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No. 397 HBG 1995
Term 19_
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No. 94-2821 Civil TelArm 19_
Jav H. MYers lIIld
Helen L. Myers
Vmul
Melvin B. Belll1l lIIld
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AnnaM.Bell11
EXEMPI.IFIED RECORD
From
C\Jtberlaoo
Counly
Debl.
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Inl.
from
Colli
Entered and Filed
19_
Prothnnnlll}.
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PAGE I'll.
1 - 28
29
30 - 46
47
48 - 63
64 - 66
67
68
69 - 79
80 - ')0
91 - 92
Al110ng Ihc Itccurds nnd Proceedings enrolled in the Cllllrl of COl1111llln I'\cas in and lur the
county of
Cunberlilnd
No. 397 HIlG 1995
94 -2821 Civil Tenn
in Ihe COllllllonwca\lh 01 Pennsylvania
to No.
rerm. 19 is conlained the following:
COpy OF
APllCaranre
DOCKET ENTIt Y
JAY II. AND HEI,EN J.. MYERS
VS.
MEJ,VIN S. AND ANNA M. BEAM
Hay 26, 1995, Conplaint in Civil Action - Quiet Title, filed.
June 13, 1994, Sheriff's Return of Service, filed.
July 8, 1994, Answer and New Matter, filed.
July 8, 1994, Certificate of Service. filed.
Sept. 2, 1994, Reply to New Matter, filed.
Sept. 23, 1994, Reply, filed.
Dec. 8, 1994, Praecipe for Listing Case for Trial. filed.
Jan. 4, 1995, Order of Court, filed.
/IND ['00/. this 4th day of January, 1995, trial on this Quiet Title acti 1
will be held in Court roan No.2. at 8:45 a.I11., Thursday, February 23, 1995.
Counsel shall exchange all docurents prior to trial. Plaintiffs' request
for a view will be deferred to the tune of trial.
By the Court, Edgar B. Bayley, J.
April 20, 1995, Opinion and Order of Court, filed. In Re: Quiet Title
/IND ['00/, this 20th day of April, 1995, IT IS DEClARED that the fee to
the land on the \>est side of Route 696 in Hopewell Township. C\Jnberland Cou y,
as described on a survey of Jolm R. Kissinger dated ~canber 31, 1992, and
rrarked as plaintiffs' Exhibit No. 13. and shown in relationship to the fann
of plaintiffs, Jay H. Myers and Uelen L. Myers, on the \>est side of Route
696 as shown on another survey of John R. Kissinger dated September 17, 199
and marked as plaintiffs' Exhibit No. 12, is vested in Jay U. Myers and
Helen L. Myers by adverse \Xlssession against defendants. Melvin S. Beam and
Anna M. Bean who took title to the land as part of the conveyance to them
in a deed fran Catherine V. Baer dated February 26, 1985. and recorded on
February 28. 1985, in CUl11berland County ~ed Book D, Volure 31, Page 85.
IT IS ORDERED that Melvin S. Beam and Anna M. Bean are forever barred fran
asserting any right, lien, title or interest in said land inconsistent with
the interest of plaintiffs in the fee by adverse \Xlssession.
April 28, 1995, t-btion for Post Trial Relief. filed.
Hay I, 1995, Order of Court, filed.
AND ['00/, this 1st day of May, 1995, having revie~ the twenty-three
assignments of error in defendants I nntion for Il new trial, and the tl'Kl
assignments of error in defendants I notion for a julgnent notwithstanding
the verdict, and being satisfied that: all of those assigrunents have been
adequately addressed in the conprehensive opinion filed in sup\Xlrt of the
order of April 20. 1995, in this Quiet TiUe action, ]1' ]5 ORDERr.D:
1. D:Jfendant 's nntion for IXlst-t rlill relief, ]5 DlSM]SSED.
2. .Judgnent is entered in filvor of countercl aim defendilnts, .lilY IJ.
Myers ilnd Helen L. Myers. on the cOllnt erclilim in ejeclnlCnt filed by counter
claim plainti ffs, Melvin S. (Jem, and Annil M. lJcam.
(Jy the Court, Fdgar B. Bay ley, .J.
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No.
397 HBG 1995
Term 19_
No. 94-2821 Civil TeJllllrm 19_
From
EXEMPUFIED RECORD
C\Irberleoo
County
Debl.
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from
COlli
Enlered and Filed
19_
Prothonnllry,
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1 - 28
29
30 - 46
47
48 - 63
64 - 66
67
68
69 - 79
80 - 90
91 - 92
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^mong the Recnrd~ nnd Prllcccding' cl1lllllcll in thc cllurt Ill' Cllnllnlln I'lcll~ in 111,,1 Illr the
county of
Cunberland
No. 397 III3G 1995
94-2821 civil Tenn
Tcnn. 19 i~ cnnlllincll thc fllllllwing:
in thc Cl1mml1nwellllh Ilf l'elll\~yl\'llnlll
10 No.
COPY OF
Appearanc:e
1l0l'KH I'NIRY
JAY II. AND IIEI.EN I.. MYEIlS
VS.
MEI.vIN S. AND ANNA M. BEAM
May 26, 1995, Canplaint in Civil Action - Quiet Title, filed.
JWJe 13, 1994, Sheriff's Return of Service. filed.
July 8, 1994, Answer and New Matler. filed.
July 8, 1994, Certificate of Service, filed.
Sept. 2, 1994, Reply to New MaUer. filed.
Sept. 23, 1994, Ileply. filed.
Dec. 8, 1994, Praecipe for Lillting Case for Trial, filed.
Jan. 4, 1995, Order of Court, filed.
AND 1'0'1, this 4th day of ,January, I'J95 , trial on thia Quiet: 'l'iUe ndl<
will be held in Courtroan No.2, at 0:45 a.m., Thursday, l"nhruary 21, II}IJ~I.
Counsel shall exchange all doclJ11enta prior to trial. Plaintlffll' roquest
for a view will be deferred to the time of trial.
By the Court, Edgar B. Bay ley, ,I.
April 20, 1995, Opinion and Order of Court, flied. In llo1 Qulel Title
AND 1'0'1, thia 20th day of April. 199~), ]'1' IS DECIJlIlED Ihal the fee to
the land on the \\Ust side of Iloute 6% In lIopewell '1\1\\11I1hlp, Cllnherllllld Cou y,
as described on a survey of .John Il. Kissinger dilled lJecl.'Inher II, 191)2, Imd
marked as plaintiffs' Exhibit No. 13, and IIh(l\\11 In I'olal lonllhlp 10 the fnnn
of plaintiffs. .Iay 11. Myers ilI1d lIelen I.. Myers, on Ihe wen I Ilido of Ilollto
696 as shown on another sllrvey of .John Il. Killsln'ler datod Sepll.'lnlX!r 17, IlJ9'
and marked as plaintiffs' Exhibit: No. 12, is vosted In .1/lY 11. MyOI'H IInd
lIelen L. Myers by adverse p:Jssesslon a'lainst defendilllln, Melvin H. lIeiVll and
lInna M. l3ean who took title 10 the land ilS pari of Ihe l'OI1\'OYilllCO 10 Ihl.'ln
in a deed fran Catherine V. Baer dated Februml' 21>. I'Jll'" <111<1 rl!l~onlL'(l on
February 28, 1985. in CundJOrland County Deed Ihlk D, VOhllk.!l1, l'il!Jl! O~l.
IT IS OIlDERED that Melvin S. Ileivn illld Anllo M. lleiln am forever llillTL'<1 fnln
asserting any right, lien, title or intel-elll In Haill li1l\d Incllnllllltcml with
the interest of plaintiffs in tho feo hy i~lverae I))Hlll1ll1llon.
April 28, 1995, fobtion for l\lSt Trlol Hel lei, Ii IL'<I.
May 1, 1995, Orner of COUI-t. filed.
fIND 1'0'1, this 1st clay of Moy, )lJI)~,. hilvlnq revil!~,1 th(! Iwonly-Ihreo
assiglllfents of error In defl'l1dillltll' nnliolllor illlf!W trial, illldlho 1\\\1
assignl1l~nts of error in deferxlilntll' IIIll iOIl lor il \lrllJIW!l11 nol wi Illllllmdlnq
the verdict, and lJOinq Sill isfied that all 01 I h()lll! iIlllliqrUlwmln 1_IVI! I)(!f!n
adequately addressed In Ihe cflnpr<!h(!llllivl' oplllion 1'1"..1 In 1l1lPl'n'l of Iho
order of April 20, 11)95, in Ihlli l..hJtot '1'1110 act iOIl, IT Hi Olll1F1lEll:
1. ~fendl1nt 's nnl Ion 1m' I'1Ii1-1 rial l"l!1 IeI'. IH III SM 1 miFll.
2. .JlIdgnent is enterL'<1 111 lav()r ot ('llIlIllerl'1,linl dl'll'rwlillllII. .IiIY II.
Myers and lIelen I.. MyerH. ()Il 1111' ,'ollnlo'r<'ldlm 111 ..jl'('lnw'lll I I ]"ll>y ,'(lIlIlter
claim plaintiffs, Melvin ~i. IV!iUn illld AlIlla M. Ihun.
By tho COllI-I, ",lqdr Ii. 1~lyl..\., .1.
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land situate in Hopewell Township, Cumberland County,
Pennsylvania, bounded and described as set forth in a deed from
Jay A. Burk and Mary O. Burk, his wife, to Mr. and Mrs. Myers,
which deed was recorded in the Office of the Recorder of Deeds in
and for Cumberland County beginning at Deed Book "J", Volume 22,
page 344. A true and correct copy of that deed is attached
hereto as Exhibit "A" and incorporated herein by reference.
4. The Agreement of Sale between the Burks and Mr. and Mrs.
Myers described the property conveyed as "ALL that certain farm
situate in the Township of Hopewell, County of Cumberland and
State of Pennsylvania lying on the West side of the Middle
Spring-Newburg Road, containing 172 acres, more or less." A true
and correct copy of that Agreement of Sale is attached hereto as
Exhibit "B" and incorporated herein by reference.
5. In October 1969, Mr. and Mrs. Myers, with the assistance
of a landscaping contractor, cleared, landscaped, added top soil
to and seeded a portion of property bounded on the east by State
Route 0696 and on the west by an unnamed small stream which flows
through the Myers' property in a generally south to north
direction. The portion of the property in question (hereinafter
"disputed property") is depicted as Section "A", Section "B" and
Section "C" on a survey of John R. Kissinger dated December 31,
1992, a true and correct reduced copy of which is attached hereto
as Exhibit "C" and is incorporated herein by reference.
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owned by Mr. and Mrs. Myers for purposes of tax assessments. A
true and correct copy of the applicable portion of the tax map is
attached hereto as Exhibit "D" and incorporated herein by
reference.
B. On or about February 26, 1965, Defendants Mr. and Mrs.
Beam purchased a farm tract from Catherine V. Baer, which tract
was situated in Hopewell Township, Cumberland County,
Pennaylvania and was bounded and described as set forth in the
deed of conveyance recorded with the Recorder of Deeds Office for
Cumberland County beginning at Deed Book "D", Volume 31, page
65. A true and correct copy of that deed is attached hereto as
Exhibit "E".
9. The deed to Mr. and Mrs. Beam purports to convey to them,
in addition to the farm tract located east of state Route 0696,
the disputed property referred to as Section "A", Section "B" and
Section "CO on the Kissinger survey.
10. Mr. and Mrs. Myers have possessed the portion of land in
question openly, notoriously, exclusively, continuously and
hostilely to the claims of all others since May 31, 1967, a
period of more than 21 years.
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BETWEEN
J. A. nUll!: ond IIAIlY o. nUl:!:. hls wiCo, of tll':
oC ShlppensburR, County of ('CIlJlklin ond SUt'.
Ponnsylvonlo, partlos oC tho llrst pnrt 05
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. JAY II. HYEnS and II~LI!N L. HYEllS, hls wiCe, 0 tti~~~wnshIP
. of 1I0pewell, County,oC CUllberlond and State "~J't.aIl:.,YIVlII\lo,
.,parU.. of the aecond port os" :' " ~~~,::.
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I' '...' 0."'" lYITNESSErH,/4al i. <OIIriI""'....., Shteen Thousand Fi Ye lIundrc d:''';!;!;:'';
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' ' ';:'r';:' .. L~ AoIIII paU, Ill, ..,,;,,' ..A......,;, A,..~ .,""-If.."" Ill, ..Id ....,.. d., .,
I=; '~i~~I.d ....11/ 10 1.\.../4 ....,"s. ALL that certoln fau conslstlll' ". I.
lTHrr,,).. adJolnln, tracts oC land situlte in lIop.well Township, ,;"",. I;IIcI
',,~ ~ounty, Pennsylvania, bounded and dc' cribad ns follows: ~:' .(,
: f:~;~fb T~oct /10. 1 - nellln~llJg at a Run ~~ar a Walnut tre,u'~ "~nl '
'f ",;..~~; Jthance down sold run /lor;.J).'Thirty lIlld f!i.nty-Hvlt /Iunil)'rd h ';25)
.,:- ..:~r laero.. Ean Thirty.flye 'J35) perch..:. thencD Horth Fo.r! y Il ,C'
/:,~m:'1 3eventy.flve /Iun~redth. (U.7,5) denr.nLhn ",.,~~:..uy('n ( ,U~:.UI ...
ID;:;'m(gjthence North Twenty-one and Soventy-five lIundredths (21.7 I ,..~~ ,I;
, "..~ast FO)lr and Pive Tenths (4.5) IJorches; thence North Je'r V. ~4:. ..:~
.".t'Seventy-flve /Iundredths (46.75) decrees,Eost Seyen (7) '('e ~ .nce . ","
;",,!,,', South ,~orty.oieht and Five Tenths (48.5):'degroes Eost T.o .rive' ":'.
",. 'j Tenths (12.'5) perches, thencD North Sixty-two and Seventy ilndredths
, ",,:", (62.75) dDgrees East Eight and Seven Tenths (8.7) pHche'; II.t;~:
" . ,...'~ South Eighty-five and Soventy-llve Hundredths (85.75) do,: Ie East
" "....:':,:- Thirteen (13) porches; thence South FllrtY"~our (>14) de,rl" , E.~st
,I!..Llltwelve (12) perches; thence North Eichty"uno nnll I'lve T", hs"(89.5)
"~""i:rde8reos East Twenty (2U) perches to where sold I:un enter, he '
, ',.'TIE~ 'J Conodoculnet Creek: thence up 50111 creek Forty and Five '. ,ths (40.5)
'''''''';''1 degre.s tut Seven (7) Jlerches:lt1iencc South Twenty.t.,o ' I Five
..:' /~.,1 Tonths [22.5) de,:reef East Twenry:thrca (23) p..rehe.; tll, ., South
...,~,:.." Fourteun [14) docre.s East Twenty-four (l,I) r.urehc.: the. South
j:.:::b~ri' !\Ineteen (19J decrees. Elist Flf.tol\n (15) percles: thence: .th',One and
1t.:1, II 1\;enty-five f1\illdredths 0..25) ,ueEreos "ost ,n,lrtaen and: Tenths (13.6)
perches; thence South Nlnoteen and Flva Tonth. (19.5) do,. Ds"East
Thirteen (13) I,ercllo.: tho.!co South Forty-olllht Dnd F1ye ' Ilths (48.S)
degrees East Saven [7) "erehos; thence by Innd. of nuw 01 IIrmcrly
I nonjamln NeWCOMer Harth Savellty-f1vo (7Si decreos IIDst TI,. Iy,.oll.e (31)
perches to n Ilhlto Onk: thanee by lolld. of .nmo lIorth I'll -t'lol,,(H)
lleerco, Hest Thlrty.throe (33) I,urehe. to u CUl1i theneo I 1.1nus of salOll
... I\orth tlghtr.-nlllo [89) degroes (cst "I,:hty-slx (86) pore\. to'., post;
,'>~~ Ilthenco liar! I FlCty.f1ye (55) uenruos Hl'st Tun [In) perehl' tll the
'...'.'".,.I,placo of Declnninll. Contalllllln FHty-ollo [51) Aeros nnu ( Hundred__
i' :' :;, Twenty-three (123 "erche., strict mD''',ure. "-,',,., '.J ~ ?r.? ,~
! 1l;'~>;'i~ll Tract No.2. neClnnlll1l nt a (last; thellCO hy lnnd no
' of John Iktune, South Thlrty-cicht and fiuvcnty-Civc lIundr
011II
lIr Cormerly
ths ,(38. n)
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D ~.1.-f, 7. AN~.'tl - .1. "."('';11040 '''liIl~v:-, t .to.... J \' ." ., ',. _,'.t .' ,.j 'i
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~o,r.es Ilest r:l~hty and Two Tenlh. rso.2) perch.. to 'l~ck Oak:
thonce by lun~ now or: Cnr"erly of S.".uel Newcomer Sou 1:lghty-one
an~ Twenty-flye lIundredths (81.25) ~eRroos Iioot Forty x 4I\d Nine
Tonths (46.9) perches;:. thonco by 1 '"~s of JUMO' lIend .un tiorth '
Thirty-one (31) uagron.,lIost Nlnoty 90) porches to th ruk (a I,.
stone); thanca by soi~ I:roek (Conouoguhet) by the Ya , 'u~inding..2.'
and couraa. DC the '~'."lUlt nllrty-thr.. nn~ TI,rae T'I h 3.3)?, l!liI,,<-
parcho. to a-Wo1l\U,t. ,encDI/lorth Forty-four (441 de) 'slE .t I,
Fourteon (14) perche to a atona: thanco South S xty- I ae (63) l'
~aRralS Un Thl'rty-,;ight (38) porches to a Locu.t: tl,r .c,,~outb
Twentr,ond Fha-Tenth. ,(20.5). daRrea.'E~t Ona lIundre,: Wenty"-Che "J
and F Ye Tanths (125'-5) Iperchn to a post br land now, ' forllerly oC i
Jacob MUlar, tho place"oC Oo,llInin6. Cant a nlng One ,,,, llred Twenty.;!
(120) acres and Sixty-four (64) percha., strict mellU ' .'
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rdin. of ' ,
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Dfil:1G the ume tracts of lon~ which lIarrill F. lIummel
tho estate of lIary Amande Snyuer, lJo.caasod, by uud d.-I
day of Hay, 1937 anu recordad in tho office for the r,"
deeds, In anll for tho County of Cumbarland In Deed Baal,
Ptge 452 conveyed to J. A. Burk anll J, Hervey Cooyar. J
. ngle. by hi, dud dated the 15th ,Iar 'If February, ,11'4
In the .officei,tor th,e:'ncordin', of' dud. 'in and for',tl.
.~, Cuabarlu,l' in;Jleed 'Book"IlI"',' Vol,: '12';'Pa.e 10 conveyell
one-half inte~st to ;'.I.lA,. Burk, ,thorebr' vesUn, the 'II
,. J. A. Burk'; on. of the Grantor. her. n.
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MADE THE ,t f tCf of
of OIIr Lord on. tllOllland nine IIundred J; 7
J. A" BURJ( and ~II. IIUro: hh wHe, of tho
BETWEEN Boroullh of Shippenlliurll, County of Franklin and State of
Pennlylvani., Vendorl, portiol of the fir.t part
in Ill, Ilea'
A, N D
JAY II. HYIlRS and IIULUN L, ~lYERS, hh wifo, of the. TOlInlhip
of lIopewell, County of CIiJlberland and State of Pennlylvania,
Vondoe',parties
of Iho 'ecolld part,
WITNESSETH, tllat the eaid part iea of th, fir.t part, in 'fneideration of Ihe cOllenanle and
G1/,eemenle IIerelnafter contained, em the part of the .aid part e. of the .econd part 10 be kept
and p(rfonned. have agreeg or: do IIerebll agree to eell and conll811 unto th, .aid
part 111 of Ih. eecond part, t e r heir. or aeei/llll, aU IIIe land and premle" h.rein-
afl.r mentioned and fullV deecribed, for Ih. Bum of Sixteen Thuu&auJ ,.i Vl' HundreJ
-..~~lu.Juu.uU) ....-..--.......-.-... Dollars, to be paid a./ollow.:
The full consl,leration tif :iixteen IhoUSOI\l1 Jlivu Iaundrou
CHlJ,5il'J.U'I) lJollnf5 to till I Rill hy .\ first mrt"II~'e frOM
the vendees to the vondors for n tem of tWllnty (lll)
yenrs hiul interest tlloruon lit the rate ur Ji"l' (51) ;,ercont
pur onl\lll:; Il1th 5uiol inten,st on.1 principol !,o)'~'eJlt to uu
nnLlo sOI:,i-nJlnLlnll? sni.1 scttlcllcnt to Il'l l.III.le fill or lJeCor!!
the 1st un:' of JWIO, 1%7
an"'lt/l~t~X;~"tUili6UWPii&iiWr~lX;;h;~il!t.ltf~~ffllizli:m'ii''fS'.?CtilMnll~n
11m~~' iaa~o'~~~~tft~~~'~~~~~~~~~h~n~~~~~
tHMrH'
Dold!1rr~ f,d~(iMe"(tij'l7r~~/\i'rfa'H x X6tt)(',:!i!!f.'i"tt'ff, ~1l\Ml)f ~ilil?iip~iln).,
And upon the pavnr.e/liof Ihe 4aid .um,the .ald.part i S of ths first part, will, at
sn ppensburg PonnlYlvan B
make, ezecute and deliver to the Bald parties of the "cond part, a good and sufficient Deed for
the l,rop,r conveving and aelnring of the sold premlsCl in fee simple. free from all incumbrance
and dower, or 'if8'Aififwcr. BIICh cOllveyallce /0 contain Ihe usnal covenants of
\Varran/v.
And the .aid part iUof the .econd llart, agree with the saitt llal't 1e~f the fir.1 pari, /0
purehaee the .ald l,remls" and l'OY thcrefnre the sum of
In Ihe manner and a! the IImCl hcreinbefore llrovuled.
Dollar.,
AND IT IS F'/JRTIIER AGIIEEDi b~ and be/ween the sold par{l"/,lhat l,o.seesion of .ald
81jl'"liffI8t-W' ~'I~cli1'Sr(d to tile 7lflrt e Juno of the mond 71ar/. t Ie 4Itl!iT. a~d a.siglll, on the
davof A. D. 10 lJ I un III which 11m. the
llllr/ of the fire! part shall be en tilled /0 have and reccil'e Ihe ren!., Issnce and profits thereof,
The laid 71rfmi.cs arc dCBrl'ilJrll o. follows: ALL th.t c. rt.in fan 51 tunte in
the TOlflllhlp of 1I0pewe 11 County of Cumbe rland and State of Pennsylvania
lying on the I/est side of the ~liddle Sprinll"Newburll Iloadp cOlltalnlnll
172 acres, moro or less, IV-
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COMMONWEALTH OF PENNSYLVANIA,
COllntvof
IBl.
RECORDED 011 this __".........___ dav of .______._,_,....,._.._....
A. D. 10.._... ill the Recorder'B office of the eaid COlin tv, ill _..._...._...,_..,.........
Vol. ._,__......,...." PalJe ,_____.
GillellllMer mv hand ana the Be4l of the Bald office, the date abolle written.
-.-.---.-.....-....
.__, Recorder.
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0,1, ......."... .....: ......"
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I' "_, Co.......... Nf,,{,
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_..... ..'f.. ...............
C-.. Co. ,..
t' IN,...... ,....... I_
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"n:'t ............ .It._a ,,:I
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~bi5 Jnbenture,
MA/lI:TIIF. ;1.(11.. H~" roC t..........1'
o( Ollr I.orrf OM '''OlllaM "1,,. lunw,.,cI ".hl)'..Un (UU),
... IA. ~..,
OI:rll'r.r.N
CMIlEIUHF. V, BAU, "idov. or 126 Cr..cent Driv., Shippen.burl.
hn"I.,Iv,"IA 172H, p,rty or the Uru put.
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CIWlTOR,
Hr.'.VIH s. IIMH and ANNA H. BlAH, hh VUI, or ... It. 11, "..,bur..
'Inn.yly,nt. 17240, plrtl..
CIWlTEU.
.".."...., ,.Il, WlrNE:SSE:TH.IUlIA. ...,..., .,'A. ~,.. ,.If,'" 1114 'I-W".
nil"'."...... 0' On. lIondud TYlnt,-'lYl Thoollnd 1I1U,OOO.OO)---------
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,.",loJ ""'11I0' 'AI V.U,d S,.,,, ., A..m. _ hor WltU IlId I"."
",14 h 'AI ..14,.1f I.. o'lh ........ "Il. II llId h,m /AI .taU., IIld dill.", .,'A...
p"".". 'AI ..tri,l ..A...., II ""-h .......,,1;1, hll ''''.''''.
~,,,"f.,I. ..Id, .,..... '.'''',d, ......td, -flWId IIld -tI""td, 1114 "/At.. _..,. do..
,"nl', k,.,.I", ,"~ GlIn, n/"', "lNe" e.............,...,. eM..... pe,.,11I ol'A'
ntoM pari, their Aft". aw4 ..""..
r^RC[1. II All rh.t ~.,uln fam tract l)'ln, Ind balnl Ihult. In Hop.".ll
l(1wnllhll", Cu..berland Counry, Pennlyhlnla. bounded .nd dllcrtbtd II fallllvl'
I'fGINNItHl .t . ,.olnt It the nulq th'n~' by lInd no" Ilr fotllerly af ~'Ilhn
rll,.,.II1r,u. Harth uv,,'t)' (70) dt.r... hU, thirty-four (3') per~h.. to a
r"IH at ~tulq thl'ncl' h) lInd. no" af fat'llnly Df II. A. Co...er, louth .IIMy-
II'VI'n (111) drantl Eutl tventY-Illht (21) petehl\'~o . pOlt It b.nlc. of crlllc.1
th.nu hy th" ""1", North IhtY~lh (66) dlaun r..t, tWlnty-tvo Ind alRht
Irnth" (22.8) flnch"" 10 I rOlt at banlc. 0' runl thine a by "nd nov or forwu1y
or Hn. Ilhhltr. South .htY~lIlll and one..hlU (62-1/2) dl.n.. tilt, tvetve
Ul) r.rchn to a rnlt It dd, 0' rOldl' thence by the lI..e, Notth 'orty"'our
Anll nllr~rDurth C4I."1/4) d."nu Eut. 'artY-I" (1,6) perch.. tD a hld:or)'1
"Irnct 11)' th. anllle, Ilouh IIht)'~tvo (62) d..rll. bU, rlftlln US) rerch.. to
" 1IIIIlIrl t"rne. b,. Innlil nnw or f"t1Itr1~ of ".....hr, Horth Ihht)'..thrn Ind
on,..hoH (8)-112) dps;r.n lilt, on. hURdud twelv. (112) hu to a tr.....th.ne.
hy tllp IIAM.. fiouth Ilrvpnty-four and on.-fourth (74-1/4) d'lrt.. t.lt, two hundttd
flltl)'..,t~ht .nd thr.. unth. (248.3) hUI th.nu louth 'orty-.h .nd thr..-
rl"urthll CU-)/4) d.fturl lut, on. hundred .....Int)' (UO) rlttl th.ne. by the
1.,,,,1', ~l'uth nln. (09) Ill'ftuu [alt, two hundrtd two and Uve tenth, nOI.S)
hrot I thrnl'. to)' tilt 11ft"''', Snuth fifteen 0') d'lnll bit. .Iahty (10) 'lftl
III.n,.. toy th. Inlll"l !\"lIlh thlrt)'-two Ind on.-fourth Ut-1/4) d.,un tut.
"II'Y IIlld 1\10 t..nthll (Ml.U rntl th.nu louth rort)'.nlnl (49) d,,"u,, rllt.
nln"tY.II,vl'n Ind flv. Irnth. (97.5) '"rl thlnn SDuth fDrty-two and Dn.-fourth
(41,,114) drt\t,f'Il Uutl onll hundud fcur (104) 'lttl th.nce South IUty.fh.
Ilf\lf tl.rn.fnutthl CS5.]/4) d.s"n Ellt. IIVln hundud nlnlty-flY. Ind flu
(I'nlh_ 04',') futl thuc. hy lind now or tonlfl)' af Nom.n O. HO\1IfY. South
Ihhty~nlnr Ind ont..fnurth (l9~1/4) d'ltll. rut, n....nty-U.... (5) pitch.. to /.
01 "hlnrl t11.nn l1y Innd now or 'otlltrh 0' Jacob Crelllor helu. South IhlY-
flvr (6') drAr,r. U.~t, 'lftY-.lv,n Ind nine t.nthl ",",) perchl' to I black
eoo<< 1)31 tic! 55
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oak .1U8rl th,ne. by land nov or for-,rl, of Gtor.. W. Hull. North l.n (10)
d'.'t" Utlt, flft.,n and ."." ttnthl (IS,7) ,.rch.. to . pOll in pln. .IU.pl
,'lhfnt. by the ...... Horth thlrty.on. (]l) d..n.. "lit, tv.nty--thr.. (2))
ruth.. to. POUI thine. by the '''1, South rorty....v." and on'. hilI (41-112) .,..'
df~rtl' Utili tv.nty..nln. and ,tVI l.nth. (2'.,) p.rch.. to . rO'11 thine. by
th. 1111I', South Ufty-1l1 and Dn,-hllf U6..1/U .'1"" w..t. thirty-four (]4)
rlfeh.. to . rO'll thence by the ..... Horth forty-flY. .nd thul-fourth.
(4S.)/~) ."f'l' ""1, two (2) rareh.. to . poll I thine. by l.nd now or fora.rl,
.or "1111.. Itourf.,. South forty-,.v.n .nd one-h.lf (.7-1/2) d.,r... W"l,
thlrty-.ev.n (37) plrch.. to . pO'11 thane. b, I.nd now or forat,l, of John W.
Pov.ll h.lr.. Harth tw,nt,-"v.n (27) d.ar... W'lt, nln.t,..llht .nd .tRht
t.nthl (98.8) perch.. to I Itonl, th.ne. by th. ..... Harth ,txtr .nd thr..-
, I fourth. (60,,3/4) d.,utl Wnt I thlrt,-.I,M Ind four tenth. (31.4) parch.. to
a rOltl th.ne. South rortY-llx (46) d'lr.,. W..t, thlrt..n Ind "aht t.nth,
(13.') p.rch., to . v.lnut tr.., th.ne. North thlrtr-an. .nd Dn.-h.l' (Jl-1/4)
d'I"" ".It. thirt,-th". .nll (In unthl (.n.5) pueh.. to thl pilei of
I[CIM"IHO. COHTAIHIHO on. hundr.. tv.nt,...llht (121) .cr.., .ur. ar 1....
ft'INC th. In~. rr..I... c"nY',.~ b, Lul~ H. trta.r, vl'nv, b, h.r d..d d~t.~
Hnch 30. 1950, .nd ncord.d In th. DUlce of the Ricard" of D.... of Cuabuttnd
Countr, ""n'rlY.nll, In 011' look IlJII, Yol.... 14, .,.. '41.
LESS. 1I0wtVER. the tollowln. conv.y.nct'l
1. o..d d.ttd H.rch 26. 1966, to JI' N. Hr.r. Ind H.l.n LI H,.rl. hi. vlt.,
record" in Oil' look It,", VohJIII 21, .... "', unlllnlna 1 len, aon or hll.
I. Dud ~...d Arrll 11. 196B. to b..lt H. LoIdl. .nd A.II JOIn Laldl.. hll
VUI, flcotdld In Dud look "tll. Yol.1 U, rl,1 1040.
3. o.,d dlt,d Jun. 19, 1968, to Cheri.. I. ".r Ind Jln.t L. ".r. hll vlf..
record.. tn Deed look IIU''. Volu.. U. .... ,n.
rARC[L 'Z. ALL thol. clrt.ln tr.ct. of llnd .ttulte ln the Town.hlp of Hoplv.ll,
Cu.blrl.nd County, '.nn.,lvlnl., bound.d Ind dl.crlb.d .. fol10w.1
frArt No. 1 - ItclNNING It , hickory tr.e nl.r thl blnk or Canado.uln.t
CUlk, thlnc. 1n . Southerl, dlnet!on, fUt,-two (52) rod. to I "Ud
ch.rt" th.nc. b, l.n', now or fo~.rl, of Ch..b.rltn of vhich thi.
tr.ct I, . plrt. .1. (6) rod. to I .ton'l thlnel ., .... l.n', louth
rnrt)'-thr.. (41) rod. to I hlckorr In Un. or now or lonerty H.nr, Dub.
th,nCl b)' hnd or IlSd Duke In an ...url, dll'lctlon, tVlntr-lh. Iud on.-
h.11 (IS-Ill) rod, ,a . pa" In Iln. of ath.r I.nd. of ..Id H....k.rl
th.ne. by uld lIndt In Itnl,ht Unl. nln.tr-U" (IS) rod. to I hld.or,
trl', the pl.el of 1[oINHIHO. CONTAINING lvelvl (12) .er... aar. or 1....
Tract No. Z .. SltuUld on the South .ld. or .n' nllr to the Conodolulnlt
Cr..k. bound.d .nd d.,crlb,d .1 tollowl.
Ir.CIMMlNO It . .tlk. .t eorn.r of l.nd. of Willi.. Hilt.r, now or fo,..rl"
.nd now or fonnerl, I.ovri. JU/Ilper, th,nce vith lhl JU.plf lind, louth forty
Ind tw,nt,..flvl hundr,'th. (40.2S) d..r... II.t, fort,-Ila Ind two tint hi
(46.2) p.rch'l to . .tlk., th.ne. b, the ...~, louth tVlnt,-.la .nd I.v.nt,-
II.. hundr.dth. (16,7S) d..r... W..t. lart,-'I.. .nd four t.nth. (6'.6)
~trch.. to . po.t .nd .ton"1 th.ne. North fart~ Ind tv.ntr-flvl hun'r.dth.
(40.Z5) d..r... u..t, ,Ixt, (60) plreh.., aor. or 1111 to the public ro.d
alonl the South.rn lid. 01 the Conodolulnlt Cre.kl th.ne. vlth the pu.lle
rn.d to cnrnn of 1I.1ur hnd do,,"ld. thlnee vlth th lIalter hnd. Harth
thirty-on. (31) d..r"l bit. .llhttt" Ind .."n tlnthl (11.7) pltchll to
. .t.k'l thtnel with the ...., North flft,-thr.. .n' flv. tlnth. (',.~)
d'~r"1 t"t, tVtntr .nd thr., t.nth. (20.3) Plrch.. to thl pilei of IECINNIMO.
CVHTAINtNO 10 .er,., .or. or 1....
TrAct Ho. 1 - ALL thlt rl.e. cr ~.rc.l of .roun' vlth the lMprov..lnt. th.rlon
loclud In the IIld Tovn.hlp of 1l0p.v.ll, 'aund.. and dllcrtb.d II fallow..
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BEGINNING .t . pa.t b, hnd. 01 la....ly lI.nr, WoIhn th.n.. Bauth fllt,-II..
.nd on...h.lt (55"1/2) d'lr..1 "..t, thlrt'ln an. flv. t.nth. (13.5) plrch'l
to I poltl thlnel b, llnd of rora.tl, Chll. Ch..blrlln. louth .lxt,-twv Ind
an.-h.lI (U-I/I) d....u W..t. Ilftun .nd '""r l.nlh. U'.l) p..ch.. to .
roltl th.ne. b, ..... South "vlnt,-Iour an' thrll-rourth. (U-'!4) dl,,,"
W'lt, t.n Ind flv. t.nth. (IO.S, rlrch.. to I pa.t, th.nel b, llnd of fora.rlr
Jf\lm Stevick, North t".nt,..th. Ind one-fourth US-l,4) d..".. "lit, I" .nd
rorty..rlv. hundr.dth. (6.'S) r.reh.. to I poltl thlnel b, ..... Harth Il.t,-
on. (61) d.,r... lut, tVlntr-thrll Ind ,La tentbl (U.6) pitch" to . plnl'
th.nco b, ..... North .llhty .nd an.-hlll (10-112) d...... toot, IUU.. Ind
.1. t.nth. (IS,6) p.rch.. to . pa.ll th.n.. b, I.nd .r fa...rly '.11. 't"lck.
1OOl1> 31 tau 86
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South thlrty-"v,n and on,.hal' (31-1/J) d..r... t..t. tvo .nd 'Iv,n t.nth.
el.7) plrch.. to the pl.e. of lEOlHHlNO. CONTAINING on. (1) Icr.. .nd on.
hundud faurtltn perchn .nicl ....uu.
Trlet Ho. ~ - Thl rollow!nl d..crib,. thr.. ...11 trlct. of l.nd bound.d .nd
d.Rcrlb.. II follow..
