding with the quantity of land in the deed,

and the other largely in excess the interference would have weight in determining the true

· line, especially when strongly assisted by other evidence.:" (quoting Kennedy v. Lubold,

88 Pa. 246, 247 (1879)); See also 6 P.l.E. § 14 (A "statement inserted in a conveyance,

of the quantity of land supposed to be conveyed must yield to courses and distances

42 I , I

especially where the reference to quantity of land is qualified by the words 'more or

less.:" 13).

However; where the property description cannot close based on the courses and

descriptions found in the property deed, a description of the quantity of area will control. See 6 P .LE. Boundaries § 14 ('•where it is impossible to close a survey by courses and

distances, however, and where no lines are found actually marked out, a description by

referred to a stated area as the southern end and remaining part of a certain tract will

control,"), In Duncan v. Madara, 106 Pa. 562 (1884) the Pennsylvania Supreme Court

held that using the total size of the lot was proper Where a deed for property did not

properly close on the northern edge even. though the parties knew the location of the

southern. edge of the property,

Location ofMalj' Trotter

The Court finds the Plaintiffs have sufficiently demonstrated the location of the

Maly Trotter warrant, through the credible testimony of Timothy Witter andAllen Henry, I I

Mr. Witter has been a licensed professional surveyor since 1985, has testified before in

court proceedings op. numerous occasions and, in this Court's opinion, impressive·

credentials, Notes of Testimony, May 19, 2011, p. 129. He graduated from Penn State

University in 1978 with an associate's degree in land surveying and has been surveying

"all kinds of property surveys, subdivisions for land developments . . topographic surveys"

13 The writer notes that DefendantJ, Ronald Fraker's expert, Thomas M, Englerth, explainedthese general prlnclples as he was describing what he typically does when trying to locate a survey. More speclfically, . Englerth testified Well, first and foremost ls trying to find rnonumentatlon, and then the second I would think would does the monumenratlon fit or come close to fitting any deed calls that you may have. And then after that, you find other things that will lend credence to the location of the lines, For example, blaze lines running between two found monuments, You may find fence Jines. You may find stone rows and you may find people have posted the ground, Notes of Testimony, July 26, 2011, p. 1$-16.

43 ever since. Id. Mr. Wltter's testimony about the location of the Mary Trotter warrant

consists of 80 pages'" of transcript and relies on countless exhibits. The Defendants have

presented noevidenceto contradict, discredit, or otherwise question the Plaintiffs'

evidence.

The Court further finds that Plum Hollow has sufficiently demonstrated its chain

of title back through the Mary Trotter Patent, The testimony from Allen Henry detailing . the chain of title from the Mary Trotter Patent through the present day was extensive and

credible. Additionally, the Plaintiffs introduced 148 exhibits in support of their position.

At the outset of the trial, the Defendants stipulated to the authenticity of all exhibits introduced. N.T. May 18, 2011, p. 7. The Defendants have done nothing to rebut this

position.

The Court recognizes that the testimony of Allen Henry is biased because his

brother, Plaintiff Douglas Henry, another brother and four (4) sisters have title to the

property now in dispute. N.T. May 18, 2011, p. 19. Allen Henry has also had a

relationship with Plaintiff Plum Hollow since the late 1970s. N.T. May 18, 2011, p. 20.

Again however, the Defendants have done nothing to rebut the accuracy of Allen Henry's

testimony. Accordingly, this Court must accept Allen Henry's testimony and research as

credible and accurate.

The evidence 'demonstrates that Tract No. 2(a) in the Henry Deed can be traced by

an unbroken, regular chain of conveyances to a deed, dated February 26, 1869, from

Ephraim Ramsey to William Peters that contained a description taken from a survey and

associated draft that established the northeastern comer of the Thomas Stinson Patent.

See Plaintiffs' Exhibits 97, 60. Tract No. 2(b) in the Remy Deed can be traced by an ) 14 Notes ofTestimony May 19, 2011, p, 131-169 and Notes of Testimony May 20, 2011, p. 4-46

44 I j

unbroken) regular chain of corrveyances to a deed, dated December i7, 1862, from

Rob~rt Ramsey and Wife, to Jacob Wible that describes, based upon a survey and

associated draft, a parcel of land that Hes within and forms the southwestern corner of the

Elwin Fish patent. See P!alntl/fs 'Exhibits 97.

Tract No. 3 in the Henry Deed can be traced by an unbroken, regular chain of

conveyances to a deed, dated September 12, 1867, from John Hollard Sr. and his wife to

George W. Hollard to a tract of land (hereinafter "Holland Tract"), that established the

northwestern corner of the Mary Trotter patent, and the western boundary of the Holland

Tract is part of the western boundary of the Mary Trotter patent. Plainttffs' Exhibit 98.

The Holland Deed contains the accurate description of Tract No: 3 in the Henry Deed,

Plaintiffs' Exhibit 117, p. 1.

Next> Tract No. 1 of the Henry Deed as reflected on Plaintiffs' Exhibit No. 123 to

Timothy C. Witter's testimony shows this tract as the southeastern corner of the Charles

Sewell Tract mid the final corner needed to establish the Four Comers. By locating the

Four Comer.'>, the Mary Trotter patent can be anchored to the Elwin Fish patent and its

location determined,

The location of the Mary Trotter patent by determining Four Comers at the

northwestern corner of the Mary Trotter patent is confirmed by the work that was done to

the south where Timothy Witter' a survey Work allowed it to establish the southern line of

the John Trotter patent as depicted in Plaintiffs' Exhibit 125. Since the John Trotter

patent is senior and part of a block with the Mary Trotter patent its location is paramount

and the location of the southern line fixes the location of the Mary Trotter patent with

greater precision as this line is fixed by the adjoiner of Patrick Neeley to the south.

45 Further confirmation of the location of the Mary Trotter arises from finding a planted

stone on the Elwin Fish western boundary at a corner in common with Charles Sewell

and Jrunes Justice which is a recognized monument of that comer. Pla/.nttffs 'Exhibit

122. This planted stone helps pinpoint the Elwin Fish patent location and narrows the

parameters for the Mary Trotter patent location,

Looking at the evidence peculiar to the Mary Trotter patent confirms the location.

A comer in common with defendant Bonnie Miller, Henry, and defendant Dulce Burger

Hall (Hereinafter "Henry-Hall-Miller-Corner") is a comer that is also a Mary Trotter

comer. The comer is identified as point" A" in the Survey of 1965. The corner was

identified as an iron pln in the Survey of 1976> a "white oak stump (gone)" in the Henry

deed as well as a "w.o, stump (gone)" in the Survey of 1965. This suggests that the

. comer was never properly surveyed and marked by monument.

Another corner in common with Henry, and defendant Dulce Burger Hall

(hereinafter "Henry-Hall-Comer #1.") is also a Mary Trotter corner. The corner is

identified as point "B" in the Survey of 1965. The comer is shown as a twenty-two (22)

inch white oak in Plaintiffs' Exhibit 123. The corner was identified as a twenty-~our (24)

inch oak in the Survey of 1976, as agreed to by Henry and J._ Ronald Fraker based on

Henry' s uncontradicted testimony. The Henry deed calls it a white oak and it is marked

"w,o." in the Survey of 1965. This suggests that this comer also has never been properly

surveyed and marked by monument.

A second corner in common with Henry and defendant Dulce Burger Hall

(hereinafter "Henry-Hall-Corner f/!2.") is a comer shared by Henry and Hall, located on

the Fleming/Trotter line as first mentioned in the Will of Barbara Myers. The comer is

46 I j

j

identified as point "C" in the Survey of. I 965. The comer is identified as "Existing Post

in Stones" in JRF Exhibit A-1. The Survey of 1976 and the Henry deed call for a stone

as a monument, and a "stake in atones" on Plaintiffs' Exhibit 123. TI1e Survey of 1965

calls for a "w.o, '', suggesting that the corner has never been properly survey and arced

with monuments.

The boundary line that connects the Henry-Hall-Miller-Comer and the Henry-

Hall-Corner #1 was identified as line "AB" on the Survey of 1965 but was not retraced.

It is not identified in J.R. Fraker Exhibit A-1. Plaintiffs' expert failed to retrace the line

but identified it as line "P6,' (hereinafter "P6 line") in his testimony and on his Exhibits.

The boundary line that connects the Henry-Hall-Corner sI and the Henry-Hall-

Comer #2 was identified as line <1BC' in the Survey of 1965 and it too was never

retraced, That line was not identified in JRF Exhibit A-1; it was retraced by Plaintiffs'

expert and is an area where he found remnants of the fenceas discussed below.

The course in the Mary Trotter patent is "N 8 E 110 perches" and consists of the

following four (4) segments on Plaintiffs' Exhibit No. 123: Henry-Hall-Corner #1 to

Henry-Hall-Corner #2; Henry-Hall-Corner #2 to Hall-Holland-Comer, which is the

boundary line between the two tracts currently owned by defendant Dulce Burger Hall;

Hall-Holland-Comer to the Plum Hollow Road, whom Plaintiffs' expert identified as the

two acre out sale from the Fleming Tract owned by Twila. M. Long; and the Plum Hollow

Road to the Foux Corners, currently on the Henry Farm.

