Loading...
HomeMy WebLinkAbout2009-5838 WILLIAM M. BREEN AND : IN THE COURT OF COMMON PLEAS OF SUSAN E. BREEN, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS : : V. : : CARROL TRACEY, ELIZABETH : MYERS AND BARRY SHOFF, : DEFENDANTS : 09-5838 CIVIL TERM IN RE: ADJUDICATION OPINION AND INTERIM ORDER OF COURT Masland, J., June 30, 2011:-- Although Abraham Lincoln was a wartime president, his speeches and writings constantly appealed to “our better angels.” Perhaps, for the lawyer and litigant, there is no better example of this principle than his Notes For A Law Lecture dated July 1, 1850, in which he stated: Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser -- in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good 1 man. There will still be business enough. The court is not suggesting that the lawyers or litigants in this matter failed as peacemakers or neighbors. Rather, we suggest that no one will find this opinion and order to be salutary. Rarely are there winners in litigation between neighbors, and this case is no exception. Abraham Lincoln’s Notes for a Law Lecture, from Abraham Lincoln Online, 1 http://showcase.netins.net/web/creative/lincoln/speeches/lawlect.htm. 09-5838 CIVIL TERM Upon assignment of this matter, and in allotting time for the trial, our note to staff stated “this will take at least one-half day and perhaps one-half year . . . it will surely take one-half year off my life.” That note was not intended to be a comical self-fulfilling prophecy, but rather a recognition of the difficulty inherent in neighborhood disputes. Nor, do we offer that assessment to garner sympathy -- our pain is short-lived and shallow compared to that of the litigants. As deep as their despair appeared in court, the findings sought by each side would cut far deeper than necessary. Therefore, we have endeavored to limit our findings and conclusions to those that clean the wound. Whether it heals in the ensuing years is beyond our charge. Findings of Fact I. The Parties 1. Plaintiffs William M. Breen and Susan E. Breen are adult individuals and husband and wife residing at 107 Glendale Drive, Mechanicsburg, Pennsylvania 17050. 2. Defendants Carrol Tracey and Barry Shoff are adult individuals residing at 104 Glendale Drive, Mechanicsburg, Pennsylvania 17050. 3. Defendant Elizabeth Myers, the mother of Ms. Tracey, is an adult individual residing at 117 Glendale Drive, Mechanicsburg, Pennsylvania 17050. 4. The parties reside in Silver Spring Township in adjoining properties. -2- 09-5838 CIVIL TERM II. Procedural History 5. On August 25, 2009, Plaintiffs initiated a lawsuit against Defendants which included the following counts: a. Conspiracy, false arrest and malicious use and abuse of process; b. Trespass; c. Public and private nuisance; d. Action to quiet title. 6. On the conspiracy count, Plaintiffs seek, inter alia, monetary damages including punitive damages for intentional infliction of emotional distress and humiliation. 7. On the trespass count, Plaintiffs seek the removal of any pavement or fence placed upon their property by the Defendants and for any improper use of Plaintiffs’ property. 8. On the nuisance count, Plaintiffs seek to enjoin the Defendants from operating ATVs and dirt bikes, operating their outside woodstoves, operating a dog kennel and creating unsanitary conditions that cause foul odors from the dogs to come onto the Plaintiffs’ property. 9. On the quiet title count, Plaintiffs seek a determination that the title to the property is in accordance with the survey prepared for the parties on January 30, 1978 and consistent therewith they seek a bar on Ms. Tracey from asserting any right, title or interest inconsistent with that survey. -3- 09-5838 CIVIL TERM 10. After several months of preliminary wrangling, Defendants filed their answer on May 7, 2010. 11. Plaintiffs filed a praecipe listing the case for trial on August 20, 2010. 12. The court issued orders scheduling a non-jury trial for November 3, 2010 with a pretrial conference on October 1, 2010. 13. The pretrial conference was rescheduled to October 6, 2010, at which time the court set forth the timeline for completing discovery and filing expert reports and/or motions and rescheduled the trial for Monday, February 28, 2011. 14. A two-day bench trial, including an observational visit to the properties with counsel, was held on February 28, 2011 and March 1, 2011. 