Opinion
J-A19042-16 No. 2605 EDA 2015 No. 2606 EDA 2015
10-28-2016
HOWARD P. & CAROL N. ANGSTADT AND GARY L. & SHERRE A. GAERTNER AND THOMAS D. & MICHELLE M. MCLAUGHLIN v. GARY J. AND MELISSA FADDIS AND UNKNOWN HEIRS AND/OR ADMINISTRATORS OF THE ESTATE OF ISAAC J. BOOTH AND UNKNOWN HEIRS AND/OR ADMINISTRATORS OF THE ESTATE OF WILHELMINA SMEDLEY AND UNKNOWN HEIRS AND/OR ADMINISTRATORS OF THE ESTATE OF JAMES DAY APPEAL OF: GARY J. AND MELISSA FADDIS HOWARD P. & CAROL N. ANGSTADT AND GARY L. & SHERRE A. GAERTNER AND THOMAS D. & MICHELLE M. MCLAUGHLIN v. GARY J. AND MELISSA FADDIS AND UNKNOWN HEIRS AND/OR ADMINISTRATORS OF THE ESTATE OF ISAAC J. BOOTH AND UNKNOWN HEIRS AND/OR ADMINISTRATORS OF THE ESTATE OF WILHELMINA SMEDLEY AND UNKNOWN HEIRS AND/OR ADMINISTRATORS OF THE ESTATE OF JAMES DAY APPEAL OF: HOWARD P. & CAROL N. ANGSTADT AND GARY L. & SHERRE A. GAERTNER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment Entered September 15, 2015 in the Court of Common Pleas of Delaware County Civil Division at No(s): 2012-005034 BEFORE: FORD ELLIOTT, P.J.E., OTT, and FITZGERALD, JJ. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Appellants/Cross-Appellees, Gary J. and Melissa Faddis ("Faddis"), appeal from the judgment entered in the Delaware County Court of Common Pleas finding that they had abandoned any express easement and/or any other form of easement proving they had a right of ingress and egress along Copes Lane. Appellees/Cross-Appellants, Howard P. & Carol N. Angstadt ("Angstadt"), and Gary L. & Sherre A. Gaertner ("Gaertner"), appeal from the judgment entered in the Delaware County Court of Common Pleas denying their claims of adverse possession of the parcel known as Copes Lane. We affirm.
Although the parties filed their appeals after the denial of their post-trial motions, which pre-dated the entry of judgment, the appeals were perfected when judgment was entered on September 15, 2015. See Pa.R.A.P. 905(a)(5); Johnston the Florist , Inc. v. TEDCO Const. Corp., 657 A.2d 511, 514-15 (Pa. Super. 1995) (en banc) (stating that appellate courts may "regard as done that which ought to have been done"); see also Levitt v. Patrick , 976 A.2d 581, 584 n.2 (Pa. Super. 2009) (stating that appeal properly lies from the entry of judgment, not from order denying post-trial motion).
We adopt the facts set forth by the trial court's opinion. See Trial Ct. Op., 10/21/15, at 7-11. The parties stipulated, inter alia, to the following:
We note the trial court opinion refers to the Agreed Stipulation of Facts Between Counsel for Plaintiff and Counsel for Defendant. See R.R. at 67a-73a. "The stipulation of facts is binding on both the parties and on this court, and facts effectively stipulated are controlling and conclusive." Kennedy Boulevard Assoc. I , L.P. v. Tax Review Bd. of City of Phila., 751 A.2d 719, 724 (Pa. Cmwlth. 2000) (quotation marks and citation omitted). For the parties' convenience, we refer to the reproduced record where applicable.
15. The September 26, 1991 Faddis Deed does not make any reference to Copes Lane.
16. On or about May 7, 2012, Gary J. Faddis and Melissa Faddis recorded a Deed dated April 4, 2012 from themselves to themselves . . . .
17. The May 7, 2012 deed added the following language to their prior Deed: "Together with the right of ingress and egress to and from said premises to Edgmont Road along property of Wilhelmine Smedley AND Copes Lane as the same is now used."