In addition to the evidence from the location of the adioiners and use lines,

Timothy C. Witter also documented physical evidence offence remnants in the area he

identified as the Mary Trotter patent boundary. Although this is not conclusive, it

47 l supports his overall conclusion as to the location of the boundary. Mr. Witter testified

that the N 64 WIS 64 E line identified on Plaintiffs' Exhibit No. 124 as line "PS" places

the remaining courses of the Mary Trotter patent on the old fence and ·along the old

roadbed on the southern side of the Hom.

,Relating to Plum Hollow Hunting Club, Jue. 's Chain of Title to the Mal'y Trotter Patent Plum Hollow's chain of title back to the Mary Trotter patent is supported by an

unbroken chain of title back to Celia Anderson and that chain· contains the same basic

legal description to the partition in the Estate of Dennis O > Conner (elder) .in Bedford

County. Plaintiffs sufficiently demonstrated this through the testimony of Allen K.

Henry and a plot of the partition. See Platmiff'sExhibit 105,· N. T. May 18, 2011, p. 158,

While there is a break in the chain title between James Kerlin and Ephraim

Anderson, title was confirmed by this Court, when in 1910, sitting as an Orphan's Court

confirmed the deed of conveyance for this land from the Estate of Ephraim Ramsey to

Celia Anderson, This conflrmation, combined with the recitals in the Anderson Deed, the

Appleby Deed and the A.G. Kerlin Deed, give rise to a presumption of grant that

confirms that fee simple title of the two tracts owned by James Kerlin, for which there are

no recorded deeds, became vested in Owen Anderson, See DoughertY, 81 A. at 1001.

There is a second break in the chain of title between Dennis O'Conner (elder) and James

Kerlin. Again, however> the Plaintiffs have demonstrated through sufficient

circumstantial evidence such that the Plaintiffs are able to properly trace title back to the

Mary Trotter patent.

Location of Deed of 1827

48 I ,I

In addition to the errors in the Mary Trotter warrant, there are errors in the Deed

of 1827 ~at prevent the Deed from closing. The location of this Dee? is critical to the

outcome-ofthis case because, except for adverse possession discussed irfia, Defendant Janet M. Fraker's land is derived entirely from the Deed of 1827. Plum Hollow owns the

remaining acreage from the Mary Trotter patent with the Deed of 1827 setting the

boundary along tho southwestern comer of the Mary Trotter patent that is titled in Plum

The known parameters of the Deed of 1827 contain adjoiners, metes and bounds,

and quantity, but no natural monuments were ever found. The deed description started I

with the northern boundary, then the eastern boundary, followed by the southern

boundary, and then finally the western boundary with the habendum clause stating that

) the property contains 315 acres, The eastern boundary must be adjusted because it goes

outside the eastern boundary of the Mary Trotter patent, but it does run the entire distance

of that eastern boundary to lands of Ro bert Lodge, The description then continues

without creating a southern boundary in common with Robert Lodge, "[n [orth twenty

five and one half degrees Bast one hundred and thirty perches to a Chestnut Oak, thence

by the residue of Land of Mary Trotter North fifty six degrees West sixty nine perches to

a white oak .... " These lines mark the beginning of the common boundary with the

Residue, now owned by-Plum Hollow. The next course, "[njorth twenty five degrees

East sixteen perches to a white oak" reaches a point described as at lands of William

Justice, dec'd, which was the reputed owner of the Thomas Stinson patent at the time of

the Mary Trotter survey and patent, The description then continues the last three courses

and distances around the northwest boundary of the Mary Trotter patent to the beginning.

49 ) The errors in the description leave the major determining factor of setting the

boundary as the acreage in the tract. The primary function of this Court is to ascertain the

intent of the granter at the time of the original subdivision. See Pencil, 551 A.2d at 306.

To ascertain this intent, courts use certain rules of construction-notably '"1 f e]vidence of

the acreage of land, especially where the number of acres is followed by the words 'more

or less', has little weight as against specific boundaries and is in its nature an uncertain

method of description and often a mere estimate. Where, however, a doubt exists as to

the actual location of the boundary and the writing contains no words to definitely fix the

line by either metes and bounds or monuments on the ground, ..eyidence of the acrea~

becomes a material factor in the determination of the intention of the parties.:" Pencil,

551 A.2d at 30? (quoting Dawson v. Coulter, 106 A. 187, 188 (Pa. 1919); See also

Jedlicka v. Clemmer, 677 A.2d 1232, 1234 (Pa. Super. 1996). However, courts ha~e

repeatedly held that acreage is the only factor which can determine the intention of the

parties. Accordingly, the Court will adjust the First Gap along the southern boundary of

.the Mary Trotter patent to set the southeast corner of the Residue, now owned by Plum

Hollow, and determine the location of the 130 perch line to the northeast corner of the

Residue when the boundary follows a parallel line to the Mary Trotter patent southern

boundary a distance of sixty-nine (69) perches. The final adjustment must be to

determine the boundary for the Second Gap to meet the northeastern corner of the Hom.

Closing these two gaps will result in the Residue having about 152.6 acres and the

outside boundary of the Deed of 1827 having 315 acres. However; the Court takes the

Plaintiffs' suggestion and will allow the par.ties the opportunity to negotiate a line. ~

The extent and acreage of Plum Hollow Hunting Club, Inc. ,s Title I ·'

I J Once the Court has determined that Plum Hollow has legal title to the residue of

the Mary Trotter patent, the question still remains+what is the extent of Plum Hollow's

- ---- -·-iitle? The-inete~rand bounds description in the deeds and surveys in-its chain of title do

not match the metes and bounds descriptions of its adjoiners, The hlstorical description

for its property is rife with error in acreage and consistent courses and distances. The one

consistent element of its title has been the consistency of its called adjoiners and the

consistency with which its adjoiners have called for the predecessors in title of Plum

Hollow as adjoiners.

Since the Appleby Deed, each deed has recited that it conveys the same real estate

as its predecessor deed. Despite the repeated inaccuracies, the basic shape of the tract

. owned by Plum Hollow has been stable since the survey_ for the partition in the Dennis

O'Connor (elder) Estate as well as having adjoiners in the JRF chain of title on the north

and the JMF chain of title to the east. The pm-titian survey is defective, but claims to

divide and convey all of the land of Dennis O'Conner (elder) that he had at his death in

what is now Dublin Township, Fulton County, which includes all the Residue of the

Mary Trotter patent. Subsequent errors of description do not diminish Plum Hollows title or the extent of that title. Likewise, recent surveys cannot replace the ancient

boundary lines with modern monuments that do not tie in to the ancient monuments. See

Reilly v. Mountain Coal Co, 54 A. 29, 33 (Pa. 1903). 7

The location of Plum Hollow's real estate through the Appleby Deed is fixed by

the location of the Clear Ridge Road on the west, real estate of Plum Hollow through

Barnhart as well as Dale Henry .on the south, the common boundary of the Mary Trotter

I 51 I..

patent and the Thomas Stinson patent on the north and the boundary established by the

Deed of 1827 as fixed by this Court on the east and northeast.

Thi-s-Court has previously ruled that the Thomas $.tinson patentisjuniorto the

Mary Patent and therefore must yield. Accordingly, the lines of a junior survey cannot

change, alter, or affect a senior one if they come into conflict. See Tyrone Min. and

Manuf g Co. v. Cross, 18.A. 519, 519 (Pa. l 889) C'It is very clear, that in a contest

between two adjoining surveys, the junior must always give way. It may have a well-

marked line of the proper age for its own survey inclosing, but the senior will not be

affected by it."). Accordingly, the line between Plum Hollow, Henry and JRF and his

grantees is fixed by the location of the Mary Trotter patent boundary.

Plum Hollow's eastern boundary and the northeastern boundary is dependent

upon the placement of the 130 perch line and the resolution of the Second Gap in the

Deed of 1827 which prevails as a prior conveyance, but which has never been set because

of the latent ambiguities in the Deed of1827. The boundary of the Deed of 1827 must be

set so as toprovide 315 acres in the Deed of 1827 and to leave 152.67 acres in the . 8 Residue, now owned by Plum Hollow.

Relating to Douglas Henry's Title and the Extent of that Title

Henry has legal title to a portion of the property judicially determined to be real

estate owned by the widow of Simpson B. Carmack that lies inthe northwestern corner of

the Mary Trotter patent. His title is traced back through Collins Shade and Lovada Kerlin

to Barbara Myers who devised the real estate to her son George Myers when it was a 29

1/3 acre tract described as "off of the South end of my farm commencing at a point on the

line between me and Thomas E. Fleming and running back to the line between and Elijah

52 \ j

) Baldwin. Platntiffs' Exhibit No. 49. Henry owns the residue of land that existed after

Collins Shade subdivided the parcel and conveyed the Cecil Fraker Parcel along the

-· northern side of-the Plum Hollow Road in the area of the Hom to Cecil Fraker using the

Survey of 1965. Plaintiffs' Exhibit 117, p, 2. The adjoincrs and description of the real

estate as the "residue" of Collin Shade from the Survey of 1965 are made part of Herny' s

deed. Cecil Fraker subsequently subdivided this into the tract now owned by Lonnie

Henry and a smaller tract to the east south of the Plum Hollow Road, now owned by

JMF.

