J-S07019-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
THE WILLIAM F. AIKEN, JR. LIVING : IN THE SUPERIOR COURT OF TRUST FORMERLY WILLIAM F. AIKEN : PENNSYLVANIA AND JUDITH B. AIKEN : : : v. : : : DANIEL B. FISHER AND LINDA K. : No. 1063 WDA 2021 FISHER, THEIR HEIRS, : SUCCESSORS, AND ASSIGNS : : : APPEAL OF: THE WILLIAM F. AIKEN, : JR. LIVING TRUST :
Appeal from the Judgment Entered August 30, 2021 In the Court of Common Pleas of Fayette County Civil Division at No(s): No. 3429 of 2010 G.D.
BEFORE: OLSON, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY SULLIVAN, J.: FILED: June 7, 2022
The William F. Aiken, Jr. living trust (“the trust”) formerly William F.
Aiken and Judith B. Aiken appeals from the judgment entered in favor of Daniel
B. Fisher and Linda K. Fisher (collectively, “the Fishers”), their heirs,
successors, and assigns. We affirm.
Janet R. Bygate (“Bygate”) owned a property known as “Five Gates
Farm.” A 3.3-acre parcel of Five Gates Farm (“the deeded parcel”) was later
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* Retired Senior Judge assigned to the Superior Court. J-S07019-22
separated and sold to Edgar L. Wareham.1 Five Gates Farm surrounded the
deeded parcel to the northwest, northeast, and southwest, and Route 381 ran
on the deeded parcel’s southeast border. The deeded parcel included what is
now a residence, shed, and barn, as well as a private lane connecting to Route
381. The private lane led to a small parking area across from the residence,
then around the shed to a larger parking and work area behind the residence.
A branch of the private lane also led from the deeded parcel to a rental home
on Five Gates Farm.
In 1982, William F. and Judith B. Aiken (collectively, “the Aikens”)
purchased Five Gates Farm from Bygate’s estate.2 In 1986, the Fishers
purchased the deeded parcel from Wareham, and the 1986 deed memorialized
a ten-foot right-of-way in favor of Ms. Bygate, her heirs, and assigns. The
Fishers moved into the residence on the deeded parcel and began operating
a landscaping business. They built an addition to the residence in 1998 and
a new barn in 2007.
1Edward L. Warenham acquired the deeded parcel, and sole title passed upon his death to his son, Edgar L. Wareham, Jr. (“Wareham”). 2Judith B. Aiken was the daughter of Ms. Bygate. The Aikens are the parents of William F. Aiken, Jr., who has lived on Five Gates Farm since 2003.
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In 2010, after conversations between William F. Aiken, Jr., and the
Fishers, the Fishers had Joseph H. Destro (“Destro”) conduct a survey based,
in part, on Wareham’s representations of the boundaries of the deeded parcel.
In July 2010, the Fishers recorded a statement of adverse possession claiming
land from Five Gates Farm, which was depicted in Destro’s 2010 survey as
follows.
Trial Exhibit A. As illustrated in the survey, the land in dispute totaled
approximately 1.6 acres (“the disputed land”), and included areas to the
northeast (“the northeast area”), the northwest (“the northwest area”), and
the southwest (“the southwest area”) of the deeded parcel.
The Aikens filed a complaint in ejectment and quiet title in December
2010 concerning the disputed land. The Fishers filed an answer and new
matter reasserting their claim of adverse possession of that land. In 2012,
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the Aikens transferred Five Gates Farm to the trust, and the trial court
subsequently granted leave to substitute the trust for the Aikens.
At a non-jury trial in June 2020, the trust established it held title to the
disputed land. William F. Aiken, Jr., testified that he exercised ownership
rights over the disputed land and challenged the Fishers’ encroachments.3
See N.T., 6/23 to 6/24/20, at 137-47.
To impeach the Fisher’s claim that they had used or developed the
disputed land for twenty-one years, the trust displayed aerial photographs of
the deeded parcel and the disputed land from “Google Earth” taken between
1993 and 2012.4 See N.T., 6/23 to 6/24/20, at 47-57. The trust also offered
into evidence the Fishers’ 1998 and 2007 applications for permits to improve
their home and construct a new barn, emphasizing that in those applications
the Fishers represented to public authorities that they only owned, and used
for residential purposes, 3.3 acres, i.e., the approximate size of the deeded
parcel, but not the additional 1.6 acres they claimed by adverse possession.