15. At the conclusion of the trial, the court directed the parties to submit proposed findings of fact and conclusions of law, which were received from the Plaintiffs and Defendants on March 21, 2011 and April 11, 2011 respectively. III. The Properties and Surveys 16. In 1978 the Breens acquired a 40 acre tract of property located in Silver Spring Township at the aforesaid address on Glendale Drive. 17. At the time of the purchase of the property, in order to gain access from Glendale Drive, the Breens also purchased an L-shaped strip of property -4- 09-5838 CIVIL TERM approximately 50 feet in width extending 318.68 feet northwesterly from 2 Glendale Drive and then proceeding westwardly another 728.27 feet. 18. The Breens constructed a house on the property and moved in on September of 1978. Also located on the property is a chicken shed, horse barn, a garage and implement sheds. 19. The northern boundary of the Breen property is shared with Carl and Elizabeth Myers who purchased their property in 1946. 20. In 1996, the Myers conveyed to Ms. Tracey a home situated on approximately one acre, which constitutes the eastern boundary of the Breen property. 21. The first relevant survey of the properties was performed for Donald C. Rimmer by Whitock & Hartman because of a dispute between the Myers and a Mr. Houck, who owned the cabin which eventually became the property of Ms. Tracey. 22. A second survey was done by Whitock & Hartman in 1978 at the insistence of the bank at the time of the Breens purchase of the property. 23. In 1986, a survey was conducted by Whitock & Hartman, at the time when Carrol and Elizabeth Myers purchased the property currently owned by Ms. Tracey. Although referred to throughout the proceedings and herein as a right-of-way, it 2 is not an easement but is owned by the Breens. -5- 09-5838 CIVIL TERM 24. In 2007, Light-Heigel & Associates, Inc., (Light-Heigel) conducted a survey for the Myers and Ms. Tracey. IV. Conspiracy, False Arrest and Malicious Use and Abuse of Process 25. On May 27, 2008, Mr. Breen went to the Silver Spring Township Office and was informed that Ms. Tracey had filed a plan at the Courthouse regarding her proposed kennel operation. 26. In the evening of May 27, Mr. Breen walked down through his wife’s garden looking for the iron rebar which purportedly signified the northwest point on the L-shaped strip of property at which the Breen, Myers and Tracey properties met. 27. While Mr. Breen searched for the rebar on all fours Ms. Tracey’s dogs began to bark causing her 15-year-old son, Nevin, to come out of the house and confront Mr. Breen. 28. Nevin called his mother in a “panic” on his cell phone and she arrived at the house shortly thereafter. 29. In response to Ms. Tracey’s call to the Silver Spring Township Police, Officers Lindsay and Jenkins arrived at the property. 30. Ms. Tracey requested that the officers take action and may have suggested that they “arrest” Mr. Breen for trespassing on her property. 31. The officers questioned Mr. Breen as to whether he was aware he was trespassing on the property and harassing Nevin Tracey and the dogs. -6- 09-5838 CIVIL TERM 32. After a brief and apparently heated discussion, in which “the officer insisted I was guilty,” Mr. Breen asked the officers to leave his property. Before leaving, Officer Lindsay told Mr. Breen “I’m going to cite you,” to which Mr. Breen responded “cite me!” 33. On May 30, 2008, attorneys for the Defendants sent a letter to Mr. Breen which advised him, among other things, not to enter upon the Defendants’ properties or he would be considered as a defiant trespasser. 34. A citation was filed by the Silver Spring Township Police on or about June 5, 3 2008, with Magisterial District Judge Thomas Placey charging Mr. Breen with the summary offense of defiant trespass regarding the incident on May 27, 2008. 35. Following a hearing on the citation that was held on September 15, 2008, and at which John Clark, a professional land surveyor with Hartman & Associates, testified for Mr. Breen, Judge Placey issued a Protective Order pursuant to Title 18 Section 4954 which directed the parties as follows: (1) Mr. Breen and Mr./Ms. Tracey may have contact via counsel or through neighborhood dispute settlement or like services. (2) Otherwise, above persons are not to have direct/indirect contact (3) The above persons are not to contact, move or adjust the currently set survey pins, nor shall they direct or permit others to do so, Pl.’s Ex. No. 62. 3 -7- 09-5838 CIVIL TERM (4) Upon completion of NDS service protective order vacated, without regard to outcome of the service. (5) This order effective for 90 days unless terminated earlier by completion of #4. (6) Violations of this Order are to be reported to 4 Silver Spring Township Police, (717) 697-0607. 