Simpson B. Carmack ls listed as an adjoiner on the northern side of the Horn in

the Deed of 1865 in the JRF grantee chain through Fleming, See Plaintiffs' Exhibit No.

58. The Survey of 1965 calls for c~J?leming Land" which is in the JRF grantees' chain of

) title. but does not call for owners of the Appleby Tract as an adjoiner of Sha~e. See

. not show any adjoiner on the southern Plaintiffs' Exhibit No. 1 l'!i p. ..4,, The survey does

boundary. The Survey of 1969 of land now owned by Plum Hollow does show Shade as

an adjoiner of the Appleby Tract on the north. See Plai11ti.ffe' Exhibit No. 105, p. 2.

Thus, . the record shows that Henry owns everything once owned . by Simpson B. Carmack south of the Plum Hollow Road along the Horn adjacent to JRF and his grantees from the

Fleming chain. It appears he might also have a common boundary with Plum Hollow '

along bis southern boundary, but that line has been resolved through other means. The

adjoiners control the limits of his boundary, instead of inconsistent metes and bounds

calls or surveys. Quinn v. &m:!1 43 Pa. 337, 341 (1862) ("Not only is there no such rule

as the plaintiff obliged to content for, but on the contrary this court was willing, so long

53 ,, ) as 1835, to disregard lines actually run· on the ground in order to carry a survey to the

adjoiners called for.").

The Defendant's expert concluded that Lovada Kerlin owned the Encroachment

Area claimed by JRF under the Fleming Deed and Survey of 197 6 lying outside the

description of the Deed of 1865 which set the true legal boundary for the Fleming Tract

and the scope of legal title which the Estate of Zelpha Fleming could convey. Since there

is no evidence of any conveyance from the Lovada Kerlin chain into the Fleming chain,

Henry, as the owner of the residue of Lovada Kerlin, owns title between the Hom and

Pl um Hollow Road.

Relating to J, Ronald Fraker and his Grantees' Title and the extent of that Title

This Court has previously ruled that both the source of title for JRF and his ) . grantees comes through the Thomas Stinson patent which is described in the Deed of

1865 in conformity with the Macy Trotter patent. Therefore, once the Mary Trotter

patent boundary is determined, the lines between the plaintiffs and JRF are determined.

Except for the adverse possession and the doctrine of consentable lines, any interference

between the Survey of 1976 and the Macy Trotter patent is resolved in favor of those

holding title through Mary Trotter,

Relating to Janet M. Fraker's Title and its Extent

The dispute between Henry, Plum Hollow and JMF concerns the real estate she

still owns within the bounds of the Mary Trotter patent. The Plaintiffs acknowledge that

JMF owns any real estate north.of Plum Hollow Road. See Plaintiffs' Proposed Finding

of Fact and Conclusions of Law, p, 63.

54 • JI

JMF's real estate is flrst described as a result of the unrecorded Survey of 1984

and concerns the tract conveyed in the Baldwin '.Deed. JMF1s record title for this tract

can be traced by a regularchain of conveyances back to the deed from John S, McDowell

to F,M. Berkstresser dated April 2, 1866. This deed is linked to the 1865 McDowell

Mortgage which is described as "containing between two and three hundred acres be the

same more or less excepting the tract or part of a tract conveyed by Geo. Chestnut & wife

to Thos. Huston, now in the possession of Simpson B. Carmack containing about fifty

acres. The whole having been conveyed by Geo, Chestnut & wife to J ohn Cessna

Esquire by deed dated 13th Sept. 1859, who by deed dated the 19th of September 18591

conveyed the same to John James, who this day hath conveyed the same to the within

named mortgagor, and being part of survey in the name of Mary Trotter."

There is no record evidence showing any title into George Chestnut, but the . description in the McDowell Mortgage bears striking similarities in its courses and

distances to the Deed of 1827 so that this title encompasses the portion of the Deed of

1827 along its eastern boundary and part of its 315 acres. This makes Dennis O'Connor

(elder) tho common source of title of JMF, Herny, and Plum Hollow. The description for

this tract remained the same until the Survey of 1984. Thus, despite a contrary record

boundary, the actual legal title of JMF is limited to the boundary of the Deed of 1827,

less all that land in the northwest portion of the Deed of 182 7 of approximately l 03 acres

that was occupied and later owned by Simpson B. Carmack a.k.a. S.B. Carmack. This

line is the same as the modem boundary between JMF and Lonnie D. Henry, Therefore,

JMF1s total acreage is 212 acres.

55 l

) The Court takes the Plaintiffs' suggestion-and holds that this is the extent of

JMF's legal title: The Court will-allow an opportunity for Plum Hollow and JMF to

negotiate a-mutually agreeable line between the parties.

Defendants are not Bona Fide Purchasers

All Defendants argue they are bona fide purchasers for value because of the

breaks in the chain of title to the Plum Hollow, Plaintiffs could have traced their

respective deeds back to 1794 and the circumstantial evidence deduced by the Plaintiffs

is insufficient. See Proposed Findings of Fact and Conclusions of Law of Defendant

Janet M Fraker, p. 35; J.R Fraker 's Proposed Findings of Fact and Conclusions of

Law, p. 75~84. The Defendants conclude by arguing "[pjeraons who do not properly record their title deeds or any other interest they claim risk the loss of their property, as

any unrecorded interest in land is deemed void as to a BFP without actual notice of any

interest claimed outside of those set forth within the property records." J.R. Fraker 's ·

Proposed Findings of Fdct and Conclusions of Law, p. 76. However, the Plaintiffs'

argue the BFP argument is irrelevant "[sjince neither JRF nor his grantees purchased real

estate that came from the Mary Trotter chain of title, they cannot claim BFP status as

purchasers from that chain." Platnttffs 'Proposed Finding of Fact and Conclusion of

Law.p. 42. A bona fide purchaser is defined as "[o]ne who buys something fol' value without

notice of another's claim to the item or of any defects in the seller's ~itle; one who has in

good faith paid valuable consideration for property without notice of adverse claims."

56 • J

) "purchaser", p. 1249, Black's Law Dictionary, ih Ed., 1999. The statutory framework

for bona :fide purchasers is established in 21 P .S. §§ 35115 and 44416•

To be ·a bona fide purchaser under § 351, a purchaser of real property -must ·

acquire the property without actual or constructive no1ice of a prior interest in the

property, See also In re Wagner, 353 B.R. I 06 (Bkrtcy. W,D, Pa. 2006); Roberts v.

Pul's1ey, 718 A.2d 837, 841 (Pa. Super. 1998) ("In order to qualify as a bona fide

purchaser, the subsequent buyer must be without notice of a prior equitable Interest.").

Additionally, a bona fide purchaser must also act in good faith. Poffenberger v.

"21 P.S. § 351 entitled, "Failure to record conveyance" provides All deeds, conveyances, contracts, and other instruments ofwritlng whereln it shall be the Intention of the parties executing the same to grant, bargain, sell, and convey any lands, tenements, or hereditaments situate In this Commonwealth, upon being acknowledged by the parties executing the same or proved In the manner provided by the laws ofthis Commonwealth, shall be recorded in the office for tho recording of deeds In the county where such lands, tenements, and heredltaments are situate. Every such deed, conveyance, contract, or other Instrument ofwr!tlng which shall not be acknowledged or proved and recorded, as aforesaid, shall be adjudged fraudulent and void as to any subsequent bona fide purchaser or mortgagee or holder of any judgment, duly entered in the prothonotary's office ofthe county In which the lands, tenements, or hereditaments are situate, without actual or constructive notice unless such deed, conveyance, contract, or Instrument of writing shall be recorded, as aforesaid, before the recording of the deed or conveyance or the entry of the judgment under which such subsequent purchaser, mortgagee, or judgment creditor shall claim. Nothing contained in this act shall be construed to repeal or modify any law providing for the lien of purchase money mortgages. le Section 444 entitled, "All deeds made in tho state to be acknowledged and recorded within ninety days" provides, Aii deeds and conveyances, which, from and after the passage of thJs act; shall be made and executed Within this commonwealth of or concerning any lands, tenements or hereditaments in this commonwealth, or whereby the title to the same may be In any way affected In law or equity, shall be acknowledged by the granter, or granters, bargeinor or bargainers, or proved by one or more of the subscribing witnesses thereto, before one of the judges of the supreme court, or before one of the Judges of the court of common pleas, or recorder of deeds, prothonotary, or clork of any court ofrecord, Justice of the peace, or notary public of the county wherein said conveyed lands Ho, and shall be recorded in the office for the recording of deeds where such lands, tenements or heredltaments are lying and being, within ninety day:i after tho execution of such deeds or conveyance, and every such deed and conveyance that shall at any time after the passage of this act be made and executed in this commonwealth, and which shall not be proved and recorded as aforesaid, shall be adjudged fraudulent and void. against any subsequent purchaser or mortgagee for a valid consideration, or any creditor of the granter or bergaincr In said deed of conveyance, and all deeds or conveyances that may have been made and executed prior to the passage of this act, having been duly proved and acknowledged as now directed by law, which shall not be recorded In the office for recording of deeds in the county where said lends and tenements and heredltarnents are tying and being, within ninety days after the date of the passage of this act, shall be aqjudged fraudulent and void as to any subsequent purchaser for a valid consideration, or mortgagee, 01• creditor of the granter, or bargalnor therein.