See N.T., 6/23 to 6/24/20, at 7-9; Trial Exhibits 10 and 11. ____________________________________________
3 Specifically, William F. Aiken, Jr., testified that he had a neighboring farmer “brush hog” the open areas in the southwest and northwest areas, usually once a year. See N.T., 6/23 to 6/24/20, at 155-56, 175. He also testified that he was responsible for managing and maintaining Five Acres Farm even when his parents held title. N.T., 6/23 to 6/24/20, at 134-35. He testified that one summer in the early 2000s, he spent weeks removing invasive shrubs in the southwest and northeast areas without interference from the Fishers. See N.T., 6/23 to 6/24/20, at 136. 4 The aerial photographs were marked as exhibits, but not admitted into evidence.
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The Fishers claimed they began using the disputed land when they
purchased the deeded parcel in 1986, based on Wareham’s representations of
the boundaries of the parcel. See N.T., 6/23 to 6/24/20, at 108-28, 219-226,
235-48. Specifically, the Fishers testified that beginning in 1986, they
continuously used the three distinct areas of the disputed land as follows: 1)
in the northeast area, they used a small parking lot and maintained the area;
2) in the northwest area, they used the parking and work area for the
landscaping business; and 3) in the southwest area, they mowed and
maintained the landscape. Destro, the Fishers’ surveyor, testified that in
2010, he marked the boundaries of the Fishers’ claim to the disputed land
based on physical evidence of the possession of the land, including differences
in the way the land was “manicured,” maintained, or groomed. See N.T.,
6/23 to 6/24/20, at 192-93.
On August 3, 2021, the trial court found in favor of the Fishers in an
opinion and order. The trust timely filed post-trial motions seeking a judgment
notwithstanding the court’s decision. The court denied the post-trial motions,
and the trust requested the entry of judgment on August 30, 2021. The trust
timely appealed, and both it and the trial court complied with Pa.R.A.P. 1925.5
The trust raises the following issues for review:
5The trial court did not write a separate Rule 1925(a) opinion but relied on its August 3, 2021 opinion as its response to the trust’s statement of errors complained of on appeal.
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1. Whether the trial court erred in finding the [Fishers] proved all of the necessary elements of adverse possession?
2. Whether the [trial court] erred in finding that the [Fishers] adversely possessed the real estate when they had in fact filed two distinct applications for municipal permits where they expressly limited their ownership to the parameters set forth in their deed.
3. Whether the trial court erred in finding the [Fishers] proved all of the necessary elements of adverse possession with respect to the land to the [southwest] of the [deeded] parcel?
4. Whether the trial court erred in finding the [Fishers] proved all of the necessary elements of adverse possession with respect to the land to the [northwest] of the [deeded] parcel?
5. Whether the trial court erred in finding the Defendants proved all of the necessary elements of adverse possession with respect to the land to the [northeast] of the [deeded] parcel?
Trust’s Brief at 2-3 (reordered). The trust’s issues challenge the trial court’s
determination that the Fishers adversely possessed the disputed land, and it
requests a remand for the entry of a judgment in its favor. See Trust’s Brief
at 21.
The standard of review of a non-jury decision is limited to whether
competent evidence supports the trial court’s findings and whether the court
properly applied the law. See Shaffer v. O'Toole, 964 A.2d 420, 422 (Pa.
Super. 2009). This Court gives a trial judge’s determination the same weight
and effect as a verdict by a jury and will not disturb the trial judge’s decision
absent an abuse of discretion or an error of law. See id. Further, this Court
reviews the evidence in a light most favorable to the prevailing party and
accepts as true the evidence and proper inferences that favors the prevailing
party. See id.
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“Adverse possession is an extraordinary doctrine that permits one to
achieve ownership of another’s real property by operation of law.” City of
Philadelphia v. Galdo, 217 A.3d 811, 820 (Pa. 2019) (internal citation
omitted). Adverse possession reflects “the sound public policy to encourage
those who diligently develop and improve the land as against those who are
content to hold the bare legal title inactively for many years.” Id. (internal
citation and quotation marks omitted).