36. On December 16, 2008, after the expiration of the protective 5 order, Judge Placey dismissed the citation. 37. Mr. Breen was concerned about the ramifications of this citation to his employment at the Navy Ships Parts Control Center (SPCC). 38. Mr. Breen had been employed at SPCC since July 20, 1982 and was engaged in classified work that required a security clearance. 39. Mr. Breen informed several friends and colleagues of his concern because of the charge that he had “harassed a child.” 40. A co-worker at SPCC, Larry Joe Hall, described Mr. Breen as being “obsessed over the incident” and that “it got worse as it went on.” 41. Mr. Hall recalled Mr. Breen stating “the police officer was nasty to me.” 42. None of the witnesses for Plaintiffs recalled the details of the charges; however, all related that Mr. Breen was upset. 43. There were no adverse employment consequences incurred as a result of the summary charge and Mr. Breen retired from SPCC in July, 2010. Pl.’s Ex. No. 77. 4 Pl.’s Ex. No. 62. 5 -8- 09-5838 CIVIL TERM V. Public and Private Nuisance A. Noise (ATVs and Dirt Bikes) 44. Mr. Breen kept a diary in which he cataloged 123 incidents between June 2008 and May 2010 during which one or more ATVs or dirt bikes were operated on Defendants’ property. 45. The operation of these vehicles was extremely bothersome to the Breens. 46. The vehicles were usually operated by the teenage sons of Ms. Tracey, Nevin and Nathan, and occasionally by Mr. Shoff. 47. The Breens felt that “no matter where we went, as soon as we got back along comes the four-wheeler ripping down along the fence.” 48. The vehicles were operated in all types of weather and conditions, including rain, snow and mud. 49. The vehicles were almost always operated during daylight hours. 50. On June 21, 2008, the Breens had a picnic, which was attended by several friends including, Heather Brinker, Debra McNemar and Dorothy McNickels, all of whom testified that two ATVs were operated in a manner that created “a lot of racket” and dust and made it difficult for the guests for enjoy the picnic. 51. Ronald Crandy of 134 Willow Lake Drive, Carlisle, whose property borders the western edge of the Breen property, testified that when he was outside his house he “could hear [the four-wheelers] all the time from Tracey’s house.” 52. Mr. Crandy had an earlier conflict with the Defendants regarding an allegation of hunting in a safety zone. -9- 09-5838 CIVIL TERM 53. Ralph Thrush, III, a financial planner for the Breens heard the four-wheelers, which he characterized as loud and bothersome, on three out of six occasions in 2010 when he visited the Breen property. 54. Tina K. Snell of Spring Grove, Pennsylvania testified that when she spoke with the Breens on the phone on one occasion, she could hear the noise of ATVs in the background. 55. Ms. Tracey was never notified that the ATVs were bothersome by the Breens or by their attorney in 2008 or 2009. 56. Ms. Tracey testified that if she had been told on June 21, 2008, that the Breens and their guests were annoyed by the ATVs she could have told the kids not to ride that day. 57. Riding ATVs is a major interest for Ms. Tracey’s teenage sons, especially for Nathan, the youngest. B. Odor (Dogs and Woodstove) 58. Since 1992, Ms.Tracey raised Newfoundlands and Mastiffs on the property, which she began selling in 1993. 59. After losing her job in 2001, Ms. Tracey “ramped up” the breeding business, which at that time involved primarily German Shepherds. 60. As of the hearing, Ms. Tracey had sixteen dogs on her property. 61. The refuse from the dogs is recycled along with the excrement from the six horses, one donkey and three emus owned by Ms. Tracey. -10- 09-5838 CIVIL TERM 62. The Breens have one horse and have had chickens, emus and a pot-bellied pig. 63. In addition to producing excrement, the dogs also produce noise and, according to Ms. Tracey, “bark when you go up the lane,” something observed by the court during its view of the property. 64. Ms. Tracey’s desires to move the dogs up towards the Myers’ house, if and when she receives approval for the kennel (which has been built) from the township. 65. After a hearing on October 4, 2006, at which the Breens opposed Ms.Tracey’s request for a variance, the Silver Spring Township Zoning Hearing Board (the Board) denied the request. 