57 Goldstein. 776 A.2d 1037, 1042 (Pa. Cmwlth. 2001); See also Camegie NatUl'al Gas

ComP.any v, Braddocki 597 A.2d 285, 287 (Pa. Cmwlth. 1991) ("A bona fide purchaser is

-- --- defined as one who pays valuable consideration. has no notice of outstanding rights of

others, and acts in good faith."),

The statute, which has been In effect since January I, 1926, reflects the purpose of

the recording statutes which is to protect bona fide purchasers and provide the public with

notice in whom the title resides. Poffenburger, 776 A.2d at 1042. Once a deed is

recorded, subsequent purchasers, mortgagees or creditors are deemed to have

constructive notice of the deed. 21 P.S. §357; FirstN~tionttl Bank v. Sherwood, 879

A.2d 178, 181 (Pa. 2005). "Equity protects innocent purchasers by providing that a bona

fide purchaser for value and without notice has a perfect defense in a suite brought by a

holder of a prior equitable claim." MacKubbin y. Rosedale Memorial P.mk, 257 A.2d

587, 589 (Pa. 1969). The case of'Roberts v. Pursle)!, 718 A.2d 837, (Pa. Super. 1998) is

directly on point.

In Roberts, the Superior Court held that a trial court properly applied the bona

fide purchaser statutes to conclude that a landowner had legal title because the landowner

was a bona fide purchaser even though the landowner's predecessor did not have legal

title. In the case. Kehoe 17 owned property that he traced back to 185 4 when the

"Keating/Willing Warrant", as the original warrant, was completed. Roberts, 718 A.2d at

840. One of the opposing parties, Roberts, was able to trace the chain of title back to the

Keating/Willing warrant as well. However, there was an error in the chain of title

resulting from a flawed conveyance in 1901. Although the opinion is not clear who

17 The case involved numerous parties and the procedural history in the case was extensive. Kehoe was one

of the parties involved In the original action who filed an appeal.

58 • ti

) owned the Roberts property between 1901 and 1964, it is clear that in 1964 Milton S.

Kelius and Mary Kelius acquired and properly recorded the property. In 1975, the

Kelius' s transferred the property to Roberts. The trial court, found for Roberts by

'concluding that while Kehoe was able to trace the property back to 1854, Roberts was

able to trace title back to 1901 and that Roberts was unable to demonstrate that his

"predecessors ever acquired title to the acreage contained within said Warrant." Robeiis,

718 A.2d at 840. The trial court still found for Roberts by writing, "but for the . . Pennsylvania recording statute, [Kehoe] established their claim. to title by a

preponderance of the evidence," Robet1s, 718 A.2d at 840.

On appeal the Superior Court held "[bjecause (21 P.S.] sections 351 and 444 are

both intended to provide the same protections to bona fide purchasers, and in light of the

) fact that the sections must be read together, we hold that the trial court was correct in

applying the Pennsylvania recording statute to the facts of this case." Kehoe, relying

Kaiser Energy Inc, v. Commonwealth of Pennsvlvania. Department of Environmental

Resource§, 535 A.2d 1255 (Pa. Commw, 1998)18 argued unsuccessfully-that vthe bona

fide purchaser concept does not apply to the facts of the present ease because Appellees'

granter did not possess legal title," Robe1ts, 535 A.2d at 841. Inrejecting this argument

the Robe1'ts court noted, "we find the Commonwealth Court's argument inconsistent with

the bona fide purchaser concept contained withln the recording statute of this

Commonwealth." The Roberts court therefore concluded, "[i]n order to qualify as a bona

fide purchaser, the subsequent buyer must be without notice of a prior equitable interest."

The Roberts court reasoned,

18 The Kaiser court held, "'the bona fide purchaser concept applies only to purchasers of legal title." Roberts, 718 A.2d at 841 (quoting Kaiser, 535 A.2d at 1258).

59 ··,,

} If c legal title/ within [Kehoe's] definition, were required for a subsequent purchaser to qualify as a bona fide purchaser, the recording statute would not further its intended goals, For instance, in the typical recording statute situation, a grantor sells land to a grantee who does not record the deed; then, a subsequent buyer purchases the same land from the same granror as the original grantee and this subsequent grantee records his deed before the first grantee. The subsequent grantee does not have 'legal title' within [Kehoe's] definition because at the time the land was sold to him, the grantor did not have legal title to give such a right. Yet, notwithstanding the fact that he does not have 'legal title,' he is a bona fide purchaser if at the time of the sale he was without notice of fill adverse interest and value was given for a purchase of the land. As evidenced here, imposing a · requirement of' legal title 1 to the definition of bona purchaser would nearly render the recording statute useless,

R~berts, 718 A.2d at 841 (citations omitted). Given that there are three (3) elements,

each element shall be taken in turn.

The first element is valuable consideration. In the present case all parties appear

to have purchased their respective properties with good and valuable consideration. ) Since there appears to be little dispute about this element, this element is satisfied for all

parties involved,

The secorid and third elements, the person must have act in good faith and be

without either constructive or actual notice of the defect in title, are interrelated and strike

· at the heart of this case. Not surprisingly, th~e elements have been the subject of most

of the litigation over the years.

The burden of proving no notice is on the party asserting the unrecorded rights in

the property. Carnegie Natural Gas Company v. Braddock, 597 A.2d 2851 287 (Pa.

Crnwlth, 1991). Notice may be either actual or constructive. Long John Silvers, Inc. v.

Fiore, 3 86 A2d 569, 573. (Pa. Super, 1978). Constructive notice of a prior unrecorded

agreement may be found where the subsequent purchaser could have learned of the facts ·

that may affect his title by inquiry of persons in possession or others who the purchaser

60 ' J

) reasonably believes know such facts. Overly v. HiXBon, 82 A.2d 573, 575 (Pa. Super.

1951). "Proper notice requires a diligent search on the part of the purchaser, and that the

question· of diligence is a factual one to· be determined by the accessibility of the records

at the time of the search." First Citizens National Bank v, She1'Wood~ 817 A.2d 501, 502

(Pa. Super. 2003); See also Hermansen, p. 6w20 C'The depth of research is measured

according to the amount of prior records for the property that must be examined.").

The issue in Sherwood was whether a subsequent purchaser of real estate had

constructive notice of a mortgage lien where the mortgage lien was improperly indexed

in the Recorder of Deeds office. The court, relying on 21 P .S, § 3'5719, held that the

determination of whether an incorrectly indexed mortgage provided sufficient notice to

the subsequent purchaser is a factual question to be determined on a case by case basis.

Sherwood, 817 A.2d at 505. The court noted that 'With the advent of the computerization

of the property indexes "[wjhet may have been considered a diligent search may no

longer be considered because of the ease of retrieving computerized information relevant

to encumbrances on the property." Sherwood, 817 A.2d at 505, The court further

elaborated by writing,

[i]f the records are not computerized or are riot easily accessible, then the finder of fact may conclude a search of the index is sufficient. If, on the other hand, the records are easily accessible, then a diligent search may require review of these records. We hold that if the fact finder concludes under an objective standard of reasonableness that a diligent search has been made. then the result of that search shall constitute notice.

19 21 P.S. § 357 entitled "Constructive Notice as to Recordatlon" provides The legal effect of the recording of such agreements shall be to give constructive notice to subsequent purchasers, mortgagees, and/or Judgment creditors of the parties to said agreements of the fact of the granting of such rights or privileges and/or of the execution of said releases, and the rights of the subsequent purchasers, mortgagees, and/or judgment creditors of the parties to said agreements shall be limited thereby with the same force and effect es Jfsald subsequent purchasers, mortgagees, and/or judgment creditors had actually Joined In the execution of the agreement or agreements aforesaid.

61 ' "

Sherwood, 817 A.2d at 505; See also Hermansen, 6~20 ("The depth of'research is

measured according to the amount of prior records for the property that must be

examined.").

Defendant J ,R, Fraker argues, "[t]he main purpose-if not the sole purpose-of

the recording statutes is to provide notice to all persons purchasing real estate or

extending mortgage loans of the existence of all property interests affecting the real estate

involved in the purchase or use O as collateral for a loan." J. R. Fraker 's Propose

Findings ofFacr and Conclusions of Law, p. 75-76. The Courtagrees with this

statement. However, the Court disagrees that the Defendants did not have notice. As the

case law indicates, the extent of the search required to be a BFP is a matter of degree. As

the Plaintiffs correctly point out, "[ajlthough JRF claims that he was represented by an

unnamed attorney, we do not know the scope of the search, the extent of the attorney

certification or what qualifications were made to any opinion of title," Plaintiffs'

Rebuttal to J.R. Fraker 's Proposed Findings of Fact and Conclusions of Law, p. 16.

Defendant JRF argues, "these parties: (1) derived theirtitle deeds from different

granters; and, (2) the title deed of record held by each party very specifically describes

the property conveyed to them, including the specific acreage they were to receive; and,

(3) at the TIME each party acquired their property an examination of the deed records \ would NOT have disclosed any ownership interest (or 'overlap') by an adjoining owner."