(.) BECINNINC at . r0111 thIne. by l.nd. (Dr..,., 'of Col. '.tlr Lllh.r, nov
5t.w.rt, South tw.ntY-.fvln (27) d"f..' Wilt, thirt,-four (34) p.rch.. to .
po.tl th.ne. by land. rot..rl, of the h,tr. of Olvld Lllh'r, dle'd, now Duke,
Horth lorry ..d o.o-h.1I (40-1/2) dOlrll. IIl1t, tllht, 110) ptrthll to . pl..
u the crultl thenu do"," tht ..t~ crllk thl IIvlnt cour... therlof UtI"t,-
.even (27) p.rch.. to . POfttl th.ne. b, llnd. for-.,I, 01 the .for...ld hllr..
South forty and on'-hllf (40-112) d.an.. !IIt, ahty (60) perch.. to thl
rllel 01 .r~INNING. CONrAININO 12 Icr.., .trtct ....ur..
(h) DF.GINNINO It , r~.tl thine. by Ilnd lo,..rly 01 D,vtd L..h.r, louth
twentY-I.vln (17) d..r... W..t, .t. .nd ft.. tlnth. (6.') p.rch.. to . pOliti
tht'ne. h l.nd 01 Cu..n, Harth fort,-on. Ind on..h.lt (61-1/2) d..n..
Uut, "venty-.b. .nd five t.nthl (76.5) perch.. to . paltl th.nc. by hndl'
of ..... North Ilfty-'lv. Ind on.-h'l' ("-1/2) d.ar... !'It, .t. Ind thr..
trnth. (6.3) pn",h~ to I p01l1 th,nce by lancl of the hlnin dueribd tract
(0) Harth lorty,.\J'~'.-h.1I (40-1/2) d'lUU !alt, lIy.nt)'...t. .nd flv. Unth.
(76.S) p.rch.. to th. pl.e. 01 IEGIHNIHO. COHTAIHINO 3 Icr.. .trlct ....ur..
(d BEGINNING It . rn.tl th,nel by hnd of the ..Id tuet (b) .bou dtlerlb.d,
North forty Ind on.-llIl1l (40-112) d.ar... ta.t, ..venty.... .nd fh. Unth.
(76.5) p.reh'l to I rOltl thtne. by Ilnd tor.,rly of D.vld L..h,r, louth
twtnty-,.v.n (17) d'art.. W,.t, two Ind 11,ht tenth. (2.8) p.rehel to I pOlt'
thentt by I.nd 01 now or lotlurh 01 Jlcob Cr...", South .bty .nd ont~hl1r
(60-1/2) de,ru. W'Il, Un (l0) percll" to . poltl th.nc. by...., Horth
forty and ont-half (40-1/2) d"r... W..t, Ilaty-..v.n (67) p.rch.. to . po.r
(I. 0 I,ublle ro.dl tllo.e. by th. ..... Horth 1I1l,-II.. ..d o.o-hdl (55-1/1)
dr~rl.a [..t. al. .nd rive tenth. (6.') p'Jch.. to the plle. or 11OIHH1HO.
(ONUINIHC ) .eru .trlet .....un.
l[!i:S. IIOU[VER. dud to John C. ,,.It.n and lutil WalUfI, hit will, neord.d
In Uud Book "Gu, Volum. 26. Pa.. 41.1. eonutnln. a totd If.. or .nu or .n
.el'.
IIF.ING tht Rame rUlllua eonv.ylll by John J. Ham.ker '1/k/. John 1I.".ku) .nd
Oelll lIalllllllter (./k/. Pellt HdlY lI.nker), hit "U" by thftr d"d d.Ud
^u~uU 14. 19611, nd ueotd,d In Cu.buhnd County Olld look "HII, Volu.. 21,
raRe 104), unto Wilbur r. BI.r .nd C.thlrtn. V. I..r, hi. ulf..
lESS, 1I0"EVER1 fro", tht .bov. duerlbtd PARCEL II, Tner 2 .nd Tnet J tholl
COI1YrYlnCtl II uhrnd to In the Ibove rutt.d d"d record.d in Dud look "1f".
volu~. 21, PI,t 1045.
111.. ",td Jolin J. 1I'lIlflInhr and D.lla Il...ker died HlY la, 1965 Ind Januu)' 29,
1910 r'lrectlv,ly, therehy t'nlin.tlna 11f. ..t.tl In .bove d..crJb.d Plrc,l II,
Trnct Nn. ) rt~.lnlnR rortlon II r.I.rr,d to In aboYI r.cit.d d..d rteord.d In
Ocrd Book "II", Volume 21, raa' 1045.
Ullhur ,.. ~~tr died nil October 25. 1979, th.uby vutlna th. .nth. I.. OVlltuhlp
hI hh lurvlvlnJ; RrH'lUlle, Catherina V. Iler.
UNDER AND SUBJF.CT to .....nent. of ri.htaQI~I' (or IR.r.... 'Ire.. and rlar...
or Jay II. Hyua and IIthn L. Hy.u, "Ia vU., .nd th.lr h.tr. .nd ...Jan..
nCtP11Nr. TllrUF"utl, howlVer, ALL th.t eerttin lot of land, to,lth" \11th the
lOot]) 31 Iltl B7
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HAl ZG II 31 AH '9~
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'..d"(l\,II. "~l~l LIl!JU1Y
I't 'Iii:. -f l ',;1,14
..j 40, so
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cJz. ~ OLtb II C
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enter onto the premises in question (hereinafter now disputed
property) until sometime after the death of wilbur Baer on
October 25, 1979. It is admitted that sometime after October of
1979 Plaintiffs began mowing a portion of the land now owned by
the Defendants between the property of the Plaintiffs and Pa.
Route 696, known as Shippensburg Road. Defendants deny that the
attached survey of John R. Kissinger is true and correct. On the
contrary, the quality of the reduced scale photocopy is so poor
that Defendants are unable to ascertain what Kissinger is
attempting to depict. After reasonable investigation, the
Defendants are without knowledge or information sufficient to
form a belief as to the truthfulness of the remaining averments
of Paragraph 5 of Plaintiffs' complaint, and proof thereof is
demanded.
6. Denied. On the contrary, Plaintiffs did not begin
occupying the now disputed property until after the death of
Wilbur Baer on October 25, 1979. since the Defendants purchased
the disputed property in question from Catherine E. Baer on
February 26, 1985, Defendants have maintained partial occupancy,
possession and use of the premises, as more fully set forth in
Defendants' New Matter, the averments of which are incorporated
herein by reference thereto.
(a) It is admitted that Plaintiffs removed thick
underbrush and numerous trees from the now disputed property;
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(b) It is admitted that Plaintiffs access their farm
by virtue of a bridge across the stream. Defendants do not
dispute that the Plaintiffs placed and replaced the bridge across
the stream. Defendants agree that Plaintiffs have a twenty (20)
foot wide right-of-way across the property of the Defendants for
purposes of ingress, egress and regress.
(c) Defendants admit that Plaintiffs have mowed the
grass or forage crop growing in the disputed property. After
reasonable investigation, Defendants have no knowledge,
information or belief whether the Plaintiffs planted the grass or
forage crop growing in the disputed property, and proof thereof
is demanded;
(d) Defendants do not dispute that Plaintiffs have
paved and improved the driveway across the disputed property. As
stated previously, Defendants agree that Plaintiffs own a twenty
(20) foot wide right-of-way across the land of the Defendants.
(e) It is admitted that Plaintiffs placed railroad
ties along the edges of their driveway on or about the Fall of
1991. Defendants removed those railroad ties at that time and
they have not been replaced. The incidents surrounding the
confrontation between Plaintiffs and Defendants which occurred on
or about the Fall of 1991 are more fully set forth in Defendants'
New Matter, the averments of which are incorporated herein by
reference thereto.
33
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(f) Defendants do not diopute Plaintiffs have clsared
ths area of trash and other debris thrown or blowing from the
roadway since Defendants acquired the property in 1985. After
reasonable investigation, Defendants have no knowledge whether
Plaintiffs removed rocks and proof thereof is demanded.
(g) Denied. On the contrary, Defendants believe and
therefore aver that they pay real estate taxes on the entire
acreage which they acquired in 1985 which includes the disputed
strip. By way of further answer, if the cumberland County
Assessment Office and Mapping Section have made an error which
has placed the disputed property on the Plaintiffs' property for
real estate tax purposes, that is a ministerial error by the
County Assessment Office and should be corrected. If such an
error has occurred, it has not been within the knowledge of the
Defendants and does not act to convey any interest.
(h) Denied. After reasonable investigation,
Defendants are without knowledge or information sufficient to
form a belief as to the truthfulness of the averments of
paragraph 6(h) and proof thereof is demanded.
(i) Denied. On the contrary, to the best of
Defendants' knowledge, information and belief, Plaintiffs never
used the disputed property as a pasture for livestock. without
question, they have not done so since Defendants acquired the
property.
(j) Denied. On the contrary, Plaintiffs have not
parked vehicles anywhere on the Plaintiffs property with the
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exception of parking them on the twenty (20) foot wide right-of-
way which Defendants agree Plaintiffs have acquired. By way of
further answer, the Defendants have parked vehicles on their
property, i.e. the disputed property, as more fully set forth in
Defendants' New Matter, the averments of which are incorporated
herein by reference thereto.
(k) Denied. After reasonable investigation,
Defendants are without knowledge or information sufficient to
form a belief as to the truthfulness of the averments of
Paragraph 6(k), and proof thereof is demanded.
(1) Denied. After reasonable investigation,
Defendants are without knowledge or information sufficient to
form a belief as to the truthfulness of the averments of
Paragraph 6(1), and proof thereof is demanded.
(m) Denied. After reasonable investigation,
Defendants are without knowledge or information sufficient to
form a belief as to the truthfulness of the averments of
Paragraph 6(m), and proof thereof is demanded.
(n) Denied. After reasonable investigation,
Defendants are without knowledge or information sufficient to
form a belief as to the truthfulness of the averments of
Paragraph 6(n), and proof thereof is demanded.
(0) Denied. After reasonable investigation,
Defendants are without knowledge or information sufficient to
form a belief as to the truthfulness of the averments of
Paragraph 6(0), and proof thereof is demanded.
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(p) Admitted.
7. Denied. The photocopy of the tax map attached to
Plaintiffs' complaint is not legible. By way of further answer,
if the tax map is in error, that does not give Plaintiffs a claim
of ownership over the property in question. To the best of
Defendants' knowledge, they and Plaintiffs pay real estate taxes
on the acreage they each acquired by deed regardless what the tax
map may depict.
B. Admitted.
9. Admitted with a qualification. The deed to the
Defendants, Plaintiffs' Exhibit "E", does in fact convey title to
the now disputed property to the Defendants, as more fully set
forth in Defendants' New Matter, the averments of which are
incorporated herein by reference thereto.
10. Denied. As previously averred, Defendants believe and
therefore aver that Plaintiffs did not occupy or possess the now
disputed property (except the twenty (20) foot wide right-of-way)
prior to the death of Wilbur Baer on October 25, 1979. Moreover,
Plaintiffs have not possessed the property "exclusively" since
Defendants purchased the property in 1985. On the contrary,
Defendants have also occupied the disputed property since they
acquired the property in February, 1985, as more fully set forth
in Defendants' New Matter, the averments of which are
incorporated herein by reference. Additionally, Plaintiffs have
not "hostilely" occupied the property. On the contrary, the
result of the confrontation which occurred between the parties in
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the Fall of 1991 was an end to efforts by the Plaintiffs to
exclude Defendants from possession of Defendants' property, as
more fully set forth in Defendants' New Matter, the averments of
which are incorporated herein by reference thereto. By way of
further answer, the Plaintiffs are without knowledge or
information sufficient to form a belief as to the truthfulness of
the remaining averments of Paragraph 10 of Plaintiffs' complaint
and proof thereof is demanded.
11. Denied. The averments of Paragraph 11 state a
conclusion of law and no answer is required. If an answer is
required, the averments are denied. For the reasons stated in
Defendants Answers and New Matter, the averments of which are
incorporated herein by reference thereto, Defendants are the
owners of the property in question who have and do maintain at
least partial occupancy and possession thereof.
WHEREFORE, Defendants pray Your Honorable Court enter an
order finding the Defendants to be the owners of the now disputed
property, subject to the Plaintiffs' twenty (20) foot wide right-
of-way for access to their property.
ANSWER - COUNT II
DECLARATORY JUDGMENT
12. No answer required.
13. Denied. On the contrary, an action in declaratory
judgment is only appropriate where there is no factual dispute.
In this case, factual disputes exist as to the length of time the
plaintiffs have exercised any proprietary i.nterest in the now
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disputed property, the acts of possession and occupancy which the
Plaintiffs have undertaken during that time, and whether the
actions taken by the Plaintiffs have been "exclusive" or
"hostile". Therefore, a declaratory judgment action is not a
proper course of action for deciding this dispute. It is
properly decided under Count I - Quiet Title Action.
WHEREFORE, Plaintiffs pray Your Honorable Court to dismiss
Count II of Plaintiffs' Complaint, which prejudice.
NEW MATTER
14. The averments of Defendants Answers to Plaintiffs'
Complaint, Paragraphs 1-13, inclusive, are incorporated herein by
reference thereto.
15. The now disputed property described in Plaintiffs'
Complaint and the Kissinger survey of December 31, 1992, falls
within the legal description of the Defendants' property in their
deed of conveyance from Catharine V. Baer dated February 26,
1985, a copy of which is attached to Plaintiffs' complaint as
Exhibit "E".
16. The disputed property described in Plaintiffs' Complaint
and the Kissinger survey of December 31, 1992, does not lie
within the legal description of the property acquired by the
Plaintiffs from J. A. Burk and Mary o. Burk, by deed dated
May 31, 1967.
17. The boundary between the property of the Plaintiffs and
the Defendants, based upon their respective deeds of conveyance,
is accurately depicted on the survey of Samuel David Runyon,
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Registered Surveyor, dated January 2, 1992, a true and correct
copy of which is attached hereto, made a part hereof, and marked
Exhibit "F".
18. Plaintiffs have been aware since they acquired their
property, aforesaid, that it did not front on Shippensburg Road,
Pa. Route 696.
19. Defendants agree that for a period in excess of 21 years
Plaintiffs have maintained a twenty (20) foot wide driveway
across the property of the Defendants as depicted on the Runyon
survey, aforesaid. Defendants agree that Plaintiff is the owner,
by prescription, of a twenty (20) foot wide private right-of-way
for purposes of ingress, egress and regress to and from their
real property, afores~id, to Pa. Route 696.
20. Plaintiffs have been aware since they acquired their
property that they did not own to Pa. Route 696 but rather to the
boundary established in the Runyon survey.
21. Defendants believe and therefore aver that during the
lifetime of Wilbur Baer, Plaintiffs did not exercise any
possessory right or occupancy of the now disputed property, with
the exception of the twenty (20) foot wide private right-of-way,
aforesaid.
22. Defendants believe and therefore aver that after the
death of Wilbur Baer on october 25, 1979, the Plaintiffs began
mowing the grass or forage crop in the disputed area and
exercising certain occupancy of the disputed property as admitted
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in Defendants answers. Defendants believe that other alleged
acts by Plaintiffs, which were denied by the Defendants, did not
in fact occur.
23. Defendants believe and therefore aver that the acts of
possession and occupancy actually exercised by the Plaintiffs
after the death of Wilbur Baer occurred with the acquiescence of
his widow, Catherine Baer, and were neither hostile nor
exclusive, but rather occurred jointly and through permission.
24. Defendants believe and therefore aver that after the
death of Wilbur Baer Plaintiffs attempted to acquire title to the
disputed property from Catherine Baer, thereby acknowledging her
ownership of legal title to the property.
25. On numerous occasions after Defendants acquired their
property from Catherine Baer, Plaintiffs made inquiries to the
Defendants offering to purchase the disputed property from the
Defendants, thereby acknowledging that the Defendants were the
owners of legal title to the premises.
26. During the period from February 1985 until the Fall of
1991, Plaintiffs acknowledging Defendants' ownership of the
disputed property, Defendants allowed Plaintiffs to mow the grass
and clean up the area in question of debris, without incident.
Defendants had no intention at that time of placing the disputed
property in agricultural use and therefore considered Plaintiffs'
maintenance of the property a benefit to both, occurring through
permission by the Defendants.
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27. During the period from 1985 until the Fall of 1991 for
several weeks each spring and each Fall, Defendants parked his
wagons of silage on the now disputed property. Plaintiffs
accepted without question or incident Defendants' occupancy of
their property, twice annually as aforesaid.
28. In the Fall of 1991 Plaintiffs placed railroad ties
along the edges of the twenty (20) foot wide private right-of-way
which prevented Defendants from obtaining access to the now
disputed property. Defendants removed the railroad ties and
pulled their silage wagons on to the now disputed property. In
response, Plaintiffs blocked the twenty (20) foot private right-
Of-way with a tractor trailer and Defendants pulled a tractor
onto the right-of-way, further blocking it. Plaintiff Helen L.
Myers then drove her automobile out of the right-of-way onto land
of the Defendants, now disputed, at a high rate of speed,
striking Defendants son, Todd Beam, with the automobile. He
sustained minor injuries.
29. Thereafter, on November 25, 1991, an attorney
representing the Plaintiffs wrote to the Defendants, for the
first time asserting that Plaintiffs claimed to own the now
disputed property by virtue of adverse possession. In response,
Defendants hired Samuel David Runyon to complete a survey to
ascertain the precise boundary, as aforesaid, confirming
Defendants' ownership of the property.
30. Since March of 1992, at which time Defendants hired
legal counsel to represent them, the status quo established
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fOllowing the confrontation between Plaintiffe and Defendante in
the Fall of 1991 has been maintained. specificallYI
(a) Defendants have used the now disputed property in
the spring and the Fall, for several weeks on each occasion, to
park wagons of silage, without inference from the plaintiffs.
(b) Plaintiffs have not endeavored to reinstall the
railroad ties or any other type of barrier to prevent Defendants
from accessing and using their property;
(c) Defendants have not interfered with Plaintiffs
continued mowing of the grass or forage crop growing in the now
disputed area nor using the same on occasions when Defendants
have not made actual use of the property;
(d) Defendants have not interfered in any manner with
Plaintiffs use of the twenty (20) foot driveway over which
Defendants agree Plaintiffs have acquired a permanent right-of-
way, and Defendants have used that right-of-way to gain access to
the now disputed property, as aforesaid.
31. Plaintiffs complaint concedes that legal title based
upon deed description is vested in the Defendants.
32. Plaintiffs have not exercised any possessory or
occupancy rights over the disputed premises (with the exception
of the twenty (20) foot right-of-way) for a period of 21 years.
The exercise of possession/occupancy has occurred at most since
about November 1979 a period of less than 15 years.
33. During the period of time since February 1985, at least,
Defendants have exercised their own right of ownership by
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occupanoy and possession of the disputed premises as set forth in
Defendants Answer and New Matter.
WHEREFORE, Defendants pray Your Honorable Court enter
judgment on Plaintiffs' Complaint finding the Defendants to be
owners of the now disputed land identified in Plaintiffs'
complaint.
MELVIN S. AND ANNA M. BEAM v. JAY H. AND HELEN L. MYERS
COUNTERCLAIM IN EJECTMENT
34. counterclaim Plaintiffs answers to Counterclaim
Defendants' Complaint and Counterclaim Plaintiffs' New Matter are
incorporated herein by reference thereto.
35. Counterclaim Defendants Jay H. Myers and Helen L. Myers
are trespassing upon the land of Counterclaim Plaintiffs, Melvin
S. Beam and Anna M. Beam, his wife.
36. Counterclaim Defendants admit removing No Trespassing
signs placed on the premises by counterclaim Plaintiffs.
WHEREFORE, Counterclaim Plaintiffs pray Your Honorable Court
to find that the boundary line between the property of the
counterclaim Plaintiff and counterclaim Defendants is as set
forth on the survey of Samuel David Runyon dated January 2, 1992,
to order and direct that the Counterclaim Defendants refrain from
trespassing upon the property of the counterclaim Plaintiffs or
interfering with or removing boundary markers, fence and/or "No
Trespassing" signs located or to be located on counterclaim
Plaintiffs' property, to determine mesne profits to which
Counterclaim Plaintiffs are entitled as well as damages to
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JAY H. MYERS and
HELEN L. MYERS, his wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 94-2821 Civil Term
v.
MELVIN S. BEAM and
ANNA M. BEAM, his wife,
Defendants
CIVIL ACTION - LAW
ACTION TO QUIET TITLE
NOTICE TO PLBAD
TO: Dale F. Shughart, Jr., Esquire
Fowler, Addams, Shughart & Rundle
28 South pitt Street
P. O. Box 208
Carlisle, PA 17013
You are hereby notified to plead to the within document
within twenty (20) days after service hereof, or a default
judgment may be entered against you.
By:
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Michael D. Reed, Esquire
Sup. ct. I. D. #35193
3401 North Front Street
P. O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000
Attorneys for Plaintiffs
Jay H. Myers and Helen L.
Myers, his wife
DATE: September 2, 1994
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accurately depicted on the Runyon survey. To the contrary, the
correct boundary between the property of Plaintiffs and the
Defendants is Route 0696, based upon the ownership of the disputed
property by PlaintiffR on the basis of adverse possession as more
fully set forth in Plaintiffs I complaint, which is incorporated
herein by reference.
lB. Denied. It is specifically denied that Plaintiffs have
been aware since they acquired their property that it did not
front on Shippensburg Road, PA Route 696. To the contrary,
Plaintiffs did believe that the legal boundary of their property
was PA Route 696 at the time they acquired their property and
continued in that belief through and until receipt of a survey
from John R. Kissinger dated December 31, 1992. Plaintiffs
continue to believe that they are the legal owners of the property
based upon their claim of adverse possession as more fully set
forth in their complaint, which is incorporated herein by
reference.
19. Admitted in part and denied in part. It is specifically
denied that the driveway crosses the property of Defendants. To
the contrary, the property which the driveway crosses is legally
owned by Plaintiffs for the reasons stated in Plaintiffs'
complaint which is incorporated herein by reference. The
remaining averments of paragraph 19 are admitted.
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20. Denied. It is specifically denied that Plaintiffs have
been aware since they acquired their property that they did not
own to PA Route 696 but rather to the boundary established in the
Runyon survey. To the contrary, Plaintiffs believed and continue
to believe that they are the legal owners of the property for the
reasons set forth in paragraph 18 of this reply and in Plaintiffs'
complaint, both of which are incorporated herein by reference.
21. Denied. It is specifically denied that Plaintiffs did
not exercis~ any possessory right or occupancy of the disputed
property during the lifetime of Wilbur Baer. To the contrary,
Plaintiffs used the property as described in paragraph 6 of their
complaint, which is incorporated herein by reference, during Mr.
Baer's lifetime.
22. Denied. It is specifically denied that Plaintiffs began
mowing the grass or forage crop in the disputed area and
exercising other occupancy of the property after the death of
Wilbur Baer on October 25, 1979. To the contrary, the uses of the
property by Plaintiffs as set forth in paragraph 6 of Plaintiffs'
complaint, which is incorporated herein by reference, have been
continuous since May 31, 1967 through the present, with the
exception of the use of the property as a fenced pasture for
livestock, which was discontinued some years ago. It is further
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specifically denied that the other acts alleged by Plaintiffs did
not infact occur. To the contrary, the acts alleged by Plaintiffs
in their complaint did occur.
23. Denied. The averments of paragraph 23 constitute
conclusions of law to which no response is required under the
Pennsylvania Rules of Civil Procedure. To the extent that a
response is required, it is specifically denied that the acts of
possession and occupancy exercised by the Plaintiffs occurred with
the acquiescence or permission of Catherine Baer. To the
contrary, Plaintiffs occupied the land exclusively and hostilely
to any claim of right by Mr. or Mrs. Baer from May 31, 1967
through Mrs. Baer's conveyance of the property to Defendants, and
have continued to so occupy the property during the years
Defendants have occupied their property across Route 696 from that
of Plaint iffs.
24. Denied. It is specifically denied that Plaintiffs
attempted to acquire title to the disputed property from Catherine
Baer after the death of Wilbur Baer. To the contrary, Plaintiffs
believe that they were the legal owners of the property, and
merely attempted to clear up any dispute caused by potential
overlap of the legal descriptions of the respective properties by
amicably reBolving the situation with Mrs. Baer. It is further
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specifically denied that Defendants acknowledged Mrs. Baer's
ownership of legal title to the property. To the contrary, they
considered themselves the legal owners of the property and
continue to so consider themselves.
25. Denied. It is specifically denied that Plaintiffs made
inquiries to the Defendants offering to purchase the disputed
property from the Defendants on numerous occasions after
Defendants acquired their farm from Catherine Baer. To the
contrary, Defendants made one offer to settle this dispute prior
to initiating the present litigation. However, that offer was
made solely for the purpose of attempting to avoid the expense and
delay of litigation and did not constitute any acknowledgement of
superior title in Defendants. To the contrary, Plaintiffs
believed and continue to believe that they are the legal owners of
the property in question.
26. Admitted in part and denied in part. It is admitted
that, during the period from February 1985 until the fall of 1991,
Defendants allowed Plaintiffs to mow the grass and clean up the
area in question of debris, without incident. It is specifically
denied that Plaintiffs acknowledged Defendants' ownership of the
disputed property. To the contrary, Plaintiffs never acknowledged
Defendants' ownership of the disputed property. With regard to
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the remaining averments of paragraph 26 concerning Defendants'
state of mind and intentions, Plaintiffs are without knowledge or
information sufficient to form a belief as to the truth of the
averments and they are therefore denied, with strict proof thereof
demanded at trial.
27. Denied. It is specifically denied that Defendant parked
his wagons of silage on the disputed property for several weeks
each spring and fall between 1985 and 1991. To the contrary,
Defendants made no such use of the property. It is further
specifically denied that Plaintiffs accepted without question or
incident Defendants I occupancy of their property twice annually.
To the contrary, Plaintiffs did not accept such occupancy, because
no such occupancy occurred.
28. Admitted in part and denied in part. It is admitted that
in the fall of 1991, Defendants removed railroad ties which had
been placed by the Plaintiffs along the edges of their driveway,
and it is further admitted that Defendants pulled a tractor onto
the right-of-way, blocking said right-of-way. It is specifically
denied that Plaintiffs first placed the railroad ties in the fall
of 1991. To the contrary, they had been placed several years
prior to that. It is further denied that Plaintiffs intentionally
blocked the 20 foot right-of-way with a tractor trailer. To the
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contrary, Plaintiffs' tractor trailer stalled and, for that
reason, was temporarily blocking a portion of the right-of-way.
It is further specifically denied that Plaintiff Helen L. Myers
drove her automobile out of the right-of-way onto land of the
Defendants at a high rate of speed striking Defendants' son Todd
Beam. To the contrary, Mrs. Myers attempted to drive her car at a
moderate and reasonable rate of speed around the vehicle which
Defendants had intentionally placed to block the right-of-way. At
that point, Todd Beam jumped onto the hood of Plaintiff Helen L.
Myers' car. Mrs. Myers was frightened for her own safety and
continued to move the car forward at a slow rate of speed in an
attempt to escape the confrontation which the Beams had
initiated. At some point, Todd Beam slid off the hood of the car
and was uninjured. It is further specifically denied that Todd
Beam sustained minor injuries. To the contrary, Plaintiffs
believe and therefore aver that he suffered no injuries.
29. Denied. The letter in question, being an instrument in
writing, speaks for itself. Therefore, to the extent that the
averments of paragraph 29 are inconsistent therewith, they are
specifically denied. with respect to the remaining averments of
paragraph 29, Plaintiffs after reasonable investigation are
without knowledge or information sufficient to form a belief as to
the truth of the averments and they are therefore denied, with
strict proof thereof demanded at trial.
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30. Admitted in part and denied in part. After reasonable
investigation, Plaintiffs are without knowledge or information
sufficient to form a belief as to the truth of the averments
concerning the establishment of a "status quo" or the maintenance
of that atatus, since the term is vague and undefined. Therefore,
to the extent relevant, Plaintiffs demand strict proof thereof at
trial. By way of further answer, Plaintiffs respond as follows to
the lettered subparagraphs of paragraph 30:
(a) Denied. It is denied that Defendants have used the now
disputed property in the spring and fall, for several weeks on
each occasion, to park wagons of silage, without interference from
the Plaintiffs. To the contrary, there has been no sustained or
regular use of the property by Defendants. To the contrary,
Defendants have only sporadically parked vehicles for very short
periods of time on the property, and Plaintiffs have refrained
from interfering due to fears for their safety following the
confrontation in the fall of 1991.
(b) Admitted.
(c) Admitted in part and denied in part. It is admitted
that, during most of the periOd in question, Defendants have not
interfered with Plaintiffs' continued mowing of the grass in the
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disputed area or use of the disputed area. However, in May 1992,
Defendants entered the property and stole a bridge which
Plaintiffs had constructed thereon.
(d) Admitted in part and denied in part. It is admitted that
Defendants have not interfered with Plaintiffs' use of the
driveway. The statement that Defendants have used that
right-of-way to gain access to the disputed property is misleading
and is therefore denied. It is admitted that Defendants have used
the right-of-way on a limited number of occasions, but there has
been no sustained or regular use by Defendants of the right-of-way
or the disputed property.
31. Denied. Plaintiffs' complaint, being an instrument in
writing, speaks for itself. Therefore, to the extent that the
averments of paragraph 31 are inconsistent therewith, they are
specifically denied.
32. Denied. It is specifically denied that Plaintiffs have
not exercised any possessory or occupancy right over the disputed
premises for a period of 21 years. To the contrary, Plaintiffs
have exercised possessory and occupancy rights over the disputed
premisea continuously since May 31, 1967. It is further
specifically denied that the exercise of possession/occupancy has
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JAY H.
MYERS,
MYERS and HELEN L.
his wife,
Plaintiffs
IN TilE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 94- 2821
CIVIL TERM
MELVIN S. BEAM and ANNA M.
BEAM, his wife,
Defendants
CIVIL ACTION - LAW
ACTION TO QUIET TITLE
REPLY
AND NOW, come the counterclaim plaintiffS, Melvin S. Beam
and Anna M. Beam, his wife, by their attorneys, Fowler, Addams,
Shughart & Rundle, and make the following Reply to counterclaim
Defendant's New Matter:
37. No answer required.
38. Denied. Paragraph 38 of counterclaim Defendant's New
Matter state Conclusions of Law and no Reply is required. If an
answer is required, the averments of counterclaim plaintiff'S
Answer, New Matter, and counterclaim are incorporated herein by
reference thereto.
39. Denied. Paragraph 39 of counterclaim Defendant's New
Matter state conclusions of Law and no Reply is required. If an
answer is required, the averments of counterclaim Plaintiff'S
Answer, New Matter, and counterclaim are incorporated herein by
reference thereto.
WHEREFORE, counterclaim PlaintiffS respectfully request Your
Honorable court to enter judgment in favor of the counterclaim
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JAY H, MYERS and
HELEN L. MYERS, his wife,
PLAINTIFFS
V.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION. LAW
MELVIN S, BEAM and
ANNA M. BEAM, his wife,
DEFENDANTS
94-2621 CIVIL TERM
~
ORDER OF COURT
AND NOW, this 20 day of April, 1995, IT IS DECLARED that the fee to the
land on the west side of Route 696 In Hopewell Township, Cumberland County, as
described on a survey of John R. Kissinger dated December 31, 1992, and marked as
plaintiffs' Exhibit No. 13, and shown In relationship to the farm of plaintiffs, Jay H.
Myers and Helen L, Myers, on the west side of Route 696 as shown on another
survey of John R. Kissinger dated September 17, 1992, and marked as plaintiffs'
Exhibit No. 12, Is vested In Jay H. Myers and Helen L. Myers by adverse possession
against defendants, Melvin S, Beam and Anna M. Beam who took title to the land as
part of the conveyance to them In a deed from Catherine V. Baer dated February 26,
1985, and recorded on February 28, 1985, In Cumberland County Deed Book D,
Volume 31, Page 85. IT IS ORDERED that Melvin S. Beam and Anna M, Beam are
forever barred from asserting any right, lien, title or Interest In said land Inconsistent
with the Interest of plaintiffs in the fee by adverse possesslo~. /
,
By the Cou~,
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94-2821 CIVIL TERM
~dle Sprlnc .. Newbura Road containing 172 acres more or less,
(Emphasis added),
On MIY 31, 1987, the Burks conveyed the farm to the Myerses by deed of the two
tracts of land of which J.A, Burk had become fee owner on February 15, 1941.4 The
meets and bounds are the same as described In the 1937 and 1941 deeds, The
conveyance does not Include approximately one acre with about 1000 feet of road
frontage on the west side of the Middle Spring - Newburg Road that the Burks did
not own.
On March 4, 1939, Crist A. Crleder and his wife Lulla M. Crfeder, purchased by
deed a 120 acre farm tract In Hopewell Townshlp.5 On March 30, 1955, Lulla M.
CrlAder, a widow, conveyed that tract to Wilbur F. Baer and his wife Catherfne V.
Baer,e On February 26, 1985, Catherfne V. Baer, a widow conveyed that tract,
among others, less three lots previously conveyed, to Melvin S, Beam and his wife
Anna M. Beam, defendants hereln,7 The meets and bounds are the same as
descrfbed In the 1939 deed Into the Crfeders. The conveyance Includes
approximately one acre with about 1000 feet of road frontage on the west side of the
Middle Spring .. Newburg Road that Catherfne Baer owned, The rest of the farm lies
on the east side of the road.
4. Cumberland County Deed Book J, Volume 22, Page 344,
6. Cumberland County Deed Book Y, Volume 11, Page 256.
6. Cumberland County Deed Book J, Volume 14, Page 449,
7, Cumberland County Deed Book D, Volume 31, Page 85,
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94-2821 CIVIL TERM
The Myerses seek to quiet title to the approximate one acre with about 1000
feet of road frontage bordering their farm on the west side of the Middle Spring ..
Newburg Road. We will refer to this land as the disputed area, and to the Middle
Spring - Newburg Road as Route 696.8 Plaintiffs seek an order declarlng them the
fee owners of the disputed area by adverse possession. In Palae v. Disanto, 424 Pa.
,
Super. 277 (1993), the Superior Court stated:
In Pennsylvania, the elements necessary to prove title through
adverse possession were listed In Conneaut Lake Park v. Kllnaensmlth,
362 Pa, 592, 66 A.2d 828, 829 (1949):
It has long been the settled rule of this Commonwealth that one
who claims title by adverse possession must prove that he 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 tltIe[,] [Citations omitted]
Recently, the elements of adverse possession have been refined so as
to create a presumption that where "all other elements of adverse
possession have been established, hostility will be Implied, regardless of
the subjective state of mind of the trespasser." Tloaa Coal v.
Supermarkets Gen. CorP., 519 Pa. 66, 546 A.2d 1, 5 (1988),
Plaintiffs testified that when they bought their farm In 1967, they believed that It
bordered Route 696. A survey they had done by John R. Kissinger In 1992, shows
otherwise, That survey and a survey done for defendants by Samuel Runyon In 1992,
8. A detailed description of the disputed area Is set forth on a survey of John
R. Kissinger dated December 31,1992. Plaintiffs' Exhibit 13, The disputed area
shown In relationship to the farm of plaintiffs on the west side of Route 696 and the
farm of defendants on the east side of Route 698, Is shown on another survey of John
R. Kissinger dated September 17, 1992. Plaintiffs' Exhibit 12.
.3.
73
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94-2821 CIVIL TERM
shows that the disputed area Is part of the Beam title and not the Myers tltle,o The
Beam title has been traced to an 1816 survey.l0 The boundaries are In accord with all
deed descriptions and field monuments.
When plaintiffs purchased their farm, the disputed area was overgrown with
brush, trees and tree stumps. Plaintiffs built a house on their property. The growth In
the disputed area obstructed the view from the house, During 1968 and 1969,
plaintiffs took down approximately 20 trees In the disputed area and paid three
excavators to clear and level the land. Continuously since, they have sprayed the
area for weeds each year, cleared loose debris, filled holes, and mowed grass that
they planted, They put a bridge across a stream In the disputed area so they could
get a mower across to mow between the stream and the road. About 1969, plaintiffs
allowed Penn DOT to change the course of the stream within the disputed area so It
would not overflow onto Route 696, In 1977, plaintiffs received a PennDOT permit to
blacktop the lane that runs from Route 696 through the disputed area to their house,
They also widened the lane, When plaintiffs bought their farm, there was an old fence
running along the boundary of the disputed area. In 1967 and 1968, plaintiffs put up
a new fence along the old fence line so that they could graze cattle without the
animals wandering out on the road. The remnants of the old fence remained until
9, The May 31, 1967 deed from the Burks to plaintiffs did not conform to what
plaintiffs thought and they had bought based on their April 24, 1967 Article of
Agreement with the Burks.
10, Defendants' Exhibit 16,
-4.