66. On or about December 14, 2006, Ms. Tracey appealed the decision to the 6 Court of Common Pleas in an action docketed to 06-7128 Civil Term. Neither the Township nor Ms. Tracey have attempted to move the litigation forward. 67. The Breens have “no problem” with a kennel near Mrs. Myers’ home as long as the Breens do not hear or smell the dogs and as long as the Defendants comply with the driveway requirements. 68. Although the decision of the Board appears to have been based primarily on the lot size and proximity with the owners, the parties testified to the need for Pl.’s Ex. No. 64. 6 -11- 09-5838 CIVIL TERM Ms. Tracey to have a wider driveway, which would require her to cut down trees on her property or acquire land from the Breens. 69. In July or August of 2008, Ms. Tracey and Mr. Shoff installed an outdoor woodstove on their property at a cost of $8,000 to $9,000 because their indoor woodstove was inadequate. 70. The Breens also own a woodstove. 71. Although both the Tracey home and Myers’ home have outdoor woodstoves, the Breens chief complaint concerns the Tracey stove, because it is used throughout the year to provide hot water. 72. Although not definitively set forth in the testimony, based on the surveys and our view, the Breen house lies between 250 and 300 yards due west of the Tracey woodstove. 73. Ms. Tracey and Mr. Shoff insist that they burn the same wood outdoors that they used to burn indoors; however, the Breens insist that the smell emanating from the stove comes from plastic or trash. 74. On April 2, 2011, Officer Sabadish of the Silver Spring Township Police Department received a 911 call about a “smoke” complaint to respond to the Breen property. 75. Upon his arrival, Officer Sabadish noted the smell of something other than wood, but acknowledges it could have been trash burning in a backyard, which is presumably permitted in Silver Spring Township. -12- 09-5838 CIVIL TERM 76. Not surprisingly, the parties cannot agree on the direction of the wind, with the Breens insisting that it comes from the north, northeast east and southeast whereas the Defendants insist the winds are the so-called “prevailing westerlies.” 77. The Tracey’s stove is filled twice a day on cold days and, according to Ms. Tracey, produces a fair amount of smoke when it is first filled but hardly anything after it reaches the ambient temperature. 78. The Defendants may occasionally burn green wood, which produces more smoke. VI. Trespass and Quiet Title 79. James R. Skonezney has been employed by Whitock & Hartman (now Hartman & Associates and hereafter referred to as “Hartman”) since September of 1982. 80. Mr. Skonezney “worked up through the ranks” and has been the chief of the surveying crew for 20 years. 81. Mr. Skonezney is not a licensed professional surveyor, having taken the exam but failed to pass. 82. Over the thirty years of his experience, Mr. Skonezney has been involved with the subject properties a few times. 83. Using the survey introduced as Plaintiff’s Exhibit A-2, (the Worksheet) Mr. Skonezney determined that the fence depicted in the photographs marked as -13- 09-5838 CIVIL TERM Plaintiffs’ Exhibits 5-23 “clearly encroached [at] various distances” along the north side of the Breen’s 50 foot L-shaped right-of-way. 84. The wooden stakes with red flags depicted in Plaintiff’s Exhibits 5-23 are at locations where Mr. Skonezney placed iron pins approximately 30 years ago. 85. Mr. Breen testified that the aforesaid fence was erected for Ms. Tracey by T.E.L. Installations, the same company that erected a fence contemporaneously on the Breen property. 86. Ms. Tracey informed T.E.L. Installations to follow the pins which ran between the Breen and Myers properties, north of the Breen’s driveway. 87. When the fence was erected, Mr. Breen did not know or care that it was partially on his property because “we were friends – I took their word.” 88. Mr. Breen did not learn that the fence was on his property until August of 2009. 89. Mr. Breen testified to a possible encroachment on the eastern side of the property where the Defendants placed macadam on the driveway/access road in 2004-2005. 90. Mr. Breen said the encroachment of the macadam varied from a couple of inches to four to five feet. 91. Mr. Breen “knew there was a problem [with the macadam] but didn’t want to start a war.” 92. David W. Downey has been employed since 1972 with Hartman. -14- 09-5838 CIVIL TERM 93. Mr. Downey was licensed in 1991 by the Commonwealth of Pennsylvania, Bureau of Professional Occupational Affairs as a professional land surveyor and maintains his license to this day. 94. Mr. Downey has reviewed all the relevant surveys and “a large amount of data” regarding the Breen, Tracey and Myers properties. 