J. R. Fraker 's Proposed Findings of Facr and Conclusions ofLaw. p. 82 (emphasis

supplied).

The Court is not in a position to speculate about the extent of a title search that

was done years ago, At the very least, as the Court has already concluded, sufficient

62 r ·•

) circumstantial evidence existed to explain the breaks in the chains of title thereby

providing constructive notice to the Defendants. Defendant JRF's argument that he

derived title deeds from different granters is unpersuasive because all 'of his claimed

property was derived from the Mary Trotter patent. The simple fact remains that if the . . defendants conducted a thorough title search, they would have found the mistakes.

Further, it is the Defendants as the party asserting the unrecorded rights ln the property>

who have the burden of establishing their unrecorded rights. Accordingly, the

Defendants argument relating to BFP must fail.

Adverse Posses§io.t\

Adverse possession is defined as "dominion over the property," Bride v,

Robwood Lodget 713 A.2d 109, 112 (Pa. Super. 1998). The original purpose of adverse ) possession "was to clarify ('quief) uncertain title rather than to serve as a reward for

possession." Hermansen, 4~20. If a party is able to satisfy the requirements of adverse . possession for the prescribed period of time, the adverse possessor gains an "absolute,

marketable title, with the attendant right of possession." f lauohak y. Boling, 653 A,2d

671, 678 (Pa. Super. 1995). Stated another way, a party who successfully asserts adverse

possession "extinguishes all prior claims, including those asserted under color of paper

title." ~

The elements for adverse possession have been well established-a claimant must

prove actual, continuous, exclusive, visible, notorious, distinct and hostile possession of

the land fol' twenty-one (21) years. Moore v. Duran, 687 A.2d 822, 828 (Pa. Super,

1996). The burden is on the person asserting adverse possession to establish each one of

the elements .. Com1eaut Lake, 66 A.2d at 829.

63 Pennsylvania jurisprudence has adopted 'Ha rather strict standard for proving

adverse possession of woodland. m Shaffer v. O>Toole, 964 A.2d 420, 424 (Pa. Super.

2009) (quoting Rec.Land.Corp. v. Hartzfeld 947 ;\.2d 771, 774 (Pa. Super. 2008). The

strict standard is required because adverse possession is an "'extraordinary doctrine'" and

an 1''extraordinaryprivilege."' Recreation Land Corporation v, Hartzfeld, 947 A.2d 771,

774 (Pa, Super, 2007) (quoting Flannery v. Stlllll.12, 786 A.2d 255, 258 (Pa. Super. 2001)).

Each adverse possession claim is a fact specific inquiry. Bride y. Robwood ·Lodge, 713

. A.2d 109, 112 (Pa. Super. 1998). ·

Niles v. Fall Creek Hunting Club. Inc., 545 A,2d 926, 929 (Pa. Super. 1988) is

directly on point and provides an excellent discussion of the differences between adverse

possession and the doctrine of consentable lines; a similar yet distinct concept to adverse

possession. In the case, Fall Creek Hunting Club acquired approximately 1,560 acres of

unimproved woodlands. The deed to Fall Creek provided that the western boundary was

defined as "the line dividing the Townships of Liberty and Morris." Niles, 545 A.2d at

928. This deed was executed in 1940. Niles owned the property to the west of the Fall

Creek property. Niles traced the chain of title back to 19 52 when there was. a survey

done. Niles learned that beginning in 1952, there were concerns with the exact location

of the boundary line separating the Fall Creek and Niles properties. To separate the

properties) a single strand of wire was placed between the properties and no trespassing

signs were placed. Niles then used his portion of the property for timbering. In 1982,

Fall Creek commissioned its own surveyor who concluded that the 1952 survey was

incorrect and the correct line was 700 feet to the west of the 1952 survey. Fall Creek

64 ' f

) then moved the no trespassing signs to reflect the new survey. Niles then commenced an

action to quiet title and trespass against Fall Creek. The court on appeal held

The land had been partially enclosed by a single strand of'wire which had broken and fallen to the ground in several places. The evidence was insufficient to show an lnclosure [sio] of a substantial character. There was neither.the establishment of a residence nor cultivation within designated boundaries. Therefore, the evidence failed to satisfy the requisites for proving that Niles had acquired title to the woodland by adverse possession. Id. at 930.

The Niles court then discussed the doctrine of consentable lines, which, the court

noted, "emerged as a separate and distinct theory from that of traditional adverse

possession." Niles, 545 A.2d at 930. A party may prevail under either theory. ML at 931. The court noted that when the 1952 survey was done, the exact location of the western

boundary was uncertain, and, therefore the parties included the language "the location of

which is verbally agreeable to the adjacent landowners." Niles, 545 A.2d at 931. This

language was subsequently incorporated into the later deeds. The court held that this

language, if believed by the jury would become a binding, consentable Une2°. In ruling

the court noted that "it was not essential an express agreement to recognize the line."

Niles, 545 A.2d at 931. The writer shall take each element for adverse possession in tum.

The first element, actual possession> is as it states=-actual possession is required

and proof of constructive possession under the guise of color of title is insufficient. !Im Le'Daerda. Inc. v. Davis, 360 A.2d 209, 214 (Pa. Super. 1976). "Actual possession of

property may be established in connection with the maintenance of a residence, by

20It must be noted that the Superior Court reversed the trial court on the basis of other errors the trial court commltted such as a evidentiary rulings and Jury Instructions. The court concluded, "ft]hls Is a dlftfoult case. Whether Fall Creek's record title to the disputed land must yield to Niles because ofa boundary fixed by consentable line is a closequestion, Because the jury's verdlct may have been influenced by misleading instructions on adverse possession and erroneous evidentlary l'Ulings, a new trial is required." Niles. 545 A.2d at 934. · ·

65 \\

cultivation of the land, by [e'[nclosure of the land, or by making improvements to the land

and paying property taxes." Moore, 687 A.2d at 828; See also Parks y. Pennsylvania

R.R. Co., 152 A. 682, 684 (Pa. 1930) ("temporary acts on the land, without an intention

to seat it for residence and cultivation or other permanent use consistent with the nature

of the property are not the actual possession required."). In "dealing with a woodland, a

person must establish actual possession of the woodland by residence or cultivation of a

part of the tract of land to which the woodland belongs. A property owner can satisfy this

requirement by making ordinary use of the woodlands in connection with their residence

or the part of the woodlands that is cultivated. Olewine v. Messmore, 18 A. 495, 496 (Pa.

1889); See also Bride)!, Robwood Lagge, 713 A.2d 109, 112 (Pa. Super. 1998) ('1Since

the disputed parcel is undeveloped woodland, actual possession is established by either

erecting a residence or by enclosing and cultivating the property."); Moore, 687 A.2d at

828 ("Actual possession may thus be established by enclosing and cultivating the tract of

land-of which the woodland is a part without erecting a residence; or possession may be

established by erecting a residence wh~~·e there is a clear designation of the boundaries of

the land surrounding such residence."); Rittenhouse, 3 7 Pa. at 117 ("That actual

possession may be by residence without cultivation, orby enclosure and cultivation

without residence; and whore either these is, the use of adjoining woodland by the

disseisor, as farmers generally use woodland adjoining to their farms, is actual and not

constructive possession of such woodland."). The Rittenhouse court further explained,

"[tjhe customary use of the woodland, in connection with such a possession, within the

interference, becomes actual possession of the whole." .ilL, at 121.

66 'f'

However in ~even Springs Farm. Inc. v. Ring, 344 A.2d 641 (Pa. Super. 1975)

the court held that timbering from an unenclosed woodland and constructing roads to

facilitate the timbering did not satisfy the actual possession requirement. The Seven

Springs, court noted that a fence to satisfy the requirements of actual possession must be

"substantial" and the fence must "define and enclose the acreage to whloh po~session is

asserted." Seven Springs. 344 A.2d at 644~45. Likewise in Bride, th.e court held that

using the property sporadically for hunting, picking berries, removing timber and

pJantlng saplings many years ago was insufficient to demonstrate actual possession.

Bride. 713 A.2d at 112. It must be noted that although using a land for recreational

purposes such as hunting and fishing does not constitute actual possession, It may be

sufficient where the use(s) is "extensive and apparent as where systematically conducted

for commercial purposes!' Seven SprJngs; 344 A.2d at 645.

The Court agrees with the Defendants that adverse possession has been satisfied

for the land that has been improved. More specifically, Attorney Cramer deduced

testimony that Plum Hollow never plowed or put shale down on a road purportedly

owned by Defendants Lany J. and Tina M. Dillman. N.T. May 191 2011, p. 1-17. The

following exchange between Attorney Cramer and Allen Henry is instrumental:

Q. Before we move on, who was in actual physical possession of the Dillman property when this action was filed by the plaintiffs in 2009? A. Dillman was In actual physical possession of whatever is inside the Mary Trotter boundary in my opinion. He occupied-s-it' s my understanding he occupied the house and so he was also in physical possession of that house, but at the time he purchased [it] I understand the title was still in someone through Mary Trotter because the house was on the property that was conveyed to him by Fraker. The house is on that property, Q. Well, let me ask you this. did the hunting club ever down and plow out Dillman ts driveway? A. No they didn't.