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94-2821 CIVIL TERM
about 1980. Plaintiffs removed the new fence In approximately 1982 or 1983,
When plaintiffs cleared and excavated the disputed area In 1968 and 1969,
Wilbur and Catherine Saer, who had been the title owners since 1955, made no
obJections. Plaintiff testified that In 1979, Wilbur Baer told him to have a quit claim
deed prepared for the disputed area, Wilbur Baer died on October 25, 1979, and In
the beginning of 1980, plaintiff presented a quit claim deed to his widow Catherlne.
Catherine retained the quit claim deed which she did not sign, She testified that she
did not know where the bcundary line was, and figured that the original deed was
adequate.ll She passed the unsigned quit claim deed along to the Beams when she
sold the property to them In 1985.'2
Melvin Beam, who with his wife bought their farm in February, 1985, testified
that he always thought their property went onto the west side of Route 696. He
testified that the old fence along the disputed area had been there since he lived
11. Her daughter, Nancy Huber, testified that Catherine Baer did not sign the
quit claim deed because her children told her not to.
12. Defendants' Exhibit No.3, Allowing plaintiff to testify that Wilbur Baer told
him to have a quit claim deed prepared was relevant to show why he presented It to
Catherine Baer. Defendants objected to this evidence, maintaining that It violated the
Dead Mans Act 42, Pa.C.S. ~ 5930-5933, because It attempted to create an Inference
of some agreement to gift the property. There is no reasonable Inference that there
was any agreement between plaintiff and Wilbur Baer. The evidence admitted was
not adverse to the Interest of Wilbur Baer or defendants who are his successors In
title. No gift of the disputed property was ever made by the Baers to the Myerses.
Plaintiffs' claim to title rests solely on whether they have acquired the fee by adverse
possession. We did sustain all of defendants' objections to the efforts of plaintiff to
testify as to what Wilbur Saer told him about the disputed tract.
.5.
75'
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94-2821 CIVIL TERM
nearby when he was a little boy." He said he knew where the corners of his property
were and saw no problem with plaintiffs maintaining his land on the west side of the
road. Therefore, he said nothing to them, However, In 1 991, defendant saw plaintiff
putting In a manure pit and taking out a tree In the disputed area. Defendant testified
that he was concerned that the stream bank might fallin, therefore, he confronted
plaintiff and told him that he was on his property. He asked plaintiff not to take out
the tree; however Myers removed the tree leaving the stump. This was the first time
that the Beams ever asserted possession over the disputed area, and they have done
so In numerous ways since, although they have never Instituted an action In
ejectment against the Myerses,
Since they moved to their farm, plaintiffs have always utilized the farm lane that
runs from Route 696 through the disputed area. The lane was never set forth as a
right-of-way In the deeds of defendants' predecessors In title until the deed from
Catherine Baer to defendants of February 26, 1985, That deed provides: "Under And
Subject to easements of right-of-way for Ingress, egress and regress to Jay H. Myers
and Helen L. Myers, his wife, and their heirs and assigns," There Is no evidence that
the Insertion of this right-of-way In the deed Into defendants was known to plaintiffs
until after this dispute arose.'.
The Baers, defendants' predecessors In title from 1955 to 1985, never asserted
13, Charles Baer, the son of Wilbur and Catherine Baer, testified that his father
knew that the old fence line was the border of his property,
14. Plaintiffs and defendants acknowledge that this right-of-way Is 20 feet wide.
.6-
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94-2821 CIVIL TERM
possession over the disputed area after plaintiffs bought their farm In 1967, Thus,
from 1 968 until 1991, plaintiffs asserted against the Baers and then defendants,
continuous, uninterrupted possession for more than twenty-one years over the
disputed area. During that entire period, the Saers and then the Beams were on
notice of the actual physical fact of possession of the area by plaintiffs.
Defendants argue In their brief:
The objective facts of this case are clearly Indicative that the Initial use
[of the disputed area by plaintiffs] was permissive. Without question, the
presentation of the quit claim deed, combined with the absence of any
color of title In the Myers constituted an acknowledgment of title being
held by the Baers, Clearly, the placement of a new fence along the old
fence line acknowledged the record boundary. Clearly Baer made some
use of their property which Beams continued, Clearly the only use
Myers made of the disputed strip was to keep It looking presentable, . "
[t]he facts in this case support a finding that use of the property In
question was permissive In origin and that It continued to occur
permissively until the early 1990's.
Catherine Baer, In her testimony, made no assertion that plaintiffs' Initial use of
the disputed area was permissive. As set forth in Burn. v. MItchell, 252 Pa, Super.
257 (1977), "It Is perfectly consistent. . . to claim title by adverse possession and also
seek to obtain record title through a quit claim deed." Plaintiffs' use of the disputed
area did not change after Catherine Baer refused to sign the quit claim deed, nor did
she challenge that use. The placement of the new fence along the old fence line by
plaintiff was not an acknowledgment of the record boundary. The fence allowed
plaintiffs to graze their cattle so they would not wander onto the road, The old fence
was worn out. Plaintiffs continued to maintain the area between the new fence and
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94-2821 CIVIL TERM
the road. Plaintiffs even removed the new fence In the early 1980s. On occasions
the Baers' children and later their grandchildren played and fished In the stream In
the disputed area. On a few occasions each year the Beams use the farm lane In the
disputed area to temporarily park and turn their wagons so that they can get them
straightened out to start up the steep hili on their lane which leads off the east side of
Route 696. Those occasions were hardly an assertion of ownership and did not
cause any cessation of the adverse use by plaintiffs. Considering all of the evidence,
and weighing the credibility of all of the witnesses, we disagree with defendants'
assertion that plaintiffs' use of the disputed area "was permissive In origin and that It
continued to occur permissively until the early 1990s." Plaintiffs' use of the disputed
area was never permissive.
In summary, plaintiffs' visible excavating, clearing, putting up and then taking
down a fence, and their continuous mowing and maintaining of the disputed area for
over twenty-one years was appropriate to the character of the property, Durlng that
period, t'lalntlffs have been In actual possession by asserting dominion over the area.
Their possession has been that of an owners' use; It has been distinct and exclusive.
Plaintiffs' actions have been possessory and notorious In nature, thus their use of the
disputed area has been hostile. Plaintiffs have Intentionally possessed the property
as against the record owners. This adverse possession against the titled owners
occurred between 1968 and 1991 when the Beams first challenged that possession.
Accordingly, the following order Is entered pursuant to Pa. Rule of Civil Procedure
.8.
73
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~
"hostile", "aotual", "opon" and/or "notorious". Maintaining and
improving a boundary monumont consistent with the deed boundary
betwoon tho traots should as a matter of fact and/or law negate
the abovo captionod elomonts of adverse possession despite the
Myors' maintonanco and tho lawn care on the other side of the
Conco,
b. 1~e trial court erred in failing to find and/or
concludo that tho Defendants (hereinafter "Beams") and/or Baer's
use of tho dinputod property (without complaint by Myers) was
Rufrioient an a matter of fact and/or law to defeat the necessary
oloment of tho adverse possession of the Defendant's being
"oxclusivo" and "oontinuous". The oourt should have found and/or
concludod that those acts of use and/or oocupancy by the Beams
and Daors woro sufficient as a matter of fact and/or law to
nogato tho abovo elements of the Myers' claim of adverse
possoDsion.
c. 1~e trial court erred in failing to find and/or
conclude that the maintaining of a fenoe oonsistent with the
record boundary oonstituted reoognition and/or acknowledgement of
the deod boundary line by the Myors and thereby oonclusively
neqatod their claim of adverse possession prior to the removal of
tho fonce in the mid-1980'S.
d. The trial court erred in finding and/or conclUding
that the Myers presenting of a quitclaim deed to prior owner,
Cathorine Baer, in 19BO with a request that she execute,
-2-
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acknowledge and deliver it was consistent with the claim of
adverse possession, in particular the elements of "notoriously",
"hostility" and "claim of ownership" by Myers. The case upon
which the court relied is readily distinguishable from this case.
In Mitchell v. Burns, 381 A.2d 487, 252 Pa. Super 257 (1977), the
party claiming adverse possession entered into possession in 1937
and was held by the court to own title to the property by 1958.
The quitclaim deed in that case was not obtained until the 1975,
long after title by adverse possession had been perfected. In the
present case the earliest the Myers entered into possession to
begin the 21 years necessary to acquire title by adverse
possession was 1967. Myers did not have any color of title,
whatsoeve~. By presenting a quitclaim deed after approximately
13 years of possession, the Myers as a matter of fact and/or law
acted in recognition and/or acknowledgement of the better title
of the Baers by presenting the quit claim deed. The court should
have found as fact and/or held as law that the delivery of the
quitclaim deed at the time it was presented negated the elements
of "claim of ownership", "notoriety" and/or "hostility".
e. Alternatively, the trial court erred in failing to
find and/or conclude that the presenting of the quitclaim deed by
Myers to Baers, as a matter of fact and/or law was sufficient
and/or conclusive evidence to establish that the use of the
disputed land prior thereto was permissive and not adverse. See,
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Masters et al v. Local No. 472 United Mine Workers of America,
146 Pa. Super 143, 22 A.2d 70 (1941).
e. The trial court erred in finding/concluding that
the elements of hostile and/or notorious possession were proven
when the vegetation in the disputed area was originally removed
and lawn subsequently maintained to improve the appearance of the
Myers' property and/or that a public road was located between the
disputed strip and the remainder of the Baer/Beam property.
f. The trial court erred in failing to find and/or
conclude that the maintaining a fence along the record boundary
between the properties prevented Myers from proving the breaking
of privity with the Baers in possession of the disputed property,
thereby defeating their proof that their possession was
exclusive, continuous and/or actual.
g. The trial court erred in finding that the Myers
were actual and/or in continuous possession of the property to
the east of the fence (toward the remainder of the Baer property)
which they maintained along the record boundary between the two
tracts, under all of the facts in this case. Under the evidence,
the court should have found that periodically maintaining
property on a neighbor's side of an existing fence is, as a
matter of fact and/or law, insufficient to establish the above
elements of adverse possession.
h. The trial court erred in failing to find and/or
conclude that the Myers totally lacked color of title and as such
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that their acts of possession were legally insufficient to
establish adverse possession against the record title of the
Baers/Beams.
i. The trial court erred in finding and/or conclUding
that the description contained in the preliminary Agreement of
Sale between the Myers and their predecessor in title, quoted
verbatim and emphasized in the trial court's decision,
constituted color of title, for the foregoing alternative
reasons:
i. Because the description in and of itself is
insufficient to indicate whether the property was or was not
bounded by the road;
ii. The description contained in the agreement of
sale merged into the deed of conveyance and, as a matter of law,
was no longer of any legal consequence sufficient to support a
claim of "color of title".
The evidence established that the only claim of title that the
Myers could muster, under the evidence, was that of possession.
Consequently the elements of adverse possession were not
established as hereinabove set forth.
2. The trial court erred in allowing the Plaintiff Jay
Myers to testify that over objection by Beams that he presented
the quitclaim deed to catherine Baer "because Mr. Baer asked him
to do so". The testimony was improper for the fOllowing
alternative reasons:
-5-
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a. It was not responsive to the question. The
only conceivable reason Myers presented the quitclaim deed to
Mrs. Baer was to obtain Baer's title to the disputed property. At
that time, Myers had no claim or color of title. The statement
that Mr. Myers did so because Mr. Baer wanted him to was
completely self-serving.
b. The testimony was violative of the Dead Man's
statute, 42 Pa. C.S. 5930-5933, constituting verbal evidence of a
transaction between Mr. Baer, now deceased, and Mr. Myers;
c. The only purpose served by allowing that
answer was to create in the Court's mind some suggestion or
indication that Mr. Baer wanted the Myers to have the property.
Mr. Baer being deceased, it was improper to allow any testimony
by Mr. Myers relative to alleged transactions between he and
Mr. Baer and him. The evidence did not show why Mr. Myers
presented the deed. It only offered evidence of what Mr. Baer
allegedly stated to him. The trial court ruled incorrectly. The
evidence should not have been admitted or considered by the
court.
3. The lower court erred in findings of fact which are
believed and therefore averred to bp. unsupported by the record,
as follows:
a. It is believed and therefore averred that the
transcribed testimony of Jay Myers will indicate that the fence
which he erected along the original boundary between the two
-6-
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properties remained in place until the "mid-1980's" which could
be as late as 1985. The trial court erroneously found that the
fence was removed in 1982 or 1983.
b. It is believed and therefore averred the
transcribed testimony of Catherine Baer will indicate that her
understanding of the quitclaim deed was that Myers wanted her to
sell them the disputed property for One ($1.00) Dollar, and that
she decided not to do so. The trial court erroneously found that
Mrs. Baer "figured the original deed was adequate", which
erroneously implies she agreed Myers had a lawful claim to the
property. The fair import of her testimony was that she did not
concern herself with those matters because she was busy with the
house and children.
4. The trial court erred on two occasions in allowing
Myers to state, over objection by Bakers, that the Bakers did not
object to the use of the disputed property by Myers. The evidence
admitted was violative of the Dead Man statute, 42 Pa. C.S. 5930-
5933. Specifically, that evidence (which was used in support of
the verdict in the trial court's written decision), made it
appear the Bakers did not care about ownership of the disputed
strip. It is equally likely that there was a verbal agreement
between Mr. Baer and the Myers permitting use of the property.
Lack of objection by Mr. Baer to Myers clearing and maintaining
the disputed property is equally consistent with an agreement for
its permissive use as it is to supporting the elements of adverse
-7-
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possession. Therefore the testimony should not have ,been allowed
and was improperly considered in reaching a verdict.
5. The trial court erred in failing to find and/or
conclude that under all of the evidence the Myers failed to
overcome the presumption that the initial use and occupancy of
the property was permissive and continued as such until the
altercation between the Beams and the Myers in the early 1990's.
6. The trial court erred in finding and/or concluding
that the Baers never instituted an ejectment action against the
Myers. In fact, the pleadings in this case demonstrate the Beams
did in fact institute a counter-claim in ejectment and demanded
specific relief from the court.
7. The court erred in failing to enter a verdict on
the Beam's counterclaim against the Myers, in ejectment.
8. For the foregoing reasons set forth above in
Paragraphs 1 through 7 hereof, inclusive, the averments of which
are incorporated herein by reference thereto, the trial court
erred in its findings and/or conclusions in failing to enter a
verdict in favor of the Beams and against the Myers on the Beam's
counterclaim in ejectment for possession of the disputed strip
and other requested relief.
9. For the foregoing reasons set forth in Paragraphs 1
through 8 hereof, inclusive, the averments of which are
incorporated herein by reference thereto, the verdict of the
trial court was against the weight of the evidence.
-8-
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10. For the foregoing reasons set forth in Paragraphs
1 through 9, inclusive, the averments of which are incorporated
herein by reference, the trial court erred in entering a verdict
in favor of Myers in the quiet title action.
WHEREFORE, Defendants Melvin S. Beam and Anna M. Beam, his
wife, request a new trial on the Plaintiff's quiet title action
claiming ownership by adverse possession and on the Defendant's
counterclaim in ejectment demanding exclusive possession.
COUNT II - MOTION FOR JUDGMENT NOTWITHSTANDING
THE VERDICT
11. The averments of Paragraphs 1 through 10 hereof,
inclusive, are incorporated herein by reference thereto.
12. The evidence presented at trial is insufficient as
a matter of fact and/or law for all of the foregoing alternative
reasons set forth in Paragraphs 1 through 10, inclusive, the
averments of which are incorporated herein by reference thereto,
to support the verdict in favor of the Plaintiffs Myers and
against Defendants Beam on the quiet title action. The verdict
should be in favor of the Beams.
14. The evidence presented at trial is insufficient as
a matter of fact and/or law for all of the foregoing alternative
reasons set forth in Paragraphs 1 through 10, inclusive, the
averments of which are incorporated herein by reference thereto,
to support a verdict in favor of counterclaim defendants Myers
and against counterclaim plaintiffs Beams on the Beams' ejectment
-9-
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action against Myers. The verdict should be in favor of the
Beams.
WHEREFORE, Defendants Melvin S. Beam and Anna M. Beam,
his wife, request your Honorable Court to direct that judgment be
entered in favor of Melvin S. Beam and Anna M. Beam, his wife,
and against Plaintiffs Jay H. Myers and Helen L. Myers, his wife,
in the quiet title action; and that judgment be entered in favor
of counterclaim Plaintiffs, Melvin S. Beam and Anna M. Beam, his
wife, against counterclaim defendants, Jay H. Myers and Helen L.
Myers, his wife, in the ejectment action, such verdict to include
relief requested by the Beams in their pleadings.
COUNT III - REQUEST FOR TRANSCRIPT
14. It is requested that the record of the testimony
of plaintiff Jay H. Myers and of defendant's witness, catherine
Baer, be transcribed to enable the court to dispose of this Post
Trial Motion for relief. The undersigned believes the Post Trial
Motions may be decided without transcription of the remaining
portions of the record. The findings of fact of the trial court
relative to the remainder of the record is not in dispute in
these Post Trial Motions. Pa. R.C.P. 227.3.
Respectfully submitted,
FOWLER, ADDAMS, SHUGHART'
BYI
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1994-0:18:11
Cumbe~and County
~ivll CI1Be
COMPLAINT
Prothonotl1ry's ~fice Pl1ge 1
Inquiry r-'\
-QUIET TITLE Filed.........
5/:16/94
11131
Superior Co
Execution Date
Sat/DiB/Gotd. .
Jury Trial....
................................................................................
General Indea Attorney Info
MYERS JAY H PLANITIFF REED MICHAEL D
MYERS HELEN L PLANITIFF REED MICHAEL D
BEAM MELVIN S DEFENDANT SHUGHART DALE F JR
BEAM ANNA M DEFENDANT SHUGHART DALE F JR
Judge ABBignedl
Judgment I
BAYLEY EOGAR B
.00
0/00/00
0/00/00
Judgment Index
BEAM MELVIN S ~UIET TITLE
BEAM ANNA M UIET TITLE
BEAM MELVIN S RDER OF COURT
BEAM ANNA M ORDER OF COURT
BEAM MELVIN S PRAECIPE JUDGMENT
BEAM ANNA M PRAECIPE .JUDGMENT
................................................................................
· Date EntrieB .
................................................................................
COMPLAINT - CIVIL ACTION IN QUIET TITLE
SHERIFF'S RETURN FILED (SHERIFF SERVED DEFTS 6/6/94)
SHERIFF'S COSTS $33.76 PD ATTY
ANSWER AND NEW MATTER
CERTIFICATE OF SERVICE
REPLY TO NEW MATTER
REPLY
PRAECIPE FOR LISTING CASE FOR TRIAL BY DALE F SHUGHART JR ESQ
ORDER OF COURT BY JUDGE EDGAR B BAYLEY
ORDER OF COURT IN REI MELVIN S BEAM AND ANNA M BEAM ARE FOREVER
BARRED FROM ASSERTING ANY RIGHT LIEN TITLE OR INTEREST
BY EDGAR B BAYLEY
04/28/95 MOTION FOR POST TRIAL RELIEF
05/01/95 ORDER OF COURT - DEFENDANTS' MOTION FOR POST-TRIAL RELIEF IS
DISMISSED
JUDGMENT IS ENTERED IN FAVOR OF COUNTERCLAM DEFENDANTS JAY H MYERS
AND HELEN L MYERS ON THE COUNTERCLAIM IN EJECTMENT
BY EDGAR B BAYLEY J
05/19/95 PRAECIPE ENTERING JUDGMENT ON THE ORDER DATED MAY 1, 1995
DENYING POST TRIAL MOTIONS AGAINST DEFENDANTS
*.....**.*...*........*.....*.....................*.........*..........*........
· EBcrow Information .
* FeeB & Debits BeQ Bal Pvmts/Adi End Bal *
***.....**..**.***...*..........f.....*..'......~.................*......***.***
OS/26/94
06/13/94
07/08/94
07/08/94
09/02/94
09/23/94
12/08/94
Ol/04/95
04/20/95
COMPLAINT FILED
TAX ON CMPLT
SETTLEMENT
JCP FEE
35.00
.50
5.00
5.00
35.00
.50
5.00
5.00
.00
.00
.00
.00
------------------------ ------------
45.50 45.50 .00
..**..*.*..**..*.....****************.**.*.********.*************.**************
* End of Case Information *
********.*****.***.**.***.******..*********************.************..********.*
TIWE COpy FROM RECORD,
In TEslIllJl1Il'/ I,hr I' r.f, I h. ~(, I!nto set my hand
and the IUdl of 5,.,d (rUff iit C.lrli\I~, Pa.
Thil ,N'II, ,ddY of fll'';1 "'. 19,.1:':''1.
., J' J'. II , 7f
............,Lf..~t IH. ,/, pr~iho~~~./.l"':~
PYS510
1994-02821
cumbe~nd County
...lvil Case
COMPJ,A I N1'
Prothonotary's ~ice Page 1
!8BVgY1'I"'J,J, I'iled......,..
5/26/94
11: 31
Judge Assigned:
Judgment:
BAYLEY EnGAR B
.00
Superior Co
Execution Date
Sat/Dis/Gntd. .
Jury Trial....
0/00/00
0/00/00
................................................................................
General Index Attorney Info
MYERS JAY H PLANITIFF REED MICHAEL D
MYERS HELEN L PLANITIFF REED MICHAEL D
BEAM MELVIN S DEFENDANT SHUGHART DALE F JR
BEAM ANNA M DEFENDANT SHUGHART DALE F JR
Judgment Index
BEAM MELVIN S ~UIET TITLE
BEAM ANNA M UIET TITLE
BEAM MELVIN S RDER OF COURT
BEAM ANNA M ORDER OF COURT
..........................................................................******
* Date Entries *
....***.**.............*..*...*.*..**.******.**...*.....*.**..**.*....**.*******
OS/26/94
06/13/94
07/08/94
07/08/94
09/02/94
09/23/94
12//1I8/94
Ol 04/95
04/20/95
COMPLAINT - CIVIL ACTION IN QUIET TITLE
SHERIFF'S RETURN FILED (SHERIFF SERVED DEFTS 6/6/94)
SHERIFF'S COSTS $33.76 PO ATTY
ANSWER AND NEW MATTER
CERTIFICATE OF SERVICE
REPLY TO NEW MATTER
REPLY
PRAECIPE FOR LISTING CASE FOR TRIAL BY DALE F SHUGHART JR ESQ
ORDER OF COURT BY JUDGE EDGAR B BAYLEY
ORDER OF COURT IN RE: MELVIN S BEAM AND ANNA M BEAM ARE FOREVER
BARRED FROM ASSERTING ANY RIGHT LIEN TITLE OR INTEREST
BY EDGAR B BAYLEY
04/28/95 MOTION FOR POST TRIAL RELIEF
05/01/95 ORDER OF COURT - DEFENDANTS' MOTION FOR POST-TRIAL RELIEF IS
DISMISSED
JUDGMENT IS ENTERED IN FAVOR OF COUNTERCLAM DEFENDANTS JAY H MYERS
AND HELEN L MYERS ON THE COUNTERCLAIM IN EJECTMENT
BY EDGAR B BAYLEY J
.**..**.******.**.**...**................................................*.*****
* Escrow Information *
* Fees & Debits Beo Bal Pvmts/Ad1 End Bal *
**...*...*....**.......*........,......*...*....,**..........*..........****.***
COMPLAINT FILED
TAX ON CMPLT
SETTLEMENT
JCP FEE
35.00
.50
5,00
5.00
35.00
.50
5.00
5.00
.00
.00
.00
.00
------------------------ ------------
45.50 45.50 .00
.**..*****..*..*.........*.**.....**..*...*..**......**..******.**...**..*******
. End of Case Information *
.**.***.**..*............................................................*******
TRUE COp'{ FROM m:CORD
""..umony whefeol, I hero unt4set lIlY Mild
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JAY H. MYERS and
HELEN L. MYERS, his wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
No. 94-2B2l Civil Term
v.
MELVIN S. BEAM and
ANNA M. BEAM, his wife,
Defendants
CIVIL ACTION - LAW
ACTION TO QUIET TITLE
fl..AI.NTlf~_l'RE:--'l'RIALJoIEMQRANmIM
L--HASl.c~C'l'S_AS TO CASE
Plaintiffs own a 120 acre farm located in Hopewell Township,
Cumberland County, Pennsylvania on the west side of State Route
696 (herein the "Property"). The description of Plaintiffs' real
estate in their agreement of sale for the Property described all
of the land to the west of State Route 696. Plaintiffs believed
that the Property they acquired from J. A. Burk and Mary O. Burk
by deed dated May 31, 1967 and recorded in the Office of the
Recorder of Deeds in Deed Book J, Volume 22, Page 344 included all
of the land on the west side of State Route 696.
Plaintiffs possessed and maintained all of the land on the
west side of State Route 696 as their own from the date they took
title to the Property to the present. Plaintiffs have cleared
underbrush, removed trees, planted and mowed grass, removed trash,
paid real estate taxes, pastured livestock and parked vehicles on
the disputed property among other activities throughout their
ownership.
.'
Defendants Beam acquired a farm located east of State Route
696 from Catherine V. Baer by deed dated February 26, 1985 and
recorded in the Office of the Recorder of Deeds in and for
Cumberland County, Pennsylvania in Deed Book D, Volume 3l, page 85.
Defendants obtained a survey of their farm from Byers and
Runyon surveying dated January 2, 1992 which indicated that the
description of the Beam property in Defendants' deed purportedly
included certain land on the west side of State Route 696 which
was occupied by Plaintiffs. Defendants have claimed that portion
of Plaintiffs' property which is shown on the Defendants' survey
on the west side of State Route 696.
Plaintiffs have possessed the disputed land openly,
notoriously, exclusively, continuously and hostilely to the claims
of all others since May 31, 1967, a period in excess of 2l years.
At no time have Defendants taken any action to eject Plaintiffs
from the disputed property since Defendants' acquired the farm on
their east side of State Route 696.
II. P.R1.NCll'AILlSSllE.6
A. Are Plaintiffs entitled to legal ownership of the
Property extending up to the centerline of State Route 696 by
claim of adverse possession?
- 2 -
III. SUMMARY OF LEGAL ISSUE
The primary legal issue will be that of adverse possession.
IY:~ IDENTITY OF Wl,TliESSES
Jay H. Myers
Helen L. Myers
Jane L. Strayer
Martin Reese
Bruce Mi ller
Walter Dunlap
Raymond Rebuck
John Kissinger
Samuel Runyon, as on cross-examination
V. LIST O~XHIBITS
1. RUnyon survey of Beam property.
2. Kissinger survey of Myers property.
3. Myers' Agreement of Sale dated April 24, 1967.
4. Myers' deed dated May 31, 1967.
5. Beams' deed dated February 26, 1985.
6. Photographs of disputed area.
- 3 -
~
^
III. PRINCIPAL ISSUES OF LIABILITY?
A. Are the Defendants the owners of the property claimed
by the plaintiffs by virtue of their legal description as
confirmed by their survey?
B. Have the Plaintiffs proved by preponderanco of the
evidence all of the elements of ownership by adverse possession?
IV. SUMMARY OF LEGAL ISSUES.
It is not believed there are any unusual legal issues. The
issues are factual.
V. IDENTITY OF WITNESSES.
A. The Defendants, Melvin S. Beam and Anna M. Beam
B. Catherine Baer, 826 Crescent Drive, Shippensburg, PA
17257, prior owner of the Defendants' property.
C. Nancy Hubber, 1500 Walker Road, Chambersburg, PA 17201,
daughter of former owners of Defendants' property, Wilbur and
catherine Beer.
D. Doris Kell, 1004 Allen Street, New Cumberland, PA 17070,
daughter of prior owners of Defendants' property.
E. Charles Baer, 312 Shippensburg Road, Shippensburg, PA
17257, son of prior owners of Defendants' property.
F. Troy Beam, 119 Baldwin Boulevard, Shippensburg, PA
17257, son of the Defendants.
-2-
t"'\
1"\
G. Todd Beam, 57 East Creek Road, Newburq, PA 17241, son of
the Dsfendants.
H. Samuel David Runyon, PLS and any other employsB or
former employee of Byers & Runyon surveyinq havinq personal
knowledge of the facts.
VI. LIST OF EXHIBITS
A. Byers and Runyon survey of January 2, 1992 and any and
all records and prior surveys of Byers & Runyon.
B. Proposed Quit Claim Deed prepared by McCrea and Davis,
attorneys at law, on behalf of the Plaintiffs and delivered by
Plaintiffs to Defendants' predecessor, Catherine Baer on or about
1980 requesting her to deed to them for One ($1.00) Dollar the
property which they now claim to own.
C. copy of deed from Catherine V. Baer, widow, to Melvin S.
Beam and Anna S. Beam, his wife, dated February 26, 1985 and
recorded in Deed Book "V", Vol. 31, Page 85.
D. Various documents, records, notes, etc., in the
possession of Byers and Runyon Surveyors utilized to identify and
create the boundary line in the disputed area, includinq copies
of prior deeds of record as may be pertinent, performed on behalf
of the Defendants or their predecessors in title.
E. Photographs of the disputed area.
-3-
t-\
f'.
VII. CURRENT STATUS OF SETTLEMENT NEGOTIATIONS.
There are no settlement negotiations. The Court must resolve
the dispute.
FOWLER, ADDAMS, SHUGHART & RUNDLE
t
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BYlr::lj::)
Dale F. Shugh rt, .
Attorneys for Defe dants
28 South Pitt Street
P. O. Box 208
Carlisle, PA 17013
(717) 249-8300
Atty I.D. 19373
-4-
=: ,,:,: r;;:; }!Jr.!"Itot' J.u<<. ". .... -
5Irticlt of
.
tmtmt
MADE THE ,f. f . dOl 01
01 0111' Lord one thollland nino hllndred / ~ (. I
BETWEEN J. A. IlURK onl1 kit y I.. BUill;. I~h wife. of ~hc
Ilorollgh of :Hllp\lolIshurr, County or J.ronl.1ln IIlld ~tnto (If
Pcnnsy 1 vnnia. \tcnl1ors. \Iurtios of the fi rs t pnrt
,~,,(
in tho lIoar
.\ :i II
JAY II. fl)'HIlS nnd 111i1.m; I.. ::n:Wi. his uife. of tho, Township
of lIo\ltlwoll. County of Clllnhorlnnl1 nnd fitute of PllllnsylvRnia,
VOIlllccs ,1'nrtlcs
01 tho sccond IJart,
WITNESSETH, that tho said part ies 01 the fir.,t llart, in cfnsideration 01 the covenants and
agl'eements hereinalte~ containod, on the IJal.t 01 thc said IJart e 5 01 tllO sccolld IJart to bc leclJt
Illld pcrformed, ove agrcc~ alld cIo hCI'cby agrec to scll alld convcy 1IIIto tho said
pal.t ies 01 tho secolld l)art, tIe 1 r hcirs 01' assigll8, all tho lalld alld 111'crnises hercin-
altel' IIIclltioned and fllllll describcd, for the SIIIII of ,j :o:t\l" jll"lI~:'a,1 ,II ,. ;'III.d1,;,J
--. t d \' ,:' l , ,1):1) . -- - --. - -- - --. -- -.. - -- Dollars. to bo paid CIS lollows:
rile full ('1"1~.ill~r:ttin'l n ~i'(t"f"l l'I'J'I';r"ld ,:ivp !I\1I!f1rl~d
(~1. ,'1.\1,1',1) ..((;IT:" 11' .1' ....~ :',' 1 r'j".:t ~'Il!"":I'r '-rll'l
tl!1' 'J:-'!I,i("'~ 11' '"'~ \"1I'.lnr... r"r :, t'1....... ,.f tFI."t~~' (.~II.l
V("lr~, 'I. it', j'ltt 1', ,~I 1.1"t"',Ht "t t;". 1 ~I.f\ I\t ,i.',',' t.,') .\\Te.~Ht:
11',r nUllll~i ~,it" ;'dl~ i"t.'r,.....r n., J ;'1 i u:i'u!l I"".' "'It, I" II~?
11:1..1., ,1.1I.1....l\'.,I.'11.', t", 'i' ~",.t. 1;'.'f'1't. tll III~ 'n ~, "'I '.'1' h,,:,:'nrl~
the J!;t .1:1;' ,',( .11""'. 11" 7
aniHlfc" iiifd< parr'.:; ,'. :-: ~;~cinl.c 'BleaM pair nt.~'b' :iiol'cc ., . fci' My" all' lti':r~s: fhiir llliijl' be ibl~tii ilMII
~Il1'MtlnW"~rn"ali!f;a'Ylcr'th6 Hiifi!"onhCs~ /ltrs~iif.~; aM 10 Icccil" th'c..tMfdlnyk 'thercl"I'il\si,)~?J'lIn'
tWo~3W/i'
Dcilthiis; ~dMic\ tidirc~hf,m~ .. . Ii(ih} fti-il" "lIi.t. 'li'~'ii'ithr6~t ;II~Y aJI/i1ni-.
And IIpOIl tho pavm,c/lt of thc ~aict Slllll, (hc sa it/ JJart fi f S of tile first part, lViii, at
,,1I\l'pensuurJ!. lennsYlvulI n
malec, execlltc and dclivcr to the saicI1Jnrt i l' F 01 the arcolld IJart, a yood alld slIfficicllt Dccd 10/'
the Ilroper conveyillg alld as.mnllO 01 the ~aid prctlli.~e., ii, Ice sitllplr, free ft'oll' al/ illcnmbnlllce
and dOIVer. or "<<bAN{- ~lVcr, sllch COII."ryollcr to COil tail' tho IIsllal eovcllants 01
, 11 arrall/Y.
And the said, part 10Sof tl,c ,.ccollt/lmrt, "orcc with /he sailt part ie!t,1 the first part, /0
pllrchMc thc said IJrcmiscs aile! pall therclMc thc SIIIII of
Dollars,
in the malineI' and at tho tillles hereinbcforc Ilrovit/cct,
AND IT IS FUlITllER /lGR/'.'ED. by alld betwcclI the said par{iesJ that llOsscssi'lII of said
8rf"li~r d1trljl ~,,~e/il'a'fe! to tile Imt IlJ Sl ,of tile seeolld IJart, t Ie 111ejr,' Cllle! assiglls. 011 the
.. , dflY 0/ .11111 A. D. 10 (, luntil wlticlt time tile
IJart IIf the !irst part 8/11I11 be cntitlrcI tll Itnl'c anti recrivc the rellts, isslles alld profits tltcrcol.
Thc said 111'emisc., IIrc ,fcm'iI'ed as flll/olUs: ALL that cortain form situnte in
the Township of lIopcwell, County of CUlnlJcrlnnt! nnt! Stnte of PenllsylvRnia
lyillp. 011 tho lIest sido of tho lliddle Sprinr.-Nowburr. !lond,. l:1l'lt:Jillllllt
172 ncrl!~, '1orll or lr~~.
PlAINTIFFS
EXHIBIT
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COMMONWEALTH OF PENNSl'Ll'ANlA,
County 01
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RECORDED 011 tMs ..._.._................... dall 01 ......._..._.._........._.......................
A. D. 10........ in tllc RccordclJs ofJlcc 01 tllo said COlllltll, in ..................................
Vol. ........................, Paoo ....._._..............
Giwn undcr f1IlIlla/l(l and /110 Bcal 01 tllo saill omcc, tllo dato above Writ/CII.
....................... ............................................., Ilcco reier.
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. III-AT-Wln&l'll, n..s. Short Form. AI lIOf.
VI.17 HaH, Ine., Jn41&1\.. Pa.