95. Mr. Downey has also surveyed lands to north, east and west of the subject properties, including the Mechanicsburg Men’s Club property which is situated on the southern side of the Breen’s right-of-way. 96. In response to defense counsel’s suggestion that there was a gap in the properties which also affected the Mechanicsburg Men’s Club, Mr. Downey forcefully asserted that all the tracts were contiguous. 97. The Worksheet is the work product of Mr. Downey. 98. Mr. Downey has been involved with all of the Hartman surveys of the aforesaid properties, including the 1986 survey, which was prepared for the Myers and the Breens. 99. The only complaint Mr. Downey received from Mrs. Myers regarding the 1986 survey had to do with the “Barrick” property, which was located north of the Tracey property. Mrs. Myers did not have any complaints regarding the points along the Breen property. 100. The northern most line along the Breens’ L-shaped property according to the Hartman surveys is 728 feet. Whereas the Light-Heigel survey depicts it as 719.64 feet. -15- 09-5838 CIVIL TERM 101. Mr. Downey opined that the Light-Heigel survey improperly used iron rebars whereas Hartman used original monuments, such as stone piles. 102. The accepted “survey boundary hierarchy” recognized by professional land surveyors ranks original monuments, such as stone piles, highest and 7 ranks distances lowest in terms of preferred means of setting a boundary. 103. Mr. Downey opined that the Light-Heigel surveyors relied on pins “that weren’t there when we did [our survey].” 104. Mr. Downey asserted that the Light-Heigel survey “was based on what they found, but it doesn’t make what they found good.” 105. Mr. Downey met with the Light-Heigel surveyors and had the understanding that they were going to change their survey. 106. No one testified from Light-Heigel. 107. Defendant’s expert, Mark Romeo, a professional land surveyor for 16 years, met with representative of Hartman and Light-Heigel. 108. Mr. Romeo noted that both Hartman and Light-Heigel used “sound practices” and could not say that either survey was incorrect. 109. Mr. Romeo noted that Hartman used original monuments in setting the boundary between the easterly line of the Breen property and the westerly 8 line of Myers. Pl.’s Ex. No. 74. 7 Def.’s Ex. No. 4. 8 -16- 09-5838 CIVIL TERM 110. Mr. Romeo noted that some evidence that Hartman relied upon was no longer intact when Light-Heigel did their survey. 111. Mr. Romeo noted that only the Light-Heigel survey “showed inconsistences.” 112. Mr. Romeo noted that only the Light-Heigel survey created a gap between the Breen and Tracey properties. 113. The Decree Nisi entered by the Honorable George E. Hoffer on April 21, 9 1983, is not dispositive of the boundary issues in this dispute. VII. Relationship of the Parties 114. When the Traceys moved to the property, they had a very close relationship with the Breens. 115. Mrs. Breen testified that she loved Nevin and Nathan Tracey “very much and I still do.” 116. The Breens close relationship with the boys was also depicted in Plaintiff’s Exhibit 75, which included numerous photos of the Breens and the boys interacting. 117. The relationship began to change in the early 2000s when some heavy equipment that was used on the Tracey property backed up onto the Breen property causing ruts. Def.’s Ex. No. 3. 9 -17- 09-5838 CIVIL TERM 118. The decision in 2006 of Ms. Tracey to move the kennel near Mrs. Myers’ home and the resulting proceedings with the Zoning Hearing Board ultimately soured the party’s relationship, and gave rise to the instant litigation. 119. Mrs. Breen noted, regretfully, that she is “very sorry it came to this,” and described Mr. Breen as having “a big wound that is festering.” 