Opinion
J-A28039-18 No. 223 MDA 2018
02-01-2019
DAVID AND SHERRIE CLIFF, Appellants v. ASSOCIATES AT CHAPMAN LAKE, INC.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment Entered April 13, 2018 in the Court of Common Pleas of Lackawanna County
Civil Division at No(s): 2015-00099 BEFORE: LAZARUS, J., OLSON, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.:
David and Sherrie Cliff (collectively, "the Cliffs") appeal from the Judgment entered against them and in favor of Associates at Chapman Lake, Inc. ("the Associates"). We affirm.
The Cliffs filed the instant appeal prior to the entry of judgment on the trial court's verdict. "Orders denying post-trial motions ... are not appealable. Rather it is the subsequent judgment that is the appealable order when a trial has occurred." Harvey v. Rouse Chamberlin , Ltd., 901 A.2d 523, 524 n.1 (Pa. Super. 2006) (citation omitted). Judgment subsequently was entered on April 13, 2018. As Judgment has been entered on the verdict, we will treat the Notice of Appeal previously filed in this case as filed after the entry of judgment. See Pa.R.A.P. 905(a)(5). The appeals statement has been corrected to reflect the entry of judgment.
In its Opinion, the trial court summarized the relevant factual history underlying the instant appeal as follows:
[The Cliffs] are adult individuals who own real estate known as 4 George Street in Scott Township, Lackawanna County, Pennsylvania. [The Cliffs] claim a right of passage over George Street and other roads within the McNulty and Rogan subdivision [("the Subdivision")] areas[,] as well as riparian/lake rights to Chapman Lake[,] by virtue of various deeds contained within their chain of title. In the past, [the Cliffs] have accessed Chapman Lake by way of George Street and neighboring roads. [The Cliffs'] property is not adjacent to Chapman Lake.Trial Court Opinion, 7/14/17, at 1-2 (footnote in original).
[The Associates] is a corporation duly organized and existing under the laws of the Commonwealth. ... [The Associates] owns the lake bed of Chapman Lake, which is a spring[-]fed lake of approximately one hundred (100) acres, located in Scott Township, Pennsylvania. [The Associates] obtained title to the lake bed by virtue of three (3) deeds recorded in Lackawanna County.[FN]
[FN] Said deeds were recorded on March 29, 1999, October 23, 2007, and July 9, 2012.
In the summer of 2008, the Associates decided to authorize neighboring property owners to use Chapman Lake for recreation purposes, for a cost, and established a flat fee of one hundred dollars ($100.00) per year for said use. The Associates agreed to allow [the Cliffs] to use Chapman Lake for recreational purposes for $100.00 per year, the same payment that is charged to all other homeowners on or near the lake. However, [the Cliffs] took the position that they had a legal right to use [Chapman] Lake as riparian land owners, pursuant to the deeds in their chain of title, and with this in mind[,] they offered to pay the Associates the $100.00 fee only on the stipulation that [the Associates] would acknowledge the legal basis for their lake rights. The Associates refused, contending that it[,] alone[,] has the officially-recognized right to regulate the use of Chapman Lake, and that others may use the [l]ake only with their permission....
Subsequently, the Cliffs filed a Complaint seeking declaratory relief, and to quiet title regarding their interest in Chapman Lake. The Associates filed an Answer and New Matter, asserting its ownership of Chapman Lake, and averring that the Cliffs have no right to use Chapman Lake pursuant to the deeds in their chain of title. New Matter, ¶¶ 4-5. Following a non-jury trial, the trial court entered a verdict in favor of the Associates. The Cliffs filed post-trial Motions, which, after a hearing, the trial court denied. Thereafter, the Cliffs filed the instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal. Judgment subsequently was entered on the verdict.