67 ) Q, Did the hunting club ever down and put shale on the Dillman's driveway as depicted on Exhibit I-17 A. No they didn't. Q. And the hunting club never maintained any portion of Dillman's front yard, did it? A. No they didn't N.T. May 19,2011,p.116 .

.Attorney Cramer introduced several photographs of the property allegedly owned

by Defendants Dillman, Ramsey and Miller. See Exhibits I-2 through I-9. More

specifically, Exhibit I-2 shows a gravel road in the middle of the photograph and there is ' a home on the right side of the picture. There are two (2) small structures in the picture

one of which looks like a storage shed and a secure place to put out trash so as to prevent

bears from rummaging through the trash. There is a wooded area behind the home and

structures. All structures appear to be well maintained and the grass is neatly trimmed.

) Exhibit 1"3 is a picture that appears to be taken immediately adjacentto Exhibit I-2 as. the

home that was on the tight side of the photograph in I-2 is now in the center. There are

three (3) vehicles parked in front of the home and another larger structure on the right

side of the photograph. Again, all structures and vehicles appear to be well maintained. Exhibit I-4 shows a gravel road and in the center there is a mailbox with the name ''D,

Ramsey" on the mailbox. Both the mailbox and the mailbox post appear to be well

maintained. Exhibit I-5 depicts a gravel road leading up to two (~) large structures, one .

of which appears to be a home and the other appears to be a garage. There is an.

American flag flying from the garage and there is a trampoline in the backyard of the

home .. The American flag is not tattered or faded in any way. Exhibit I-6 depicts a state

road with a double yellow line down the middle and a mobile home in the front. There is

also a red shed off on the right side of the picture. All structures- appear to be well

68 ) maintained. Bxhibit l-? depicts several homes on the right side of the photograph and a

road running' parallel to the homes on the left side of the photo graph. All of the yards are

neatly trimmed and there is a sign in the front yard of one of the homes that say "Mobile

Home for Rent". The sign and all homes appear to be well maintained. Exhibit I-8

depicts several mobile homes with neatly groomed yards. Exhibit IH9 depicts a mobile

home and single family home on the property. Accordingly, the Court believes that the

Defendants have satisfied the actual possession element for those areas that are Improved,

JRF likewise testified about his use actual use of the land. More specifically, JRF

explained how he worked with his son to subdivide the land that he bought in 1976. N.T.

July 291 2011, p. 14. JRF also testified that he cleared brush away from the property and

timbered on the property so that the property could be marketed and sold. N.T. July 29, ) 2011, p. 15. JRF further testified that he put "For Sale" signs up on the parcels of land

that he was attempting to sell. N.T. July 29, 2011, p. 15. JRF also rented mobile homes

to people on the property, N.T. July 29, 2011, p. 16. Although JRF never personally

lived in the homes, Bonnie Miller resided in the trailer continuously. N.T. July 29, 2011,

p. 37, Again, the Court is convinced that Defendant JRF has satisfied his burden of

demonstrating actual possession for these areas.

However, the question remains about the unenclosed woodlands. It is not clear

that the Defendants have satisfied this element from the evidence deduced regarding the

woodlands portion oftbe land they occupy. Rittenhouse case would allow for

satisfaction of this element by proof of residence and use of the woodland. There is no

evidence that the Defendants ever attempted to define and enclose the acreage to which

possession is esserted, See Seye? Springs. The Court notes that there appears to be little )

69 I dispute regarding the remaining elements fur the improved areas presently occupied by

the Defendants. Accordingly, the Court will allow the parties an opportunity to reach an / agreement regarding the exact.placement of the boundary lines.

Doctrine of Consentable Lines i

· A similar, yet distinctly related topic to adverse possession is the doctrine of

consent able lines which "is a rule of repose for the purpose of quieting title and

discouraging confusing and vexatious litigation." Schimp, 659 A.2d at 1034; See also

Plauchaky. Boling~ 653 A2d 671, 675 (Pa. Super. 1995); P1ottv. Cole, 547 A.2d 1216

(Pa. Super. l 988) ("the doctrine of consentable line[s] has emerged as a separate and

distinct theory from that of traditional adverse possession."),

Under the doctrine of consentable lines, adjoining landowners may reach a

compromise as to the boundary using the principles of estoppel. Inn Le'Paerda lnc., 360

A.2d at 215. The doctrine was created to allow the parties to a boundary dispute, to

resolve their differences peacefully in recognition of abandonment of their rights. Id.; ·

See also Plauchak v; Boling, 653 A.2d 671, 675 (Pa. Super. 1995) (uThe doctrine of

consentable line is a rule of repose for the purpose of quieting title and discouraging

confusing and vexatious litigation."). Not surprisingly courts favor this doctrine to

resolve land disputes. Plauchak, 653 A.2d at 676. The doctrine is not a conveyance

within the purview of the Statute of'Limitations and) thus, must be demonstrated through

parol evidence. Plauchak, 653 A.2d at 675.

Most of the cases read by the Court discussing the doctrine of consentable lines

involved a dispute over the location of a fence or other boundary, See Schimp, 659 A.2d

at 1034~ Inn LeDaerda Inc., 360 A.2d at 214-215; But see Plauchak, 653 A.2d at 676

70 , • A'

) (Doctrine established when a row of hedges was in place for twenty-one (21) years); Plott

v. Cole, 547 A.2d 1216 (Pa. Super. 1988) (Dispute over the location of a screening wall

in half of a double frame house). However, forthe doctrine to apply, the parties need not

"specifically" consent to the location of the line. Plott, 547 A.2d at 1221 (wi;,hasis supplied). More specifically,

It cannot be disputed that occupation up to a fence on each side by a party or two parties for more than twenty-one years, each party claiming the land on his side as his 0W11, gives to each an incontestable right up to the fence, and equally whether the fence i~ precisely on the right line or not. Our courts have always favored the settlement of disputes of this character by recognizing consentable lines established by the parties themselves, and without regard to whether the line agreed upon conforms tothe exact courses, distances and bounds of the original surveys. . Plott. 547 A.2d at 1221 (quoting Dimura Y: William§, 286 A.2d 370 (Pa. 1972)); See also . Sorg y, Cunningham, 687 A.2d 846, 849 (Pa. Super. 1997) (row of pine 'trees sufficient to

establish a boundary line). Additionally, there is no requirement _that the activities be

conducted on the entire property for a party toprevail. furrg, 687 A.2d at 849.

Broadly speaking, there are two (2) ways to pr~ve the doctrine-first, by dispute

and compromise, and, secondly by recognition and acquiescence. Schimp, 659 A.2d at

1034. Under either theory it is not necessary that the boundary line be substantial.

Jedlicka v. Clemmer, 677 A.2d 1232, 1235 (Pa. Super. 1995).

The Court will first discuss the dispute and compromise method. For the Court to

find that this doctrine is applicable under the dispute and compromise method, three (3)

elements must be satisfied. First, there must be a "dispute with regard to the location of a

common boundary line." Inn Le'Daerda Inc., 360 A.2d at 215. Second there must be an

"establishment of a line in compromise of the dispute". Id. Lastly there must be mthe

consent of both parties to that line and the giving up of their respective claims which are

71 I I 11; ., •

inconsistent therewith?" Id. (quoting Newton v. Smith, 40 Pa. Super. 615, 616 (1909)).

Finally, like adverse possession, the party asserting the doctrine must be in possession for

· twenty-one (21) years. Schimp, 659 A.2d at 1034.

The second method is recognition and acquiescence. Unlike the first method, the.

parties need not have specifically consented to the line but rather ~'[iJt must nevertheless

appear that for the requisite twenty-one years a line was recognized and acquiesced in as

a boundary by adjoining land owners.~: Niles, 545 A.2d at 930 (gnoting Inn Le'Daerdg,

360 A.2d at 216.

Based on the foregoing discussion, one thing becomes clear-for the doctrine to

be applicable, there must a boundary. As the Plaintiffs correctly point out on Page 39, 1 4 7 of their brief, "[t]here is no consentable line between JMF and Plum Hollow because

no controversy as to the location of the line ever existed and there is boundary fence

between JMF and Plum Hollow or Henry," Plaintiffs' Proposed Finding of Fact and

Conclusions ofLaw, p. 39.

J The Court finds that the Defendants have not satisfied their burden of establishing

the Doctrine of Consentable Lines because the Defendants have not established a

boundary. Defendant JRF argues,

[s]tarting in 198 L when PHHC acquired its property from the Kerns, the Hunting club posted its property line essentially along the survey line established by P.E. Larsen for all parties, as evidenced by the blaze tree line and other monuments of record to which Surveyor Englerth testified. The facts also established that both parties stayed on their respective sides of this line, even refusing requests, each to the other, to hunt or park on the other's property. I"~ J.R. Fraker's Proposed Findings ?f Fact and Conclusions of Law, p. 98~99, However, the

vr.. {lf 1~t1 (J jfDefendants failed to satisfy their burden when they failed to produce any photographs or

/ (, other documentation to support this argument. .

t._1\ 11 ~ ri @ ~ 1..-:i~ ~J' !?) ,~ ,ftflv ~ 11 &:l g jT; • (~I ..// 72 OM f·"( 1~~ ~ yr ... , '

Failure to Join Indispensible Parties

The Defendants argue that the Plaintiffs' action must be dismissed because all

indispensable parties have not been joined in this action. See J.R. Fraker's Proposed

Findingsof Fact and Conclusions of Law, p. 59; Proposed Findings of Fact and Conclusions ofLaw of Defendant Janet M. Fraker,p. 32w33.