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20. The Faddis' predecessor in title was Howard H. Faddis, Jr. and Dorothy S. Faddis, his wife, who purchased the property from John b. Hanley and Gertrude Hanley on August 7, 1952 . . . .
21. That Deed contains the following statement: "Together with the right of ingress and egress to and from said premises to Edgmont Road along property of Wilhelmina Smedley, as the same is now used.
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32. [Faddis] live in the property formerly belonging to Howard H. Faddis, Jr. and Dorothy S. Faddis. The water line servicing their property runs from old Middletown Road down Cope[s] Lane to their property. The water line has been in continuous use since at least December 4, 1956.R.R. at 69a-72a (emphases added).
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39. In 1994, [Faddis] installed 4' high post and rail fence along the rear and sides of their property.
40. The Faddis rear yard fence was installed pursuant to a Building Permit which issued by Middletown township on June 1, 1994 . . . .
41. The Faddis fence runs perpendicular to and crossed over Copes Lane, ending at and abutting up to the McLaughlin's corner fence post. It was originally installed without a gate.
42. In or about April of 2012, [Faddis] removed the section of their post and rail fence which crossed Copes Land and replaced it with a double gate.
The parties filed post-trial motions, which the court denied. These appeals followed. The parties filed court-ordered Pa.R.A.P. 1925(b) statements of errors complained of on appeal. The trial court filed a responsive opinion.
Faddis raises the following issues for our review:
I. Did the [t]rial [c]ourt abuse its discretion and commit an error of law in finding that . . . Faddis abandoned their easement of ingress and egress over Copes Lane where in the same decision the court found "[Faddis has] through clear and concise evidence proven the actual, continuous, exclusive, visible, notorious, distinct and hostile possession of that portion of Copes Lane where their water line is located since 1954. . ." because any use of their easement
of ingress and egress, even for the limited purpose of utilities, as a matter of law, precludes a finding that they abandoned their easement?Faddis' Brief at 4-5.
II. Did the trial court commit an error of law or an abuse of discretion in determining that [Appellees] McLaughlin had established, by clear and convincing evidence, adverse possession of the area of Copes Lane located within their fence where the court did not follow the controlling precedent announced in the Superior Court's decision in Flannery v. Stump [, 786 A.2d 255 (Pa. Super. 2001)] which precludes a finding of hostile possession on facts identical to the facts in this case?
Faddis contends that any use of the easement of ingress and egress, even for the limited purpose of utilities, precludes a finding that they abandoned their easement. Id. at 19. Faddis avers "evidence of intent of the easement holder to abandon the easement is the key to the analysis of easement abandonment." Id. at 23-24. They claim "[s]ince the [t]rial [c]ourt found that . . . Faddis had made continuous use of their easement of ingress and egress for utilities, it abused its discretion and committed an error of law by holding in the same decision they abandoned the very same easement." Id. at 25. The trial court erred in "finding that . . . Faddis abandoned their easement of ingress and egress and in the same decision declaring they had established a prescriptive utility easement." Id. Faddis is denied relief.
We note
An easement or right-of-way by prescription arises by adverse, open, continuous, notorious, and uninterrupted use of the land for twenty-one years. The scope of the use during the prescriptive period determines the scope of the easement or right-of-way obtained, except with respect to a reasonable evolution of the use which is not unduly burdensome.
Our review is governed by the following principles:
Our scope of review is limited. We are bound by findings of fact which are supported by the record, but not the trial court's conclusions of law. We must have due regard for the trial court's superior vantage and its prerogatives to access credibility and to believe all, part, or none of the evidence presented. Finally, we may not reverse absent a clear abuse of discretion or an error of law.Waltimyer , 556 A.2d at 913.
In Buffalo Twp. v. Jones , 813 A.2d 659 (Pa. 2002), our Pennsylvania Supreme Court held that
[i]n evaluating whether the user abandoned the property, the court must consider whether there was an intention to abandon the property interest, together with external acts by which such intention is carried into effect. In order to establish the abandonment of a right-of-way, the evidence must show that the easement holder intended to give up its right to use the easement permanently. Such conduct must consist of some affirmative act on his part which renders use of the easement impossible, or of some physical obstruction of it by him in a manner that is inconsistent with its further enjoyment.