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MADE THE 31st
of ollr Lord ono thollsalll/llil'" IUllldr('t/
dOli II; flay
and sixty-seven
ill the tlral'
BETWEEN
,J. ,\. 1l111U: and i,jAI;Y O. HUI\!-; I his l'life, of the Borough
of Shippcnshurn, LOUllty of Fl'anl;lln and State of
Penns)'lvania, parties of the first part as
Gmntol's ,
alad
JAY II. ~IYERS and Ill: U;,'; L. r 'YE ItS, his wife, of the Townshi~
of 1I0peNell, County of LUI~bel'land ant! 5tate of I'ennsylvanla,
parties of the secont! part as
Gmlltee 5 :
.'WITNESSETH, that ill rlln..itil'ralilll/ 0; ~; i xtecn Thous anu rive Hundred
(Slu,50d. IIi) Dollal's,
hand,mid, the recript 11'1".,.,.,,; is I/lT' I.!/ ork'rlllll'l, d"rd, thr said (/ralllor do hereby omllt
md COlli/I'll to the said 01'0111''/'5 . ALl that certain farm consisting of two
adjoining tracts of land situate in Hopewell Township, Cumberland
':ounty, Pennsylvania, bounded and described as follows:
Tract No.1- Beginning at a Run near a Walnut tree at a corner;
thence down said run North Thirty anJ Twenty-five Hundredths (30.25)
Jegrees East Thirty-five (35) perches; thence North Forty-one and
Seventy-five lIundredths (41. 75) Jer-rees East Thirty-seven (37) perches;
thence North Twenty-one and Se\'enty- fl\'e Hundredths (21.75) degrees
:last Four and Five Tenths (~.5) perches; thence North Forty~six and
'Seventy-five Hundredths (4ll.75) Jcr-rees East Seven (7) perches; thence
South Forty~eight and Five lenths (.IS.S) degrees East Twelve and Five
Tenths (12.5) perches i thencc '.orth ~lxty-t\~O and Seventy-five Hundredths
(62.75) degrees East Eight and Seven lenths (8.7) perches; thence
'South Eighty-five and Seventy- five t1undredths (85.75) degrees East
Thirteen (13) perches; thence ~outh fl'rty-four (44) degrees East
, : Twelve (l2) perches i thence ~(lrth 1.1 f.hq'-nine and Five Tenths (89.5)
~"degrees East Twenty (~O) perC:ll'~ tl'- "lIere said nun enters the
Conodoguinet Creek; thence u;' ,aid creek Forty and Five Tenths (40.5)
degrees East Seven (7) perchc~; thencl' South Twenty-two and Five
Tenths (22.5) degrees L:\~t ';'''cnty-taree (23) perches; thence South
Fourteen (l4) degrees Last lhl'nt ~'- fOllr (24) perches; thence South
Nineteen (19) degrees L:i5t Ilfteen (lj) perches; thence South One and
Twenty-five Hundredths (1.25) dcr,recs Last Thirteen and Six Tenths (13.6)
perches; thence South ~ineteen and Five Tenths (19.5) degrees East
Thirteen (13) perches i thence South "orty-eight and Five Tenths (48.5)
degroes East Seven (7) perclu:;; lhclICe U)' lands of now or formerly
Benjamin Newcomer North Scvent}'-fivc (75) degrees West Thirty-one (3l)
perches to a l'lhite Oal..; thence h}' lands of same North Firty-two (52)
degrees l'lest Thirty-three (33) perches to a Gumj thence by lands of same
_ , "North Eighty-nine (89) degree~ \,est Lirhty-six (86) perches to a post;
1 ~ 'thence North Fifty-five (55) derree5 hest Ten (10) perches to the
, llll' place of 1Ieginning. Containinr I'i fq'-one (51) Acres and One Hundred
, Twenty-three (123) perches, strict measure.
Tract No.2- Beginning at a post; thence by land now or formerly
of John r'IcCune, South Thirty-eight and Seventy-five Hundredths (38.75)
t..//.. J' .
,"~i'1&.-4l/._(.. L( (~il..
)crn:,oIOist. Cumbo Co., Pa.
To_yftlhlp .f ',.:~ ~ ,,'. . ... .. "
Cumbo Co., I'd. ......
II. Ru' E,t.t. T,.n,r., T.. It' Rulllt." hUll" r..
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~b. Co. Ol.t, Col. "vi. ,),' 'DOCKU~b, l1,f'", .C,I'(."'j l.
11 ,J..4A....IA{.1 t '1'
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Sl4te of
COIIII" of
011 thia, the
} 88.
, 1/1
. before lIIe,
uall of
the llllderBilllled officer, personal/II aptleared
knoWII to me (or sati8factorilllllrtll'ell) tollc the IlcrBIIII It'hosc lIantc Bill/scribed to the
withill ilUltnlmellt, alld acknowledged that hc t"TcClltcd the salllt' fo,' thc pllrpOBCB thcreill
conl4ilUld.
IN WITNESS WHEREOF, I hercllnto set mil mllld and official seal.
,.........,......,....'................................................................~
Title of Office,'.
?
;of do lIerebll certifll that the I"eclsc residellce alld COllllllcte IIOBt offier addreHs
of the withillllamed grallteelia lfAl," l~ I( ).,;rl_ C~~!.. ~ {I..~
~ 7 19 1/ \-, ,
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COMMONer I-TH OF PENNSl'I,I'ANI.4, l
I .' 88.
COllnt" 0 ..._,(t..l.l.J.-.!lLLL e,... I.r: L.... \ ;
o . ? -_.- : '
REC RDED Oil th,.1 . ................./.4. dall of, ,(:-t,,\.,'_.... .. ..........
A. D. 1:/1.,2, in 1111' necord~~: ~tJice III Haiti COllnty, ill DCt'tlllollk J
1'01, ..d?.:.?........... '. Paye ......;,...'1.'1........ '
Giltcn Itncl.'r my halld arlll..t,,/;r/..th;f?:~C.
, date abllve torittell,
Recorue,,,
BOOK::9 22 rAGE 347
""'-"""'--..)1.
M.UI'II.711
Cr"MO':WEA~ TH OF PENNSV~VANIA
HIGHWAY OCCUPANCY PERMIT
,"
No..P- 3 0 9 5 5 6
DIP.nme"1 ot T'I"NJOrtl110n
BUfltu of Mllnlln,nu
IC.n"ll Permit Olflnl
ALL WORK UNDER THIS PERMIT TO BE COMPLETED
1
0 8 :2
1 1 1 0 7 6
3 0 0 0
o I
3 0 0 0
==l
1 --_. ----- ----1
10.00
DlttrlCI No. CountY
ON OR BEFORE 3-10-77
b"l '"utd
PERMIT VOID AFTER tHIS DATE, IMMEDIATEI..Y UPO~
CUMPLETlON OF THE WORK PERMITTEE SHOULD
NOTIFY THE DISTRICT ENGINEER,
TO'I' ''''
Cr.dlU App Ie, No, I
PI:AMISSIOU IS HEREBY GRANTED TO
Ja;y IVers
PERMITTEE
ChIC' o. MO, No. 112470
star Route 2
ADORESS
SCh.dul. Item No
Shippeneburll. Plll1l1BYIVin~a 17257
POST OFFICE IP CODE
Un., F..
Numb.r of Unitt
20.00
Town,tHp
~
HOpeWBP
264-A
To,,1 F..
S,L.D. Where PO"lbl.
In order to avoid damage to underground utility lines, Permlllee
Ihall requell mformatlon as requrred by Act No, 287, approved
12/10/74. not lell than three working days prior to the per.
formance of any eMeavat,on andlor demolition operations al.
lowed under thIS Permit, and Ihall comply with all other
prov,"onl 01 the Act.
Lev, Rou" No, III
SIIuon numb" hi
265-+00 est
Under .nd lublect to all the condillon., r."ucuonl, and fequl"lon. pfelCtlbed by the PenntylvlOI' OfPltlment of T,anlPoftlllon on the /lverlt hi reo' Ind in
Form 946.B. . tru, copy whlr.ol 1"ttIChltd and mide a part hlreot, With the lime lorce and ,lfect al I' wrltlen 0' prtnled herein and under .00 lubllel to the
1P1e111 condltlonl, 'I"rictlon., and f~ullllonl hereinafter III forth or at18chrd hell to.
Entll1' residential drivellll3' onto state highway. SbouldBr grede and drainue
IOESCAIPTION AND PURPOSE OF WORKI
must be maintained. This pel'lllit, plans and general provisions must be on the .lob
while work is :111 progress .
SEE ATTACHED
:.:,"3::..::t '::: t1'iU::i[
piJns,
:~,"1r,;r:n :v ,~ttl'~:~i~l1
.
The S'CI'18f'" fJI TrDnSIJOfl.llon, or hi' duly lUPolnteU '1!Q'''Jtnlallves. m.y 011 '"V 11m, fftOkl Ind annul 11111 Plrmll lor nonpetlormlnce ai, ur non
comphance With any of the COndltlO"l, f"UletIO"" eno 'IQUl'llOnl h,.,ol
[ TllIl Pe,mlllill (ill1otl being recorded II1th. County Re,
COIdo, of Deedl Off,co,
787-5907 PRIJAll tb
COMMONWEAL TH OF PENNSVLVANIA
P\.AINTlff'B
EXHIBIT
\711)~.
Btoi'iR.
21s
17120
2, PERMITTEE
'.
.
.
.
".:\.
! DEED. No. 780
Prlnt.d and Bold br Jobn C. Clark Co., lUO e. Ploa 'q~.rtl PIIU..
I
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athis ~ttd,
MADE thlH
30th - - - -
day of
~
March - - - -
mdween
in the year nineteen hundn:d unci fifty.
LVLA M. CRIDER, widow, of the Borough 01' 8hippensburg,
Cumberland County, Pennsylvania, party of the first
part, - - - - - - - - - - - - - - - -
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ (hereinafter cal/ed tllC Grantor ),
and
WILBUR F. BAEh and CATHERINE V. BAER, his wife, of Hope-
well Township, Oumberland County, Pennsylvania, parties
of the seoond part, - - - - - (hereinafter cal/ed tllC Grantee s),
mitnel1l1etll, That in con.ideration of other valUable oonllidera.tion and
TWO ($2.00) _ _ _ _ _ _ _ - - - - - - - - - - - - - - - - - - Dol/are,
In hand paid, the receipt whereof I. hereby acknowledoed. tile Baid Grantor do e s hereby
Drant and conVey to the .aid Grantee s, their heir8 a/ld a88iO"8, ALL that oertain farm
tra.ot lying and bsing situate in Hopewell Township, Cumbsl'land
Oounty, Pennsylvania, bounded and desor.ibed as follows:
BEGINNING at a point at the creek; thence by land now or
formerly of John Clippinger, North seventy (70) degreee East thirty-
four ()4) perohes to a post at oreek; thencs by lsnds noW or
formerly of H. A. Cover, South eighty-ssven (87) degrees East twenty-
eight (28) perches to a post at bank of oreek; thenoe by the same
North sixty-six (66) degrees East twenty-two and eight tenths (22.8)
perches to a post at bank of run~ thencs by land now or formerly of
Mrs. Whisler, South sixty-two and one-half (621) degrees East twelve
(12) perohes to a post at elde of road; thence by the same North
forty-four and one-fourth (44i) degrseo East forty-six (46) perohes
to a hlckory; thenoe by the same North sixty-two (62) degrees Eaet
fifteen (15) perohes to a stump; thence by lands now or formerly of
Hammaker, North eighty-three and one-half (83i) degreesJEaet one
hundred twelve (112) feet to a tree; thenoe by the same South seventy-
four and one-fourth (74;) degreee Eaet two hundred fort -elght and
three tenths (248.)) feetj thenoe South forty-eix and tree-fourths
(46-)/4) degrees Eaet one hundred seventy (170) feet; thenoe by the
same South nlne (9) degrees Eaet two hundred two and five tentha
(202.5) feet; thenoe by the eame South fifteen (lS) degrees East
eighty (80) feet; thenoe by the same South thirty-two and one-fourth
()2;) degrees Eaet elxty and two tenths (60.2) feet; thence South
forty-nlne (49) degrees East ninety-oeven and five tenthe (97.5)
feetj thenoe South forty-two and one-fourth (42i) dsgrees Weet one
hundred four (104) feet; thenoe South flfty-flve and three-fourths
(55-)/4) degrees East seven hundred ninety-five and five tenths
(79S.5) feet; thenoe by land, now or fonoerly of Norman G. Mowery,
South thirty-nine and one-fourth (39;) degrees East seventy-five
(75) perohss to a atone; thence by land noW or formerly of Jaoob
Creamer Hell's, South sixty-five (65) degrees West fifty-seven and
nlne tenths (S7.9) perches to a black oak stump; thence by land noW
or formerly of George W. Null, North ten (lU) 'degrcBe Weut firt~Bn
and eeven tenthe (15.7) perchee to a poet ln plne StUI~P; thenoe by
the eame North thirti-one ()l) degrees Weat twenty-three (23) perChes
to a poatj thenoe by the slime South forty-seven and one-half (47t)
degrese West twenty-nine and flve tenths (29.5) perchee to a poet;
thence by the same South f1ft~'-six and one-half (S6t) degrees West
thirty-four ()4) perches to a postj thence by the snme North forty-
five and three-fourthe (45-)/4) degrees West two (2) perohes to a
pout; thenoe by land noW or formerly of William stouffsI', South fO!'ty-
seven and one-half (47~) degrees West thirty-seven (37) perches to a
post; thence by land now or formerly of John W. powell Hell'S, North
twenty-seven (27) degreee West ninety-eight and eight tent
1..,..
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STATE OF PENNSYLVANIA,
CUMBERLAND
County of"
} BB.
i
,',
ilternrbeb on thi._...}~!~, ",day of_. "MARC!:!.
A. D. 19 50, In tile Ileeorder'B Offlee of tile ,old Countu, in
Deed 1l00k...."",,J '" ,,' '" ,,' l'ol., 14 Page" ,449 '
Cliful!/t under my IIand and Ihe Bcol of the Baid office, Ihe dale
above written.
~, ,)t/1~,!I"",
11 Recorder
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":'T-w.".nll D"d, Two AcknOW,Id.e
Henry Utili Inc" Ind ,n., PI.
~A/.I":':'\" 7
Schul Dill, CUllIb. Co., P..
/1 t;1'.'.... t /i
,own,'''p 01 ...,....... .... ....
Cymlt. Co., P..
~" _..t I,t... r,II.'., r..
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'-.. )' ... II ,..
, ')"/,<.1""....... .J I ,1___ . .,,__
r:...~, C.. 0101. Col. ....1. ""
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/.":J:' \.("- .;,-, -
/" . ".,.1, 1.0. Dht. Col. At'.. ~
tltbis Jnbenture,
'1/tt r< bY'....~I/
MADE TilE d'-(J dall of / in tile lIear
of our Lord one tllOlUlCInll nino hundred ~ Ighty-f I v~ (1 Y85) ,
BETWEEN
CATIlEIUNE V. !lAER, widow, of 826 Cr~sc~nt IJrive, ShippCllsburB,
Pennsylvania 17257, party o[ th~ first part,
GRANTOR,
AND
,..,
HELV1N S, REAM and ANNA H. REI\I'I, his wHe. o[ R. R. /11, Newburg,
Pennsylvania 17240, parties
('-'
."
GRANTEES,
l:::J
'"
""
Lu
~
lr>
=
..
of tho second part, WITNESSETH, that the said part y of the {irst part, for and in c01l8ider-
ation of the sum of One Hundred Twenty-Five Thousand ($125,000.00)-----------------
______________________________________________________------------------- ~lmrs,
mwful monOl/ of the United Smtes of America unto her weU and tndll
paid bll the said part ies of the second part, at and before the sealing and delivelil of these
presents, the receipt whereof i8 hercbll acknowledged, has granted,
bargained, sold, aliened, enfeoffed, releCUled, conlJOI/ed and eon{iI'l1led, and bll these presents docs
orant, bargain, sell, alien, enfeoff, releCUle, convelland eonfirm unto the said parties of the
second part, their heirs, and lUlsioll8,
PARCEL 1: ALL that certain [arm tract lying and b~ing situate In lIope\,e11
Township, Cumberland County, Pennsylvania, bounded and described as fo1101's:
REG1NNlNG at a point at the creek; thence by land now or formerly of John
Clippinger, North seventy (70) degrees East, thirty-four (31.) p~rches to a
post at creek; thence by lands now or [orm~rly o[ 11. A. Cover, South eighty-
seven (87) degrees East, twenty-eight (28) perches to a post at bank of creek;
thence by the same, North sixty-six (66) degrees East, twenty-two and eight
tenths (22.8) perches to a post at hank of run; thence by land now or formerly
o[ HI'S. Whisler, South sixty-two and one-half (62-1/2) degrees East, twelve
(12) perches to a post at side of road; thence by the same, North [orty-four
and one-fourth (44-1/4) degrees East, forty-six (46) perch~s to a hickory;
thence by the same, North sixty-two (62) degrees East, fifteen (15) perches to
II Rtllmp: thl?nce hy lnndA nn,~ 01' fntomprly of lInlllll1n\cpl", Nnrth p1r.hty-tht.,.p nnd
one-half (83-1/2) degrees East, one hundred twelve (112) feet to a tree; thence
by the same, South seventy-four and one-fourth (71.-1/4) d~l\rees East, two hundred
forty-eight and three tenths (248.3) feet; thence South forty-six and thr~e-
fourths (46-3/4) degrees East, one hundred seventy (170) feet; thence by the
same, South nine (09) degr~es East, two hundred two and [Ive t~nths (202.5)
[~et; th~nce hy the ",unl' , ~;outh fifteen (I5) ,1~gree6 East, eighty (80) f~et;
thence by tlw somo, South thlrty-U'" and on~-fllurth (n-I/I.) dogn','s East,
sixty and two tenths (60.2) ft.~t; th,'nee South forty-nine (I,Y) Jegre~s East,
ninety-seven and five tenths (97,5) feet; thence SOllth forty-two and on~-fourth
(42-1/4) degn'eB lIest, one hundred [ollr (104) feet; th~nco South flfty-[Ive
and three-fourths (55-3/1.) d~gre'~s East, s,'v~n hundred ninety-five and five
tenths (795.5) feet; thence by land now or fornmrly of NOl'man G. HOI,ery, South
thirty-nine and one-fourth (39-1/4) degrees Eant, s~venty-five (75) perches to
a stone; thence by land now or formerly o[ Jacob Creml\er heirs, South sixty-
five (65) degrees Ilest, [HtY-Bev"n and nin~ t~nths (57.Y) perches to a black
BooK])31 rACE 85
,~qs-
'.
oak stump; thence t land now or forllwrly of (;eorg~. Null, North [('n (10)
. degrees \~est, fifteen and s"ven tenths (15.7) perches to iI post in pine StUlllp;
thence by the sume, North thirty-one (31) degrees I,'est, tWL'nty-threl! (23)
perches to a post; thence hy the SIIIIII!, South fortY-Heven and olll'-lwlf (I.7-1/2)
degrees "cst, t"'enty-nine and five tenths (2~. 5) perchl's to /1 post; thence by
the SUllie, South fifty-six and one-half (56-Jn) dl'nree/l "cst, thirty-fuur (34)
perches tu a post; thcnl'c hy thl' sallie, Nllrth fllrty-fiv" and thre,,-fllurths
(45-3/4) d"ll1'ees licHt, lI/ll U) perches tll /I post; thcnl'" hy 1/II\d Illl\~ or forlllerly
uf IHII1alll Stouffl'r, South fortY-/leven and llne-h/llf (1,7-1/2) denrees Ilcst,
thirty-seven (37) pcrch!'H to a pllst; thcnc!' hy land nll\~ or fOrlllerly Ill' John \~.
Powell IICit"H. North lwenlY-Hl..!Vl'lI (27) degt"lIL'B \~l)fjl. ninety-eight nntl e1nhl
t"nths (911.8) percheH tll a Httllle; thence by the (;/111"', North sixty and three-
fourths (60-3/4) dl'nrees Ih'/lt, thirty-eight and four t..ntlls (38.4) perches to
/I post; thence South forty-nix (46) degree/l II..st, thirteen and c1l\ht tenths
(13,8) perches to a walnut tree; theuce North thirt}'-on.. and one-half (31-1/2)
degrees I~est, thirty-three and fiVe tenthe (33.5) perches to the place of
BEGINNING. CONTAINING one hundred twenty-eil\ht (128) acres, 1I10re or less.
HFING thp nmnp p,'"rnIHPIoZ f'nl1\lf1~'f''' hy 111111 N. "rfdfll', wfdll\o'1 hy her dpprt dntpd
Narch 3D, 1950, and recorded in the office of the Hecurder of Deeds of Cumberland
County, Pennsylvania, in Ileed Book ".I", Volume 14, Pal\e 4/.9.
LESS, 1l00~EVEH, the foJ lowing conveyances:
1. Deed dated Norell 26, 1966, to Jay II. Nyers and Ilelen L. Myers, his wife,
recorded in Deed Book "X", VOlullle 21, Page 678, containing 1 acre, more or less,
2. Deed dated April 11, 1968, to Kermit N. l.aidill and Avis Jean l.aidig, his
wife, recorded in Deed Book "T", Vol ullle 22, Page J040.
3. Deed dated June 19, 1968, to Charles Eo Baer nnd Jauet L. Baer, his wife,
recorded in Deed Book "0", VolulDe 22, Page 975.
PARCEL 1/2. ALL those certain tracts of land situate in the Township of 1I0pewe11.
Cumberland County, Pennsylvania, bounded and described as follows:
Tract No.1 - BEGINNING at a hickory tree near the bank of Conodoguinet
Creek; thence in a Southerly direction, fifty-two (52) rods to a wild
cherry; thence by lands now or fonnerly of Chsmherlln of which this
tract is a part, six (6) rodu to a utone; thence by same land, South
forty-three (43) rods to a hickory in line of nOI~ or fonnerly lIenry Duke;
thence by land of said Duke in an Easterly direction, twenty-five and one-
half (25-1/2) rods to a post in line of other lands of said lIanunaker;
thence by said lands in straight line, ninety-five (95) rods to a hickory
tree, the place of BEGINNING. CONTAINING twelve (12) acres, more or less.
Tract No.2 - Situated on the South side of and nenr to the Conodoguinet
Creek, bounded and described as follows:
BEGINNING at a stake at corner of lands of \Hlliam IInlter, now or formerly.
and now or formerly Lowrie Jumper; thence with the Jumper lilnd, South forty
and twenty-five hundredths (40,25) degrees East, forty-six and two tenths
(46,2) perches to a stake; thence by the same, South twenty-six and seventy-
five hundredths (26,75) degrees West, forty-five ilnd four tenths (45,4)
perches to a post and stones; thence North forty and tlwnty-f ive hundredths
(40,25) degrees "est, sixty (60) perches, more or less to the public road
along the Southern side of the Conodoguinet Creek; thence with the public
road to corner of IInlter land aforesaid; thence Idth the lIalter lund, North
thirty-one (31) degrees East, eighteen and eeven tenthe (18,7) perches to
a stake; thence with the silme, North fifly-tlll'l'" "nu flvl' 1<'111 hs (53,~)
degr....s East, twenty IllId three t..nths UO.3) perches to the plllce of BEGINNING,
CONTAINING 10 acres, more or less,
Tract No, 3 - ALL that piece or parcel of ground with till> improvements thereon
located in the said Township of lIopewell, hounded and descrlhed as followSI
IIEGINNINI; nt /\ pOH( by lands nf formerly lIellry "elker; then,,,, South fifty-five
IInd lllle-hill[ (55-1/2) degreell Ilest, thirteen /Ind fivl> tl'nlhs (1].5) perdll's
to /1 post; th..nce hy IlInt! of formerly Chlls. t:Il/lInherUII, South sixty-two IInd
one-hllH (62-1/2) degre",; Ill'st, fHtl'ell ulld fOllr tenthll (15./1) p<,rclws to u
I'ost; thence by same, South sevellty-four and three-fourths (74-3/4) degrees
llest, ten and fiVe tenths (10.5) IHtrchefl tOll post; thl'nee hy land of formerly
John Stevick, North tWl!nty-flve IInd IIl1e-fourth (25-1//1) dl'grel!s \~est, six und
forty-five hllndredtllll (6./,5) p,'rdl/'I; tll II post; tlwnl'l> hy oiltlle. North sixty-
one (6J) degrees Eilst, l\'l'lIty-thr.", 1II1l] Idx tellthll (2],h) perchl's to u pine;
thence hy S 11111 I' , North eighty III III IlIw-IHllI (1111-1/2) dl'IP"'I'/; Eafll. fHtel'lI IIl1d
sIx tenths (15,6) pNehl'H tll a I'osl; tlWIll'l' hy lalld III flll'l1,,'rl\' Fel Ix Stl'vteK,
ooo{}) 31 rm 86
"
.
.
.
South thirty-seven and one-hnlf 07-1/2)
(2.71 perches to the plnce of BWINNING.
hundred fourteen percheH fltrict menHure.
degreeu "lIut, two and seven tenths
CONTAINING one (l) acreR nnd one
Trdct No.4 - The following deHcrlhed three HII1II11 trllctu of IlInd boundl!d and
described as follows:
(a) BEGINNING at n pOHtl thence by landu formerly of Col. Petl!r Ll!shl!r, now
Stewart, South tWl!nty-seven (27) dellreea \~e"t, thirty-four (4) pl!rchl!s to a
postl thencl! by landa formerly of the heiru of Ilavld Lesher, dl!c'd, now Duke,
North forty and one-huH (40-1/2) dl!llrl!eu Weat, dllhty (80) perchl!a to a pine
at thl! crl!l!kl thence down the auid creek the uevernl courue" thereof tWl!nty-
BeVen (27) perches to II post I tht'nce hy Inndu formerly of the aforeaaid hl!irs,
South forty and one-hnH (40-1/2) dellreeH Euut, Hlxty (60) perches to the
place of BEGINNING, CONTAININ(; 12 nCl'eH, ull'ict menHUre.
(b) BEGINNING at u post I thence hy lund formerly of Iluvid Lesher, South
twenty-seVl!n (27) dellrees \~e"t, six und five tenths (6,5) perches to a postl
thence by land of Creamer, North forty-one and one-half (41-1/2) degrees
\~est, seventy-six and five tenths (76.5) percheH to a poat I thence by lands
of same, North fifty-five and one-hulf (55-1/2) degrees East, six and three
tenths (6.3) perch~ to n postl thence by land of the herein describl!d tract
(a) North forty IJI,\~-hnlf (40-1/2) degrees East, seventy-six and five tenths
(76,5) perches to the place of BEGINNING. CONTAINING 3 acres strict measure.
(c) BEGINNING at a postl thence by land of the suid tract (b) above described,
North forty and one-half (40-1/2) dellrees East, seventy-six and five tenths
(76.5) perches to a post I thence by land fonnerly of David Lesher, South
twent}'-seven (27) degrees \~est, two and eillht tenths (2.8) perches to a post;
thence by land of now or formerly of Jacob Crl!amer, South sixty and one-half
(60-1/2) degrees West, ten (IO) perches to a post; thence by same, North
forty and one-half (40-1/2) degreea West, sixty-seven (67) perches to a post
(in a public road; thence by the same, North fifty-five and one-half (55-1/2)
degrees East, six and five tellths (6.5) perches to the place of BEGINNING.
CONTAINING 3 acres strict measure.
LESS, HOWEVER, deed to John C. I~alters and Bessie \~lIlters, his wife, recorded
in Deed Book "G", Volume 26, Page 441, containing a total area of ,7562 of an
acre.
BEING the same premises conveyed by John J, lIammaker (a/k/a John lIamaker) and
Della Hammaker (a/k/a Della Halay lIamaker), his wife, by their deed dated
August 14, 1964, and recorded in Cumberland Coullty Ileed Book "II", Volume 21,
Page 1045, unto Wilbur F, naer and Catherine V. Baer, his wife.
LESS, HOWEVER, from the above described PARCEL II, Tract 2 and Tract 3 those
conveyances as referred to in the above recited deed recorded in Ileed Book "II",
Volume 21, Page 1045.
The said John J. Hammaker and Della Hammaker died Hay 10, 1965 and January 29,
1970 respectively, thereby terminating life estate in above described Parcel II,
Tract No. 3 remaining portion as referred to in ahove recited deed recorded in
Deed Book "II", Volume 21, Page 1045.
Wilbur F. Baer died on October 25, 1979, thereby vesting the entire fee ownership
in hia surviving SpOuse, Catherine V. nner.
UNDER ANIl SUBJECT to eauements of right-of-way for Ingreuu, egress and regress
of Jay H, Hyers and lIelen L. Hyers, his wife, and their heirs and assigns,
EXCEPTING TIIEREFItOH, however, ALL that certain lot of land, together with the
BOOt}) 31 pm 87
~
,
.
.
.
. .
. TOGETHER with all and .in/lular, the .aid propertv, improllemente, wav., water" water
courlB., righu, Iibertie., prillilegu, herediwment. and appurtenances whauoeller thereunto be-
lon/ling, or in an\lwi.ge appertaining, and the reller.ioll8, and remainder., rent., it'll" and profit.
thereof, and all the edwte, right, title, interut, propertv, claim and demand wha/loeller, of the eaid
part y of the fir.t purt, in law, equitv or othtrWise how,oBller, of, in and to the .ame and
ellel'll part thereof,
TO HA VE AND TO HOI,D the .aid
herediwment. and premise. htrcbv granted or mentioned, and intellded .0 to be, with the appurte-
nance., unto the .aid part i CB of the .eoond part, their heir. and aI.ign., to
and for the onll/ pr(}Jler UIB and behoof of the .aid parties of the second part, their
heira and alliqll8 forever,
Catherine V, Baer,
the .aid part y of the fir.t part, for her heir., executor.
and admini.9tratorB, docs bl/ theBe present. COllenant, gmnt and agree to and with the .aid
partieB of the .eeond part, their heir. and aI.igll8 that Bhe
the .aid party of the first part, and her heirs, all and singular the heredit~
menU and premises herein abot'e deseribed and /lranted or mentioned, and intended .0 to be, with
the appurtelll1nces, unto the said part ieB of thesecond part, their heirs /lnd alligll8
agaill8t her the .aid part Y of the first part and her heir., and against aU
and ellel'll other per.on or per.ons whom.oeller IawfullV claimino, or to claim the .ame or anv
,Jart thereof
generally shall and will tllarrant and foreller defend,
IN IVITNESS 1V1IEREOF, the said party of the first part haB
Bet her hand and scal . Dated the dall and IIcar firBt above written.
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Countll 01 Cumberland iA tL_ I ('
On tllil, tile 16 dOli 01 n: V '^ e..v.1
tile underBigned ofJlcor, perBona'l'i~ appeared Cntherlne V. liner
,1085 ,bolore me,
known to me (or satialactorilv prollen) 10 be the pcr80n wh08e name I B 811b80ribed to the
witllin ill8tmment, and aoknowlodged thllt Bhe ouellled same 10 Ihe plll'Jl0808 theroin
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Countll 01
On tllil, the dOli 01 , 19 , belore me,
the underBioned of]loer, pereonaUII aweared
known to me (or eatialaotorilv protlen) to be the pcrBon wh08e name eubsoribed to tile
witllin 'II8tmment, and OIlknow~dged that exeCllted Ba.me lor the flUl'Jloses therein
contained.
In witnue wherool, I hereunto set my hand and of]lcial eeal.
._-_.._.........._..._...._......_...._.._.............__.._._-~
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Title 01 OfJlcer.
do hereby certilll that j~e precise reBidenfS.1~~~.~!lole p08t ofJlce addre8B
01 the within named grantee iI ~ ~ ~ 'l. ,- -~~ \1 ~ ~ 7
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nOOK}) 31 rAGE 90
acknow-ledgement of the superiority of the record owners' title
inconsis-tent with th~ requirement that adverse possession mUst be
hostile. Thus the element of hostility is the only element of
adverse possession at iSBue.
Appellant argues that we should follow the reasoning of Judge
Tamalia, who dissented from the conclusion of the majority of the
Superior Court panel. He cited IDrrns v. Mitchell, 252 Pa. Super.
257, 381 A.2d 487 (1977), to the effect that even if a trespasser
seeks a quitclaim deed from the record owner, such a trespasser is
not acknowledging superior title in the record owner, but is
merely seeking to improve the marketability of his own title.
Burns, however, is factually distinguishable. The disputed
land in Burns adjoined the lots of the two parties, neither of
whom held record title. Burns obtained title by adverse
possession. She later acquired a quitclaim deed to the disputed
land. Burns held that the quitclaim deed only gave Burns record
title to property she had already acquired by adverse possession.
Under these circumstances, Burns merely improved the
marketability of her title after establishing ownership by adverse
possession.
In this case, by contrast, appellants sought a quitclaim deed
from the record owner; moreover, they did so approximately eight
years prior to the running of the statute of limitat ions for
adverse possession. It is therefore apparent that the Burns
[J-13-98J - 2
"",--,,0
precept--namely, that it is perfectly consistent to claim title by
adverse possession and also seek a quitclaim deed--is inapplicable
under the facts of this case,
It is also ugued that it is not essential to establish
hostility in a claim of adverse possession if all other elements
of adverse possession are present. This argument is based on
TiOGa Coal Co, v. Supermarkets General Corp" 519 Pa, 66, 75, 546
A.2d 1, 5 (1988). Tioga stated that "if the true owner has not
ejected the interloper within the time allotted for an action in
ejectment, and all other elements of adverse possession have been
established, hostility will be implied, regardless of the
subjective state of mind of the trespasser." lQ. Appellants
argue that if the Tioga rule is applied to this case, where every
element of adverse possession, with the sole exception of
hostility, is undisputedly present, then title by adverse
possession has been properly proved, as hostility is implied when
the other elements are present.
This is a misinterpretation of the holding and rationale of
TiOGa. The opinion otated that the above holding "is consistent
with a requirement that adverse possession be characterized by
hostility as well as the other elements of the cause of action. .
" lQ., 519 Pa. at 75, 546 A,2d at 5. Tioga manifestly cannot
be interpreted as disposing of the requirement of hostility. The
record in Tioaa was silent as to evidence of hostility,
IJ-13-98] - 3
To interpret and apply the holding of Tioaa in this case, it
is essential to t'ecognize that the facts of the cases differ
materially. The record of Tioaa was silent as to hostility; there
was no evidence tending to prove or disprove hostility. In those
circumstances, the court inferred the existence of hostility. In
this case, however, there is evidence tending to disprove the
existence of hostility,
To rely on Tioaa to establish the
existence of hostility in this case would not only be an extreme
extension of Tioaa, but would essentially eliminate hostility as
one of the required elements of adverse possession.
Such an
interpretation is impermissible given the above-quoted statement
in Tioaa that its holding "is consistent with a requirement that
adverse possession be characterized by hostility as well as the
other elements of the cause of action. .
"
Id., 519 Pa. at 75,
546 A,2d at 5.
Here, seeking a quitclaim deed destroyed the
element of continuous hostility in the adverse possession of
appellants, and Tioaa is not capable of being interpreted as
supplying that element by implication.
We therefore hold that the Superior Court was correct in
reversing the court of common pleas, thereby denying title by
adverse possession on account of appellants' attempt to acquire a
quitclaim deed from appellees,
Order of the Superior Court affirmed.
Mr. Justice Saylor files a dissenting opinion in which
Messrs. Justice Castille and Nigro join,
JUDGMENT ENTERElll
MAY . 1998
~
[J-13-98] - 4
J STEIIULAK, ESqUIRE
O:PUTY I'ROTIIONOTARY
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because such action constituted an acknowledgment of the superiority of the record
owners' title. While an offer to acquire legal title may constitute recognition of superior
right In another and support the Inference that use of the property Is by permission, see
f./stner Bros. v, Aghell, 359 Pa. Super. 177,518 A.2d 838 (1986), an attempt to secure
a quitclaim deed does not, in my view, support a similar Inference.
By statute, a quitclaim deed does not conveyor warrant record title but, rather,
constitutes only a release by the grantor of his or her Interest, if any, In the property In
question. 21 P.S. ~7; ~ oenerally Greek Catholic Conareoatlon v. Plummer, 338 Pa.
373, 12 A,2d 435 (1940); LADNER ON CONVEYANCING IN PENNSYLVANIA ~9.02
(rev. 4th ed. 1979). Indeed, the device Is most useful for the very reason that It permits
parties to settle a property dispute without the necessity of an acknowledgment by
either as to the merit of the other's claim.
Thus, Appellants' request for a quitclaim deed did not constitute an
acknowledgment that Appellees' predecessor in title possessed superior title, or any title
at all, to the property In question.
Mr. Justice Castille and Mr. Justice Nigro Join this Dissenting Opinion,
[J.13.98]- 2-
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JO"'N L. BTEIiULAK. ESQUIRE
OlPUfY PAOTUoNOunv
SHIRLEY BAILEY
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CBRTIFICATB OF RBKAND OF RBCORD
ANNIXBD HBRBTO PURSOANT TO PBNNSYLVANIA ROLBS OF APPBLLATB PROCBDORB 2571 and 2572 IS A
TROB AND CORRBCT COPY OF THB BNTIRB RBCORD FOR THE FOLLOWING MATTBR.
,JAY H. MYERS ANn HELEN L. MYERS, His wife
APPBLLANTS
V.
MELVIN S. BEllM Alm ANNA ~L BEAM, lIin Wife
APPBLUBS
~ 0035 M.D. APPIAU~.Kn..llE
(SIAL) RICaRD RBKITTRD. 07/0ft/i8
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REC\)F[l CONTENT: anginal RecOld In 3 puta
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wlth 1-1 I'C Order
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c. Hon. Bdgar B. Baylay
Michaal D. Raad, Bsquirs
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- OR .
Oal. F. Shughart Jr., rsquira
TO, Clark/Prothonotary
PLEASE ACKNOWLEOIJE RECEIP'r BY S WNtlIO, DATING AND
RETURNING TilE ENCLOHED 10 'rHI~ oFnCR,
JLS/aks
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MELVIN S. BEAM and
ANNA M. BEAM, his wife,
Counterclaim Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
vs.