120. The parties did not use the services of Neighborhood Dispute Settlement as suggested by Judge Placey. VIII. Discussion It is no coincidence that we ended our findings by referring to the relationship of the parties. We cannot help but think that had they spent more time focusing on the pictures in Plaintiff’s Exhibit 75 and less time on the plethora of other exhibits, this matter would not be before us. Unfortunately, the time for mediation has passed and we must fashion a judgment with the tools we are given. In doing so we turn first to the incident that not only gave rise to the cause of action for conspiracy, false arrest and malicious use and abuse of process, but also was the decisive blow to the parties’ relationship. The mere act of calling the police and saying “arrest him” after receiving a frantic call from one’s teenage son, who sees a neighbor crawling in the bushes with a chorus of dogs in the background, does not constitute malicious use and abuse of process. The actions of Ms. Tracey did not cause a criminal proceeding to be initiated against Mr. Breen. More likely than not, the anger Mr. Breen displayed in his interaction with the Silver Spring Police officers ensured that he -18- 09-5838 CIVIL TERM would be cited for the alleged trespass. Generally, when one tells an officer to “cite me,” one receives a citation. Nor, do we find anything malicious in the fact that Defendants’ attorney sent a boilerplate defiant trespass letter to Mr. Breen between the date of the incident and the date that the police filed the citation. The purpose of the letter was to keep Mr. Breen off the Defendants’ property and was not designed to cause him emotional stress, financial loss or harm to his reputation. Furthermore, the act of sending copies of the trespass letter to the police is a common manner of notifying the authorities that a warning has been communicated pursuant to 18 Pa.C.S. § 3503(b)(1). The letter was certainly not in furtherance of any conspiracy and did not cause the citation to be issued. Plaintiff made much of the dismissal by Judge Placey as a vindication of Mr. Breen and a condemnation of Ms. Tracey. We disagree. Looking at the timeline between the hearing (9/15/08) and the decision (12/16/08) we surmise that Judge Placey was providing a cooling off period for both sides. Once the 90 days expired without further incident, he was content to dismiss the action, as we would have done. Having found there was no conspiracy or unlawful arrest, we need not address Plaintiffs claim for punitive damages for the intentional or negligent infliction of emotional distress. We do not discount the genuineness of the Breens’ emotions; however, the genesis for their distress, cannot be placed solely at the doorstep of their neighbors. -19- 09-5838 CIVIL TERM Turning to the nuisance count, we note initially that the complaint focused solely on noise from the ATVs and dirt bikes and on the odor of the woodstoves and dogs. With respect to both noise and odor, the claim of a public nuisance must fail. The testimony of one neighbor and several guests regarding ATV noise, does not transform the complained of nuisances into ones that affect the “community at large.” Karpiak v. Russo, 676 A.2d 270, 274-75 (Pa. Super. 1996). Therefore, we turn to the Restatement (Second) of Torts Section 822 which provides the following regarding private nuisances: One is subject to liability for private nuisance, if, but only if, his conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment of land and the invasion is either (a) intentional and unreasonable, or (b) unintentional and otherwise actionable under the rules controlling liability for negligence or reckless conduct, or for abnormally dangerous conditions or activities. Because there is no claim that the Defendants acted negligently, we must determine if their conduct was intentional and unreasonable. Moreover, we must determine if the invasion created “significant harm” pursuant to Restatement (Second) of Torts Section 821(F). Finally, we must also consider the community in which the alleged conduct occurred to determine “[i]f normal persons living in the community would regard the invasion in question as definitely offensive, seriously annoying or intolerable … .” Russo, 676 A.2d at 273. With that background, we will address the alleged conduct of the Defendants. Mr. Breen began cataloging the riding behavior of Nevin and Nathan in earnest after he was cited for defiant trespass. Prior to that time, the Breens may -20- 09-5838 CIVIL TERM have been annoyed by the noise from the ATVs; however, at that time it was generated by beloved neighbor boys. Once the citation was issued, the noise was no longer tolerable largely because it was created by the enemy. Our 10 review of the 123 incidences of ATV riding indicate that relatively few were for an extended period of more than a few minutes (other than June 21, 2008, the day of the picnic) and fewer still occurred in the twilight or evening hours. In 2009, the one full year of cataloging, the Breens were apparently bothered on 38 occasions. It appears the Tracey boys are more attracted to mud and snow than by a desire to harass and annoy. Their behavior is what one would expect from 11 teenagers and does not strike us as outrageous. In fact, under the circumstances, we would expect teenage boys to ride their ATVs 365 days a year. Just as important as the timing of Mr. Breens diary is the fact that there was no testimony of the Defendants being asked to cease and desist, either directly by the Breens or by their counsel. Perhaps, that would have been futile, but in the absence of a request and a refusal to comply, the court is reticent to deem teenage boys tearing up their own property a nuisance. Nevertheless, we Pl.’s Ex. No. 63. 