The Cliffs present the following claims for our review:
A. Did the [t]rial [c]ourt err when it did not determine that [the Cliffs] owned [a] property interest appurtenant to their property[,] as defined by the 1895 Settlement Agreement filed in the condemnation action of the Jermyn and Rushbrook Water Company [("the Water Company")] against the Estate of Ellen Lee[,] set forth [at] Docket No. 422 September [T]erm 1895[,] and acquired riparian rights as successors in title to a portion of the original Lee Farm?Brief for Appellants at 5.
B. Did [the trial court] err by failing to determine that [the Cliffs], as owners of property in the [Subdivision,] had acquired a right to enter the water of Chapman Lake to the extent that the lake bed formed a portion of the roads of the property of the [Subdivision]?
C. Did [the trial court] err by determining that riparian rights did not include recreational rights?
The Cliffs first claim that the trial court improperly failed to recognize that they "possessed as an appurtenant interest, rights from the settlement agreement ("the Agreement") between the Water Company and the Estate of Ellen Lee and its heirs pursuant to a condemnation action filed to Docket No. 422 September Term 1895 ("the Condemnation Action"). Brief for Appellants at 19. The Cliffs assert that they are the owners of Lots 9 and 10 of the Subdivision, as identified on the 1950 Subdivision map. Id. They assert that a portion of their property incorporates a portion of the property "deriving from the original Lee Farm." Id. The Cliffs state that in 1885, the Water Company condemned a portion of the Lee Farm, which was subsequently submerged and incorporated into the lake bed. Id. According to the Cliffs, the Agreement stated that the Water Company
disclaimed[ed] any intention of depriving the owners of said land ... of access to the water of said Chapman Lake where it adjoins the said lands, or of the free and uninterrupted use of said water for the stock and other uses thereof in connection with said farm as riparian owners of said land and water, and do give and grant unto said parties the right to take water from the lake if it recedes or is drawn below the line of low water mark and to have the use of same as riparian owner and to fish in the water over the land taken from said [owners].Id. at 20-21 (citation omitted). Thus, the Cliffs assert that "[t]he conveyance of the appurtenant interest by the [Water Company] clearly was a grant of riparian rights and the use of the water to the successors and assigns of any portion of the Lee Farm property." Id. at 22.
As this Court has explained,
[o]ur appellate role in cases arising from non-jury trial verdicts is to determine whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in any application of the law. The findings of fact of the trial judge must be given the same weight and effect on appeal as the verdict of a jury. We consider the evidence in a light most
favorable to the verdict winner. We will reverse the trial court only if its findings of fact are not supported by competent evidence in the record or if its findings are premised on an error of law. However, [where] the issue ... concerns a question of law, our scope of review is plenary.Stephan v. Waldron Elec. Heating & Cooling LLC , 100 A.3d 660, 664-65 (Pa. Super. 2014) (citation omitted).
The trial court's conclusions of law on appeal originating from a non-jury trial are not binding on an appellate court because it is the appellate court's duty to determine if the trial court correctly applied the law to the facts of the case.
The Cliffs claim riparian rights as to Lake Chapman.
In Pennsylvania, if a body of water is navigable, it is publicly owned and may only be regulated by the Commonwealth; ownership of the land beneath would not afford any right superior to that of the public to use the waterway. If a body of water is non-navigable, it is privately owned by those who own the land beneath the water's surface and the lands abutting it, and may be regulated by them....Mountain Props. v. Tyler Hill Realty Corp., 767 A.2d 1096, 1099-1100 (Pa. Super. 2001) (citations and internal quotation marks omitted). The parties do not dispute that Chapman Lake is non-navigable. Thus, the trial court was asked to determine whether the Cliffs had acquired riparian rights to Chapman Lake through their chain of title.
In its Opinion, the trial court addressed the Cliffs' claim of riparian rights through the Lee Farm parcel, and concluded that it lacks merit. See Trial Court Decision and Decree, 1/18/18, at 2-3. We agree with the sound reasoning of the trial court, as stated in its Opinion, and affirm on this basis with regard to the Cliffs' first claim. See id. We additionally point out the evidence presented at trial, which supports the trial court's findings and determination.