NO. 94-2821 CIVIL TERM
JAY H. MYERS and
HELEN L. MYERS, his wife,
Counterclaim Defendants
Action In Ejectment
ORDER OF COURT
AND NOW, this J~r- day of , 1998, pursuant
to the Order of the Pennsylvania Supreme Court dated May 20,
1998, affirming the Order of the Pennsylvania Superior Court
dated August 30, 1996, reversing the Order of this Court dated
April 20, 1995; pursuant to the remand directives of the
Pennsylvania Superior Court; and upon stipulation and agreement
of Counterclaim Plaintiffs, Melvin S. Beam and Anna M. Beam, his
wife, by their attorney, Dale F. Shughart, Jr., Esquire, and the
Counterclaim Defendants, Jay H. Myers and Helen M. Myers, his
wife, by their attorney, Michael D. Reed, Esquire, Mette, Evans &
Woodside, it is hereby ORDERED AND DECREED that fee simple title
to the land on the West side of Route 696 in Hopewell Township,
Cumberland County, Pennsylvania, as described on a survey of
Samuel David Runyon, PLS, dated January 2, 1992, and admitted
into evidence as to Defendant's Exhibit No. 15, is vested in
Melvin S. Beam and Anna M. Beam, his wife, their heirs and
assigns, who took fee title to the land as a part of the
conveyance to them in a deed from Catherine V. Baer dated
February 26, 1985, and recorded on February 28, 1985, in
Cumberland County Deed Book "D", Vol. 31, Page 85. Provided,
however, that the title of Melvin S. Beam and Anna M. Beam, his
wife, is subject to a 20 foot wide easement of right-of-way for
purposes of ingress, egress and regress in favor of Jay H. Myers
and Helen L. Myers, his wife, their heirs and assigns, as
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J-A29013/96
JAY H. MYERS AND HELEN L.
HIS WIFE
v.
MYERS, )
)
)
)
)
)
)
BEAM, )
)
)
IN THE SUPERIOR COURT OF
PENNSYLVANIA
MELVIN S. BEAM AND ANNA M.
HIS WIFE,
Appellants
NO. 00397 HARRISBURG, 1995
Appeal from the Judgment in the Court of
Common Pleas of Cumberland County,
Civil Division, No. 94-2821
BEFORE: TAMILIA, J., JOHNSON, J., and MONTEMURO, J. *
DISSENTING MEMORANDUM BY TAMILIA, J.:
FI LE OAUG301996
Believing a request for a quit claim deed does not interrupt
the running of the 21-year period of continuous, hostile
possession necessary to obtain title to property by adverse
possession, I must respectfully dissent.
The case before this Court questioned ownership of a tract of
land along the west side of Pennsylvania Route 696, also known aa
Middle Spring- Newburg Road. Based on the part ies I dl~eda,
appellants, Melvin and Anna Beam, held record title to the land.
The appellees, Jay and Helen Myers, claimed title by illlvenle
possession and filed an action to quiet title. The trial court
found the facts supported appellees' ownership by adverae
possession, while the appellants argue the evidence presented Wila
insufficient to sustain the trial COIIl't'S decision. Appellants
also contend the trial court erred by allowing Mr. Myera to
testify about conversationa he had with appellanta I now deceaaed
predecessor-in-title, Wilbur Baer.
*Retired Justice assigned to the Superior Court.
1
J-A29013/96
Specifically, appellants argue a finding of adverse
possession is precluded based upon the facts appellees erected and
maintained a fence along the recorded boundary for a period of
approximately 15 years, ending in the mid 1980s, and also
requested a quitclaim deed from appellants' predecessor-in-title
(Baer) in 1980, 13 years after they purchased the land.
Appellants argue these actions by the appellees acted as an
acknowledgment of the Baers' ownership, and established that
appellees I use of appellants' property was permissive rather than
adverse. It is further averred appellees' on-going maintenance of
the land was insufficient to establish title by adverse
possession.
In order to acquire title to property through adverse
possession, a trespasser must prove actual, continuous, exclusive,
visible, notorious, distinct and hostile possession of the land in
question for a minimum of 21 years. Baylor v. Soslca, 540 Pa.
435, 658 A.2d 743 (1995). Appellants herein purchased their
acreage from the Baers in 1985. While the bulk of their property
lies to the east of Middle Spring-Newburg Road, they also held
record title to a l,OOO-foot strip of frontage on the west side of
the road. A fence, partially marking the actual boundary, was
constructed somewhat parallel to the road's berm. It is the
ownership of this strip of land, located west of the roadway,
which is the subj ect of this lawsuit. The record established
appellees purchased their property, located west of Middle Spring-
Newburg Road, in 1967. Thereafter, appellees maintained the land
to which they held record title, and also actually, continuously,
2
J -A29013/96
exclusively and visibly occupied and maintained the 1,000 - foot
frontage in question until 1991 when appellants voiced their
objections.
Catherine Baer,
appellants'
predecessor-in-title
between 1955 and 1985, testified she was aware of appellees' USe
of the land between 1967 and 1985 but made no assertion at trial
that either she or her now-deceased husband had permitted said
use. Furthermore, contrary to appellants' averment, lIppl!llees'
1980 request for a quitclaim deed from the Baers, tile record title
owners, did not negate Ot' bel ie appellees I hostill! l!HI! lit t1lH
land. See BurnB v. Hi tcllell, 252 Pa. Super. 257 n. G, llll A. 2e1
487 n. 6 (1977) (It is perfectly consistent to claim tHIB by
adverse possession and also seek record title through a quitclaim
deed.).l Likewise, appellees' reconstruction of the fence tOl'
1contrary to the holding of the majority which dismisses Ill/rllll
v. HitclJell, 252 Pa. Super. 25'7, 381 A.2d 487 (1977) iW
distinguishable and espousing a principle of law inapplicable I'll
the facts before us, I would find footnote G states a val iel
principle of law. The enti re note reads as follows:
6. The lower court also emphasized the fact that
appellant obtained a quit claim deed for the
disputed land in 1975 and that this action showed
that appellant did not in fact believe that she Irnel
title to the disputed land. Even though ~rnt
appellant believed is not controll ing, IJyn/lH v.
Andrews, [226 Pa. Super. 351, 313 A.2d 313 (1973) J,
we feel is [sic] is important to note that thl:! JJJWI1.I.:
court is confusinQ title by adverse poss8sIi1.!.uLWltll
marketable or record title. It il:l })er[l~illy
consistent for appellant to claim titl'L.I1y_.ili.l~'U.u
possession and also seek to obtain n!~!lnL-.liUJ:
throUQh a quit claim deed.
BurnB, Bupra at _, 381 A.2d ill 411~J'4'JIl ('HIIJlIWllill ,llhlml).
Clearly, BurnB stands for the principII! Ihill I"qlllilll tnq " qlli t
claim deed is not controlling on wl1t!lh,!J' 01 Illll ,I cJ.l!milllt' ,IrHiIl or
does not believe he has title to I he dit1IJ1II"11 LIIIII 11111 mlllH 1m
construed to be a means to oblil i n 1"'~'lId I II I.. IIlI JlIIlJlllllHll ot
marketability. This cannot bp COIlIHIlI,.d III II" oln ,Illllll,ltl!on in
cOllt inll.-d on n"xl (101'1"
I
J-A29013/96
the purpose of restraining cattle, and which partially identified
the properties' boundaries, did not serve as an acknowledgment of
appellants' ownership. Accordingly, appellees' use was hostile.
See Sterner v. Freed, 391 Pa. Super. 254, 570 A.2d 1079
(1990) .
The evidence presented established the appellees'
continuous activities on and maintenance of the disputed strip of
land. I would hold, as the trial court summarized,
[PI laintiffs I visible excavating, clearing, putting
up and then taking down a fence, and their
continuous mowing and maintaining of the disputed
area for over twenty-one years was appropriate to
the character of the property. During that period,
plaintiffs have been in actual possession by
asserting dominion over the area. Their possession
has been that of an owners' use; it has been
distinct and exclusive. Plaintiffs' actions have
been possessory and notorious in nature, thus their
use of the disputed area has been hostile.
Plaintiffs have intentionally possessed the property
as against the record owners. This adverse
possession against the title owners occurred between
1968 and 1991 when the Beams first challenged that
possession.
(Slip Gp., Bayley, J., 4/20/95, p. 8.) I would find appellees
sustained their burden of establishing ownership by adverse
possession.
Next, appellants argue the trial court erred by allowing
test imony by Mr. Myers concerning transact ions and conversations
involving him and his now-deceased predecessor- in- title, Wilbur
Baer,
concerning appellees'
use of the property and the
controversial quitclaim deed. Objections were made on the bases
of hearsay and the Dead Man's Act. Appellants argue II [tl he clear
writing, which serves to interrupt the running of the statute, as
alleged by the majority.
4
J-A29013/96
impact of Mr. Myers' test imollY was to create an inference that
'good old' Mr. Baer wanted the Myers to have the disputed strip".
(Appellants' brief, p. 28.) Appellees reply the Act was not
violated and, in the alternative, Myers' limited testimony was
inconsequential and does not justify vacation of the trial court's
Order. While the majority has not addressed this matter, I have
chosen to discuss appellants' argument on its merits.
The Dead Man I s Act "was enacted to protect the estate of a
decedent against a claim based on testimony of a surviving party
as to a transaction with the decedent". Flagship First National
Bank v. Bloom, 288 Pa. Super. 347, 353, 431 A.2d 1082, 1085
(1981). Neither Mr. Baer's estate nor Mrs. Baer's interest in the
property at issue, which is nil in that the widow sold the land in
1985, is endan'Jered by the objected-to testimony by Mr. Myers.
Mr. Myers' test imony concerning his use of the land and his
reasons for submitting a quitclaim deed to the Baers was offered
to rebut evidence and explain why he offered the deed to the widow
Baer in 1980. While clearly Mr. Baer was unavailable for cross-
examination, Mrs. Baer was available to respond to Mr. Myers'
testimony concerning conversations between the neighbors regarding
boundary confusion. I find the testimony to have been properly
allowed. See Ludmer v. Nernberg, 433 Pa. Super. 316, 640 A.2d
939 (1994).
Having found appellants' arguments devoid of merit, I would
affirm the judgment granting appellees title by adverse possession
and dismissing appellants' counterclaim in ejectment.
5
J. A29013/9G -- 1
JAY H. MYEHS AND HELEN L. MYERS, I
HIS WIFE I
IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPELLEES
APPELLANTS
I
I
BEAM, I
I
I
I
NO. 00397 HARRISBURG 1995
v,
MELVIN S, BEAM AND ANNA M,
HIS WIFE
Appeal fwm the Order entered May 1, 1995 in the Court
of Common Pleas of Cumberland County, Civil, No. 94-2821
BEFORE I
TAMILIA, J., JOHNSON, J. AND MONTEMURO, J.*
MEMORANDUM I
FI LE OAOO30me
Melvin S, and Anna M. Beam, Appellants, appeal from the order
denying their action for ejectment entered following issuance of
an order granting title by adverse possession to Appellees Jay H.
and Helen L. Myers.
The case involves the ownership of a strip of land
approximately one acre in size located along the west side of
pennsyl vania Route 696. Except for the road frontage, the
property is entirely surrounded by Appellees' farm. Appellants,
who own a farm directly across Pennsylvania Route 696, hold record
title to the disputed land. Appellees acquired their property in
1967 and soon thereafter erected a new house. The area near the
road in front of the house, including the disputed acre, was
unsightly, so Appellees removed trees and other vegetation from
the
property,
and
began
to
maintain
it
regularly.
In 1980, Appellees sought unsuccessfully to have the former owner
of Appellants' pl'operty execute a quitclaim deed to the one acre
tract. In 1985, Appellants plJl'chased their farm, including the
t Reth-ed Justice assigned to Superior COU1-t.
J. A29013/96 -- 2
land in question, although Appellees continued to maintain the
property until 1991, when a dispute between the neighbors arose.
Since that time both parties have attempted to exercise control
Over the property. In 1994, Appellees instituted proceedings to
quiet title, claiming ownership by adverse possession, and
Appellants filed an action for ejectment. The trial court granted
Appellees'
adverse
possession
claim,
denying
Appellants I
ejectment action, and this appeal followed.
Appellants raise two issues on this appeal.
1. Did the trial court err in concluding that appellees
acquired title to the disputed strip of land by adverse
possession?
2. Did the trial court err in allowing testimony by Jay
Myers regarding transactions/occurrences involving
Beams' deceased predecessor in title?
We find that, as a matter of law, Appellees did not acquire
title by adverse possession, and, therefore, reverse the judgment
of the trial court.
In order to acquire title by adverse possession, a claimant
must prove actual, continuous, exclusive, visible, notorious,
distinct and hostile possession of the land for twenty one years,
Bavlor v. Soska, 540 Pa. 435, 438, 658 A.2d 743, 744 (1995).
"Each of these elements must exist, otherwise the possession will
not confer the title," Smi th v. Peterman, 263 Pa. Super. 155,
161, 397 A,2d 793, 796 (1978). Moreover, the claimant must "keep
his flag flying and present a hostile front to all adverse
pretentions
[Olnly acts which signify a permanent
Occupation of the strip at issue for the requisite time period
will confer title by adverse possession." Pistner Bros. , Inc. v.
A.Qheli, 359 Pa. Super. 177, 182, 518 A.2d 838, 840 (1986).
J, A29013/96 -- 3
In Truman v, Ravbuck, 207 Pa. 357 (1904), our Supreme Court
held that adverse possession cannot be established when a claimant
attempts, during the running of the statute, to obtain legal title
to the property. This principle was clearly enunciated in Pill v.
Weatbrooli. 226 Pa. 217 (1910):
[I] f the occupant of land admits in writing
the land on which he lives belongs to another,
it is a voluntary submission to the title of
the other, and a surrender of any rights
acquired by a prior possession, Nothing can
more effectually interrupt the running of the
statute than an express acknowledgment of the
owner's title.
l!L. at 227.
Our COurt has, more recently, had an opportunity to address
the same issue in Pistner Bros., Inc. v. Aaheli, 359 Pa. Super.
177, 518 A.2d 838 (1986). In Pistner, we held that an offer to
buy property destroys the requisite element of continuous
adversity,
that is, the "open and explicit disavowal and
disclaimer of hOlding under another's title," l!L. at 183, 518 A.2d
at 841, and thus interrupts the running of the statute.1
In the present case, the adverse possession statute began to
run in 1967 when Appellees acquired their farm, removed the trees
1 See also 3 Am. Jur. 2d Adverse Possession ~ 116 (1986):
[I]f it appears at any time before the statute has run
that the claimant holds possession subordinate to
another person, or admits of the existence of a superior
title, the possession will not be deemed to be adverse.
Nor is it material in such case how long the possession
is continued, for it is apparent that it must be
inferior to that which is admitted to be true title. To
hold otherwise would be to open the door to fraud and
artifice,
J. A29013/96 -- 4
from the disputed area and began to maintain it on a regular
basis. However, in 1980, Appellees themselves struck a fatal blow
to their adverse possession claim when they sought unsuccessfully
to have the former owner of Appellants' property execute a
quitclaim deed to the land.
This endeavor to obtain a quitclaim deed was clearly an
attempt to acquire property from one admitted to be the true
holder of legal title, and manifested unequivocal recognition of
superior title in the rightful owner prior to the running of the
adverse possession statute. See Pistner. Therefore, by
presenting the quitclaim deed, Appellees destroyed the requisite
element of continuous adversity, and relinquished their claim to
ownership by adverse possession.
The trial court mistakenly asserts that the attempt to obtain
a quitclaim deed did not negate the adverse possession claim. In
doing so the trial court relies on Burns v , Mitchell, 252 Pa.
Super. 257, 381 A.2d 487 (1977), for the proposition that it is
perfectly consistent to claim title by adverse possession and also
seek a quitclaim deed. Burns, however, is factually
distinguishable.
The dispute in Burns arose concerning a strip of land between
adjoining residential lots occupied by Burns and Mitchell, neither
of whom held record title to the property. Burns filed an action
to enjoin Mitchell from encroaching upon the disputed land while
Mitchell sued to quiet title. This court found that, as a matter
~ law, Burns had obtained ownership by adverse possession prior
to Mitchell's action to quiet title. Therefore, when Burns
, .
J, A29013/96 -- 5
obtained a quitclaim deed to the disputed property, "the execution
of the [quitclaim] deed only gave appellant record title to that
which she had already acquired by adverse possession." Burns, 252
Pa. Super. at 259 n. 1, 381 A.2d at 488 n. 1. Thus, Burns simply
improved her title for marketability purposes by obtaining a
record title after ahe had already established ownership to the
property by adverse possession.
Ilere Appellees attempted to obtain the quitclaim deed (1)
from a rightful owner; (2) some eight years prior to the running
of the adverse possession statute; (3) for the purpose of securing
ownership to the property. Therefore, Burns is inapplicable as
the principle of law for which it stands is irrelevant to the case
at bar.
Since we reverse the judgment of the trial court conferring
title by adverse possession on Appellees, we need not reach the
issue of the propriety of Jay Myers' testimony.
Judgment is reversed, and this case is remanded for
proceedings consistent wi th this memorandum.
Jurisdiction relinquished.
Judge Tamilia files a Dissenting Memorandum.
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JAY H. MYERS and HELEN L.
MYERS, his wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
94-2821 CIVIL TERM
MELVIN S. BEAM and ANNA M.
BEAM, his wife,
Defendants
CIVIL ACTION - LAW
ACTION TO QUIET TITLE
Proceedings held before the Honorable
EDGAR B. BAYLEY, J.,
Cumberland County Courthouse, Carlisle, Pennsylvania,
in Courtroom No. 2/
on February 23/ 1995.
ORIGINAL
APPEARANCES:
MICHAEL D. REED, ESQUIRE
For the Plaintiffs
DALE F. SHUGHART, JR., ESQUIRE
For the Defendants
,0 l.(
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~
I N D E X
WITNESSES
PLAINTIFFS' :
JAY H. MYERS
Direct Examination by Mr. Reed
Cross-Examination by Mr. Shughart
Redirect Examination by Mr. Reed
HELEN L. MYERS
Dirsct Examination by Mr. Reed
cross-Examination by Mr. Shughart
JANE L. STRAYER
Direct Examination by Mr. Reed
MARTIN J. REESE
Direct Examination by Mr. Reed
Cross-Examination by Mr. Shughart
WALTER C. DUNLAP
Direct Examination by Mr. Reed
cross-Examination by Mr. Shughart
RAYMOND REBUCK. JR.
Direct Examination by Mr. Reed
Cross-Examination by Mr. Shughart
JOHN E. DYSON
Direct Examination by Mr. Reed
Cross-Examination by Mr. Shughart
PLAINTIFFS REST
DEFENDANTS' :
CHARLES BAER
Direct Examination by Mr. Shughart
Cross-Examination by Mr. Reed
NANCY HUBER
Direct Examination by Mr. Shughart
cross-Examination by Mr. Reed
CATHERINE BAER
Direct Examination by Mr. Shughart
DORIS KELL
Direct Examination by Mr. Reed
TODD BEAM
Direct Examination by Mr. Shughart
cross-Examination by Mr. Reed
TROY A. BEAM
Direct Examination by Mr. Shughart
SAMUEL D. RUNYON
Direct Examination by Mr. Shughart
Cross-Examination by Mr. Reed
Redirect Examination by Mr. Shughart
MELVIN BEAM
Dirsct Examination by Mr. Shughart
Cross-Examination by Mr. Reed
Redirect Examination by Mr. Shughart
Recross-Examination by Mr. Reed
PAGE
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114
116
121
128
130
132
150
152
158
/0<)
--
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EXHIBITS IDENTIFIED ADMITTED
PLAINTIFFS' :
1 - Sales Agrsement 9 85
2 - Deed 10 85
3 - Photograph 15 85
4 - Photograph 15 85
5 - Photograph 14 85
6 - Photograph 13 85
7 - Photograph 13 85
8 - Photograph 13 85
9 - Photograph 12 85
10 - Photograph 12 85
11 - Photograph 11 85
12 - survey 15 85
13 - Survey 17 85
14 - Photocopied chsck dated 7/7/68 20 85
15 - Photocopied check dated 11/19/69 20 85
16 - Photocopied check dated 5/27/68 21 85
17 - Highway Occupancy Permit dated 3/10/77 24 85
18 - Photograph 34 85
19 - Photograph 35 85
20 - Photograph 35 85
21 - Photograph 35 85
22 - Photograph 35 85
23 - Photograph 36 85
24 - Photograph 37 85
25 - Photograph 38 85
26 - Photograph 38 85
27 - Photograph 39 85
28 - Photograph 39 85
30 - Photograph 40 85
31 - Aerial Map 78 85
32 - Photocopies of Data IndelC Cards 80 85
* * *
DEFENDANTS' : IDENTIFIED ADMITTED
1 - Deed 104 153
2 - Deed 132 153
3 - Quitclaim Deed 144 153
4 - Photograph 135 153
5 - Photograph 136 153
6 - Photograph 136 153
7 - Photograph 136 153
8 - Photograph 137 153
9 - Photograph 137 153
10 - Photograph 131/137 153
11 - Photograph 137 153
12 - Photograph 137 153
13 - Photograph 138 153
14 - Photograph 138 153
15 - Survey 86 153
16 - Photocopied Survey 128 123
17 - Survey 123 153
I)
r--
1 February 23rd, 1995
2 Carlisle, Pennsylvania
3
4 (Whersupon, the following proceedings were
5 held.)
6 THE COURT: Is everybody ready to proceed?
7 MR. SHUGHART: Yes, Your Honor. I think it
8 will be helpful if we cover a few things. I have something
9 I definitely want to cover. This morning Mr. Reed handed me
10 a pre-trial memorandum. It has a paragraph on Page 9 or a
11 couple sentences which I respectfully request be excised
12 completely from it before it's given to you.
13 The situation in this case, it's a claim of
14 adverse possession, and my client's predecessor of title
15 Wilber Baer, died. And any testimony as to any verbal
16 transactions, or of course, occurrences between Mr. Myers,
17 the Plaintiff, and Mr. Baer, who is dead is barred by the
18 Dead Man's Act. When he says what the testimony is I am
19 going to object
20 THE COURT: Well, wait. Whenever there is
21 time for the objection, object.
22 MR. SHUGHART: But it is stated in the brief
23 so that it's being presented to your attention, even though
24 it's not going to be admitted. I don't think it should be
25 there for you to be admitted.
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THE COURT: Are you arguing whether it should
be admitted?
MR. REED: I think it should be.
THE COURT: I haven't looked at the brief. I
have to decide if it's admissible. I am not going to decide
in a vacuum.
MR. SHUGHART: I am asking that Plaintiffs'
counsel not submit something me that you are not going to
hear.
I hear it.
it.
THE COURT: I understand. Let's see whether
If I don't, I won't consider it. I won't hear
MR. REED: I want to hand up the memo at this
time, Your Honor.
MR. SHUGHART: I am asking
THE COURT: Just hold on. It's a reasonable
request. If I am not going to hear what is admissible, it
shouldn't be in the memo.
MR. SHUGHART: We have stipulations which I
also think will simplify things.
THE COURT: Go ahead with the stipulations.
MR. SHUGHART: It's my understanding that we
stipulate that the deeds and chain of title can be admitted
without sponsorship. I only have two. I think that they
only have one.
5
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1""\
1 THE COURT: Okay.
2 MR. SHUGHART: Also, they have a survey by
3 John Kissinger and a portion of the disputed propsrty, which
4 we are agreeing may be introduced by Mr. Kissinger.
5 THE COURT: Okay.
6 MR. SHUGHART: And we have a survey by Sam
7 Runyon, registered surveyor, who they think can be admitted
8 without Mr. Runyon. Although I expect some brief testimony
9 by Mr. Ruyon. Both surveyors agree on what the line
10 established by deed is.
11 THE COURT: Okay.
12 MR. SHUGHART: So that shouldn't be a
13 dispute. Also, the deed into my clients property reserves a
14 right of way for access to the Plaintiffs. It doesn't
15 indicate what tho width of it is. In our pleadings we have
16 agreed it's 20 'oot in width.
17 'I'IIE COURT: The access?
18 MR. SHUGHART: The access to the Plaintiffs'
19 property, across the piece of property, the ownership of
20 which is in dispute in this proceeding.
21 THE COURT: It's 20 feet?
22 MR. SHUGHART: We have admitted it's 20 feet.
23 That's not to say they are going to try to prove it's wider;
24 but the proof of that, Your Honor, since they have begun to
25 destroy microfilming records in the Recorder of Deeds
6
,,,",,
t'"'\
1 Office--
2 THE COURT: Yes.
3 MR. SHUGHART: or in the Prothonatary's
4 Office, I think both sides are requesting that whatever you
5 decide be put in the Recorder of Deeds Office so there is
6 appropriate record of what is put in issue here. I want to
7 get to it up front so it didn't get bogged down.
8 Our pleadings admit that the right of way is
9 the driveway which is on the surveys or whatnot by our
10 pleadings. That is not to preclude them from trying to
11 establish that it should be wider.
12 THE COURT: Okay. Ready?
13 MR. REED: Yes.
14 THE COURT: Go ahead.
15 MR. REED: We would call as our first
16 witness, Mr. Jay Myers.
17 MR. SHUGART: Your Honor, if I may, before
18 we begin, just restate that it's my understanding they
19 intend to illicit testimony
20 THE COURT: I don't want to hear any
21 objections before it comes up.
22 MR. SHUGART: But I --
23 THE COURT: No, I will not pre-rule on
24 objections. When something comes up you object to, do it.
25 MR. REED: Thank you, Your Honor.
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Whereupon,
JAY H. MYERS,
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. REED:
xxx Q Mr. Myers, would you state your full name for
the record, please.
A Jay H. Myers.
Q And where do you live, sir?
A 408 Shippensburg Road.
Q And what kind of property do you have at 408
Shippensburg Road?
A We have a farm.
Q Do you have a residence on that farm?
A A house and barn and buildings.
Q Okay. What is the -- when you say
Shippensburg Road, do you know what the state route number
for that is?
A Route 696.
Q Okay. And that goes between Shippensburg and
where?
A Newburg.
Q okay. When did you purchase that property,
sir?
A 1967
8
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I'""'<
1
2
3
4
5
(Whereupon,
Plaintiffs' Exhibit No, 1
was marked for identification.)
MR. REED: May I approach the witness,
Your Honor?
6 THE COURT: Yes.
7 BY MR. REED:
8 Q Mr. Myers, I'm showing you what we have had
9 marked as Plaintiffs' Exhibit Number 1. Do you recognize
10 that document?
11 A Yes, sir.
12 Q What is it?
13 A It's the sales agreement between Mr. Burk and
14 my wife and I.
15 Q And what's the date on that agreement.
16 A The 24th day of April, 1967.
17 Q How are the premises described in that
18 agreement?
19 MR. SHUGHART: Your Honor, the document
20 speaks for itself. If he wants to read what it says
21 THE COURT: No. Tell me generally so I have
22 a feel for it. I don't know anything about this case.
23 Basically what does it say?
24 THE WITNESS: It says we bought all land
25 lying west of the Middle spring - Newburg Road, containing
9
/{1--
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".-,
1 172 acres.
2 MR. REED: It says all of that certain farm.
3 Correct?
4 THE WITNESS: Correct.
5 MR. REED: West of the road?
6 THE WITNESS: Correct. That's the way I
7 understood it, and I took it to mean that.
8 MR. SHUGHART: The exact words are, "Lying on
9 the west side."
10 THE COURT: wait. wait. You are not
11 testifying. Tell me what the deed is containing. How many
12 acres?
13 THE WITNESS: 172.
14 THE COURT: The deed speaks for itself. Go
15 ahead. Next question.
16 MR. REED: Mr. Myers, I am going to show you
17 what we have marked as Exhibit 2 and ask you if you
18 recognize that document?
19 THE WITNESS: That's the deed we got when --
20 after the sales agreement was signed with Mr. Burk. This is
21 the deed that came with the property.
22 MR. REED: And when was that deed dated?
23 THE WITNESS: The 31st of May.
24 THE COURT: Of what year?
25 THE WITNESS: sixty-seven. I had it printed
10
f'"""I
(".
1 there.
2 MR. REED: And that's from the same property
3 that the agreement referred to?
4 THE WITNESS: Correct.
S MR. REED: Okay.
6 (Whereupon,
7 Plaintiffs' Exhibit Nos. 3 through 11
8 were marked for identification.)
9 MR. REED: Okay. Mr. Myers, I am going to
10 show you a series of photographs that we have had marked as
11 exhibits. Unfortunately, I think I gave them to the court
12 reporter in reverse orders.
13 THE COURT: Haven't you seen them?
14 MR. SHUGHART: If he is going to refer to
15 them, I don't know which ones he's numbered or referred to.
16 So if I can stand here, it will help me.
17 THE COURT: Go ahead. Show him the photos.
18 BY MR. REED:
19 Q Mr. Myers, I'm showing you first what we have
20 had marked as Plaintiffs' Exhibit Number 11, and ask you if
21 you are familiar with that. What's shown in that
22 photograph?
23 A That's a picture taken from Route 696 towards
24 our buildings.
25 Q And does that fairly and accurately depict
11
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1 the entrance to your property?
2 A Yes.
3 Q Off of Route 696?
4 A Very much so.
5 Q Okay. I'm going to show you now what we have
6 marked as Exhibit 10.
7 MR. SHUGHART: Your Honor, I am going to have
8 no objections to these photographs. I am waiving any
9 requirement that he specificallY identify each one as being
10 true and accurate.
11 THE COURT: Okay. He's just reviewing them.
12 MR. SHUGHART: Just to move things along.
13 All he has to do is tell what they show.
14 MR. REED: Thank you.
15 BY MR. REED:
16 Q Mr. Myers, what does Exhibit Number 10 show?
17 A That's looking from our buildings towards
18 696. It shows the whole area down to the road.
19 Q And there's a red barn shown across the road.
20 Is this on the property of the Defendants in this case?
21 A Yes.
22 Q Okay. And what does Exhibit Number 9 show?
23 A It shows the area at a closer up view, and it
24 shows the Defendants' property.
25 Q And it shows the whole area of the entrance
12
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f',
to your property, where your driveway comes in?
Yes.
And the grass on either side of that
A
Q
driveway?
A
Q
A
Q
Correct.
Now, this picture was taken when?
Ninety-three.
okay. Is that -- is the property in
basically the same condition today when this picture was
taken?
A I'd say so. We keep it very immaculate.
Q I'll show you what we had marked as Exhibit
8. What does that show?
A Basically the same area, only looking north.
Q Looking north up Route 696?
A 696.
Q okay. And Exhibit 7, what does that show?
A That's looking the opposite direction showing
the stream area and basically the area that's taken care of.
Q Okay. And Exhibit 6, what does that show?
A That shows basically the same with a little
ravine-type gully going down through the property to the
stream.
Q okay. Is this -- what does this brown area
in the lower left-hand corner? What is that?
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A
the stream.
Q
it?
A
Q
little area?
A
Q
A
Q
A
"......,
('\
That's a tile I had to put in there across
That's what you use as a bridge to go across
It used to be a bridge but it disappeared.
This is what you use to get across this
Correct.
What does Exhibit Number 5 show, Mr. Myers?
Basically the same thing.
Again, the red barn is the
Right.
Q -- on the Defendants' property?
A Correct.
Q Would you tell us what this object in the
middle of the picture which appears to be something made out
of concrete?
A That's a head wall to the tile that comes
across the road.
Q It comes underneath the road?
THE COURT: What comes underneath the road?
THE WITNESS: Tile road, culvert, whatever
you call it.
MR. SHUGHART: Drain pipe.
MR. REED: okay.
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IlX MR. REED:
Q
A
And Number 4, does that show the same?
It shows the stream coming from that culvert,
and it shows the bridge that used to be there.
Q And when was Exhibit Number 4 taken?
A '91.
Q What time in ' 91?
A Summer.
Q And lastly, I'm showing you Exhibit 3. Can
you tell the Court what that shows?
A That's looking southeast on the property
towards Shippensburg, along 696, and showing most all of the
area where the stream is now, but it doesn't show where it
used to be.
(Whereupon,
Plaintiffs' Exhibit No. 12
was marked for identification.)
BY MR. REED:
Q Mr. Myers, I'm going to show you Exhibit
Number 12 and ask you if you are familiar with that
document.
A Sure am. That's the survey Mr. Kissinger
done for us on 9/17/92.
Q Okay. And does that show the entire
perimeter of your farm?
15
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1 A Yes/ it does.
2 Q Okay. What does it show with regard to the
3 boundary line of your property as it approaches Route 696 on
4 the western boundary of the property.
5 Q It just shows a straight line. I don't
6 really--
7 Q It shows that the boundary line is on your
8 side of the road; is that correct?
9 A Correct.
10 Q Now, that was a survey performed by
11 Mr. Kissinger for you when?
12 A 9/17/92.
13 Q Before Mr. Kissinger's survey, did you have
14 any knowledge that the boundary line was on your side of the
15 road?
16 A No.
17 Q Okay. Where did you think the boundary line
18 was before you received that survey?
19 A We -- I'm positive I thought -- I mean/ I
20 presumed it was the road because the sales agreement says we
21 have the west of the road, and I was always positive it
22 was the road.
23 (Whereupon,
24 Plaintiffs' Exhibit No. 13
25 was marked for identification.)
16
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1 BY MR. REED:
2 Q Mr. Myers, I'm showing you what we have had
3 marked as Plaintiffs' Exhibit Number 13. Is that a detailed
4 portion of the Kissinger survey?
5 A Correct.
6 Q And that's -- the detail is that at the
7 western portion of the property?
8 A Correct.
9 Q Does that show the area that's in dispute in
10 this case?
11 A It sure does.
12 Q And have you added up the various parcels
13 that he has called A, Band C to show how much is at stake
14 here in terms of the acreage.
15 A It's less than seven-tenths of an acre.
16 Q I believe if you add it, it will be about
17 nine-tenths of an acre?
18 A I don't recall. That's what I had in my mind
19 from when I added it up.
20 xxx Q You said you believed before you received
21 that survey in 1992 that your property extended all of the
22 way to the road. Based on that belief, did you do anything
23 at the western boundary of that property to use that
24 property after you purchased it in 1967?
25 A From the time we bought it we started
17
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1 cleaning it off.
2 Q What was the character and nature of the
J property at the western boundary of it when you purchased it
4 in 19677
5 A Very deplorable. It was trees and brushes
6 and briars and rocks and stumps, you couldn't even see the
7 road from our house it was so bad.
8 Q Okay. What did you do regarding that
9 situation after you purchased the property in 1967?
10 A I had of excavators come in and we started
11 cleaning it out.
12 Q When did you start doing that?
1J A Probably -- or not probably but in '67, I
14 would say we started, '68 we did a major portion of it.
15 Q So for the first year or so that you were
16 there, you were excavating and clearing that area?
17 A Yes, indeed.
18 Q Were there any trees in that area that were
19 removed?
20 A Many trees.
21 Q Can you estimate how many trees were removed
22 as part of this clearing?
2J A Twenty, probably, large trees, and many
24 smaller brushes.
25 Q At the time you were doing this, who was the
18
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1 owner across -- of the property across the road at that
2 time?
3 A Mr. Baer.
4 Q Did and was he married?
5 A Yes.
6 Q Okay. Did either Mr. and Mrs. Baer ever
7 object to you taking those trees out?
8 MR. SHUGHART: Your Honor, I'm going to
9 object to anything that Mr. Baer may have said. He is
10 deceased. I don't think it's -- I'll raise a hearsay
11 objection. To state it, I don't think it's hearsay because
12 of predecessor, it is the Dead Man's Act. Wilbur Baer died
13 October 25, 1979 and any transactions not reduced to writing
14 between the decedent is barred under the Dead Man's Act.
15 THE COURT: You may answer this question:
16 Did Mr. and Mrs. Baer ever object to you clearing that part
17 of the land?
18 THE WITNESS: No, sir.
19 MR. REED: And Mr. Myers, you said that you
20 have had retained excavators, do you recall who you retained
21 to do that work?
22 THE WITNESS: Snoke & Myers was the one
23 Myers, John Walters was the other excavator, plus PennDoT
24 was even involved.
25 MR. REED: Okay.
19
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1 (Whereupon,
2 Plaintiffs' Exhibit Nos. 14, 15, 16
3 were marked for identification.)
4 THE COURT: Let me see the last survey, the
5 disputed area.
6 (Whereupon, the survey was handed to the
7 Judge.)
8 BY MR. REED:
9 Q Mr. Myers, I'm going to show you what we
10 have marked as Plaintiffs' Exhibit 14, 15 and 16 and why
11 don't you, in sequence, tell the Judge what those documents
12 are.
13 A Exhibit 14 is a check made July the 7th, 1968
14 to Snoke & Myers for the amount of $457.83 for their service
15 of doing excavating there.
16 Q And is that check signed by you?
17 A It's signed by Jay H. Myers.
18 Q Is that your signature?
19 A That's my signature.
20 Q And you're certain that that was for
21 excavation of this area at the western boundary?
