Zeglin v. Gahagen

774 A.2d 781, 2001 Pa. Super. 132, 2001 Pa. Super. LEXIS 606
CourtSuperior Court of Pennsylvania
DecidedApril 30, 2001
StatusPublished
Cited by2 cases

This text of 774 A.2d 781 (Zeglin v. Gahagen) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zeglin v. Gahagen, 774 A.2d 781, 2001 Pa. Super. 132, 2001 Pa. Super. LEXIS 606 (Pa. Ct. App. 2001).

Opinion

JOHNSON, J.:

¶ 1 Sean E. Gahagen and Kimberlee H. Gahagen appeal from the final decree that established a disputed boundary line between two parcels of real estate, one owned by the Gahagens and the other by the Plaintiffs, Frank A. Zeglin, Jr. and Tammy Lee Zeglin. The Gahagens claim that the trial court erred in concluding that the Zeglins had satisfied the 21-year period for establishing a consentable line by recognition and acquiescence because it tacked the Zeglins’ period of ownership to that of their predecessors in title. We conclude that the court’s conclusion was in error, and for the following reasons we reverse.

¶ 2 This case arises from a boundary dispute between the Gahagens and the Zeglins. The undisputed facts are as follows. The Zeglins and Gahagens own adjoining properties in Paint Township, Somerset County. The properties abut one another on the Zeglins’ southern boundary and the Gahagens’ northern boundary [hereinafter referred to as the “boundary line”]. Frank A. Zeglin, Jr. purchased his and his wife’s property from Cora Murphy in 1977. Murphy and her late husband had owned the property since 1937. The record does not reveal the date that Cora Murphy’s husband deceased, and this factor does not impact our analysis of the arguments advanced by the parties in this appeal. The Gahagens purchased their property from Margaret Swincinski in 1989. Swincinski purchased the property from George and Kathryn Ickes in 1979. The Ickes had owned the property since 1972.

¶ 3 In 1995, the Gahagens employed a professional surveyor to survey their property. The survey indicated that the Gaha-gens’ deed described a boundary line that was north of an existing row of bushes and a fence. This line also ran through a tree that was on both the Zeglins’ and Gaha-gens’ properties. Therefore, the surveyor concluded that the row of bushes, the fence, and the tree were all on the Gaha-gens’ property, as it is described in the Gahagens’ deed. The Zeglins had a survey of their own property performed, and the result of their survey matched the result of the Gahagens’ survey. Therefore, the deeds for both properties are in agreement as to the location of the boundary line.

¶ 4 In reliance upon the location of the boundary line as described in the deeds, the Gahagens cut down the row of bushes and the tree. They then constructed a short retaining wall of railroad ties in the former location of the bushes. The Zeg-lins responded by instituting an action for ejectment and trespass claiming that they owned the property up to the row of bushes, even though the claimed property went beyond their property line as described in their deed. They proceeded on the theory that the conduct of the parties and that of their predecessors in title established the row of bushes as the boundary line between their property and the Gahagens’ property.

[783]*783¶ 5 Following a bench trial, the court entered a decree nisi awarding the Zeglins a verdict on both counts. The court reached its decision on the basis that for a period of 21 years both parties had recognized and acquiesced to a boundary line demarcated by the row of bushes. The Gahagens filed exceptions to the decree nisi, and the court dismissed the exceptions and entered a final decree. The Gahagens then filed this appeal raising three issues for our review:

1. Whether the trial court erred in permitting Zeglin to tack their possession of property to their predecessors in title to establish the twenty-one (21) year statutory period for consentable line or acquiescence and occupancy to a fence.
2. Whether the trial court erred in finding that Gahagen had actual notice that the boundary line was other than that which was described in the deed conveying the property to both Zeglin and Gahagen.
3. Whether Zeglin established that the predecessors in title to the Gahagen property had recognized a consenta-ble line or acquiescence and occupancy to a fence for a period of twenty-one (21) years.

Brief for Appellant at 4.

¶ 6 “Our scope [and standard] of review in matters of equity [are] narrow and limited to determining whether the findings of fact are supported by competent evidence, whether an error of law has been committed or whether there has been a manifest abuse of discretion.” Sentz v. Crabbs, 428 Pa.Super. 205, 630 A.2d 894, 895 (1993). “[W]here the rules of law on which the chancellor relied are palpably wrong or clearly inapplicable, we will reverse the chancellor’s decree.” Peoples Nat’l Bank of Cent. Pennsylvania v. Hor-ner, 719 A.2d 1101, 1103 (Pa.Super.1998) (quotation marks omitted).

¶ 7 In this case, the trial court determined that there was a binding consent-able line based on recognition and acquiescence. Trial Court Opinion, 3/21/00, at 5. In Dimura v. Williams, 446 Pa. 316, 286 A.2d 370 (1972), our Supreme Court discussed the doctrine of consentable line by recognition and acquiescence:

It cannot be disputed that an 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 own, gives to each an incontestable right up to the fence, and equally whether the fence is precisely on the right line or not.

Dimura, 286 A.2d at 371 (quotation marks and citations omitted). Therefore, “[t]he requirement for establishing a binding consentable boundary by recognition and acquiescence is that each party claimed the land on his side of the line as his own for a period of twenty-one years.” Sorg v. Cunningham, 455 Pa.Super. 171, 687 A.2d 846, 849 (1997).

¶ 8 In the first issue presented for our review, the Gahagens claim that the trial court committed an error of law, permitting the Zeglins to tack their period of ownership to that of their predecessors in title when it determined that the Zeglins had occupied the property up to the row of bushes for a period of 21 years. The court found that the Zeglins purchased their property in 1977, and that the row of bushes was the accepted boundary line until 1995. Trial Court Opinion, 3/21/00, at 9. Therefore, the Zeglins occupied the property up to the row of bushes for a period of 18 years, three years less than the required 21-year period. However, the Zeglins’ predecessor in title, Cora Murphy also occupied the property up to [784]*784the row of bushes, and she and her husband owned the property since 1937.

¶ 9 The trial court permitted the Zeglins to tack the Murphys’ period of ownership, thus satisfying the required 21-year period. Trial Court Opinion, 3/21/00, at 4-5. In so ruling, the trial court stated that “recognition and acquiescence of one owner may be tacked to that of a succeeding one, and privity of estate between the succeeding owners is not necessary to permit of a technical tacking of their periods of holding to make out the statutory [21] year period.” Id. at 5 (emphasis added) (quoting Berzonski v. Holsopple, 28 Som. Leg. J. 342, 358 (1973)).

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Bluebook (online)
774 A.2d 781, 2001 Pa. Super. 132, 2001 Pa. Super. LEXIS 606, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zeglin-v-gahagen-pasuperct-2001.