The Cliffs presented evidence that Chapman Lake is a freshwater lake located in Scott Township. N.T., 2/21/17, at 18. The Cliffs presented the testimony of David Durkovic ("Durkovic"), a title searcher, regarding their claim of ownership of riparian rights to Chapman Lake. N.T., 2/21/17, at 26. Durkovic testified that in 1895, Ellen Lee ("Lee") owned a large parcel that included a portion of the lake bed. Id. at 28. According to Durkovic, just prior to 1900, the Water Company condemned property in and around Chapman Lake. Id. at 9-10. Durkovic testified that the condemnation was effectuated to increase the water level four feet above the original outlet. Id. at 31. Another nearby farm, the Finch Farm, was not condemned by the Water Company. Id. at 38. Durkovic testified that the Finch property extended into the lake bed. Id. at 42.
According to Durkovic, the Water Company thereafter entered into the Agreement, which provided that the Lees, their heirs and assigns, would retain the use of the water for their livestock or other uses in connection thereof. Id. at 32-33. The Agreement further permitted the Lees and their successors to take water from the lake if it fell below the low-water mark, and to fish over the condemned property. Id. at 33.
Durkovic testified that in 1950, the Subdivision plan was filed. Id. at 27. The Subdivision was comprised of the Lee Farm parcel, and two parcels comprising the Finch Farm. Id. at 44. According to Durkovic, the Cliffs acquired title to a parcel in the Subdivision. Id. at 46. However, according to Durkovic, the Cliffs' property was part of the original Finch Farm parcels, and not the Lee Farm parcel. Id. at 48. Thus, Durkovic's testimony supports the trial court's determination that the Cliffs did not secure riparian rights through the Lee Farm's chain of title. Because the evidence supports the trial court's determination, and its legal conclusion is sound, we cannot grant the Cliffs relief on this claim.
In their second claim, the Cliffs argue that they have acquired, as an appurtenant interest to their property, the ability to access the waters of Chapman Lake. Brief for Appellants at 24. The Cliffs contend that the actions of the Water Company raised the level of Chapman Lake, resulting in the submersion of some of the Subdivision's roads and common areas. Id. The Cliffs assert that "[t]he title to the roadways maintained with the property owners of the [Subdivision]." Id. The Cliffs argue that "to the extent that each roadway extends to the original low water mark of [Chapman Lake], that portion of the lake which covers these areas is accessible by the owners of lots in the [S]ubdivision." Id. at 25. Because the Associates purportedly have no ownership interest in the submerged roadways or common areas, the Cliffs argue that they have the right to use the lake above the roadways and common areas "as an easement appurtenant to their ownership interest and property created by the [S]ubdivision." Id. at 26.
While the Cliffs argue that certain common areas and roads are now submerged, they did not raise this as a basis to use Chapman Lake in their pleadings, nor was it addressed at trial. A party "may not, at the post-trial motion stage, raise a new theory which was not raised during trial." E.S. Mgmt. v. Yingkai Gao , 176 A.3d 859, 864 (Pa. Super. 2017). Consequently, we cannot grant the Cliffs relief on this claim.
Finally, the Cliffs claim that the trial court erred by establishing a set of legal rights for access of Chapman Lake based upon "a separate and distinct classification of riparian rights[,] which the court identified as 'recreation rights.'" Brief for Appellants at 26. The Cliffs take exception to the trial court's reference to "recreation rights," rather than "riparian rights." Id. at 28. Again, the Cliffs argue that riparian rights as to Chapman Lake were conveyed to all owners of the Lee Farm property. Id.
As set forth above the Cliffs did not acquire their property through the Lee Farm property's chain of title and therefore, their claim does not entitle them to relief. Accordingly, we affirm the Judgment entered by the trial court.
Judgment affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 02/01/2019
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