The failure t~ join an indispensable party deprives the court of jurisdiction. E-Z

Parks. Inc. v. Philadelphia Parking Auth .• 521 A.2d 71. 73 (Pa. Commw. 1987). A patty

is indispensable "when he has such an interest that a final decree cannot be made without

affecting it, or leaving the controversy in such a condition that a final determination may

be wholly inconsistent with equity and good conscience." Id. Courts are guided by four

(4) criteria established in Mechgnicsburg A;teg School District v. Kline, 431 A.2d 953,

956 (Pa. 1981):

1. Do the absent parties have a right or interest related to the claim? 2. If so, what is the nature of the right or interest? 3. Is that right or interest essential to the merits of the issue? 4. Canjustice be afforded without violating due processes rights of absent parties? The Court finds that all of the Indispensable parties have been included in this

action as all of "indispensible parties" mentioned by the Defendants either own properties ·

located outside the litigation or their rights have been extinguished through voluntary

land transfers. Defendant JRF mentions the mortgagee holding a lien upon Defendant

Ramsey's property, In support of this proposition Defendant JRF cites Concord Libert~

Savings & Loan Assn, v. Freedman161 Pa. D. & C.2d487, 490 (Lawrence Cty. 1972)

wherein the court held that ~ defendant bank was an indispensable party to the action,

However, as the Plaintiffs correctly point out. the Ramsey mortgage is not a part of the

73 record. Accordingly, this Court is prohibited from considering this mortgage. See~ .

\ :,1· .

Ne):, 917 A.2d 863, 866 (Pa. Super. 200?),

This case demonstrates the importance of conducting a thorough title search. The

value of a proper title search cannot be underscored. As stated by Hermansen, there are

four (4) major reasons for a title search:

One of the most important reasons is to isolate omissions in boundary information., There are an untold number of records that, as a result ofrecopying copies have omitted important boundary Informatlon, ... A second reason a surveyor should research past records is to uncover errors in subsequent surveys. Third, when omissions and errors are· found, in-depth research is frequently necessary to correct them .... In addition to omissions, en-ors, and corrections, the sequence of conveyancing must sometimes be determined, Hermansen, p. 6~20 to 6~21.

This entire case could have been resolved many years ago had someone taken the

time to perform a detailed title search and realized that the original Mary Trotter patent

did not close, This case has been the largest and most comprehensive case for this Court

in recent memory.

Accordingly, the following is entered:

74 ' fhk)/. . ' -. . . ' • \.,; ;cobRTOF COMMON PLEAS OF THE 39th JUDICIAL DISTRICT .,.,.})}' . OFJ.1ENNSYLVANIA -FULTON COUNTY BRANCH - Circulated 07/14/2016 01:55 PM

SCANNED

.'.tJ.r:·:/:-\),if( .· . ,.·-, :' · . \ . . '''.'. ....

. . . iiHfllitirtg Club, Inc., and Civil Action :H'.enry, . · Plaintiffs No. 376-2008 vs.

::-~ldFraker, Dulce Burger Hall, Judge Douglas W. Herman . f{M, Miller, Michael R. · ;:7;;{iWi~v:er and Rhonda R. Weaver his · :.0;:? ::'o/ifi,Duaine A. Ramsey, single: arid ~t~iJ.fiI,if/ );J!:~,~n:ai:e~d Tina M .. :y;~/?>·· :.-: · . :<<··:· .. : Defendants

vs. No. 274-2006

Larry J. Dillman and Tina M. Dillman, his wife, Bonnie M. Miller, Judge Douglas W. Herman widow, and Duaine A. Ramsey, single, Defendants

Plum Hollow Hunting Club, Inc., and Civil Action Douglas Henry, Plaintiffs

vs.

Janet M. Fraker Judge Douglas W. Herman Defendant

AND NOW, this --->.L--- ber 2015, pursuant to Pennsylvania Rule of Appellate Procedure 1931(c), IT IS HEREBY ORDERED that the Prothonotary of Fulton County shall promptly transmit to the Prothonotary of the Superior Court the records inthese matters, along with the attached Opinion sur Pa. R. App. P. 1925( a).

Pursuant to the requirements of Pa. R. Civ. P. 236 (a)(2),(b) and (d), the Prothonotary shall give written notice of the entry of this Order of Court, including a copy of this Opinion and Order of Court, to each party's attorney of record and shall note in the docket the giving of such notice and the time and manner thereof.

=~- r: r;··. ;~ ;.-·· _· FULTON COUNTY PENNSYLVANIA FILED t ,SS ~' OCT 2 2 2015 PROTHONOTARY,.,CLERNKSOCFoii~RTS, CLERK OF Or1PHA . b ofl o·Er;OQ REGISTER OF WILLS, RECORDEr1 r : i;. · ,J

The Prothonotary shall give notice to: J. McDowell Sharpe, Esq. William C. Cramer, Esq. Donald L. Kornfield, Esq. Michael R. Weaver and Rhonda R. Weaver Duaine A. Ramsey Larry J. Dillman and Tina M. Dillman Bonnie M. Miller THE COURT OF COMMON PLEAS OFT$ 39th JUDICIAL DISTRICT OF PENNSYLVANIA -FULTON COUNTY BRANCH

Plum Hollow Hunting Club, Inc., and Civil Action Douglas Henry, Plaintiffs No. 376-2008 vs.

J. Ronald Fraker, Pulce Burger Hall, Judge Douglas W. Herman {

Bonnie M. Miller, Michael R. Weaver and Rhonda R. Weaver, his 'wife, Duaine A. Ramsey, single, and Larry J. Dillman and Tina M. Dillman, his wife, FULTON COUNTY r( Defendants PENNSYLVANIA -~ FILED \;~ OCT 2 2 2915 v: Plum Hollow Hunting Club, Inc., Civil Action· PROTHONOTARY. CLER!( OF COURTS Plaintiff CLERK OF ORPHANS COURT I

REGISTER OF WILLS. RECORDER Ot DEEDS vs. No. 274-2006

Larry J. Dillman and Tina M. Dillman, his wife, Bonnie M. Miller, Judge Douglas W. Herman widow, and Duaine A. Ramsey, single, Defendants

Plum Hollow Hunting Club, Inc .• and Civil Action Douglas Henry, Plaintiffs No. 40-2009 vs.

Janet M. Fraker Judge Douglas W. Herman Defendant Opinion sur Pa. R. App. P. 1925(a)

This is a boundary dispute case involving Plaintiffs, Plum Hollow Hunting Club

("Hunting Club") and Douglas Henry ("Henry") (collectively referred to as "Plaintiffs"), and Defendants, J. Ronald Fraker ("Fraker''), Bonnie M. Miller(Miller"), Dulce Burger Hall

("Hall"), Michael R. Weaver and Rhonda R. Weaver ("the Weavers"), Duaine A. Ramsey

(''Ramsey"), and Larry J. Dillman and Tina M. Dillman ("the Dillmans") (collectively referred to

as "Defendants"). After a bench trial in the above-captioned cases, this Court issued an Interim

Non-Appealable Order and Opinion which decided that pursuant to the Mary Trotter Patent the

Plaintiffs hold legal title to those portions ofland that overlap with the land described in the

Defendants' deeds and concluded that the Defendants satisfied their burden of proving adverse

possession for the land that has been improved. As questions remained regarding adverse

possession of any unenclosed woodland adjoining the properties, the Court issued a subsequent

Order and Opinion setting forth the boundary lines between the Defendants' and Plaintiffs'

respective properties. The parties now appeal our decisions. For the reasons set forth below and

throughout the issued opinions, we suggest the Superior Court affirm our decisions.

PROCEDURAL IDSTORY

On September 12, 2006 (no. 274 of2006), November 14, 2008 (no. 376 of2008), and

February 5, 2009 '(no. 40 of2009) the Plaintiffs filed complaints. Answers were subsequently

filed by the Defendants in the three cases.

The Court convened a bench trial on May 18 to May 20, 2011, July 26, 20~ 1, July 29,

2011 and August 25, 2011. After consideration of the evidence of record and the arguments of

counsel, the Court issued an Interim Non-Appealable Order and Opinion on February 6, 2014

("Interim Opinion"). In that Opinion we concluded that pursuant to the Mary Trotter Patent the

Plaintiffs hold legal title to those portions of land that overlap with the land described in the

Defendants' deeds. Furthermore, we concluded that the Defendants' were entitled to ownership

of the intersecting property by way of adverse possession of any improved land. The Court

2 .,...-" ..""'\ .. ,

purposely left undecided the location of the boundaries of the propertiesobtained by adverse,

possession to allow the parties to come to an agreement. Specifically, the Court did not decide

whether the Defendants were entitled to ownership of any unenclosed woodland adjoining their

properties. As the parties failed to come to an agreement the Court issued a subsequent Order

and Opinion on January 28, 2015 ("AP Opinion"), In the AP Opinion, this Court set forth the

boundary lines between the Defendants' and Plaintiffs' respective properties, finding that Fraker,

Miller, Hall, Ramsey, and the Dillmans acquired title to all land described within their respective

1 deeds that intersects with the Mary Trotter Patent by adverse possession.