The elements of adverse possession are well settled.
[A] party claiming title to real property by adverse possession must affirmatively prove that he or she had actual, continuous, exclusive, visible, notorious, distinct, and hostile possession of the land for twenty-one years. Each of these elements must exist, otherwise the possession will not confer title.
Brennan v. Manchester Crossings, Inc., 708 A.2d 815, 817 (Pa. Super.
1998) (internal citations and quotation marks omitted). Parties claiming
adverse possession bear the burden of proving adverse possession with
credible, clear, and definitive proof. See Johnson v. Tele-Media Co. of
McKean Cnty., 90 A.3d 736, 741 (Pa. Super. 2014).
Actual possession is not equivalent to occupancy but requires a showing
of dominion over the land. See Watkins v. Watkins, 775 A.2d 841, 846 (Pa.
Super. 2001). There is no fixed rule to determine what constitutes actual and
continuous possession for purposes of adverse possession, and a court must
consider the facts of each case and the character of the land. See id. The
law does not require that claimants continuously occupy the land or perform
daily acts of ownership. See Brennan, 708 A.2d at 818. However, sporadic
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or temporary acts will not operate to give the claimant title. See Johnson,
90 A.3d at 741 (finding that occasional mowing of a portion of the disputed
land and occasional uses of the land were insufficient to establish an interest
in the land by adverse possession). But see Brennan, 708 A.2d at 821
(concluding that the claimant’s continuous maintenance of a lawn on the
disputed property was sufficient to establish adverse possession).
Visible and notorious possession requires conduct sufficient to place a
reasonable person on notice that claimants are holding the disputed land as
their own. See Watkins, 775 A.2d at 846; accord Brennan, 708 A.2d at
821. To constitute distinct and exclusive possession, claimants must possess
the land in a manner characteristic of use by an owner. See Watkins, 775
A.2d at 846. Lastly, hostility does not mean ill will, but requires that claimants’
possession be of such import as to deny another’s title. See Brennan, 708
A.2d at 818.
The trust’s first issue challenges the sufficiency of the evidence that the
Fishers actually possessed the disputed land and that their possession was
visible, notorious, distinct, exclusive, and hostile. See Trust’s Brief at 8-11.
The trust contends that the Fishers did not fence off or build structures on the
disputed land, or prevent William F. Aiken, Jr., from accessing the disputed
land. See id. at 9-10. It also contends that the trial court erred by relying
on photographs showing the Fishers’ children playing on a lawn and testimony
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that the Fishers used the disputed land, which, it claims, only demonstrated
the Fishers’ sporadic and temporary activities on the disputed land. See id.6
The trial court, in finding in favor of the Fishers, credited their evidence
and concluded that: 1) the Fishers actually and continually possessed the
disputed land for more than twenty-one years; 2) their possession was
sufficiently visible and notorious to put the Aikens and the trust on notice; and
3) the Fishers acted as owners of the land to satisfy the exclusive and
distinctive elements of adverse possession.7 See Trial Court Opinion, 8/3/21,
at 19-26. The Fishers, the court concluded, “maintained the property
6 We could find this claim waived, but decline to do so under the circumstances presented in this case. A party challenging the sufficiency of the evidence in a non-jury trial must preserve his claim by moving for a non-suit or a directed verdict and then seeking a judgment notwithstanding the verdict in a post- trial motion. See Haan v. Wells, 103 A.3d 60, 66-68, 70 (Pa. Super. 2014) (noting the two grounds for entry of a judgment notwithstanding the verdict: (1) the moving party is entitled to a judgment as a matter of law; or (2) the evidence was such that no two reasonable minds could disagree that the moving party should have prevailed).
The trust did not move for nonsuit or a directed verdict following the non-jury trial. See N.T., 6/23 to 6/24/20, at 259. Nevertheless, the trial court denied the trust’s post-trial motions seeking a judgment in its favor without concluding the trust had waived its sufficiency challenge. We likewise will not waiver. See Capital Care Corp. v. Hunt, 847 A.2d 75, 84 (Pa. Super. 2004) (declining to find waiver where a party failed to move for a directed verdict, sought judgment notwithstanding the verdict in a post-trial motion, and the trial court addressed the claim as presented in the post-trial motion). 7 As noted by the trial court, the trust established its title to the disputed land under the deeds transferring Five Gate Farms to the Aikens and then to the trust. See Trial Court Opinion, 8/3/21, at 19. The Fishers, therefore, bore the burden of establishing their claim of adverse possession. See id.; see also Conneaut Lake Park v. Klingensmith, 66 A.2d 828, 829 (Pa. 1949).