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In sum, many different factors can be considered when making a determination of abandonment. Moreover, no single factor alone is sufficient to establish the intent to abandon. Abandonment must be determined based upon all of the circumstances surrounding the alleged abandonment.Id. at 664-65 (quotation marks and citations omitted).
Instantly, the trial court
found that Angstadt, Gaertner and McLaughlin proved through clear and convincing evidence that Faddis erected a post and rail fence surrounding the rear yard of the Faddis property and across their point of access to Copes Lane in 1994. The Faddis's post and rail fence did not include a gate at their point of access to Copes Lane, and Copes Lane became over-grown at the point of access to the Faddis property. The construction of this fence rendered the use of the easement impossible and was inconsistent with its further enjoyment. The record clearly indicates that this fence and overgrowth limited ingress and egress to Copes Lane from the Faddis property. It was only following the Gaertner zoning hearing in January 2012 that Faddis prepared and filed the 2012 Faddis corrective Deed, cleared over-growth using a chemical agent, installed a gate in their fence at the access point to Copes Lane, and began pedestrian and motor vehicle use of Copes Lane to access the public roadway.
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On the claim of Angstadt, Gaertner and McLaughlin against Faddis and based upon the asserted right to a prescriptive easement along Copes Lane for the placement underground, maintenance, repair and replacement of a lateral water line servicing the Faddis property by connecting to the main public water service line located in and along south Old Middletown Road, Middletown Township, Delaware County, Pennsylvania, this [c]ourt found in favor of Faddis confirming the prescriptive easement for a public water line and against Angstadt, Gaertner and McLaughlin and each of the remaining defendants, Unknown Heirs and/or Administrators of the
Estate of Isaac J. Booth, Unknown Heirs and/or Administrators of the Estate of Wilhelmina Smedley, and Unknown Heirs and/or Administrators of the Estate of James Day.Trial Ct. Op. at 15-17 (emphasis added and footnote omitted).
On the claim of Angstadt, Gaertner and McLaughlin against Faddis that Faddis abandoned any express easement granted by the 1952 Faddis Deed, the 1991 Faddis Deed and/or the 2012 Faddis Corrective Deed, and/or any other form of easement Faddis claims provide a right of ingress and egress along Copes Lane, this [c]ourt found in favor [of] Angstadt, Gaertner and McLaughlin and the remaining defendants, Unknown Heirs and/or Administrators of the Estate of Isaac J. Booth, Unknown Heirs and/or Administrators of the Estate of Wilhelmina Smedley, and Unknown Heirs and/or Administrators of the Estate of James Day.
Although the Deed of Howard H. Faddis Jr. and Dorothy S. Faddis contained the right of ingress and egress to Copes Lane, the installation of the post and rail fence by Faddis along the Faddis property in 1994 blocked the access to and from the Faddis property to Copes Lane. This physical obstruction rendered the use of the easement impossible and, therefore, Faddis effectively abandoned the easement. See Buffalo Twp., 813 A.2d at 664-65. We discern no abuse of discretion or error of law. See Smith , 556 A.2d at 913.
Next, Faddis contends the trial court erred in finding that McLaughlin had established adverse possession of the area of Copes Lane located within the McLaughlin's fence and ignoring controlling precedent in Flannery , supra. Faddis Brief at 28. Faddis claims that because McLaughlin thought the fence was on his own property until 1995, he did not meet the requirements for adverse possession. Id. at 33. We disagree.
The elements necessary to establish adverse possession are as follows:
Adverse possession is an extraordinary doctrine which permits one to achieve ownership of another's property by operation of law. Accordingly, the grant of this extraordinary privilege should be based upon clear evidence. Edmondson v. Dolinich , [ ] 453 A.2d 611, 614 (Pa. Super. 1982) ("It is a serious matter indeed to take away another's property. That is why the law imposes such strict requirements of proof on one who claims title by adverse possession.") One who claims title by adverse possession must prove 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.