22 A Yeah. I sure am.
23 Q Okay. Look at Exhibit 15. What is that?
24 A Exhibit 15 is another check made 11/19/69 for
25 the amount of $245.00 to John F. Walters excavating, signed
20
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".....
A
Q
A
for $112.00.
Q
A
Q
boundary area?
A It sure was. And that's signed by you also,
sir?
A Yes, it is.
Q Once you got that area cleared, what, if
anything, did you do to use or improve the area?
21
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1 A No.
2 Q What about the stream that runs through that
3 portion of the property? Has that stream always running the
4 same course that it's in now?
5 A No.
6 Q When was that changed? Do you recall?
7 A During the early period, there, PennDOT came
8 to me and said that the stream had ran out real close to the
9 road, and there was so much brush and debris in there that
10 the water didn't go through the bridge that's across our
11 driveway; and they wanted to know if they could straighten
12 the stream. So they brought in a grade-all and spent a day
13 moving the stream over so that it entered the bridge
14 straight so the water didn't flood the road, which it did
15 many times.
16 Q Did they consult with you regarding that?
17 A Yes, they did.
18 Q To your knowledge, did they consult with the
19 Baers regarding that?
20 MR. SHUGHART: Your Honor, I'm going to
21 object.
22 THE COURT: sustained
23 BY MR. REED:
24 Q Did Mr. and Mrs. Baer object to the
25 straightening of the stream at that time?
23
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1 A No.
2 Q You said it was in the early years; but do
3 you mean the early years that you owned the property?
4 A Yes.
5 Q So it would have been in what? Five years
6 after you purchased the property?
7 A I'd say probably about '69.
8 Q Okay.
9 MR. SHUGHART: I am going to be objecting to
10 this on a couple different bases. So after it's been
11 identified I'll --
12 THE COURT: All right.
13 (Whereupon,
14 Plaintiffs' Exhibit No. 17
15 was marked for identification.)
16 BY MR. REED:
17 Q Mr. Myers, I'm showing you what we have had
18 marked as Plaintiffs' Exhibit Number 17, and I'd ask you if
19 you recognize that document?
20
21
22
23
24
25
A Yes, I do.
Q What is it, sir?
A It's a highway occupancy permit --
Q Okay.
A -- dated 3/10/77.
Q And was that issued by the Commonwealth of
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Pennsylvania Department of Transportation?
A Yes, it was.
Q And was that issued to you, sir?
A Yes.
MR. SHUGHART: Your Honor, I want to object
on the basis that this is not a complete document. It says
that there is a plan attached. This was just given to me
the other day, and the plan isn't here. The plan is an
essential part of the permit, and the note at the bottom
says it's recorded at the courthouse. I don't know why that
isn't here; that may even show the property line.
THE COURT: Well, are you going to ask him
anymore questions about this document?
MR. REED: I'm only going to ask him why he
applied for a permit. What was the purpose of the permit.
THE COURT: You may ask that.
BY MR. REED:
Q
What was the purpose of the permit,
Mr. Myers?
A
We blacktopped our road, and it's required to
get a permit to do that.
Q And that was the driveway up to your house
that we have seen in the pictures?
A Correct.
Q And that was done sometime shortly after the
25
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issuance of this permit?
A About the same time.
0 And what's the date of the permit?
A 3/10/77 .
0 Okay. Did -- during the time that Mr. and
Mrs. Baer and their family lived across the road from you,
1
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3
4
5
6
7 did their anybody in their family ever make any use of
8 that portion of the property that's in dispute that you've
9 seen in the survey?
10 A No.
11 0 Did there come a time before -- Mr. Baer died
12 about 1979; is that correct?
13 A Correct.
14 0 Did there come a time before Mr. Baer's death
15 that you discussed with him where the property line was?
16 MR. SHUGHART: Your Honor, I'm going to
17 object to any conversations with Mr. Baer.
18 THE COURT: What's the exception?
19 MR. REED: Your Honor, this doesn't go to a
20 transaction that would be adverse to the interest of the
21 deceased. The deceased and his family are no longer owners
22 of the property. The Defendants are the owners of the
23 property.
24 THE COURT: You're seeking to illicit from
25 this witness what Baer told him about --
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HR. REED:
THE COURT:
HR. REED:
THE COURT:
The boundaries.
The disputed boundary?
Yes.
The objection is sustained.
BY HR. REED:
Q After Plaintiff Baer's death, Hr. Hyers, did
there come a time in which you had an attorney prepare a
quitclaim deed with regard to this portion of the property?
A Yes.
Q And did you then transmit that quitclaim deed
to Mrs. Baer?
A Yes.
Q How did you give that to Mr. and Mrs. Baer?
A Hand delivered it.
Q Okay. What discussion was there with Mrs.
Baer at that time, if any, regarding the purpose of the
quitclaim deed?
A I just --
MR. SHUGHART: Your Honor, I'm going to
object to anything that he might repeat that he says
Mr. Baer told him.
THE COURT: Now he's talking Mrs. Baer.
MR. SHUGHART: He asked him what he told her.
THE COURT: What's the purpose of your
objection? What's the reason.
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MR. SHUGHART I The question was, what did you
tell her, and he may have said Mr. Baer told me this or
that.
THE COURT: Well, don't say what somebody
else told you.
THE WITNESS: What was the question, Mike?
BY MR. REED:
Q
Did you present the quitclaim deed to
Mrs. Baer?
A Correct.
Q What if anything was discussed between you
and Mrs. Baer? Not what you told her or that anybody else
had said, but what was discussed between you and Mrs. Baer
about the reasons for the quitclaim deed?
A I presented it to her, and told her why, and
gave it to her to think about for a couple of weeks, and to
come back with a decision.
Q In your mind, at the time that you presented
the quitclaim deed, did you believe that you owned all of
the way up to the roadway on your property?
A Correct.
Q Was this before any survey had been done?
A Correct.
Q So why, if you believed you owned all of the
way to the roadway, why did you present a quitclaim deed to
28
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1 Mrs. Baer for that disputed portion?
2 A Because it was the wishes of the other
3 fellow--
4 MR. SHUGHART: Your Honor, I object.
5 THE COURT: Now, this is going to the truth
6 of the averment and it's admissible. It's admissible for
7 the purpose of why he submitted the quitclaim deed.
8 Overruled. You may tell me. You submitted the quitclaim
9 deed to her because it was the wishes of whom?
10 THE WITNESS: Mr. Baer, the owner.
11 THE COURT: Next question.
12 MR. REED: When had Mr. Baer expressed those
13 wishes to you?
14 MR. SHUGHART: Your Honor, again I'm
15 objecting to any transactions or conversations between the
16 decedent and the adverse party, here, who is --
17 THE COURT: Well, the Baers are not the
18 adverse party.
19 MR. SHUGHART: But they are the predecessor
20 entitled and his adverse possession --
21 THE COURT: What's your position?
22 MR. REED: Your Honor, I'm aSking why he did
23 it at that point it was after his death. I just want to
24 establish it was after his death, and that it was the wish
25 of Mr. Baer.
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1 THE COURT: You've established that.
2 MR. SHUGHART: May I present something on the
3 record?
4 THE COURT: Nothing else. Everything else
5 does go to the appellate Court. I'm getting this done.
6 Next question.
7 MR. REED: Okay, Mr. Myers, did Mrs. Baer
8 THE COURT: When was this submitted, this
9 proposed quitclaim deed? What time frame, sir?
10 THE WITNESS: In the summer of '79, sir.
11 THE COURT: Next question.
12 MR. REED: Was it submitted after the death
13 of Mr. Baer? Just so -- if you are confused on the date, we
14 can establish it.
15 TilE WITNESS: Yes.
16 MR. REED: Now, what did Mrs. Baer do? Did
17 she execute the quitclaim deed?
18 THE WITNESS; She talked it over with her
19 children and
20 TilE COURT: Did she execute the deed?
21 TilE WITNESS: No. sorry.
22 BY MR. REED:
23 Q Did she come back to you and tell you she was
24 not going to execute the deed?
25 A Yes.
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1 Q And after that, what changes, if any, did you
2 make with regard to your use and maintenance of this
3 property?
4 A None.
5 Q okay. When was the first time that you had
6 any controversies from the current Defendants, tne current
7 owners across ths road, the Beams, with regard to the
8 ownership of this portion along the western boundary of the
9 property?
10 THE COURT: Before you answer that, do you
11 know when the Beams moved in?
12 THE WITNESS: '85.
13 THE COURT: Now, you may answer that
14 question.
15 THE WITNESS: I would say late '91 or early
16 '92.
17 BY MR. REED:
18 Q Okay. How did that come to your attention
19 that they were disputing the ownership?
20 A They were -- at that point they started to
21 give us a hard time about different things we did.
22 Q Was there a specific incident where Mr. Beam
23 came over and told you he owned a portion of your property?
24 A Correct.
25 Q When did that occur? And you are saying that
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ocourred in the beginning of 19911
A Correot .
Q What happened in that inoident, if you can
recall?
J
A The summer of '91 we put in a Chesapeake Bay
manure pit. We had an excavator there was a very large
oak tree down front. It was about 100 feet west of the
creek.
Q You mean east of the creek -- or no, I'm
sorry, west.
A West. The direction -- it was closer to our
house. And the tree had died from gypsy moth, and I told
the excavator to take it out, and he went down and pushed it
out and knocked it down, and we started cutting it up.
MR. REED: Before you go any further -- Your
Honor, I just realized weJve been making an error about east
and west. I think I said western boundary of their
property. Actually it's the eastern boundary of their
property.
TilE COURT:
MR. REED:
Okay.
Thank you.
BY MR. REED:
Q Mr. Myers, 696 runs along the eastern
boundary of your property?
A Correct.
32
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1 Q Now, go ahead and tell us about the inoident
2 where you were working on the manure management pit. What
3 happened when Hr. Baer came over?
4 A We had the tree pushed over. And I told
5 him the excavator -- before he left I wanted him to move
6 the stump because I couldn't. And we sawed it off, and we
7 were proceeding to cut up the tree. The next thing I knew,
8 Hr. Beam and his son Todd came down. They corne over, they
9 were very hostile. He cussed and swore for about five
10 minutes at my wife, upset her very badly, and then he left.
11 And he said, well, he's going to clear this up once and for
12 all. He was going to town to get a surveyor.
13 Q Okay. And you said at the time that this
14 occurred, where were you? Where were you in relation to the
15 stream?
16 A One hundred feet west.
17 Q One hundred feet toward your house?
18 A Correct.
19 Q okay. After that, did anything develop that
20 indicated to you that a survey was being done?
21 A Not for four or five months.
22 Q Okay. Four or five months later, did
23 something happen that indicated to you that a survey was
24 being done?
25 A Yes. We seen action of survey. I was not
33
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1 contacted by anybody to tell me that they were going to
2 survey, which is proper procedure.
3 Q Okay. Was there any physical evidence left
4 on the property after the survey -- that the survey had been
5 done?
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9
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12
13 BY MR. REED:
14 Q Mr. Myers, again, I'm going to show you a
15 series of photographs. The First one is Exhibit 18, what
16 does that show, sir?
17 A That shows our driveway again, and it also
18 shows the telephone pole and railroad ties that we used to
19 have at the end of our drive.
20 Q Okay. And when did you put those telephone
21 poles and railroad ties along the edge of your driveway?
22 A Around' 87.
23 Q Okay. And why did you put those there, sir?
24 A To keep people from turning around and
25 abusing the grass and those kinds of things.
A What do you mean?
Q Were there any pins there?
A Yes.
Q okay.
(Whereupon,
Plaintiffs' Exhibit Nos. 18 - 23
were marked for identification.)
34
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Q
And photograph Exhibit Number 18 -- I'm
What does that show?
That shows the pole to the northern side of
sorry, 19.
A
the driveway.
Q And Number 20, what does that show? That
shows the railroad ties that were laying to the south of the
driveway.
Q When was that picture, Number 20, taken,
Mr. Myers?
A '92.
Q In the Rpring of '92?
A Ysah. Yes.
Q In that picture, can you see in the portion
of the property, beyond the stream, a survey pin?
A Yep, sure can.
Q Is that the location of one of the survey
pins that you found that led you to believe that a survey
had been done?
A Yes.
Q I'll show you Exhibit Number 21, another
photograph, does that show the same pin from a different
angle?
A It sure does.
Q And Number 22, another photograph, does that
show another of the survey pins?
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A Yes, it does.
o And that's on the other side of the driveway
from the pin that we saw in the previous two pictures?
A Yes, it does.
o And photograph Exhibit Number 23, what does
that show?
A It shows the general arsa that we're cleaning
off.
o And that would be --
A Southbound.
o And that would be at the southern edge of
your property?
A Yeah. Yes, sir.
o Did you ever have any portion of this
disputed area fenced, Mr. Myers?
A Sure did.
Q And when did you have that fenced?
A In '88 -- or '68 when we moved in we have had
a fence around the whole portion, and it came down around
the whole area. We had cattle in it.
Q You had cattle in there?
A Cattle.
Q How far would you estimate from thf! roadway
that the fence began?
A 10 to 15 feet.
36
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1 (Whereupon,
2 Plaintiffs' Exhibit NOB. 24 - 30
3 were marked for identification.)
4 THE COURT: Let's take a 10-minute break.
5 MR. REED: Thank you.
6 THE COURT: You may step down for a moment,
7 sir.
e (Whereupon, a recess was taken.)
9 AFTER RECESS
10 THE COURT: Okay. Have a seat. We'll
11 continue.
12 BY MR. SHUGHART:
13 Q Mr. Myers, before we took a break, we were
14 discussing a fence that had been on a portion of your
15 property. I am going to show you another series of
16 photographs. First, showing you Exhibit Number 24, does
17 that show, in the background of that picture, the location
18 of the fence as it existed?
19 A Yes.
20 Q And what was the date of that picture? Is it
21 covered up with a sticker? When was that fence present, to
22 your recollection, on your property? When did you erect it?
23 A Started in '67 and '68.
24 Q And how and when did you remove that
25 fence? It's no longer there, is it?
37
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show?
A
cleaned off.
Q
photo?
A
Q
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you can't read the date on, could you read for ue 25, 26 and
27? Can you read the dates on the back of those photos?
A '69. July of 69.
Q okay. I'm going to show you a more recent
photo of Number 28.
A That's
a What does that show, Mr. Myers?
A It shows a tree with the actual wiring, where
the wire fence came down around and wsnt across.
a When was that picture taken?
A '95, February.
Q So this past month you took that?
A Yes.
a And does that -- where the wire is in the
trees, is that where it was when the fence existed?
A Yes.
a How close to the roadway is that?
A 20 feet, 15.
a Okay. And photograph Number 29, what does
that show?
A That shows more fence.
Q And that's -- was that also taken February of
'95?
A Yes.
a And Number 30, what does that show?
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Q
A
Q
roadway there?
A
anyone else.
Q
A
Q
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1 from the property?
2 A No.
3 Q After Mr. Beam came over and told you that he
4 thought the property was his in 1991 and he was going to go
5 get a surveyor, did you continue to mow property and
6 maintain it as you've described earlier?
7 A Up until today we still maintain it as we
8 always have.
9 Q That didn't change after the placement of the
10 survey pins?
11 A No.
12 Q Mr. Myers, have you checked the tax map in
13 the tax mapping office of cumberland county?
14 A Sure have.
15 Q Let me show you Exhibit Number 31 --
16 MR. SHUGHART: Your Honor, I agreed that this
17 could come in under proper sponsorship, and I believe
18 Mr. Dyson from the Tax Claim Office is here because the
19 meaning of this map, I think, can only be explained by
20 somebody from the Tax Claim Office.
21 THE COURT: I guess he is going to identifY
22 it. Is that the tax map?
23 THE WITNESS: Yes, sir
24 BY MR. SHUGART:
25 Q Is that the same one you saw when you went to
41
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map?
A
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13 on there
A
Q
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1 minute to look at a couple of these photographs.
2 THE COURT: Sure.
3 (Whereupon, a moment was taken by Defenss
4 counsel.)
5 CROSS-EXAMINATION
6 BY MR. SHUGART:
7 Q First I want to show you Plaintiffs' Exhibit
B Number 30, that's a tree in the foreground of that
9 photograph?
10 A Yes.
11 Q Is that the one you say the wire is wrapped
12
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14
15
16
17
18 A This stump down here has wire in it and this
19 tree. The fence went down here across the road and back up
20 along the driveway.
21 Q But the tree on photograph 30 is a good ways
22 from the road. Correct?
23 A Yes.
24 Q And 29 is showing two trees. Ie that where
25 you say they are showing wire in the trees?
around?
A There is wire in that tree.
Q In that tree?
A You cannot see it?
Q I think I see it, but that tree has snow
behind it, and beyond that is the road. Correct?
43
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1 A Yes, there is wire in that tree there.
2 0 And that's the tree, the right of the two
3 trees as you face the photograph. Correct?
4 A Yes.
5 0 And is that the strsam bed behind it there?
6 A Yes.
7 0 And 28 shows the stump of two trees.
8 Correct?
9 A Correct.
10 Q Now, are those the trees that you were in
11 there working on when Mr. Beam came to you in 1991 and asked
12 you to stop?
13 A No.
14 Q But you're saying that those are the trees
15 that have wires in them. Correct?
16 A Yes.
17 Q And again, on the othp.r side of those trees
18 is the stream and then the road?
19 A Yes.
20 THE COURT: Is any portion of the stream on
21 the disputed property?
22 THE WITNESS: Excuse me.
23 THE COURT: Is any portion of the stream now
24 on the disputed area?
25 THE WITNESS: Yes.
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1 MR. SHUGHART: I think the approximate
2 location of the stream appears on that.
3 THE COURT: Yeah. I see.
4 MR. SHUGHART: On that picture there.
5 BY MR. REED:
6 Q And photographs 26, the fence that that is
7 showing is along your driveway. Correct?
8 A Correct.
9 Q And 27, that is showing is along your
10 driveway?
11 A Correct.
12 Q And 28, the fence that's showing is along
13 your driveway?
14 A Correct. Going all of the way to the road.
15 Q And you say it went all of the way to the
16 road. It doesn't show on these pictures, does it?
17 A Well, it looks that way to me.
18 Q Now, we have several cancelled checks, and I
19 saw the other checks, they are photocopies here. Do you
20 have the bills that go with these cancelled checks?
21 A No, I do not because the company don't keep
22 bills that long back. I called them, went to the office to
23 get them. Snoke & Meyer is no longer in business. The
24 bills were destroyed. John Walters is still in business,
25 and they don't keep bills that long back.
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1
Q
You don't keep copies of your bills?
We don't have them that far back.
2
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3
Q
And Exhibit 17, your highway permit, would
4 you read what it says right to the right of my finger there?
5 starting with the word construction.
6
A
"Construction must conform to attached plan."
7
Q
Do you have the plan that went with your
8 driveway occupancy permit?
9
A
I think so.
10
Q
.
Do you have it available that you can show it
11 to us with that permit?
12
A
No.
13
Q
So all that says is you got a permit for a
14 driveway on Route 696?
15
A
That's an important part.
Before you bought the Burk farm, you -- did
16
Q
17 you live across the road on another lot that you had bought
18 from the Baers?
19
A
Correct.
20
Q
How long did you live there?
21
A
One year.
Now, is it not correct, Mr. Myers, -- I am
22
Q
23 taking you back to the photographs you took, 29, 28, and 30,
24 that when you bought the property, in that general area a
25 distance from the road back and on the other side of the
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old fence was.
Q
onto --
A
Q
A
before.
Q
didn't it?
A
Q
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1 Q Is there still at least one old fence post
2 still out there on your property?
3 A No.
4 THE COURT: I want to be sure I understood
5 what he said. Are you telling me you put a fence up
6 yourself?
7 THE WITNESS: Rebuilt the fence that was
8 there.
9 THE COURT: Essentially ran your fence along
10 the line of the --
11 THE WITNESS: Tore down the fence that was
12 there and rebuilt a new one, sir.
13 THE COURT: That's what I thought you said.
14 Okay. Next question.
15 BY MR. REED:
16 Q And just so that I understand correctly, you
17 put your fence up in the late 60'S, '69, I think you said.
18 A Yes.
19 Q And then it remained for about 15 years until
20 the mid 1980's, '84, '85, thereabouts, when you removed most
21 of it?
22 A Yes.
23 Q Just to avoid any misunderstanding based upon
24 what you said, I want to show you your Exhibit Number 1,
25 which was the agreement of sale from Dr. Burk to you which
48
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1 describes the property you were buying. Would you read,
2 please, exactly what that said? It's just like two or three
3 or four lines there, the description of the property. Just
4 read exactly what it says on there.
5 A "All that certain farm situated in the
6 township of Hopewell, Cumberland county and state of
7 Pennsylvania lying on the west side of Middle spring -
8 Newburg Road containing 172 acres, more or less."
9 Q It says on the west side. It doesn't say
10 along the road. It says situated on the west side?
11 A The west side of the road. That means up
12 from the road to me.
13 Q Exhibit Number 12 is the survey Mr. Kissinger
14 prepared for you. Correct?
15 A Correct.
16 Q And he determined that you had 119.57 acres;
17 is that correct?
18 THE COURT: Give me that figure again so I
19 can put it in my notes. How many acres?
20 THE WITNESS: 119.57.
21 THE COURT: Okay.
22 BY MR. REED:
23 Q At some time after wilbur Baer died, you
24 personally took a quitclaim deed to Mrs. Baer; is that
25 correct?
49
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1 A Correct.
2 Q And the Judge allowed you to answer what you
3 told her that Mr. Baer had told you, and I missed part of
4 that
5 THE COURT: No, I didn't -- I did not allow
6 him to say that. I merely allowed him to say that he
7 presented the deed based on what Mr. Baer told him. I never
8 allowed him to say what Mr. Baer said. Now, go ahead and
9 ask another question.
10 MR. SHUGHART: I appreciate that
11 clarification, Your Honor, because he had said something
12 that I had missed the tail end of.
13 THE COURT: And that's what he said, and I
14 have circumsized the testimony to stay within what I feel is
15 the bounds of proper evidence.
16 BY MR. SHUGART:
17 Q Did the judge just restate what you said
18 accurately that you presented it to Mrs. Baer based upon
19 what Mrs. Baer said without saying anything that Mr. Haer
20 had said. Is that what you testified?
21 11 Yeah.
22 Q And she didn't sign it?
23 A Correct.
24 Q But at that point, in 1980, you knew that the
25 Baers had a claim across -- on your side of the road, didn't
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you?
A No, I did not.
Q The drain tile or drain pipe that goes under
696, the concrete abutment which shows on some of your
photographs, PennDOT installed that. Correct?
A Corrsct.
Q And when you buy the property, you couldn't
see your home because of the brush and debris that was down
along 696; is that correct?
A Correct.
Q So you removed that debris, which made your
home visible from the road?
A Correct.
Q Is it an old farm house?
A Now, you mean?
Q Yes.
A No, it's a new farm house.
Q When you moved in, did you move into the new
house?
A Yes, because the old house had burnsd.
Q Okay. So you built a new house because
you moved into when -- when did you move into your new
house?
A August of '68.
Q Does that have a view looking down towards
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1 696, then?
2 A Very nice view.
3 Q And you're saying that prior to Wilbur Baer's
4 death, you went in and made substantial changes to the
5 property that you now claim to own by adverse possession; is
6 that what you are testifying?
7 A Major changes.
8 Q And you have cancelled checks, but you have
9 no bills. Correct?
10 A Correct.
11 Q And you have a PennDOT permit, but you don't
12 have the plan that went with the PennDOT permit?
13 A Yeah. Here.
14 Q And you are aware that the deed from
15 catherine Baer to the Beams contained a provision with a
16 right-of-way for your driveway, aren't you?
17 A I -- I was made aware of that in '93.
18 Q But there are no other legal documents in
19 writing of which you are aware as to your drive existence
20 existence of your driveway between you and the Baers?
21 A What was your question, now?
22 Q other than the right-of-way for your driveway
23 that you found out in 1993 exists on the deed from the Baers
24 to the Beams, are you aware of any other written evidence of
25 your right to cross this disputed piece of property?
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1 A None whatsoever.
2 Q Whsn the Beams first moved in, did you come
3 over and voluntarily help Mr. Beam build a barn?
4 A Yes, I did.
5 Q And did you let him use a lot of your farm
6 equipment? ,.
7 A Did I what?
8 Q Allow him to use some of your equipment that
9 he didn't have?
10 A For about two weeks.
11 Q Did he harvest rye, and grains were growing
12 on your property, and divide the crop with you?
13 A I gave him nine acres of rye --
14 Q Did he
15 A no strings attached.
16 Q At that time did you have a chopping machine?
17 A Did I have a what?
18 Q chopping machine, machine to cut the rye?
19 A What do you mean by chopping machine?
20 THE COURT: Did you have a machine to cut the
21 rye?
22 THE WITNESS: There's different kinds of
23 machinss, a forage harvester?
24 MR. SHUGHART: Did you have a forage
25 harvester?
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1 THE COURT: You can be sure that these
2 attorneys don't know about farming equipment.
3 BY MR. REED:
4 Q A forage harvester. Did Mr. Beam use his
5 forage harvester to take out these forage crops that you
6 used?
7 A Yes, he cut a little bit for me.
8 Q Is it a fair statement that up until the
9 dispute over this piece of property arose, that you were
10 good neighbors and did things for each other?
11 A It was pretty much one-sided. I did a lot
12 more for him than he did for me.
13 Q Did his boys come over and take care of your
14 property when you'd go hunting?
15 A My wife took care of it. When she needed
16 help, they may have come over one time.
17 MR. REED: Your Honor, I am going to
18 THE COURT: I get the picture of the
19 relationship. If it were the old days they'd be duking it
20 out over this property; but we'll get it resolved for them.
21 Next question.
22 BY MR. SHUGHART:
23 Q And when Mr. Beam came over and you were in
24 the process of pushing out this tree in the summer of 1991
25 and told you to stop, you did stop at that point, didn't
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you?
A No, I did not. I continued cutting up the
tree/ loaded it up on the dump truck, and took it to my wood
pile.
Q And when Mr. Beam would drive his farm
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6 machinery on, what you're claiming now to be your property
7 by your driveway there, you never complained to him about
8 tearing up the grass there, did you?
9 A He didn't start driving on it until after he
10 had it surveyed; that he knew -- that he thought he owned it
11 then.
12 Q saying that he did not go on this disputed
13 piece of property with his equipment until after he had it
14 surveyed?
15 A Correct.
16 Q Is that what you are saying? Didn't his boys
17 come over and ride their motorcycles on this disputed piece
18 of property and off onto your property too?
19 A In 1989 they road their motorcycles up close
20 to my daughters' house, which is clearly our land. They
21 road it up a real steep hill. We put up ribbons to keep
22 them first we didn't know. Then we found out it was
23 them. My insurance agent said, Please don't let them do it.
24 If anybody gets hurt, they will sue you for everything you
25 got.
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THE COURT: Next question.
BY MR. REED:
a And Wilbur Baer's children, they used to come
over and play all of the time too?
A Excuse me.
a wilbur Baer's children, when you first owned
the property.
A No.
a And the railroad ties and telephone poles
that you indicated you put to keep people off of the grass
in this disputed area, they were removed, weren't they?
A Yes.
a And they weren't replaced by you, were they?
A No.
a And the Baers continued driving their farm
machinery on there at will after that, didn't they?
A The who did?
a Excuse me. The Beams?
A Yes. Just one, two days out of the year.
a And it was a situation that developed in late
1991 where you parked a tractor-trailer on your driveway.
Do you remember that?
A The tractor-trailer broke when I made the
corner, sir.
Q But didn't that occur at a time when the
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1 Beams were hauling crops into their barn and actually using
2 part of this disputed strip?
3 A Yes. It was a coincidence it broke. It just
4 broke.
5 Q But it just coincidently happened at the same
6 time that they were using this grassy area; is that correct?
7 A Yes.
8 MR. SHUGHART: I have no further questions.
9 THE COURT: Any redirect?
10 MR. REED: No -- yes, Your Honor.
11 REDIRECT EXAMINATION
12 BY MR. REED:
13 Q Mr. Myers, you were directed to the
14 description, in the Article of Agreement, when you purchased
15 the property about the acreage being 172 acres, and then you
16 were directed to a survey done for you by Mr. Kissinger in
17 1992, some 25 years later, which depicted your property as
18 containing 119.5 acres. Can you explain for the Court why
19 the acreage decreased from the time you bought it until the
20 time of that survey?
21 A When I bought it, there was 54 acres of this
22 farm that was laid across the Conodoguinet creek, and the
23 only access I had to it was through the creek. with D.E.R.
24 regulations like they are, they fruwned upon crossing the
25 creek. So I sold that piece, which did decrease it to the
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"...
acreage which is on here now, which is what he described.
So you sold the 54-acre tract?
Approximately 54. I'm not sure of the exact
Q
A
acreage.
Q
daughter?
A
Q
Did you deed any property over to your
Four acres I deeded to my daughter.
other than that, did you make any other
transfers of property?
A No.
Q Mr. Shughart asked you some questions about
some rye that you and Mr. Beam cooperated in harvesting on
your land. Was that land growing in the disputed area,
here?
A No.
MR. REED: That's all I have, Your Honor.
THE COURT: Anything else?
MR. SHUGHART: I have nothing.
THE COURT: Sir you may step down. NeKt
witness.
MR. REED: We would call to the stand Helen
L. Myers.
Whereupon,
HELEN L. MYERS,
having been duly sworn, testified as folloWSI
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DIRECT EXAMINATION
BY MR. REEDI
Q Mrs. Myers, would you state your full name
for the record, please.
My name is Helen L. Myers.
And are you Mr. Myers' wife?
Yes.
And you've lived at the property with him
A
Q
A
Q
since 1967?
A
Q
A
Q
Yes.
'68?
Yes.
Mrs. Myers what do you recall about what the
property looked like when you purchased it, the portion of
the property near the road?
A It was in deplorable shape. A lot of debris
and stuff.
Q okay. And what do you recall about what was
done to clear that area?
A Well, we got it excavated and cleaned off.
Q Do you recall trees being removed?
A Yes.
Q Your husband estimated approximately 20
years. Do you agree with that estimate?
A Yes.
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1 Q After that he discussed the fact that it was
2 mowed on a regular basis. Did you do any of that mowing?
3 A Yes.
4 Q Do you also recall the fence having extended
5 to within 10 or 15 feet of the road as he testified?
6 A Yes.
7 Q Okay. Did the Baers ever object to you about
8 the uses that you and your husband were putting
9 MR. SHUGHART: Your Honor, same objection. I
10 know you've ruled but it's a new witness.
11 THE COURT: Overruled. You may answer it
12 BY MR. REED:
13 Q Mrs. Myers, did the Baers ever object to the
14 uses that you and your husband were putting this portion of
15 the property to?
16 A No.
17 Q Did the Baers, to your knowledge, ever use
18 this portion of the property?
19 A No.
20 Q Were you with Mr. Myers when Mr. Beam came
21 onto the property, your property, in 1991 making the
22 statements that Mr. Myers referred to?
23 A Yes, I was.
24 Q And was Mr. Myers -- well, where were you in
25 relation to the stream? How far back from the stream?
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A About 100 feet.
Q In the spring of 1992, did you observe these
survey pins that we showed in the photographs?
A Yes.
Q At that time, in the spring of 1992, who was
doing the mowing of this disputed area for you and your
husband?
A I was.
Q When you next went to mow, did you do
anything with those pins?
A Yes.
Q What did you do?
A I pounded them down in the ground.
Q Why did you do that?
A Because my mower would have caught them, and
I would have ruined my mower blades, but they are there.
Q And if you would, would you look at one of
the photographs t.hat we have here. Mrs. Myers, I am going
to show you what we have had previously marked as Exhibit 4
in this case, it's a photograph looking towards 696 toward
that drainage culvert under 696.
A Yes.
Q Do you see the brldgs that's about halfway --
A Yes.
Q -- in that picture?
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A Yes.
0 Was that -- do you know who put that bridge
there?
A Jay and I did.
0 okay. In 1992, after you pounded the survey
pins down and continued with your mowing, did anything
happen to that bridge?
A Yes. That evening Mr. Beam and Troy come
over and took them.
Q Mr. Beam and his son took that bridge out?
A Yes.
Q Without that bridge would you be --
A I had to go out 696 and go down over that
steep hill to mow that.
Q So did you and your husband replace that
bridge with a tile?
A Yes, about a week later I was out there and
they were hauling stones out to the turnpike and I almost
got hit by --
THE COURT: Well, wait. You answered the
question. Next question.
THE WITNESS: I'm sorry.
BY MR. REED:
Q
Mrs. Myers, you did replace that with the
tile?
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1 A Yes, Jay did.
2 Q Now you have access to mow that area?
3 A Yes.
4 Q And you have continued to mow that area --
5 A Yes.
6 Q -- up until today?
7 A Yes.
8 Q And Mrs. Myers, did the Beams ever take any
9 action to remove that placement bridge that you and your
10 husband put in?
11 A No.
12 Q other than mowing, can you recall any other
13 uses that youJve put -- that you've done on this
14 A Yes, I've picked up trash, beer cans, soda
15 pop, and an awful lot of stones.
16 Q Do you do that before you mow?
17 A Yes.
18 MR. REED: That's all I have, Your Honor.
19 THE COURT: Cross.
20 CROSS-EXAMINATION
21 BY MR. SHUGART:
22 Q I'm going to show you this blow-up survey by
23 Mr. Kissinger, Plaintiffs' Exhibit Number 13, that's showing
24 the road and the heavy line and the stream going through
25 there. Do you see that?
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1 A Yes.
2 Q Show me, as best you can, and I'll have you
3 mark it here in pencil where the drain tile is now.
4 A This is our driveway.
5 Q Okay. The way that you now go across the
6 stream in order to mow the disputed part, where is that
7 located? That's your driveway and that's the highway.
8 A It's apparently back in here, I believe. The
9 culvert is here, isn't it? out there?
10 Q I'm not sure where the culvert is. That's
11 your driveway and Beam's property is across on the other
12 side of the road?
13 A Oh, it's just a little piece down there.
14 Q Could you put a one and circle it about where
15 you think it is?
16 A Well, if this is the culvert, it must be
17 about--
18 Q This is the stream up here -- it crosses the
19 stream. Correct?
20 MR. REED: Well, he can't ask questions.
21 MR. SHUGHART: Go ahead. I'm getting her to
22 show me where approximately where things are located. It's
23 the stream that goes under the drainage not the stream here.
24 THE WITNESS: No.
25 MR. REED: You can look at a picture if you
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1 want.
2 THE WITNESSI It's right here. Here was the
3 wooden one and Jay moved it down here. It's right here.
4 But see, down here is the other stream. okay?
5 BY MR. SHUGHART I
6 Q Now, I understand. And we are looking here
7 at Plaintiffs' Exhibit Number 4, correct, a photograph?
8 A Uh-huh.
9 Q And what you're saying is that Jay moved it
10 from where it was removed, which was closer to the road, to
11 an area that was back closer to the main part of the stream;
12 is that right?
13 A Yeah.
14 Q Okay.
15 A Just a little piece farther down.
16 Q So really, if you look at this picture, he
17 moved it out of the disputed strip and into what's clearly
18 your property, is that what was done?
19 A Well, it's just partway down there. It was
20 so it wouldn't be so narrow. It's wide here and narrow
21 there. He put a tile in there very easy and put ground over
22 top of it.
23 Q But where the tile is is farther back from
24 the road from where the bridge was?
25 A Just a little bit.
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MR. SHUGHART: That's all I have.
THE COURT: Anything else?
MR. REED: No.
THE COURT: Ma'am, you may step down.
We'll take a short break. We'll take a
10-minute break and reconvene at a quarter of.
(Whereupon, a recess was taken.)
AFTER RECESS
THE COURT: We're in session. Have a seat.
Next witness.
MR. REED: We would call Jane strayer to the
stand, Your Honor.
Whereupon,
JANE STRAYER,
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. REED:
Q Mrs. Strayer, would you state your full name
for the record, please?
A Jane L. Strayer.
Q And where do you live?
A On the corner of 696.
Q Is that -- are Mr. and Mrs. Myers your
parents?
A Yes.
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0 Did you formerly live at the farm that's in
question here?
A Yes, I did.
0 And is your present home adjacent to that
farm?
A Yes.
0 Do you recall what the condition of the
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8 property was at the time that you moved in with your
9 parents?
10 A It was really grown up with brush and debris,
11 and a lot of trees down there hindering your visual view of
12 the road.
13 0 And do you recall the activity done to remove
14 those trees and clear that area?
15 A Yes, sir.
16 Q Did you participate in any of the mowing or
17 spraying that your father described?
18 A Yes, sir.
19 Q How long did you live at the farm?
20 A From the point that we moved there until '74
21 when I got married.