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surrounding their lot by cutting the grass, planting and maintaining various
shrubbery . . . and generally using the land as an extension of their own
property.” Id. at 22.
We conclude that competent evidence supports the trial court’s findings
and conclusions. Destro surveyed the area in 2010 based on physical evidence
of possession and the Fishers’ assertions of what they believed they owned.
See N.T., 6/23 to 6/24/20, at 189. Destro surveyed the boundaries of the
Fishers’ areas of possession based on differences in how the land was
maintained, manicured, or groomed. See id. at 193. In the southwest area,
he noted the area was like a “park,” and he accounted for the presence of
stone planters, shrubs, and differences in how “vegetation was generally
knocked down” or “weed whacked.” See id. at 190-91. In northwest area,
he noted that Fishers’ use of the area as a parking and work area, as well as
shrubs in the area. See id. at 189-90. In the northeast area, Destro
observed the small parking lot, shrubs, and rock beds to the east of the private
lane. See id. at 19-20.
Destro’s survey was consistent with the Fishers’ testimony that they
continuously used and maintained the disputed land from the time of their
1986 purchase of the deeded property. See id. at 229, 236, 258. The Fishers’
testimony established their maintenance of the southwest area including
mowing and tending to the stone planters and shrubs. See id. at 227, 237-
39. The Fishers also testified to the use of the northwest area as a parking
and work area where they received deliveries every two weeks on forty-foot
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trucks for their landscaping business, and stored equipment and material such
as dozers, pavers, mulch, topsoil, sod, and shrubs. See id. at 216, 222, 240-
41. In the northeast area, the Fishers used the parking lot for themselves,
their customers, and their visitors. Further, they had previously set up a play
area for their children when the children were young, planted trees, and
maintained the planters and shrubbery. See id. at 228, 242-43.
Contrary to the trust’s claim, the evidence of the Fishers’ uses of the
disputed land since 1986, which the trial court credited, established that their
use was not sporadic or occasional. The Fishers’ maintenance of the
southwest area, their use of the parking lot and work area in the northwest
area, and the uses of the parking area and maintenance of the northeast area,
were sufficiently continuous, visible, and notorious to place the trust on notice
that its ownership was disputed. The Fishers’ uses also demonstrated that
they were acting in a manner characteristic of an owner of the land as to
satisfy the distinctive and exclusive elements of adverse possession. Lastly,
although the Fishers did not exclude William F. Aiken, Jr., either in person or
by erecting a fence, their possession of the land was hostile to the trust’s claim
of ownership by deed to the disputed land. Thus, the trial court did not err in
finding sufficient competent evidence of the Fishers’ claim of adverse
possession, and we discern no basis to conclude that the trust was entitled to
judgment as a matter of law. See Brennan, 708 A.2d at 821-22 (concluding
that the trial court erred in finding against a claimant where evidence
established that the claimant cared for disputed land as an extension of his
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yard by mowing, seeding, fertilizing, and using the land for recreational and
storage purposes); Inn Le’Daerda, Inc. v. Davis, 360 A.2d 209, 218 (Pa.
Super. 1976) (concluding maintenance of a lawn over the disputed land was
sufficient to establish adverse possession).
We address the trust’s next four issues together since they assert that
the evidence contradicted the Fishers’ claim of adverse possession.
The trust’s second issue contends that the Fishers’ 1998 and 2007
applications for permits to improve their home and build a new barn estop
them from claiming ownership of the disputed land. See Trust’s Brief at 5,
12-14. The trust asserts that the Fishers failed to hold themselves out as
owners of the disputed land to public authorities and did not pay taxes on it.
See id. at 12-14.
The trust’s other three issues address individually the evidence of
adverse possession of each of the southwest, northwest, and northeast areas.