Showalter v. Pantaleo , 9 A.3d 233, 235 (Pa. Super. 2010).
Recreation Land Corp. v. Hartzfeld , 947 A.2d 771, 774 (Pa. Super. 2008) (quoting Flannery [, 786 A.2d at 258] (certain citations omitted), [ ]).
We note that "[a] prescriptive easement differs from land acquired by adverse possession, because an adverse possessor acquires the land in fee, whereas the prescriptive easement holder is only entitled to an easement-like use." Soderberg v. Weisel , 687 A.2d 839, 843 (Pa. Super. 1997).
"While the word 'hostile' has been held not to mean ill will or hostility, it does imply the intent to hold title against the record title holder." Tioga Coal Co. v. Supermarkets Gen. Corp., 546 A.2d 1, 3 (Pa. 1988) (citation omitted). Furthermore, "[i]n Schlagel v. Lombardi , [ ] 486 A.2d 491 ([Pa. Super.] 1984), [the] Superior Court observed that possession may be hostile even if the claimant knows of no other claim and falsely believes that he owned the land in question[.]" Id. (emphases added).
Instantly, the trial court opined:
McLaughlin was successful in proving adverse possession of the specific area of Copes Lane inside the rear yard fence on the McLaughlin property. McLaughlin since 1989 held the portion of Copes Lane inside a fence line exclusively for themselves and believed that land to be their property. In 1995, during the process of replacing the fence, McLaughlin learned they did not hold title to the Copes Lane portion of their rear yard, but nevertheless, they directed the contractor to place the new fence in the same location as the original fence. This conduct demonstrates their contention that they have exercised actual, continuous, exclusive, visible, notorious, distinct and hostile possession of that portion of Copes Lane for twenty-one years.Trial Ct. Op. at 13.
Even though McLaughlin falsely believed he owned the land in question, possession may be hostile. See Tioga Coal Co., 546 A.2d at 3. Thus, the elements of adverse possession have been established. See Showalter , 9 A.3d at 235. We find no abuse of discretion by the trial court. See Waltimyer , 556 A.2d at 913.
Angstadt and Gaertner raise the following issues for our review:
[1.] Did the [t]rial [c]ourt commit error of law and abused [sic] its discretion by failing to determine the easement language in the Angstatdts' Deed regarding Copes Lane had a sunset provision and the grantors in their chain of title have not used Copes Lane for over half a century, therefore the Angstadts' use was not permissive?
[2.] Did the [t]rial [c]ourt commit error of law and abuse its discretion by failing to grant [Angstadt] title by adverse
possession of the portion of Copes Lane which they had maintained since 1964?Angstadt-Gaertner's Brief at 19.
[3.] Did the [t]rial [c]ourt commit error of law and abuse its discretion by failing to grant [Gaertner] title by adverse possession of the portion of Copes Lane they had maintained and used since 1987 by relying on Mr. Gaertner's failure to assert ownership before a Zoning Hearing Board?
[4.] Did the [t]rial [c]ourt commit error of law and abuse its discretion in failing to find the "1991 Faddis Deed" did not convey a right of ingress and egress along Copes Lane?
[5.] Did the [t]rial [c]ourt commit error of law and abuse its discretion by failing to find the "2012 Faddis corrective Deed" was a nullity as it relates to conveyance of any title or right of ingress and egress along Copes Lane to and from South Old Middletown Road?
For ease of disposition, we have numbered the issues.
We address the first two issues together because they are interrelated. Angstadt contends the trial court erred in determining that the Angstadt deed contains an express easement to Copes Lane based upon the following language: "TOGETHER with the right and use of the LANE leading from Old Middletown Road (formerly Edgmont Great Road) to Herman Cope's property so far as the right, title and use of the same remains in the Grantors." Id. at 30. They claim their permissive use changed to hostile use. Id. They argue they satisfied the elements of adverse possession by maintaining the property, which "included cutting grass, raking leaves, cleaning up trash, limbs and branches." Id. at 32 (citations omitted). We find no relief is due.