22 Q Okay. So at least for six or seven years?
23 A Yes.
24 Q And during that period, did you do any of the
25 mowing?
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A Yes, I did.
o Did you mow right up to the edge of the
roadway?
A Yes, sir.
o Do you recall when the fence that was
discussed was in place?
A Yes, I do.
o Was how far would you estimate that that
fence was from the roadway?
A I'm not very good with feet. I would say 15
feet.
o Did -- during the time that you lived there
on the farm the Baers live across the road?
A Yes.
o Did any of them make use of the disputed part
of the property during the time that you lived there?
A Not to my knowledge, no.
MR. REED: Thank you, that's all I have.
THE COURT: Cross.
MR. SHUGART: How old were you in 1968 when
you moved there?
THE WITNESS: Probably 14, 15.
MR. SHUGHART: I have no further questions.
THE COURT: Ma'am, you may step down.
Next witness.
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1 MR. REED: Plaintiffs would call Martin
2 Reese.
3 Whereupon,
4 MARTIN J. REESE,
5 having been duly sworn, testified as follows:
6 DIRECT EXAMINATION
7 BY MR. REED:
8 Q Mr. Reese, would you state your full name for
9 the record, please.
10 A Martin J. Reese.
11 Q And where do you live, sir?
12 A I live along 696 to the left side of the road
13 from the Myers' property.
14
15
16
17
18
19 condition of the Myers' property near the roadway prior to
20 their purchase of that farm?
21 A Yes, I did.
22 Q What kind of condition did you observe it to
23 be in?
24 A Same condition as what's been explained to
25 you. It's grown up with bushes and trees. The run, it went
Q So you 1i ve very close to this property?
A Yes, sir.
Q How long have you lived there, sir?
A Since 1952.
Q Okay. Did you have occasion to see the
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1 in different directions.
2 Q And after the Myers purchased it, did you
3 observe any of the activity of the clearing and removal of
4 trees that you described?
5 A Yes, I did.
6 Q Did you observe who was doing that?
7 A Well, Snoke & Myers and John Walters.
8 Q Okay. Did you ever observe any of the Baers
9 using or participating in the clearing of that property?
10 A Not to my recollection.
11 Q Have you had occasion in the years since the
12 Myers purchased the property to travel back and forth on
13 that road between these two farms?
14 A Yes, I do.
15 Q Have you observed the Myers mowing and
16 spraying as they have indicated?
17 A Yes, sir.
18 Q Have you ever observed the -- either the
19 Baers or the Beams doing any work to maintain that portion
20 of the proper~y?
21 A Not that I saw.
22 Q Do you recall the fence with the livestock
23 that Mr. Myers described?
24 A Yes, sir.
25 Q Would you have any estimate of how far back
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1 from the road the fence started?
2 A Well, I'm guessing probably 10 to 15 feet
3 like it was suggested.
4 Q Thank you. That's all I have.
5 THE COURT: Cross.
6 CROSS-EXAMINATION
7 BY MR. SHUGART:
8 Q Mr. Reese, do you know what year or how long
9 after the Myers moved in there that work was done down by
10 the road?
11 A Well, like I stated, he bought it in '67 and
12 they started doing this, that and the other thing pretty
13 nearly right away. It was done in '67 and '68, the basic
14 parts of it, yes.
15 Q Do you remember their house being built?
16 A Yes, sir.
17 Q What you're saying is on your recollection
18 the work was done shortly after their house was built?
19 A Well, it was during and before the time they
20 were building their house.
21 Q Is it possible Mr. Baer went over there and
22 helped?
23 A Not that I know of. I'm not personally -- I
24 don't know that personally. He could have because he was an
25 extremely good man.
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1 Q And you don't know, of your own knowledge,
2 what if any agreements Mr. Baer might have reached with
3 Mr. Myers?
4 A I don't. I have no ideas about that.
5 Q I have no further questions.
6 THE COURT: sir, you may step down.
7 MR. REED: We would call Walter Dunlap.
8 THE COURT: After you folks testify, you may
9 stay if you wish or you may leave if you wish.
10 MR. REESE: Thank you. Our ride is here
11 so--
12 Whereupon,
13 WALTER C. DUNLAP,
14 having been duly sworn, testified as follows:
15 DIRECT EXAMINATION
16 BY MR. REED:
17 Q State your full name, please.
18 A Walter C. Dunlap.
19 Q Where do you live, sir?
20 A 14 West Main street, Newburg.
21 Q Okay. How far from this property is Newburg?
22 A Oh, about a mile and a half, maybe two mile.
23 Q okay. Do you have occasion to travel this
24 road frequently between Newburg and shippensburg?
25 A Yes, I used to travel it morning and evening
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6 property in the condition it was before the Myers purchased
7 that farm?
8 A Yes, I remember when it was grown up.
9 Q And does your recollection agree with what
10 Mr. Reese testified?
11 A Very much so.
12 Q Do you recall seeing the lands being cleared
13 and trees removed?
14 A I don't recall actually seeing it being done,
15 but I know they did it. They did maintain it and cleared it
16 off. I do know that.
17 Q And that happened after the Myers purchased
18 the property?
19 A Yes.
20 Q Do you have any idea how long after they
21 purchased the land that occurred?
22 A I would say immediately.
23 Q Did you ever see the Beams using that portion
24 of the disputed property near the roadway?
25 A No, sir.
for 30 years straight.
Q Okay. And how long have you lived where you
1i ve now?
A About 42 years.
Q Okay. Did you have occasion to observe the
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Q Thank you.
MR. REEDI No turther queRtion..
THE COURT I Cross.
CROSB~EXAMJ]ATION
BY MR. SHUGART I
Q Are you friends with the Myers?
A Not really, no. I have known them.
Q Did you know Wi Ibur liner?
A I knew Wilbur, yes, sir.
Q Were you aware of any agreements between the
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12 road?
13 A Not -- none at all.
14 MR. SHUGHART I I have no further questions.
15 THE COUR1'1 You may step down, sir. Next.
16 MR. REEDI Raymond Rebuck.
17 Whereupon,
18 RAYMOND REBUCK, JR.,
19 having been duly sworn, testified as follows:
20 DIRECT EXAMINATION
21 BY MR. REEDI
22 Q Mr. Rebuck, could you state your full name
23 for the record, please?
24 A Full name? Raymond Rebuck, Jr.
25 Q Mr. Rebuck, where do you live?
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A 984 Ridge Road, shippensburg.
Q How close is that to the Myers and Beam
property?
A Oh, about a mile and a half, something like
that.
Q And how long have you lived there, sir?
A At the present place since '78, but in the
Newburg area, since about '47, '48.
Q Since 1947 or '48?
A Uh-huh.
Q Did -- in those years, did you have occasion
to travel this roadway that goes between these two
properties?
A Yes, I have.
Q Was that fairly frequently, sir, that you
traveled that way?
A We go back and forth to church and different
places to see the children, to travel.
Q Okay. Did you observe the condition of the
property before the Myers purchased it?
A Yes, I have.
Q What was the condition of the property as you
observed it?
A Growed up, brush, trees, garbage, just sort
of like a jungle.
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1 Q And after the Myer. purchased it, did you
2 observe the clearing and removal of trees that took place?
3 A Yes, I have.
4 Q And have you observed them mowing and
5 maintaining the area?
6 A I havo.
7 Q Did you ovor observe the Baers or Beams doing
8 anything to maintain or proserve that area?
9 A I did not.
10 Mil. 1I1ml) I Thank you. I have no further
11 questions.
12 Tilt: COUR1' I Cross.
13 CROBB-EXAMINATION
14 BY HR. BIlUGAR'l'1
15 Q Are you good friends with the Hyers?
16 A Wo are I'rlonds.
17 Q llld you know Wilbur Baer?
18 A YOII,) do.
19 Q Woro you aware of any agresments between the
20 Baers and tho Myora about thlll piece of property?
21 A) did not.
22 MR. BIlUGIlAIlT I I have no further questions.
23 1'111\ COUIlTI You may step down. It sounds
24 like everybody knew Wilbur Baer. Next.
2!l MR. REEDI We would call John Dyson,
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Your Honor.
MR. SHUGHART: Your Honor, before we get
started.
THE COURT: Have a seat.
MR. SHUGHART: I assume there is going to be
no more witnesses. Mr. Dyson was not on the witness list.
I am allowing him to testify, and I am not going to object
to the exhibits Mr. Reed has shown me. If I can't illicit
the testimony I need and have to bring somebody over from
tax assessment, I would like to reserve the right to do that
since I am agreeing to this change.
THE COURT: Okay.
MR. REED: I have no problem.
THE COURT: Good.
Whereupon,
JOHN E. DYSON,
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. REED:
Q
Mr. Dyson, would you state your full name for
the record, please.
A John E. Dyson.
Q And where are you employed, sir?
A Cumberland county Courthouse.
Q And in what office do you work in?
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A I am supervisor of the tax mapping
department.
Q Okay. I'm going to show you what was
previously marked as Plaintiffs' Exhibit 31, and I would ask
you if that appears to you to be a correct copy of ths
current tax map, I believe it's 9-507, with respect to the
portion of Hopewell Township that these properties are
located in?
A Yes.
Q And, sir, I direct your attention to parcels
13 and 14 on that property, have you had an opportunity
within the past couple of days to review the index cards and
see that those are the properties owned by the Myers and
Beams respectively?
A Yes.
Q Mr. Dyson, can you tell the Court where the
line is shown between those two properties as it relates to
route 696 on that tax map?
A The line, as drawn on the map, appears to go
along the road and at a couple points it seems to cross the
road.
Q Can you show me where those couple of points
are?
A
right here.
Generally along the road, across the road
It's difficult to tell.
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r.
1 Q It's difficult to tell because of the size of
2 the road versus the size of the line?
3 A Correct.
4 Q Mr. Dyson, it doesn't in any event go several
5 feet off of the road at any point that you can tell, does
6 it?
7 A It doesn't appear to.
8 Q When was that aerial photograph of that for
9 that tax map taken? Can you tell from the document?
10 A March 25th, 1971.
11 Q Mr. Dyson, in subpoenaing you here today I
12 asked you to bring with you a volume that's kept in your
13 office, it's the real estate data incorporated volume. Do
14 you have that with you, sir?
15 A Yes.
16 THE COURT: Why don't you just hand it to
17 him.
18 MR. REED: Okay.
19 THE WITNESS: It's right here, Counselor.
20 THE COURT: It's right here.
21 MR. REED: 011, I'm sorry.
22 MR. SHUGHART: This is the first I've seen
23 this, if I can stand up here.
24 MR. REED: Sure.
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BY MR. REED:
Q Mr. Dyson, this is kept in your office and is
available to the public; is that correct?
A Yes.
o Does that show the line in the same place
that the current tax map shows the line?
A Yes.
o And when was -- what's the date of that
volume?
A 1977. I believe we received it in May.
o Okay. Is that the earliest document that
you're -- earliest map that your office has with respect to
the line between these two properties?
A We have other maps, very old maps. I have
not checked that. I would not --
Q That's the earliest volume of the real estate
data incorporated volume that you have for these properties;
is that correct?
A Yes.
Q And you also keep a card index that's used to
show any changes to these properties; is that correct?
A Yes.
Q I'm going to show you what we had marked as
Plaintiffs' Exhibit Number 32 and ask you if it's an
accurate copy of the originals that I believe you brought
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1 with you with respect to both of these parcels?
2 A Yes.
3 Q Does that -- do those cards for these
4 respective parcels show any changes which would have
5 effected the location of that line since 1967 --
6 MR. SHUGHART: since 1977 you mean?
7 MR. REED: '67?
8 THE WITNESS: There were some subdivisions
9 since then, but I'm not sure exactly which part of this line
10 you're concerned about.
11 BY MR. REED:
12 Q o]cay. The part of the line that's
13 directly part of the line -- you see the driveway going
14 up to Mr. Myers' farm on parcel 13?
15 A Yes.
16 Q The part of the line that's directly
17 perpendicular to that driveway and extending on either side
18 for several hundred feet, can you tell from the card index
19 whether any of the transactions or conveyances in those --
20 reflected on those cards would have created changes in those
21 lines?
22 A There are notes of two -- on the card -- on
23 the map index card, there were two lots taken from that
24 parcel. The card itself doesn't specifically locate the
25 lots but the map would.
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1 Q Okay. The lots taken from which parcel?
2 From the Beam parcel or from the Myers' --
3 A Myers'.
4 Q Okay. Is it your understanding that the tax
5 map shows the parcels for which the parties are assessed
6 taxes?
7 A Correct.
8 Q So to the best of your knowledge, Mr. Myers
9 has been paying taxes up to that line.
10 MR. SHUGHART: I'm going to object.
11 THE COURT: Sustained. He answered the
12 question originally.
13 MR. REED: Thank you. I don't have anything
14 further.
15 CROSS-EXAMINATION
16 BY MR. SHUGART:
17 Q Mr. Dyson, we're looking at the tax map,
18 here, Plaintiffs' Exhibit 31, and what I want you to do is
19 look at the line for Route 696 here between these properties
20 and the line which appears on under 1977. Can you say with
21 a certainty that that's at identically the same spot?
22 A It appears to be the same spot.
23 Q Identically the same spot or are you saying
24 approximately?
25 A I can't say whether it's exactly.
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Q One of the lines on the tax maps, what is the
width of them supposed to be, measured on the ground lines
you draw?
A On this scale map, the width of the inked
line is 10 to 20 feet.
Q And as subdivisions are approved or boundary
agreements are entered and you get notice, these lines
appearing on your tax maps change all of the time?
A Yes.
Q How do people in your office change them?
How do they do that?
A By conventional drafting practice. By
removing lines or adding lines.
Q How is a line removed, just mechanically? Do
you erase it?
A
Right.
And then you take a straight edge and draw
Q
another line?
A Yes.
Q To the best of your knowledge, aren't taxes
based on acreage and not on the lines based on your map?
A That's correct.
Q So this Exhibit 32 that's been entered by Jay
Myers, looking at that, does that show the acreage that he's
being assessed on?
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A At the present time it shows 116.4 aores.
Q So if he actually owns 119 acres, he is not
paying on his whole assessed acreage, is he?
A That's correct.
Q And Baer to Beams that is currently based on
how many total acres?
A currently?
Q Yes.
A 120.
Q And it had been how many before it was
scratched out there?
A
Q
that change?
A
128.
And does that refer to the subdivision making
Yes.
MR. SHUGHART: I have no further questions
for Mr. Dyson.
THE COURT: Anything else?
MR. REED: No.
THE COURT: You may take your original
record, the big book with you.
MR. REED: Your Honor, at this point, I would
move for the admission of Plaintiffs' Exhibits 1 through 32.
THE COURT: Are you still objecting to 17?
MR. SHUGHART: The only exhibit that I have
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1 objeoted to, Your Honor, is this highway occupanoy permit
2 because the plan is not attached to it, so I don't think
3 it's a complete document, and it could be misleading. He
4 testified to the facts.
5 THE COURT: That objection's overruled. If
6 the document reflects what it says it reflects, it is a
7 reflection of what he says it was. I'll admit all exhibits,
8 Plaintiffs' Exhibits 1 through 32.
9 (Whereupon,
10 Plaintiffs' Exhibit Nos 1 through 32
11 were admitted into evidence.)
12 MR. REED: We rest, Your Honor.
13 THE COURT: Mr. Shughart.
14 MR. SHUGHART: Charles Baer.
15 THE COURT: Did he spell his name for you?
16 MR. REED: Yeah, how do you spell Baer?
17 MR. BAER: B-a-e-r.
18 MR. SHUGHAR1': All of the Baers I will be
19 calling spell it that way.
20 THE COURT: Okay.
21 Whereupon,
22 CHARLES BAER,
23 having been duly sworn, testified as folloWSI
24 DIRECT EXAMINATION
25 BY MR. SHUGART:
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Township?
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dispute?
A
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you are aware
correct?
A
Q
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1 A I'd say it was around 1968.
2 Q And have you lived there continuously since?
3 A Yes.
4 Q And during the time that you did not live
5 there on the farm or right adjacent to the farm, did you
6 visit the farm frequently?
7 A Yes. The first years of my marriage I had
8 done a lot of work there for dad on the farm. I was
9 working, like, 5 to 2 and then working the rest of the day
10 on the farm.
11 Q Would you describe what the area that I'll
12 call the disputed strip, the area across the road from where
13 the farm houses are, looked like back during the time from
14 when you can remember up until you moved into your house?
15 A Well, as a kid I knew it was there because
16 we'd go down and play, fish in that little stream, and every
17 now and then I had to run some hogs out of there that got
18 across the road, chickens. We even cut firewood down there,
19 my dad and I.
20 Q Now, when you moved into your house __
21 A Uh-huh.
22 Q -- was there a fence back there near the
23 stream?
24 A I'm sure there was, yes. Now that would be
25 to the -- the fence I remember was like east of the
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1 property, up this way.
2 Q Now, you see there's a heavy line on here and
3 there's blue in here between where I put highlighter. Are
4 you indicating that the fence is in between the area of the
5 yellow line? You can mark it with n pencil so we are clear
6 we know where the fence was.
7 Q What you're doing is following the heavy line
8 that says on it, north 24 degrees, 22 minutes 27 seconds.
9 Q Is that fence still there?
10 A I have my doubts. I don't know for sure.
11 Q Was there a time when you had your property
12 surveyed?
13 A Yes.
14 Q And when was that?
15 A What date, I can't tell you. I know it was
16 before mother sold the farm.
17 Q Was it after your father died?
18 A Yes.
19 Q When did your father die?
20 A 1979.
21 Q Who did the survey of your lot for you?
22 A Byers & Runyon.
23 Q And when they did the survey, did you walk
24 around the property out there?
25 A Yes.
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Q Was there a fence there at that time or part
of a fence?
A I don't think at that time there was. There
may have been.
Q You're not sure?
A I'm not sure.
Q Did the surveyor have the discussion at that
time with Mr. Myers?
A Yes. Jay didn't like where the pin was being
set, and there was a heated discussion between the surveyor
and Jay at that time.
Q And that was at whatever time that your land
was surveyed?
A That's correct.
Q Now, between the point where you built your
house and moved in and the point that you had your land
surveyed, to the best of your recollection, what if
anything, was done that was changed in the area between the
road and where this fence was?
THE COURT: You mean -- I'm not sure of the
time frame. After the Myers moved in?
MR. SHUGHART: Well, the Myers said they
moved in in '68.
THE COURT: Give him the time frame. What
time frame are you talking about?
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MR. SHUGHART: I said, after he moved into
his house, which he said was sometime around 1968.
BY MR. SHUGART:
Q Between the time that you moved into your
house, which you indicated as around 1968 -- you weren't
here but the Myers indicated they moved into their house
around the same time between the time that you had the
properties surveyed by Byers & Runyon, what if any changes
were made between the road and where you've indicated that
the old fence ran?
A I really -- I know there was some changes
made. What specific changes I can't tell you. The lane was
widened for sure, and there was some brush taken out. I do
remember that. And there had been a new bridge put in.
Q Were you aware of any agreements reached
between your parents and the Myers about this at all?
A No, I am not aware of that.
Q And when you were on the farm or when you
worked for your dad, were you aware of where your property
lines were?
MR. REED: Objection, Your Honor.
THE WITNESS: I was aware of the property
lines.
THE COURT:
MR. REED:
Pardon? You're aware --
Objection. If he is going to
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1 testify where he thinks it was, I don't think it's relevant.
2 THE COURT: Obviously if he tells me where it
3 was is where he thinks it is --
4 MR. REED: I am objecting to his thoughts
5 being relevant.
6 THE COURT: Where do you think the property
7 line is?
8 THE WITNESS: Who is asking the question
9 here?
10 THE COURT: Good point. Ask him again.
11 MR. SHUGART: In your mind did you have an
12 understanding where the property line was between your
13 parents' farm, which was the Burks' farm and became the
14 Myers' farm?
15 THE COURT: Asked that way the objection is
16 sustained.
17 MR. SHUGHART: On the basis of?
18 MR. REED: Relevancy.
19 THE COURT: sustained period. Next question.
20 MR. SHUGHART: I was just asking why it was
21 sustained.
22 THE COURT: You can't get that out of him in
23 any way, shape or form.
24 BY MR. SHUGART:
25 Q Did your father ever show you the corners of
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your property?
A Yes.
Q Did he show you that fence row as the line of
your property?
A Yes. In fact, I don't think this Burvey's
right anyway.
Q Go ahead and explain.
A This point here I was shown up further on
that hill.
Q
A
Q
For some reason I remember that correctly.
Make a big circle and put a one in it.
(WITNESS COMPLIED)
Okay. The one you have above your circle.
Correct?
A Yes.
Q And go ahead and explain again what your
answer was.
A Dad and I was hunting one time, and this was
about the time that this property here was sold off.
Q And that's referring to the property across
the road which is now Laidig?
A Yes. Excuse me. I circled the wrong -- this
one here. Dad and I crossed this road.
Q I'm sorry but we have to make a record of
what you have before you. Would you please make a circle
and put a one in it at the point that you are referring to?
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okay.
A We crossed that road and followed the
existing fence-line. Up on the hill there was a small
cherry tree and this was the property line, and he said it
run right -- the fence -- this fence was existing down
through here at the time, 'cause I had run into it with the
sleds a couple times when we were playing over there.
Q Do you know whether your -- how many brothers
and sisters do you have?
A I have three brothers, two sisters.
Q Did all of you play over on the other side of
the road?
A I'm sure Gerald and I and my cousins and
probably Doris, yeah.
Q Did you stay on your side of the fence?
A No, no. We didn't have any boundary disputes
back then. You could pretty near walk where you wanted,
fish where you wanted, hunt where you wanted without getting
shot at.
Q Do you remember the Myers having cattle in
there?
A They have cattle. They didn't ever run them
down through there.
MR. SHUGHART: I have no further questions.
THE COURT: Cross.
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1 CROSS-EXAMINATION
2 BY MR. REED:
3 Q Mr. Baer, your mother sold this property
4 the property that she and your late father had owned -- to
5 the Beams. Correct?
6 A That's correct.
7 Q Do you know when that occurred?
8 A What year? '83, maybe. I don't know.
9 Q Okay. And you said that you believed that
10 the survey that you discussed was some time before that?
11 A My property, yes.
12 Q The Beams are you aware that the Beams
13 have contended that your mother may have some liability to
14 them if they lose this case --
15 MR. SHUGHART: 1 object.
16 THE COURT: sustained.
17 MR. SHUGHART: There is absolutely no
18 indication of that.
19 BY MR. REED:
20 Q Do you have a reason to believe, Mr. Baer,
21 that as the sell~r of this property she may have a property
22 dispute with the Beams, if they lose something they thought
23 they were buying from her?
24 A I don't understand the question, sir.
25 Q Don't you have a motive to try to protect
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1 this strip of property from the Beams because they may come
2 back on your mother, if they find out they have less --
3 A I think that's rediculous. I refuse to
4 answer that question.
5 MR. SHUGHART: I think you have to answer the
6 question.
7 THE COURT: He did answer it. He sa id it was
8 rediculous. Next question
9 MR. REED: Mr. Baer, do you recall who mowed
10 this property after it was cleared? Do you recall who mowed
11 the grass between the road and the stream?
12 THE WITNESS: It was mowed by Jay Myers and
13 Helen Myers, probably.
14 MR. REED: Thank you. That's all I have.
15 THE COURT: Anything else?
16 (NO AUDIBLE RESPONSE)
17 THE COURT: Step down. Next witness.
18 MR. SHUGHART: I'd like to call Mr. Beam for
19 just two short questions and get on with the Baers in light
20 of the question which was asked here with my witnesses
21 sitting in the back.
22 THE COURT: You can call Beam.
23 MR. SHUGHART: But I would like to recall him
24 for the primary --
25 THE COURT: We are not going to hodgepodge it
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testimony?
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testify?
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A Yes.
Q Do you know what we are here about?
A Yes.
Q Did you grow up on your parents' farm?
A Yes, I did.
Q And when was the last time that you lived
there?
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times a week.
Q
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farm?
I moved away in March of '73.
And where did you move to?
I moved to Chambersburg.
Did you continue visiting?
Yes, at least once a week, probably several
When did your father die?
October of '79.
After that, did you spend more time at the
A For a period of time, yes.
Q And when you left, how long was that after
you were out of school?
A I graduated in '69 and I got married in '73,
four years.
Q Do you remember going over and using the
other side of the road?
A Yes.
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Q While you lived there?
A Yes.
Q What would you go over for?
A Well, as a kid we went over and played,
played on the streams when it was frozen, and we used to
sled down through the gullies up on the hill, fished in the
stream.
Q What did it look like over there before the
Myers had bought the property?
A It was overgrown with brush and trees, but I
don't remember any garbage.
Q Do you know whether your family did anything
over there to maintain the property?
A No. I do remember when Jay replaced -- and
I'm saying Jay -- my dad and Jay replaced a tile for the
bridge.
Q They both worked on that together?
A As far as I know, yes. My dad was down
there.
Q Do you remember a fence being back along
there?
A I don't remember a fence as such. I kind of
remember all of this overgrown brush and there may have been
a fence in there.
Q But I gather there were wide enough open
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areas that you were able to sled on down through there?
A Oh, yeah.
Q After you moved away, did you go over and use
that property over there?
A Yes, we would walk over occasionally. My son
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6 was pretty small and he liked to putts around in the stream.
7 So I walked him over and we would go and visit Jay and
8 Helen.
9 Q Did you have any understanding in your own
10 mind as to whether or not you were on your own property or
11 somebody else's property when you were right across the
12 road?
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18 A I have no idea. But I was married -- no, I
19 don't know if I was married. I was with my husband, so
20 maybe we were dating at the time. So it may have been '71,
21 '72.
22 Q Do you remember your mother getting a
23 proposed deed from the Myers?
24 A Yeah, if you want to call it a deed.
25 Q What do you remember about that?
A I always understood that if I was on this
side of the stream, the farm side of the stream, I was on my
property or my dad's property.
Q Do you have any idea what year it was that
your dad and Jay built this bridge?
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A I remember him coming over and asking to buy
the land that was on his side of the property on his side
of the road, 696, and she wouldn't do anything.
Q Were you there for that conversation or was
that what she repeated to you?
A I kind of remember being there. I mean she
did get something in the mail, but he came over and asked
her, and I think the kids -- some of us kids were there at
the time.
Q What's your recollection of what Mr. Myers
said?
A He wanted to buy all of the land that was
west of 696 for a dollar.
Q And what did your mother say?
A Well, she didn't know what to do, and she
didn't do anything because we told her not to.
MR. REED: Cross examine.
CROSS-EXAMINATION
BY MR. Illilill :
Q Mrs. Huber, do you recall the Myers removing
brush and trees from this disputed area after they
A From part --
Q -- after they purchased it?
A From part of the disputed area, yes, I do.
Q And do you recall them mowIng between the
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1 stream and the roadway?
2 A On the Newburg side of their lane, yes.
3 Q Are you saying that they didn't mow on the
4 Shippensburg side of the lane?
5 A I don't remember anything being done there
6 until, maybe, after my dad died.
7 Q Okay. How old were you when the quitclaim
8 deed was offered to your mother or when it was requested of
9 your mother?
10 A How old was I?
11 Q Uh-huh?
12 A Well, that was -- I don't know. My dad died
13 in '79 so it might have been done in 1980 or '81 and I'm --
14 I was born in 51, around 30.
15 Q Okay. And it's your testimony -- is it your
16 testimony, you're under oath, that you were there when this
17 conversation occurred with Mr. Myers?
18 A I vaguely remember this conversation.
19 Q You mentioned something about your father
20 having helped Mr. Myers with the bridge. Did you actually
21 see your father doing work or did you see him over in that
22 vicinity when that work was done?
23 A My father usually helped
24 Q I'm asking you what you saw, not what usually
25 happen--
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Township?
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A Mrs. crider.
A I think her name was Lou Lou crider.
Q There is a copy of the deed that we have
marked as Defendants' Exhibit Number 1 dated March 30th of
1950 from Lou Lou crider to Wilbur and Catherine Baer for
128 acres. Was that your farm?
A That's right.
Q Did you then ultimately sell your farm to
Mr. and Mrs. Beam who are seated here next to me?
A I sure did.
Q other than the matter of the deed that was
given to you by or on behalf of the Myers, other than that
deed, which you know I am going to ask you about, do you
have any idea at all about the rest of this boundary
dispute? Do you know anything about the boundary dispute?
A Not any more than -- well, he wanted to buy
that little piece of ground for a dollar. That's the only
thing I know.
Q Did you know where the boundary lines were?
A No.
Q Did you pay attention to that at all?
A No, I had five kids to raise. I wasn't out
there.
Q Did you get something from Mr. Myers after
your husband died?
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A Yes.
Q Do you remember how long after your husband
died?
A It might have been in '80.
Q What did you get?
A A little thing, he wanted to buy that little
piece of ground for a dollar.
Q I'm going to show you Defendants' Exhibit
Number 3. Is it possible that that is the piece of paper
that you got?
A Oh, Lord. I don't remember.
Q You're not sure?
A I'm not sure. That's a long time ago.
Q But you did get a piece of paper?
A Oh, yes I did.
Q Did you talk to Mr. Myers about it?
A He asked me if I had done anything about it
and I said, No.
Q Why didn't you do anything about it?
A Because. I figured it was that was the
deed to the farm when I sold it to the Beams that should be
what it was to be.
Q And the piece of paper that you got from Mr.
Myers, what did you do you with it when you sold the farm?
A I gave it to Beam with the deed to the farm.
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THE COURT: You gave it to whom, ma'am?
THE WITNESS: Mr. Beam.
MR. SHUGHART: Did you give him big envelopes
full of all of your deeds and all of your stuff?
THE WITNESS: I did.
MR. SHUGHART: Does that look like what you
gave him?
THE WITNESS: That looks like exactly what
I -- I didn't want nothing to do with it.
MR. SHUGHART: Cross examine.
MR. REED: No questions.
THE COURT: Ma'am, you may step down. Next
witness.
Whereupon,
DORIS KELL,
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. SHUGART:
Q Would you please state your name and address?
A My name is Doris Kell, I live at 104 Allen
street, in New Cumberland, Pennsylvania.
Q And Doris, are you a daughter of Wilbur and
Catherine Baer?
A Yes, I am.
Q And have you been here for your sister and
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place?
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1 in. I do remember them building a house up there, but I
2 don't remember the actual move.
3 Q What did the property that was just across
4 the road from your farm house look like back in the late
5 '60's before the Myers moved in?
6 A The property between the road and the stream
7 was wooded and overgrown with brush.
8 Q On both sides of the driveway?
9 A Pretty much so because it was just a dirt
10 road, basically, that went up there. Between the road and
11 the stream was this little dirt road, and then we had --
12 there was a bridge for the stream and so on.
13 Q Did you ever play over there?
14 A All of the time. We used to go crabbing.
15 Q Did you have children in the 1970's?
16 A Correct. I have -- one was born in '74 and
17 the other was born in '78.
18 Q And while your mother still owned the farm,
19 did you ever take your children over there?
20 A Yes, I did.
21 Q Would you explain when and what you might
22 have done what you did do over there?
23 A We normally visited on Sunday. So usually on
24 Sunday -- and the kids, we would walk across there to the
25 creek over to the bridge. Almost every time that you'd go
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1 over there there would be frogs jumping in and snakes or
2 whatever. I'd walk the kids over there.
3 Q And your son Michael was born in what year?
4 A '78.
5 Q Was he old enough to walk over on these
6 occasions?
7 A Yeah. He was little.
8 Q As you face the Myers' house from your side
9 of the road, their driveway?
10 A Uh-huh.
11 Q What, if any, changes have been made to the
12 property across the road from you at the time when you
13 walked over there with your young children?
14 A I remember them mowing the road -- the -- on
15 either side of their lane as you would go up to their home
16 and towards the end there as it comes out on the highway
17 they would mow along there, especially on the Newburg side.
18 The other side they never tended to too much over there
19 until later.
20 Q Do you know what it looks like now?
21 A Yeah.
22 Q Did it look like that in --
23 A No.
24 Q At the time of your father's death, did it
25 look like that?
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A The one side was still pretty much wooded and
overgrown, the Shippensburg side.
Q And that would be the side to the left as you
face the Myers' house from the road?
A Correct.
MR. SHUGHART: Cross examine.
MR. REED: No questions.
THE COURT: You may step down. Next.
MR. SHUGHART: Mayall of these folks be
excused?
THE COURT: Sure.
MR. SHUGHART: You are welcome to stay or go.
You are finished today. Thank you. Todd.
Whereupon,
TODD BEAM,
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. SHUGART:
Q
A
Would you please state your name and address?
Todd Beam, 57 East Creek Road, Newburg, PA
17240.
Q Mr. and Mrs. Melvin Beam seated here to my
left, are they your parents?
A Yes, they are.
Q Have you been here for all of the testimony
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1 this morning?
2 A Yes, I have.
3 Q Did you live at your parents' farm after you
4 moved there in 1985?
5 A Yes, I lived there until June 25th, 1994.
6 Q What happened then?
7 A I got married. I still lived on the farm
8 just not at the house.
9 Q How old are you now?
10 A Twenty-seven.
11 Q After you moved onto the farm, did you ever
12 have occasion, whether on your own or in conjunction with
13 your father, to use the land that we are now calling the
14 disputed strip on the other side of the Route 696?
15 A Yes, we moved into the farm in March, 1985,
16 and then at the beginning of June we farmed some ground back
17 on the other side of Newburg. So we pulled our side wagons
18 full of hay onto that ground, and we hooked to it with a
19 tractor and hooked up and unloaded the tractors. We had
20 done that three or four times a year, and in the fall we
21 would use it two or three days.
22 Q Did the vehicles remain there overnight?
23 A No, they didn't.
24 Q How long were they there?
25 A Well, they was there -- I would pull them
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1 over -- we'd use it all day, you know, we'd start --
2 whenever the hay got fit to put in. We'd start early, until
3 whatever time it got done in the evening. So they was
4 there -- they weren't there constantly, but they were there
5 pulling in and out all day.
6 Q Before 1991, did anybody ever complain about
7 this?
8 A No, they haven't.
9 Q On occasions that you did this, did it chew
10 up the grass and things on the other side of the road?
11 A Yes, the wagons hold -- I'm going to say 10,
12 15 ton, and when you start out with the tractor, of course,
13 it would tear it up a little bit.
14 TilE COURT: I'm not sure. You were getting
15 what field you were tending to what fields when you were
16 tending to this and putting it over there.
17 TilE WITNESS: We farmed Fred Franklin's farm
18 on the other aide of Newburg. It was about four or five
19 miles from our farm.
20 THE COURT: Okay.
21 BY MR. SIlUGAR1':
22 Q Explain why you had to park these vehicles
23 there.
24 A Well, when we was coming from Newburg, we had
25 to pull in there because we were going towards Shippensburg
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and we couldn't make the turn around, the trucks couldn't
pull it up the hill. So we had to unhook down there and
make the turn and hook with the tractor and be able to pull
it up.
Q Because of the steepness of your hill?
A Yeah.
Q Did you ever go over there for any other
reason?
A Yes, we -- I road motorcycle over there.
Q During what period of time would you ride
motorcycle?
A That was shortly right after we moved there
until '88 or '89 whenever Myers started putting ribbons and
stuff up there, so we stopped it.
Q Did you use this piece of land several times
every year?
A Yes.
Q When was the first time that, to your
knowledge, that there was any complaint or disagreement at
allover everybody using this piece of property, basically?
A It was in 1991 whenever me and my dad was
hauling corn silage from Shippensburg, and that's whenever
Jay parked the tractor-trailer in the lane where we
couldn't -- we were already unhooking our wagons there and
then he parked his tractor-trailer there, and we couldn't
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1 unhook because there wasn't enough room to get around.
2 Q Were your wagons there on the grass?
3 A Yes.
4 Q And just very briefly explain how that ended?
5 As quickly as you can.
6 A He had the tractor-trailer -- Jay had the
7 tractor-trailer parked there. So I went and got dad and dad
8 come back, and it was towards the end of the day so we were
9 quitting towards the end of the day anyhow. So Mrs. Myers,
10 she come down and wanted out. Of course, he had the
11 tractor-trailer parked there and the only way to get out was
12 through our grass. So I was standing there besides the
13 tractor and she come up to me in her car and acted like she
14 was going to stop and just floored it, and that was the
15 first time that we ever had any confrontation.
16 Q Do you still work and help your dad on the
17 farm?
18 A Yes, I milk every morning.
19 Q Do you still use that property on the other
20 side of the road?
21 A Yes, we will -- we will use it this summer.
22 MR. SHUGHART: Cross.
23 THE COURT: Cross examine.
24 CROSS-EXAMINATION
25
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1 BY MR. REEDI
2 Q Excuse me just a minute. I just want to get
3 a photograph here. I'm going to show you a photograph that
4 we marked during Mr. Myers' testimony as Exhibit Number 10.