10 Mark Twain is credited with saying that when a boy reaches age 13 he should 11 be placed in a barrel with a hole in the top for food and water. And, when the boy reaches 16, you should plug up the hole. We will not plug the hole for the Tracey boys who are now approximately 18 and 16 respectively. Having progressed from soccer to ATVs, perhaps they are ready to progress from ATVs to more dangerous, though less noisy, hobbies like girls and cars. -21- 09-5838 CIVIL TERM admonish Ms. Tracey to more closely monitor the riding behaviors of her sons to ensure that neither the timing nor frequency of their rides are designed to or capable of causing annoyance to the Breens or any of their neighbors. Although Plaintiffs did not include noise from the dogs in their nuisance claim, substantial testimony was received at trial. Had it been raised in the complaint, the evidence did not rise to the level of a serious annoyance which must be enjoined. Ms. Tracey has housed numerous dogs on her property since 2001, and, no doubt, they barked before the citation was issued on June 5, 2008. That may have amplified the noise to the Breens, but in the absence of more compelling testimony, it does not constitute a nuisance. To the extent that the Breens have endured sleepless nights (which was not claimed with respect to the noise), we suggest it has more to do with the pain from broken friendships than noise from barking dogs. With respect to the odor from the dogs, we note, as with the ATVs, the parties live in an agricultural area where “odors happen.” Both parties have their share of animals, though Ms. Tracey’s dogs are above the norm. As such, to be bothered by the odor while mowing and working outside or when it rains, strikes the court as the price one pays for living in the country. Moreover, but for township zoning constraints, the plan of Ms. Tracey is to move the dogs to a location that, conceivably, would be less annoying to the Breens. That does not strike the court as the behavior of someone who is vexatious. Just as the trespass citation heightened the Breens’ sense of hearing, it also heightened -22- 09-5838 CIVIL TERM their sense of smell. In fact, any movement by the Defendants was perceived as a calculated attack. The Defendants have not been good neighbors, but they are not that designing. The final complaint raised by the Breens under the nuisance count concerns the smoke from the Defendants’ outdoor woodstoves, with the primary culprit being the Tracey stove that is used throughout the year. We have no doubt that when the smoke travels west towards the Breen household, it is annoying. Nevertheless, the use of woodstoves in rural areas is not unusual, which is borne out by the fact that ordinances regulating their use are becoming common place. It is sadly ironic that by calling Officer Sabadish to the stand to bolster their argument that Defendants are burning something other than wood in their stoves, Plaintiffs raised the court’s awareness of how frayed the nerves of the Breens have become. Perhaps the saying, “you had to be there” applies, but it strikes us as excessive to call 911 to summon a police officer to your property to smell smoke. The Defendants purchased the stoves in order to save money in heating their house, not to annoy the Breens. To the extent there is any smoke from the stoves, and Plaintiff’s Exhibits 28A-35 depicted no massive plumes, the Defendants’ bear the brunt of it and, hence have a greater interest in having a “clean” burn. Although, this nuisance claim falls short, we urge the Defendants to comply with the township regulations regarding woodstoves in general and, in -23- 09-5838 CIVIL TERM particular, to refrain from burning therein any substance that might produce noxious smoke. Having addressed the counts for which Plaintiffs did not meet their burden, we turn to those on which they did, namely, trespass and the action to quiet title. The determination of these issues is