In Waltimyer , this Court opined:
A use based upon permission cannot ripen into a prescriptive right unless the owner of the land is given clear notice that the character of the use has changed from a permissive use to an adverse use, and the adverse use then continues for the full prescriptive period.Waltimyer , 556 A.2d at 914. "Where the possession, at its inception, is permissive, . . . (adverse possession) will not begin to run against the real owner [u]ntil there has been some subsequent act of disseizin or open disavowal of the true owner's title . . . ." Roman v. Roman , 401 A.2d 361, 363 (Pa. 1979) (citation omitted).
The trial court opined:
Angstadt failed to prove by clear and convincing evidence actual, continuous, exclusive, visible, notorious, distinct and hostile possession over any portion of Copes Lane. Rather, the 1964 Angstadt Deed includes the grant of an express easement to Angstadt for ingress and egress along Copes Lane. Therefore, Angstadts' possession of Copes Lane is permissive.Trial Ct. Op. at 12-13.
The record doesn't establish a subsequent act that would convert Angstadt's permissive use of Copes Lane into adverse possession. See Roman , 401 A.2d at 363; Waltimyer , 556 A.2d at 914. We discern no abuse of discretion by the trial court. See id. at 913.
Lastly, we address the Gaertner claim that the trial court erred in failing to grant them title by adverse possession of the portion of Copes Lane that they had maintained and used since 1987 by relying upon Gaertner's failure to assert ownership before a Zoning Hearing Board. Angstadt-Gaertner's Brief at 35. Gaertner contends that "he cut grass, trimmed branches, raked leaves and maintained the grounds as his own." Id. (citation omitted). He erected a shed and maintained a garden and a woodpile on Copes Lane. Id. (citation omitted). Gaertner argues that "[t]he [t]rial [c]ourt committed reversible error by failing to consider and determine that [Gaertner] exercised open, continuous, notorious, visible exclusive and hostile possession over the portion of Copes Lane they maintained for over 21 years . . . ." Id.
At the hearing on March 26, 2015, Gaertner testified as follows on cross examination.
[Counsel for Faddis]: You told the Zoning Hearing Board [in January 2012] that you did not own Copes Lane. Is that correct?
A: That's correct.
Q: And you did not include any of Copes Lane when made your ground calculations for your setbacks. Is that correct?
A: That's correct. In fact, I said at the Zoning Board meeting that if I did owe [sic] Copes Lane, I would not have to be before them.
Q: And that was—
A: Or half of Copes Lane, I wouldn't have had to have been before them.R.R. at 210a-11a (emphases added).
Q: And that's the truth. If you had half of Copes Lane, you wouldn't have needed that variance?
A: That's correct.
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Q: You never blocked Copes Lane or fenced it or tried to prevent anyone else from going—using Copes Lane. Is that correct?
A: That's correct.
Q: So other than seasonally picking up a few fallen branches and cutting some grass, you did nothing to announce to the rest of the world that you were claiming Copes Lane as your property. Is that correct?
A: That's correct.
The trial court opined:
Since Gaertner admitted at the January 2012 Middletown Township Zoning Hearing no ownership or any portion of Copes Lane, Gaertner cannot prove the elements of adverse possession through sufficient evidence. Gaertner also failed to establish exclusive possession of any portion of Copes Lane.Trial Ct. Op. at 13.
Gaertner has not proven actual, continuous, exclusive, visible, notorious, distinct and hostile possession of Copes Lane for twenty-one years. See Showalter , 9 A.3d at 235. Therefore, Gaertner cannot claim title by adverse possession. See id. We find no abuse of discretion by the trial court. See Waltimyer , 556 A.2d at 913.
Given our resolution of the first issue raised by Faddis on appeal, we need not address the fourth and fifth issues raised by Angstadt and Gaertner. --------
Accordingly, for all of the foregoing reasons, the judgment is affirmed.
Judgment affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/28/2016
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Waltimyer v. Smith , 556 A.2d 912, 913-14 (Pa. Super. 1989).