Several post-trial motions were filed in the three cases. At docket nos. 274 of 2006 and

376 of 2008, Plaintiffs filed a post-trial motion on February 9, 2015. Fraker filed a post-trial

motion on February 17, 2015. Ramsey, the Dillmans, Miller, and Hall filed post-trial motions on

February 18, 2015. At docket no. 40 of 2009, Plaintiffs filed a post-trial motion on February 18,

2015. Mark J. Hale, Cherry D. Hale, Steven.L. Grissinger and Karen J. Grissinger, as successors

in interest to Janet M. Fraker ("Janet Fraker Successors"), filed a post-trial motion on February 9,

2015. The Court subsequently denied all post-trial motions.

On June 17, 2015 the Court issued an Order certifying the case at docket no. 2 74 of 2006

for appeal pursuant to Pa. R.A.P. 341(c).2 On that same date the Court issued an Order entering

final judgment at docket no. 40 of 2009 and an Order entering verdict in favor of all Defendants.

On July 15, 2015 at docket no. 274 of 2006, Plaintiffs filed a Notice of Appeal followed

by a Concise Statement of Matters Complained of on Appeal on July 31, 2015. At docket no.

1 The Mary Trotter Patent is more fully described in the Interim Opinion. 2 "When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim or when multiple parties are involved, the trial court or other governmental unit may enter a final order as to one or more but fewer than all of the claims and parties only upon an express determination that an immediate appeal would facilitate resolution of the entire case. Such an order becomes appealable when entered. In the absence of such a determination and entry of a final order, any order or other form of decision that adjudicates fewer than all the claims and parties shall not constitute a final order," Pa. R.A.P., 34l(c).

3 376 of 2008, three appeals were filed. On July 15, 2015 Plaintiffs filed a: Notice of Appeal ,

followed by a Concise Statement of Matters Complained of on Appeal on July 23, 2015. On

July 23, 2015 Fraker filed a Notice of Appeal followed by a Concise Statement of Matters

Complained of on Appeal on August 14, 2015. On July 27, 2015 the Dillmans filed a Notice of

Appeal; however, the Dillmans failed to file a Concise Statement of Matters Complained of on

Appeal. At docket no. 40 of2009 the Janet Fraker Successors filed a Notice of Appeal on July

13, 2015 followed by a Concise Statement of Matters Complained of on Appeal on August 5,

2015.

The instant cases all involve similar factual and legal issues and thus we issue this

l 925(a) opinion encompassing the five collective appeals filed by the parties. All of the issues

raised by the parties were discussed in our two prior opinions, i.e., the Interim Opinion and the

AP Opinion. We will delineate the issues raised by each party for each distinct case, followed by

direction as to the location where the Superior Court will find the reasoning for our decision.

At docket no. 274 of2006 the Hunting Club raises four issues on appeal, all pertaining to

adverse possession. The Hunting Club asserts that the Court erred in: (1) determining that the

Dillmans proved all necessary elements of adverse possession by clear and convincing evidence

for the statutory period of 21 years; (2) determining that the Dillmans established adverse

possession by way of tacking from their predecessor-in-title; (3) failing to find that the Dillmans'

property adjoining Plum Hollow Hunting Club's real estate was unenclosed woodland and erred

in finding that the Dillmans possessed adversely that encroachment area without construction of

a residence or fencing the area of the boundary of their actual legal title; and (4) "determining

that the southern and eastern deed boundaries of [the Dillmans' property] in common with the

4 [Hunting Club property] were established by survey reconstruction of Thomas Michael Englerth,

when there was no showing of adverse possession along those boundaries, and [the Hunting

Club] had superior title to [the Dillman's property] along these common boundaries in the area

colored green on Plaintiffs' Exhibit 126 ... whereas [the Dillmans] only had legal title to that

portion of their deed included within the yellow depiction on Plaintiffs' Exhibit No. 126 ... "

The Court's reasoning as to the issues the Hunting Club now complains of was set forth in its

previous opinions issued, i.e., February 6, 2014 Interim Opinion at pages 63 to 70 and AP ·

Opinion issued on January 28, 2015. Thus, we direct the Superior Court's attention to'those .;!"·

Opinions.

At docket no. 376 of2008 Plaintiffs raise four issues on appeal, all dealing with adverse

possession. Plaintiffs assert that the Court erred in: (1) granting adverse possession to Miller and

Hall who never raised the issue of adverse possession through testimony or submission of other

evidence; (2) determining that the Dillmans, Ramsey, Miller and Hall proved all necessary

elements of adverse possession by clear and convincing evidence for the statutory period of21

years; (3) determining that the Dillmans or Ramsey could tack from their predecessor-in-title for

purposes of establishing adverse possession; and ( 4) failing to find as a material fact that the real

estate of the Dillmans and Ramsey was unenclosed woodland in the area of their front yards that

intersected Henry's real estate, and erred in finding that the Dillmans and Ramsey adversely

possessed that encroachment area without construction of a residence or fencing the area outside

of the boundary of their actual legal title. The Court previously discussed its reasoning for

granting Miller and Hall adverse possession in the Interim Opinion at pages 63 to 70 and in the

AP Opinion, and therefore we direct the Superior Court's attention to those Opinions.

5 At docket no. 376 of2008 Fraker raises six issues on appeal. First, Fraker asserts the.

Court erred in its conclusion " ... that pursuant to the Mary Trotter Patent the Plaintiffs hold

legal title to those portions of land that overlap with the land described in the Defendants'

deeds." The reasoning for the Court's conclusion is stated at length in the Court's Interim

Opinion at pages 32 to 56. Second, Fraker claims the Court erred in finding that pursuant to the

Mary Trotter Patent the Plaintiffs hold legal title to those portions ofland that overlap with the

land described in the Defendants' deeds because Fraker, the Dillmans, Ramsey, Miller and the

Weavers were bona fide purchasers for value of the ground they acquired. This Courthas

previously discussed issues relating to bona fide purchasers in its Interim Opinion at pages 56 to

63, and therefore we direct the Superior Court to that Opinion. In his third issue, Fraker asserts

the Court erred in concluding that Plaintiffs hold any legal title outside of the ground as

specifically described within their title deeds ofrecord because Plaintiffs: failed to specifically

describe the location of any alleged residue of ground; failed to identify the particular Plaintiff

who owns any alleged residue and the property lines encompassing the alleged residue; and

failed to submit any proof of ownership. The Court's findings of fact and conclusions oflaw

relating to Plaintiffs' legal title are delineated in the Interim Opinion at pages 32 to 56, in

addition to the findings of fact outlined on pages 3 to 26. In his fourth issue, Fraker claims the

Court erred in accepting into evidence the Mary Trotter patent and/or the King patent because:

the King patent was not recorded among the deed records of Bedford or Fulton County;

Plaintiffs' expert did not use the required surveying techniques to reconstruct the King patent;

and a trial court lacks jurisdiction to correct errors within a patent. The Court has fully discussed

its reasoning as to these issues throughout the Interim Opinion and directs the Superior Court to

that Opinion at pages 32 to 56, in addition to the Court's findings of fact on pages 3 to 26. In his

6 fifth issue, Fraker asserts the Court erred in not concluding that all Plaintiffs' claims for

reformation of their title deeds, to include ground outside of that as described within their title

deeds of record, are tolled by the 21 year statute of repose. Assuming that Fraker intended to use

the word "barred" rather than "tolled," we direct the Superior Court's attention to the Interim

Opinion at pages 32 to 56. Lastly, Fraker asserts that the Court erred in 'not dismissing Plaintiffs'

cause of action because all necessary and indispensable parties have not been included in the

litigation. Having already discussed this issue we direct the Superior Court's attention to the

Interim Opinion at pages 73 to 74.

At docket no. 40 of 2009, the Janet Fraker Successors allege that the Court erred in

finding in its Interim Opinion that the Janet Fraker Successors did not satisfy their burden of

establishing the doctrine of consentable lines because they did not establish a boundary. For a

full discussion of this issue we direct the Superior Court's attention to the Interim Opinion at

pages 70 to 72. The Janet Fraker Successors also claim that the Court erred in not recognizing

the recording statute mandate that any interest in real property be recorded in the county deed

records and any interest not recorded is deemed void as to a bona fide purchaser, which the Janet

Fraker Successors claim they were. This Court has previously discussed issues relating to bona

fide purchasers in its Interim Opinion at pages 56 to 63, and therefore we direct the.Superior

Court to that Opinion.

The Dillmans have failed to file a Concise Statement of Matters Complained of on appeal

at docket no. 40 of 2009, thus preventing this Court from addressing any specific issues.

Therefore, they have waived any issues on appeal.

7 CONCLUSION

We submit that no errors were committed in this Court's decisions in these cases.

Therefore, this Court respectfully requests the Superior Court affirm this Court's decisions.