5 I'd just ask you if this is the driveway to your father's
6 farm?
7 A Right there, yes.
8 Q At the far left of this picture?
9 A Right.
10 Q And then the driveway where you are saying
11 that you would -- or the area where you are saying you would
12 park the wagons to turn around and haul those wagons over to
13 the barn was down here by Mr. Myers' driveway. Correct?
14 A Well, when we would haul from back on the
15 other side of the Newburg, then when we would haul from
16 Shippensburg we would haul from this side.
17 Q And the farm you were talking about was on
18 the other side of Newburg that you were getting hay?
19 A Yeah.
20 Q You said it was between four and five. So
21 between the times when you would be going out to the farm on
22 the other side of Newburg and loading the wagon up, that
23 area would be empty. Correct?
24 A Nope, because dad he would chop and we had --
25 we'd use Jay's wagon, and we had three wagons running pretty
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1 much. We had a wagon there pretty much all of the time.
2 Q But those were not left there overnight --
3 A No.
4 Q -- as you testified; and that was done just
5 for the purpose of being able to get back to your father's
6 driveway. Correct?
7 A Yes.
8 Q When you talked about riding motorcycles
9 through this disputed area, you also road up on areas that
10 you clearly know --
11 A We didn't know at the time it wasn't
12 Mr. Myers'.
13 Q You didn't?
14 A No, and then as soon as this dispute started
15 we stopped because we wasn't sure where the line was.
16 Q Okay. Nothing further.
17 THE COURT: Anything else?
18 MR. SHUGHART: No further questions.
19 THE COURT: Sir, you can step down.
20 Whereupon,
21 TROY A. BEAM,
22 having been duly sworn, testified as follows:
23 DIRECT EXAMINATION
24 BY MR. SHUGART:
25 Q Would you state your name and address,
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11 ve now?
A
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1 A Yes.
2 Q Have there been any occasions when you
3 parsonally have gone over onto the other side of 696 and
4 used the land over there?
5
6
7
8
9
10
11
12 April or May we had rye planted on the farm, on the other
13 side of Newburg, and that's the first time -- that's when we
14 started using it, pulling the wagons off of the road hooking
15 up to the tractor loading up to the truck.
16 Q Did you hear your brother's testimony?
17 A Yes.
18 Q Did he accurately describe the use of this
19 property?
20 A Yes, he did. One thing, we had on occasion
21 very seldom left the wagon parked overnight, but it was once
22 or twice, three times, very seldom we did. But there was an
23 occasion where we had left it parked there overnight.
24 Q Did you ever play over there or go over there
25 for any reason other than in conjunction with farming?
A You say, have I?
Q Yes.
A Yes, I have.
Q How often and on what type of occasions?
A Well, we moved there in March of '95
Q You say '95?
A '85, I'm sorry. We moved there and then that
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A Yes, we road motorcycles on the hillside, and
there waa once or twice that I went over in the stream and
netted minnies because we were going to go fishing.
Q Do you -- were you present for an incident
that occurred between your father and Mr. Myers that
involved pushing over a tree?
A I wasn't there when words were exchanged. At
that time I had -- I had a job out and I had come home when
the bulldozer that was there was stuck there when I came
home.
Q Explain to me what you saw?
A What I saw was the loader in the creek trying
to push the truck out, facing up towards Myers' farm,
sitting up in the air because it was down in there stuck.
It was up against the tree so it couldn't push it out either
way.
Q What happened then?
A They had gotten the machine out of there.
Q Was the tree left standing?
^ Part of it was left standing.
Q You weren't actually down there at the
stream?
A No, I wasn't down there at the stream.
Q Do you know when that occurred? If you're
not sure
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1 A I'm not sure. I didn't --
2 Q Was your father angry about that?
3 A Yes, he was.
4 Q That's all.
5 THE COURT: Cross.
6 MR. REED: No questions.
7 THE COURT: You may step down.
8 MR. SHUGHART: This would be a good time to
9 break. I have a surveyor and Mr. Beam is going to be
10 lengthy.
11 MR. REED: I must leave by a quarter of three
12 today.
13 MR. SHUGHART: I am going to have Mr. Beam
14 and the surveyor is going to be short. I would expect it
15 shouldn't take more than an hour.
16 THE COURT: We'll get it done then. I'll
17 reconvene at 1:00. You should leave at a quarter to three.
18 Okay. Recess.
19 (Whereupon, a lunch recess was taken at
20 12:02 p.m. and reconvened at 1:02 p.m.)
21 AFTER LUNCH
22 THE COURT: Have a seat. Next witness.
23 Whereupon,
24 SAMUEL D. RUNYON,
25 having been duly sworn, testified as followSI
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1 DIRECT EXAMINATION
2 ON OUALIFICATIONS
3 BY MR. SHUGART I
4 Q Please state your name and address.
5 A Samuel David Ruyon, 479 Lincoln Way East,
6 Chambersburg.
7 Q What is your occupation?
8 A Professional land surveyor.
9 Q Are you licensed by the Commonwealth of
10 PennsyJvania as a land surveyor?
11 A Yes.
12 Q Since when?
13 A Since, maybe, 1977.
14 MR. REED: Your Honor, I'll stipulate to
15 Mr. Ruyon's qualifications.
16 THE COURT: Okay.
17 DIRECT EXAMINATION
18 BY MR. SHUGART:
19 Q Mr. Ruyon, did you in 1992 perform a
20 perimeter survey for Mr. and Mrs. Melvin Beam?
21 A Yes.
22 Q And laying out in front of you is a document
23 that we've marked as Defendants' Exhibit Number 15. Can you
24 tell me, please, if that is the survey of the Beam farm
25 which you prepared?
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1 A Yes, it is.
2 Q And based upon field work done, what is your
3 opinion as to whether this survey accurately reflects the
4 boundary based upon deed descriptions and field monuments?
5 A Yes, it does.
6 Q Is it accurate?
7 A Yes.
8 Q Now, in the area in dispute, here, being the
9 area to the West of Pennsylvania, Route 696, the boundary
10
11
12
13
14
15
16 Q When you did that, did you note on your
17 survey an existing driveway to the Myers?
18 A Yes.
19 Q Did you actually survey that driveway?
20 A We located it, I think, in two areas to give
21 a location.
22 Q Can you tell us with reasonable accuracy what
23 the actual width of that driveway is, on the actual ground?
24 A 12 to 15 feet.
25 Q Would a width of 20 feet provide adequate
line. You can see I've highlighted it here in blue.
Q Can you tell me quickly how you surveyed
that?
A We surveyed by use of existing monumentations
and by way of using deeds, I guess, in Mr. Beam's title and
also, I believe, in Mr. Myers' title.
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drive?
A Yes.
Q Before performing that survey in 1992, had
you done some other SUbdivision survey work for this
property for prior owners?
A Yes, for Mrs. Catherine Baer.
Q I'm going to show you a document marked
1
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4
5
6
7
8 Defendants' Exhibit Number 17, and tell me if that is a
9 survey you prepared?
10 A Yes, we prepared a subdivision shown as a lot
11 number 1, coming out of the now Beam farm.
12 Q And what is the date of that drawing?
13 A March 27th, 1984.
14 Q Was that recorded as a subdivision plan?
15 A Yes.
16 Q And as such, were you required to do a
17 location perimeter of the farm.
18 A Well, at that time we did enough of the
19 perimeter of the farm to determine the boundary for lot
20 number one and also for that time we did a resurvey of land
21 for a Mr. Charles Baer.
22 Q And Charles Baer's lot, does that appear as a
23 lot number on the survey of March, 1984.
24 A Yes, we have it shown as lot number 2 on the
25 index map.
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1 Q Were you actually personally out there on the
2 ground when that survey was done?
3 A Yes.
4 Q And does that survey -- did you actually do a
5 perimeter survey of the entire farm when you did that
6 survey?
7 A No, not of the entire farm.
8 Q Did you, however, show as a locator on that
9 survey of March 1984, Defendants' Exhibit 17, a perimeter --
10 a non-field-work perimeter survey of the entire farm? Does
11 it appear on that farm?
12 A Oh, yes. Yes. Okay. We showed the
13 perimeter of the farm according to the deed.
14 Q And what does that show as far as where this
15
16
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18
19
20
21 A Yes.
22 Q Now, did you actually perform a survey for
23 Charles Baer at his lot?
24 A Yes, in 1984, I think, when we were doing the
25 subdivision for lot number 1. Mr. Baer also wanted his
boundary line between the Myers' property and the Baer
property at that time ran relative to 696?
A It shows it running off of 696.
Q And the same general location that you
indicated on -- that you determined on your survey of
January, 91?
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1 corners located so he knew where the boundaries were
2 exactly. So we set corners for him so he would know that
3 location.
4 Q And at that time did you meet out in the
5 field there with Mr. Myers?
6
7
8
9
10
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12
13 A Yes. Uh-huh.
14 THE COURT: Is this 1992?
15 THE WITNESS: This is '84.
16 THE COURT: '84.
17 THE WITNESS: Yeah. At that time when we
18 were going to set the corner for Mr. Charles Baer, I think,
19 Mr. Myers said that it goes to the end of the road. In
20 short, he didn't like exactly where we set the corner. We
21 basically informed him that he could find another surveyor
22 to try to prove us wrong.
23 BY MR. REED:
24 Q What did you base your corner on?
25 A We based it on the surveys of the perimeter
A Yes, I remember
Q :Ls Mr. Myers -- do you see him here today?
A Yes.
Q Would you identify him?
A (WITNESS COMPLIED)
Q So we are talking about the right person. Is
he seated here in the white sweater?
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1 of the farm and the old deed descriptiollB and fence lines.
2 Q You based it all on what the Baers told you?
3 A Pardon me?
4 Q Did the Baers tell you anything about where
5 the boundary was?
6 A Yes. The Baers also told us where the
7 corners were, what they thought they were originally, and
8 from that and from doing different field checks we found
9 that the corner fell actually off 696 and not as Mr. Myers
10 insisted.
11 Q Did you find any evidence in the field that
12 would indicate that the boundary is anywhere other than
13 where you showed it on that 1984 survey?
14 A No.
15 Q When you went back in 1992 -- we'll go back
16 to Exhibit Number 15. Now, you weren't present but Charles
17 Baer testified about a point that is circled in pencil with
18 a one down there. That's him thinking that that point was
19 not properly located. Is that the location of that point
20 that you specifically checked when you did the 1992 survey
21 for the Beams?
22 A Yes, it is.
23 Q Would you explain what you did and why?
24 A Okay. What we did is we checked it -- I
25 guess the entire original deed description versus that point
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1 and in the field we couldn't find enough discrepancy that I
2 think Mr. Beam claimed or Baer claimed that it was higher up
3 in the woods. What we found was that point to be reasonable
4 with the deed descriptions.
5 Q Was there also a survey going back apparently
6 to 1816 showing this property?
7 A Yes.
8 Q Does that appear to be an original 1816
9 survey of what is now the Baer farm?
10 A Yes, and a portion of the original Baer farm,
11 yeah.
12 Q Does it include the portion that is in
13 dispute here?
14 MR. REED: Your Honor, I'd like to place an
15 objection to that exhibit. I don't believe it's relevant.
16 The claim here is one of adverse possession. We've agreed
17 that the surveys -- the current surveys show what they show.
18 Mr. Ruyon is talking about a survey he did not perform and
19 found somewhere in the records and is irrelevant to the
20 proceedings.
21 THE COURT: Overruled. What is that marked
22 as?
23 MR. SHUGHART: Your Honor, I have the
24 original, which I don't want to put in evidence, it's from
25 1816. I have a photocopy marked Exhibit 16. I didn't know
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1 if you might want to see the original?
2 THE COURT: No.
3 MR. SHUGHART: Look at Defendants' Exhibit
4 16, front and back, and tell me if that appears to be the
5 exact photo-copy of the original survey?
6 THE WITNESS: Yes, it does. Front and back.
7 MR. SHUGHART: And does that actually show
8 this road located at approximately the same location that it
9 is today?
10 THE WITNESS: Yes, it does.
11 MR. SHUGHART: Cross examine.
12 CROSS-EXAMINATION
13 BY MR. REED:
14 Q Mr. Ruyon, when you perform surveys, you
15 don't take into account claims of adverse possession, do
16 you?
17 A No.
18 Q And your testimony about the widths of the
19 driveway, is it fair to say that the driveway is wider than
20 you testified at the point where it flares out to meet the
21 road?
22 A To be honest with you, the width of 12 to 15
23 sticks in my mind. I never measured right at the road.
24 Q Let me show you what we had marked earlier as
25 Plaintiffs' Exhibit Number 9. Does this appear to be the
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same driveway that you encountered on your survey?
A Yes.
Q And isn't it -- isn't it true that the mouth
of the roadway or the driveway as it enters the road is
wider than the actual dr i veway itself?
1
2
3
4
5
6 A Yes.
7 Q You didn't measure that, did you?
8 A No.
9 Q When you did the work for the subdivision
10 plan in 1984, you didn't set any pins down in this area
11 close to Mr. Myers' driveway or close to 696 at that time,
12 did you?
13 A In 19
14 Q '84.
15 A '84? No.
16 Q That's when you did the sUbdivision for lot
17 number one. Correct?
18 A Correct.
19 Q And that lot is further north than this area
20 that's in dispute; isn't that right?
21 A Yes.
22 Q And in 1992 when you came back to do a survey
23 for Mr. Beam, you did at that time set some pins down in
24 this area on either side of that driveway. Correct?
25 A Yes.
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1 MR. REED: No further questions.
2 THE COURT: Anything else?
3 MR. SHUGHART: Just a couple, Your Honor.
4 REDIRECT EXAMINATION
5 BY MR. SHUGART:
6 Q The 1984 survey, what did you have at that
7 time as being the residue of acreage of the Baer farm?
8 A Okay. The residue of the acreage of the Baer
9 farm at that time would have been plus or minus 120 acres.
10 Q And--
11 A Yes.
12 Q Now, your 1992 survey, what does that show
13 the total acreage of the entire parcel owned by Beam as
14 being?
15 A 150.9125 acres.
16 Q Where did the extra acreage come from?
17 A Well, on the 1984 survey the only tracks
18 showing would have been tract number one or parcel number
19 one on that deed. On the second one we showed parcels two
20 and tract 4-C and 0 and tract 2.
21 Q Are those all to the east?
22 A Yes.
23 Q They are away from the area in dispute?
24 A Correct.
25 Q And I'll show you a photograph that hasn't
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been identified yet, but Defendants' Exhibit Number 10,
would that appear to the best of your recollection to show
at least a portion of the flaring of the driveway from the
Beams' -- or from the Myers' property?
Yes.
And as a surveyor, you do sUbdivision work?
Yes.
You -- are you obligated to put a radius on
A
Q
A
Q
driveways?
A
Q
A
Q
On private drives?
Yes.
No, not on private drives, no.
And do you have there your field notes that
would indicate when you actually started work on the 1992
survey? The one that's dated January of '92 when you first
worked on that?
A I believe we first started courthouse
research in September of '91.
Q And you have notes there that show that?
A Yes.
MR. SHUGHART: No further questions, Your
Honor.
THE COURT I
MR. REEDI
THE COURT:
Anything else?
No.
Sir, you're excused.
Leave those
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February.
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1 Q Was there a fence down there at that time?
2 A Yes, there was at that time.
3 Q When you bought the property, would you
4 describe what the property across on the other side of 696
5 from your house looked like? First we'll start on the
6 Newburg side of the Myers' driveway. We can look at the map
7 here. Newburg is north of your property; is that correct?
8 A That's right.
9 Q So on the north side of the Myers' driveway
10 what does it look like?
11 A Well, it looks like it does right now.
12 Q And on the south side of his dr.iveway, what
13 does it look like?
14 A Well, up towards your woods there was a bunch
15 of -- at the far end of it, like, there was a bunch of brush
16 and some old dead trees laying, but the rest of it do\/n
17 below that was cleared off.
18 Q At that point when you purchased it, to your
19 knowledge, was there a fence back through there?
20 A Well, I can't really say but there was still
21 a couple posts standing. The fence was really going, but
22 there was still one or two posts standing there.
23 Q Was there wire and trees?
24 A I can't recollect.
25 Q Now, have you taken some pictures of this
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area?
A Yea, I did.
Q Now, I'm going to show you a bunch of
pictures, they are marked Defendants' Exhibit Numbers 4
through 14, and I want you to just look quickly at all of
them, hand them back to me and tell me whether you took them
and/or whether they accurately depict what was out there at
the time you took them.
MR. REED:
THE COURT:
MR. REED:
THE COURT:
BY MR. SHUGART:
Q When did you take the first set, the
polaroids? When did you take them?
A About two months ago.
Q And the bigger ones, the ones taken on a 35
millimeter?
I'll stipulate to them.
You've seen them before?
I've seen them and I'll stipulate.
When did you take them, sir?
A About two weeks ago.
Q We will go through them by the numbers.
Exhibit Number 4, can you tell us what that shows, please?
A That shows part of a stump standing along the
creek and there is a partly cleared area on the other side
of the stream.
Q Does that stump have any particular meaning?
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driveway?
A
Q
shows?
A
area.
Q
direction?
A
Q
A
Q
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1 Q You're standing in the disputed area?
2 A Right.
3 Q And Number 8, what does that show?
4 A That shows the same things as the other
5 picture. I'm standing in the disputed area, and it shows a
6 picture of the road, 696, and my driveway and the buildings.
7 Q Does that show the culvert that Mr. Myers
8 testified PennDOT put under the road?
9 A Yes, it does.
10 Q Defendants' Exhibit Number 9, what does that
11 show?
12 A Now, I'm standing up on the south side
13 looking north, you can see a picture of 696, my buildings,
14 the stream and his driveway.
15 Q Number 10, what does that show?
16 A This is another picture of him standing on
17 the 696 taking a picture looking south from the disputed
18 area.
19 Q Defendants' Exhibit 11, what does that show?
20 A That's another picture of him standing in the
21 disputed area looking south, and you can see 696 and his
22 driveway.
23 Q Defendants' Exhibit Number 12?
24 A That's another picture of where the stump
25 lies that they were trying to remove.
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Q okay. And Defendants' Exhibit Number 13?
A That's another picture standing in the
disputed area looking south. You can see 696 and the
driveway.
Q And Defendants' Exhibit Number 14, what does
that show?
A That shows another picture of the stump that
they were trying to push out in the disputed area. When did
you move into your property?
A In March of '85.
Q Even before you started moving in, had you
started building something?
A Yes, at the end of January I started building
a new barn because there was -- I'm a dairy farmer and there
was no milking barn there, and so I started building the
barn at the end of January up into February we started
erecting this new barn. We got it partially up and Jay he
come over and he pitched right in and helped us to build the
barn the whole time.
Q And after that did he do you a number of
favors?
A He did me a number of favors after that.
Q Did you do him favors?
A I did him favors also.
Q Now, did Myers, as they have explained, mow
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1 the grass on the other side of the road?
2 A Yes, he did.
3 Q Did you say anything to him about it?
4 A No, I didn't. I figured if they wanted to
5 mow the grass and make it look nice and make my property
6 more valuable and, of course, their house and barn was right
7 up the road from it, it made their place look nicer too. I
8 didn't see no problem doing that. It wasn't actually
9 hurting my property.
10 Q Did you ever discuss it at all with the Myers
11 during the first several years that you were there?
12 A No, I didn't.
13 Q When, to the best of your recollection, and
14 how were you shown where the actual corners were -- who
15 showed it to you?
16 A Well, around 1985, sometime after I moved in
17 there, I got to talk to Charles Baer, and I asked him if he
18 knew where the corners were at, and he said I know where the
19 corners pretty much were at. I asked him to show me, and he
20 took me around and showed me the corners.
21 Q What did you see over in this disputed area
22 at that time?
23 A Like I said, up at the upper end there at the
24 woods there was some brush in there and some trees down,
25 trees laying at the time.
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1 Q What was -- what else -- what if anything was
2 there to indicate a boundary?
3 A Well, there was a couple posts sticking in
4 there at the time.
5 Q Were they obviously fence posts?
6 A Yeah.
7 Q Are they in the same area where the boundary
8 line is shown on Mr. Myers' survey?
9 A Yeah.
10 Q What was the first thing that happened that
11 caused you any concern about what was going on with this
12 property? What was the first thing that happened?
lJ A Well, in the spring of 1991, why, Jay he got
14 a pit put in over at his --
15 Q Got a what?
16 A A manure storage pit put in over at his
17 property, and after they got that erected, why, one morning
18 me and my son just went and had to go to town; and when I
19 come back, why, here Jay had this highlift sitting in the
20 stream buckled up against this tree. He had the --
21 Q What did you do?
22 A Well, I thought with him pushing that tree
23 out of the bank, why, this was going to cause the bank to
24 fall in. So I drove a pickup over and I pulled over on his
25 bridge, and I walked up -- and Helen was standing there
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1 also -- I said, Jay, what are you doing? He said, I'm going
2 to push this tree out. And I said, Jay, you know this is my
3 property over here.
4 Q And what did he say?
5 A Well, I can't -- I don't know what he said.
6 Actually, he didn't say nothing. And I said, I want you to
7 get the high-lift out of the stream and let that tree stand
8 there. So I left and backed over. And of course the man
9 that owned the high-lift, he went to get another piece of
10 equipment to get it out. After a while he come back with
11 another piece of equipment, and he pulled the thing out and
12 they took the high-lift up to the barn and left the stump
13 stand there, and I felt he respected what I said to him.
14 Q He said the tree was pulling out. It was 100
15 feet away from the road, was he accurate about that?
16 A Well, I'd say it is close to that. It's on
17 the other side of the stream. It might not be quite 100
18 feet.
19
20
21
22
23
24
25
Q Does photograph 14 -- does that show the
stump?
A Yes, it does.
Q After he was done that day, was that tree
still standing?
A Yes, it was.
Q What happened to it since then?
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A Pardon?
Q What happened to it since then?
A It's still standing there.
Q The stump's there?
A Yeah.
Q Was the tree still standing when he was done?
A Well, they were pushing against the tree.
They knocked the top of it off because it was partially
dead. He removed that part and left the stump standing
there because
Q Now, what was the next thing that happened
after that?
A Well, after that, during the summer, Jay
bought railroad ties and laid it on each side of the
driveway.
Q All right. Now, when was that?
A Well, that was in the middle of the summer.
Q Of what year?
A Of 1991.
Q Now, was that at the edge of his driveway
near Route 696?
A Right.
Q What if any use had you made of that property
up until that time?
A Well, starting in 1985 when I moved in there,
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1 I farmed ground back behind Newburg, and I had dry plant
2 back there for spring crop. So when it came on we'd go back
3 and chop it, and we always used the truck to pull the wagons
4 over because it was about a four to five mile trip. So I
5 would pull my wagons in there on that grass and unhook it
6 from them -- if you look at these pictures, you will see my
7 driveway is steep, and the pickup will not go across that
8 with a loaded wagon, that's why I pulled my wagons on there
9 to unhook the tractor to go up the hill.
10
11
12
13
14
15
16 Newburg, I did -- well, in the spring I had to do my rye and
17 alfalfa. I chopped and hauled over. And plus, if I bailed
18 hay on the wagons, I'd use that strip, then in the fall I
19 had ground in Shippensburg that I have corn on, and I went
20 in and chopped that and hauled that in with the pickups and
21 full on the other side of the driveway so I could hook the
22 tractor up --
23 Q How many times a year -- approximately how
24 many times a year would you be on there using it?
25 A Well, from '85 --
Q Did you do that every year?
A Yes, I did.
Q Do you still do it?
A Yes, I do.
Q And how many times a year?
A When I was farming, back at the farm, back at
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1 Q How many times in a year?
2 A Twice. Well, when I was storing it might be
3 for two weeks at a time.
4 Q Oh, every day for a couple of weeks?
5 A Yeah.
6 Q But two different occasions?
7 A Yeah.
8 Q Did you ever get any extra cuttings of hay?
9 A Extra cuttings -- well, I bought some hay off
10 of a neighbor, and when I bought them I'd pull the tractor
11 in there and unhook it there.
12 Q Up until these railroad ties and telephone
13 poles were there in 1991, did Myers ever interfere with you
14 using this property?
15 A No, he didn't.
16 Q When you were done pulling your wagons on
17 there, what if anything, did it do to this property?
18 A It didn't do anything to it.
19 Q Did it chew up the ground at all?
20 A Well, it chewed up the ground?
21 Q Did anybody ever complain about it?
22 A Nobody ever complained about it.
23 Q During the time that you owned the farm did
24 Mr. Myers ever have cattle over there?
25 A No.
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Q Mr. Beam, this may be the first time that
you've seen these photographs, but Mr. Myers testified to
three photographs, and I can only find two of them right
now, which he said showed wire and trees, and they were
photographs of Plaintiffs' Exhibit 28, 29 and 30, and I have
Exhibits 28 and 30 in my hand, here, and take a look at
Plaintiffs' Exhibit Number 28. He says that shows wire in
there. Is that tree the same one that you identified on
your photographs as the one along the bank of the stream
that you stopped him from pushing out?
A Yes, it is.
Q Exhibit 12?
A Yes, it is.
Q The same tree. And Exhibit 30, and I think
he's saying that that is wire about the middle of the tree
in there. Can you tell how far from the road that tree is
with wire in it?
A Well, it's -- if that was 100 feet, this is
probably 125 feet from the road.
Q Plaintiffs' 29, it's sort of hard to tell.
It appears that the stream is in there, and I'm not sure,
from my own eye, where the wire is. That's another one that
is supposed to be wire and trees. Do you know where those
trees are?
A No, I can't recall where that picture is
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gave to you.
Q
point?
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1 of paper that you found?
2 A That's the actual piece of paper that was in
3 there.
4 Q And what did you do with that, then?
5 A Well, I read over it then I brought it down
6 and gave it to you.
7 Q other than parking your wagons and vehicles
8 over there on this disputed strip, did you or your family go
9 over there on any other occasions?
10 A No, I didn't.
11 Q Did you know your boys were riding their
12 motorcycles over there?
13 A Yeah, I know they were riding over there.
14 Q Up at the top of that quitclaim deed I just
15
16
17
18
19
20 the telephone poles that were put along your property there?
21 A Well, it has all of the silage out, me and my
22 boy would go and let it off to the side of the road so I
23 could pull the wagons in there, and, of course, after a
24 couple of loads he said somebody put these railroad ties
25 back in there.
handed you, does it have a date on this, a year, please?
A Yeah, it's 1980 on it.
Q Did anybody sign that document?
A No, they didn't.
Q What did you do with the railroad ties and
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1 Q So they were put back again?
2 A They were put back again. So I said, just
3 take and move them again. So that's what he did, and that
4 day we were all right. But then
5 Q Was that the same day that your son got hit
6 by Mrs. Myers and went up over the hood of her car?
7 A Yes, it was.
8 Q What ultimately happened to those telephone
9 poles and railroad ties?
10 A I took them over to the east side of my home
11 and laid them.
12 Q Were they ever replaced?
13 A No, they weren't.
14 Q Has this property ever been fenced in at any
15 time that you've been there?
16 A No.
17 Q Did you remove a bridge that was down there?
18 A Yes, I did.
19 Q What did you do with that?
20 A I took it back in the hole also.
21 Q What did Myers do then after you removed that
n bridge?
23 A Well, after a month, a couple months, they
24 come down and put a tile across there; but they didn't put
25 it at the same spot, they moved it down on their property.
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1 Q Up to the point where you and -- up to the
2 point where you and Mr. Myers and his contractor had the
3 dispute over the tree in the stream bank, up to that point
4 did you and the Myers get along well as good neighbors?
5 A Yes, we did. You couldn't find a nicer
6 neighbor than he was. He came over and helped me do
7 everything, and I went and helped him. We got along just
8 good.
9 Q On what kind of occasions would you help him?
10 A Well, I chopped his -- I chopped his hay
11 several years. I planted corn for him. He asked me to
12 plant corn. I planted grain soil for him, I think two
13 years; and he left me use his wagon to haul corn out from
14 Shippensburg. So we sort of just did favors for one
15 another.
16 Q Have the Myers interfered at all with your
17 use of this property since that confrontation in the fall of
18 '91 when your son got hit by the car? Have they interfered
19 with your using the property at any time since then?
20 A Pardon me? Would you repeat that?
21 Q Have the Myers done anything to obstruct or
22 interfere with your using this property, this disputed
23 strip, at any time since the incident when your son got hit
24 by the car?
25 A No, not now.
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1 Q You've let them mow it?
2 A I've let them mow it.
3 Q And they've let you put your hay wagons there
4 and use it when you need to?
5 A That's true.
6 Q Did they ever put any more bridges or
7 anything like that back on your side of the property line?
8 A No.
9 MR. SHUGHART: Let me make sure I covered all
10 of my exhibits. Cross examine.
11 CROSS-EXAMINATION
12 BY MR. REED:
13 Q Mr. Beam, didn't you put up some No
14 Trespassing signs over on this property in May of 1994?
15 A Yes, I did.
16 Q And then the Myers removed those, didn't
17 they?
18 A Yes, sir.
19 Q When your surveyor went out and put pins in
20 in this disputed area or along the boundary line of his
21 survey, Mrs. Meyer pounded those in so she could mow, didn't
22 she?
23 A Not exactly. He put the wooden stakes in.
24 That's what the surveyors put in.
25 Q And those were removed or pounded in?
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1 A They were removed.
2 Q okay. You didn't do that removal. Do you
3 know that the Myers did that?
4 A I don't know who removed them, but they were
5 removed.
6 Q Did you ever take issue with the Myers about
7 removing your no trespass signs or the surveying stakes?
8 A Nope.
9 Q In this incident that occurred in 1991 where
10 you say that this stump was involved, did you tell Mr. Myers
11 you were going to go get a surveyor?
12 A I can't recall whether I said to him that or
13 not.
14 Q He was disputing with you, wasn't he, that
15 you owned that portion of the property?
16 A No, he never said nothing.
17 Q But he continued to use that portion of the
18 property and continued to mow on up to the road. Right?
19 A Yes, he did.
20 Q And between the first confrontation in 1991
21 and May 1994 when Mr. -- Mr. and Mrs. ~yers began this
22 lawsuit, you didn't file any lawsuit to eject them from your
23 property, did you?
24 A Well, I just went to see my lawyer and I --
25 Q Did you file a lawsuit, sir, to eject them?
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1 A No, I didn't.
2 Q All right. There's been a couple of
3 references to Mrs. Myers striking your son with a car.
4 Didn't the police come out and investigate that?
5 MR. SHUGHART: Objection. Relevancy.
6 THE COURT: Did they?
7 THE WITNESS: Yes, they did.
8 THE COURT: Okay. Let's let that lie.
9 Hopefully nobody will be striking anybody else again in any
10 manner shape or form.
11 MR. REED: No further questions.
12 THE COURT: Any redirect?
13 REDIRECT EXAMINATION
14 BY MR. SHUGART:
15 Q Was the Myers' mowing this property of
16 benefit to you?
17 A Yes, it was. It was making my property worth
18 that much more, and I figured if they wanted to mow the
19 thing and make it look nice for themselves, that was fine
20 with me. I just thought she was doing it to be neighborly
21 because we got along so well at that point.
22 Q And this last questionl Going back to
23 Defendants' Exhibit of the deed to you from Catherine Baer,
24 does it say right on there at the end of the deed that the
25 Myers had a right of way for getting in and out of their
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1 property? Was it right on the deed that you got?
2 A Yes, it does.
3 MR. SHUGHART: No further questions.
4 MR. REED: Nothing else.
5 THE COURT: sir, you may step down.
6 MR. SHUGHART: We move for tho admission of
7 all of our exhibits.
8 THE COURT: Any Objection?
9 MR. REED: Yes, Your Honor. My objection
10 would be to the quitclaim deed, it's never been identified.
11 The deed that -- the quit claim deed that's been shown as an
12 exhibit here was not identified by Mrs. Baer, who said she
13 didn't remember whether that was the one that she got or
14 not. All we know is that Mr. -- she told Mr. Beam that
15 there was one in his documents and that this is what he
16 found, but that doesn't it's not relevant because it
17 doesn't proof that this is the one that Mr. Myers delivered.
18 THE COURT: I disagree. Overruled. All of
19 the exhibits are admitted.
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MR. SHUGHART: I have no further testimony.
THE COURT: Any rebuttal?
MR. REED: Yes, Your Honor. Just briefly.
We call Mr. Myers.
JAY H. MYERS,
having previously been duly sworn, testified as folloWSI
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DIRECT EXAMINATION
BY MR. REED:
Q Mr. Myers, there was some testimony by
Mr. Dyson on Exhibit 32 on acreage of your tax assessment
being 116.4 acres. Do you see that, sir, on Exhibit Number
32?
A
Q
you purchased.
acres?
Correct.
Now, if you took the original acreage that
You said you sold a lot. That was how many
A 54 to 55. I don't exactly remember.
Q I'm sorry go ahead.
A It was 54 or 55. It was across the creek.
Q And then?
A And then I sold that off.
Q And then you transferred this property to
your daughter. Correct?
A I gave her 4 acres, and if you take the two
figures off, you'll get back to the acres that we're paying
taxes on.
Q And if you removed -- if you removed a total
of 58 acres, if you say 54 was one lot and 4 acres to your
daughter totalling 58 and subtract that from 172 you get the
114?
A Correct.
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1 Q And you're actually paying taxes according to
2 that card on 116?
3 A Correct.
4 Q There was some testimony from two of the
5 daughters of Mr. and Mrs. Baer concerning whether or not the
6 side of your driveway closest to Shippensburg was cleared
7 and mowed to the same degree that the property on the
8 Newburg side of the driveway was. Is it your recollection
9 that that was cleared and mowed different?
10 A It was taken care of all at the same time.
11 We did both sides of the driveway and did it all about the
12 same time.
13 Q And was that area kept clear and mowed?
14 A Yes, it was.
15 Q To the south of your driveway?
16 A We probably did the side of the Shippensburg
17 more than the other side because the state came in and got
18 that stream straight.
19 Q You've heard some testimony about the Beams'
20 sons riding motorcycles. Did you ever see the Beams' sons
21 riding motorcycles in the disputed area?
22 A Never in the disputed area. They used to
23 ride up the road and sneak into that big steep hill and ride
24 up and down the hill.
25 Q That was over near your daughter's property
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1 which is further south?
2 A Correct.
3 Q And you never saw them down in the disputed
4 area?
5 A Never.
6 Q With regard to the tile that you replaced
7 when Mr. Beam removed that bridge, I'm going to show you
8 Exhibit 6 again, is that a picture of the tile, of where the
9 tile is that you put in?
10 A Yes, sir.
11 Q Would you estimate how far back from the road
12 that is?
13 A Oh, 30 feet, maybe, at the most. It's in the
14 Game vicinity as the wooden bridge was.
15 Q In your -- to your belief is it within the
16 disputed area?
17 A Yes.
18 Q The new bridge as well as the old one?
19 A Yes.
20 Q There's been some testimony about the wagons
21 being parked and turned a couple times a year for a few days
22 at a time when the Beams were hauling in and out of their
23 property, did you let them use the property for that purpose
24 up to '9l?
25 A They used it whether I wanted them to or not.
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1 They just took over.
2 Q Okay.
3 A But they didn't use the grass when they came
4 from Newburg. They used the driveway. You can look at the
5 one picture. You can see the tree and bank. There was no
6 way possible they could use the grass. coming from Newburg
7 they had to come into the driveway and make a u-turn.
8 Q You don't disagree that they parked the
9 wagons on the grass at that time?
10 A Right.
11 Q Now did there come a time too when they
12 parked them on the grass?
13 A Yes, when they came from Shippensburg.
14 Q No, November. You don't leave a wagon load
15 overnight.
16 Q And why did you let them park their wagons
17 temporarily there?
18 A Pretty much farmers' honor. One farmer let's
19 another farmer do --
20 Q Did you believe that was their property? Is
21 that why you
22 A Of course not. We've been taking care of it
23 as our property.
24 MR. REED: That's all I have.
25 CROSS-EXAMINATION
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BY MR. SHUGART:
Q Looking at your Photograph 6, the dirt area
to the left bottom of this photograph is where the drain
tile is. Correct?
A Correct.
Q And Route 696 is completely off the
right-hand side of the picture.
A Right at the very edge of the picture the
tile would be.
Q You can't see it it's completely off of
the picture, and there's a tree in between the drain tile
and the road. At least one that appears on that picture.
Right?
A Right.
Q Just so I understand, you agree you've
introduced that Plaintiffs' Exhibit 32 you're paying taxes
on 116 acres and your own survey shows you have 119. You
agree with that, if that's what the survey shows?
Q Pardon?
A If that's what the papers show, sir.
MR. SHUGHART: No further questions.
THE COURT: You may step down. Anything
else?
MR. REED:
THE COURT:
Nothing else, Your Honor.
Record's closed. I think I'll
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