relatively straight forward; however, the circumstances of this case make their resolution anything but easy. With respect to the boundary dispute, Plaintiffs presented unrebutted expert testimony on the location of their boundaries. Defendants’ expert, Mark Romeo, was permitted to testify over the objection of Plaintiffs because they were not prejudiced, having had sufficient notice prior to trial of the existence of an expert for Defendants, and, more importantly, the court viewed his testimony as necessary in finding all relevant and probative evidence. Ultimately, Mr. Romeo served to confirm more than question the testimony of Mr. Downey and Mr. Skonezney. Therefore, we find that the surveyors from Hartman & Associates are the true experts with respect to the subject properties, having surveyed the area for well over 50 years and credit their survey as correct. We conclude that the fence erected on behalf of the Defendants does in fact encroach on the Breen property, albeit in a relatively insignificant fashion. Furthermore, we find that the calculations set forth on the Worksheet (Plaintiff’s Exhibit A-2) constitute the true and accurate boundaries for the respective properties. -24- 09-5838 CIVIL TERM Perhaps, had the parties used the services of Neighborhood Dispute Settlement in 2008, as suggested by Judge Placey, a boundary agreement would have already been reached. In the absence of that, we are constrained to direct that Hartman & Associates, Inc., prepare a legal description for the Breen 12 property in accordance with the surveys entered into evidence at trial. The Defendants shall recognize this legal description as providing the official, final and definitive border for the properties and they shall be barred from asserting any right, lien, title or interest in the land inconsistent with that description. Defendants shall remove those sections of their fence that encroach upon the Breen’s property. The Defendants shall not be required to remove the macadam from the access road; however, if and when Defendant Tracey makes improvements to the access road in order to comply with any township requirements related to her kennel or if Defendants otherwise improve or replace the access road, such improvements shall be made to ensure that they occur solely on Defendants’ land in accordance with the aforesaid legal description. Accordingly, we enter the following order. INTERIM ORDER OF COURT AND NOW, this day of June, 2011, following a two-day bench IT IS ORDERED AND DIRECTED trial, as follows: Plaintiffs submitted a proposed order containing a legal description however we 12 direct that it be reviewed and resubmitted. -25- 09-5838 CIVIL TERM 1. Plaintiffs’ claims for conspiracy, false arrest and malicious use and abuse DENIED of process are and a verdict is entered in favor of Defendants. DENIED 2. Plaintiffs’ nuisance claims are and a verdict is entered in favor of Defendants. GRANTED 3. Plaintiffs’ claim for trespass is and, in the absence of a boundary agreement between the parties, Defendants are directed to remove those sections of their fence that encroach upon Plaintiffs’ property within 60 days of the final order of court, which shall set forth the boundaries of the property. Defendants are not directed to remove those portions of macadam on their access road which encroach upon the Plaintiffs’ property at this time. However, when improvements or repairs are made to the access road, Defendants shall ensure that any macadam encroaching on Plaintiffs’ property, as determined by the legal description hereafter set forth, is removed. GRANTED 4. Plaintiffs’ action to quiet title is . A legal description shall be prepared by Hartman & Associates, Inc. in accordance with their survey of 1986 and the calculations set forth in Plaintiffs’ Exhibit A-2. It appearing that the submitted version of this description contains at least one typographical error, Plaintiffs shall verify the correctness of the description and resubmit it to the court within 10 days of this interim order. After entry of a final order of court, Defendants shall be forever barred from asserting any right, lien, title or interest in the land inconsistent with this legal -26- 09-5838 CIVIL TERM description. Furthermore, any plan or survey prepared for the Defendants that is inconsistent with Plaintiffs’ legal description is declared to be invalid. 5. No further relief is granted to either party. By the Court, Albert H. Masland, J. Lee C. Swartz, Esquire For Plaintiffs Karl E. Rominger, Esquire For Defendants :saa -27-