The trust maintains that the Fishers’ use of the southwest area was too
sporadic to prove adverse possession, and that the trees and stone planters
were placed in that area before the Fishers purchased the deeded parcel.
See id. at 17. Additionally, the trust emphasizes that Daniel B. Fisher testified
he believed that stone planters marked the Fishers’ southwest boundary, but
that Destro’s survey for the Fishers did not show the planters. See id. at 15-
16. The trust asserts that Destro’s survey drew a boundary beyond what the
Fishers actually believed they owned. See id. at 16.
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As to the northwest area, the trust claims that the Fishers’ testimony
that they operated the landscaping business on the disputed parcel beginning
in 1986 was inconsistent with the fact that Daniel B. Fisher only incorporated
the landscaping business in 1993, and, further, that in their application for
permits, the Fishers represented that they used the deeded parcel for
residential, not business, purposes. See at 18.
As to northeast area, the trust contends that the Fishers failed to
establish their use of the entire area they claimed they adversely possessed.
See id. at 20. The trust argues that even if the Fishers used the small parking
lot, the parking lot only encroached on a fraction of the northeast area. See
id.
The trial court resolved these issues in its findings of fact and credibility
determinations. As to the Fishers’ permit applications, the trial court credited
the Fishers’ testimony that they believed that the deeded parcel included the
disputed lands. It also credited Daniel B. Fisher’s testimony that the clerk at
the office filled out that portion of the permit application for him. See Trial
Court Opinion, 8/3/21, at 21 (noting that the court gave “no weight to the
applications”). As to the southwest area, the trust’s argument ignores the
Fishers’ other evidence, namely: Linda K. Fisher’s testimony that Wareham
told her that the southwest boundary existed beyond the planters and a line
of trees; Daniel B. Fisher’s testimony that he mowed an area beyond the
planters; and their testimony that they used the entire area up to the outer
boundary marked in Destro’s survey. See id. at 8, 17; see also N.T., 6/23
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to 6/24/20, 127-28. As to northwest area, the court did not find it dispositive
that Daniel B. Fisher had not incorporated his landscaping business until 1993
because the Fishers’ evidence established their continuous use of the area as
part of their business since 1986. See id. at 20. Lastly, as to the area along
the northeast border of the deeded parcel, the trial court credited the Fishers’
testimony that they used the entirety of the area by maintaining planters and
shrubs, and planting trees, as well as regularly using the small parking lot in
the area. See id.
As noted above, there was ample support in the record for the trial
court’s findings. The trust’s last four issues fail to establish that it was entitled
to judgment as a matter of law or that no two reasonable minds could disagree
that it was entitled to a judgment in its favor. Rather, the trust essentially
relies on evidence and inferences that it maintains should have been drawn in
its favor.8 However, this Court must review the record in a light most
favorable to the Fishers as the prevailing party. See Shaffer, 964 A.2d at
422. Because we discern no abuse of discretion or error of law in the trial
8 To the extent the trust challenges the weight of the evidence, the trust’s post-trial motions did not request a new trial, nor did it request a new trial in this appeal. When an appellant fails to request a new trial, this Court has no obligation to review the weight of the evidence. See Lanning v. West, 803 A.2d 753, 766-67 (Pa. Super. 2002) (declining to review an appellant’s weight of the evidence claim where the appellant only moved for judgment notwithstanding the verdict). Therefore, we will not discuss the trust’s last four issues as challenges to the weight of the evidence.
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court’s resolution of the conflicts in the evidence cited by the trust, the trust’s
last four issues merit no relief.
Judgment affirmed.9
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 6/7/2022
9 Although not discussed by the parties or the trial court, the Fishers’ adverse possession of the northeast area contains the branch of the private lane that connects the trust’s rental property to Route 381 by way of Bygate’s right of way over the deeded property. We note that while conduct may be sufficient to acquire title to land, the same conduct may not be sufficient to extinguish an easement or right of way belonging to the trust. See Estojak v. Mazsa, 562 A.2d 271, 275 (Pa. 1989); Stozenski v. Borough of Forty Fort, Luzerne County, 317 A.2d 602, 605 (Pa. 1974). Nothing in this decision should be read as affecting the right of way over the deeded parcel or a right of way in the northeast area adversely possessed by the Fishers.
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