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HomeMy WebLinkAbout01-6131 CIVILRICHARD L. MOYER and JEAN C. MOYER, his wife, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FREDERICK L. MADEIRA and CAROLYN G. MADEIRA, his wife, DEFENDANTS 01-6131 CIVIL TERM IN RE: DEFENDANTS' DEMURRER TO PLAINTIFFS' COMPLAINT BEFORE BAYLEY, J. AND HESS, J. OPINION AND ORDER OF COURT Bayley, J., January 2, 2002:-- On October 26, 2001, plaintiffs, Richard L. Mayer and Jean C. Mayer, instituted this quiet title action against defendants, Frederick L. Madeira and Carolyn G. Madeira. In their complaint, plaintiffs aver that they are the owners of 411 West Main Street, Shiremanstawn, Cumberland County. They acquired the title from the estate of Mabel Hess, by a deed of June 15, 1999, and a "corrective deed" of October 22, 2001. Defendants own a property adjoining their land to the east. Defendants acquired their property by a deed of April 9, 2001. In their complaint, plaintiffs aver that a portion of their driveway, and the east end of their brick garage, are on the property of defendants. Plaintiffs further aver: [t]hat they and their predecessors in title maintained not only the area where the garage was erected and where the driveway was paved, but also maintained an area running from Main Street north to the lands of Bible Baptist Church east of the garage and driveway, by mowing the grass, storing building materials and maintaining said area as part of the premises known as 411 West Main Street, Shiremanstawn, Pennsylvania,... 01-6131 CIVIL TERM [t]hat by reason of the long-standing unchallenged possession and occupation of the lands here identified, Plaintiffs have acquired ownership by adverse possession of the said strip of land ten feet in width adjoining the lands described in Paragraph 3 herein on the east and running north of that width from Main street to the lands now owned by Bible Baptist Church and which are described in Paragraph 13 herein. Plaintiffs further aver that all of the encroachments on defendants' property were "[c]onstructed and maintained by their predecessor in title for more than 21 years." (Emphasis added.) They claim ownership of the area of the encroachments by adverse possession, and seek to quiet the title. Defendants filed a preliminary objection to plaintiffs' complaint in the form of a demurrer. They maintain that the averments in plaintiffs' complaint do not support a claim of title by adverse possession because (1) the deed by which plaintiffs acquired their title to 411 West Main Street, Shiremanstown, does not include the disputed land within its description, and the deed did not convey to plaintiffs any title of their predecessors to the disputed land, and (2) the "corrective deed," that includes the disputed land is a nullity because the Mabel Hess estate did not then own any title to or interest in the property. The preliminary objection was briefed and argued on December 12, 2001. In Baylor v. Soska, 658 A.2d 743 (Pa. 1995), Robert and Lillian Baylor, on May 4, 1988, filed an action to quiet title by adverse possession to a parcel of land upon which a garden, hedges and a garage were located. The facts were: [t]hat Mary Hanecak, Baylors' predecessor in title, purchased the land in 1942. When Mrs. Hanecak purchased the property, it included a house and a garage. -2- 01-6131 CIVIL TERM Approximately ten years later, Mrs. Hanecak's husband built an addition to the garage. This addition is located on the disputed parcel of land. Mrs. Hanecak claims that from the time she and her husband moved onto the property, they maintained the disputed parcel and planted hedges and a garden on it. In 1973, the Baylors purchased the property from Mrs. Hanecak and tore down the addition to the garage, replacing it with a framed enclosure. (Emphasis added.) The Supreme Court of Pennsylvania stated: As observed by the lower courts, one who claims title by adverse possession must prove actual, continuous, exclusive, visible, notorious, distinct and hostile possession of the land for twenty-one years. Conneaut Lake Park, Inc. v. Klingensmith, 362 Pa. 592, 66 A.2d 828 (1949). In the present case, the Baylors purchased the land in question in 1973 and brought this action in 1988. That is an insufficient period of time to acquire the land by adverse possession. However, under certain circumstances, the periods of possession of prior owners may be added on to the period of possession of the present owners. Superior Court in Castronuovo v. Sordoni, supra, described this process, called "tacking": The possession of successive occupants may be tacked, but only where there is privity between them. Masters v. Local Union No. 472, United Mine Workers, 146 Pa. Super. 143, 22 A.2d 70 (1941). For our purposes, "privity" refers to a succession of relationship to the same thing, whether created by deed or other acts or by operation of law. Stark v. Lardin, 133 Pa. Super. 96, 1 A.2d 784 (1938). But a deed does not of itself create privity between the grantor and the grantee as to land not described in the deed but occupied by the grantor .... The deed, in itself, creates no privity as to land outside its calls. Nor is privity created by the bare taking of possession of land previously occupied by the grantor. Gerhard v. Hilsenbeck, 164 Pa. Super. 85, 88, 63 A.2d 124, 146 (1994) (quotations omitted).7 Our court has held that acceptance of a deed describing boundary lines confined the premises to the area within the boundaries, and that such a deed did not convey inchoate rights acquired by incompleted adverse possession. Masters, supra. Each predecessor must have claimed title to the property in dispute, and in transferring to his successors must have purported to 7 We take note of the exception recognized by the Gerhart court in cases such as Scheetz v. Fitzwater, 5 Pa. 126 (1847), where "an intent to convey more land than the described premises may be inferred from circumstances and perhaps from the deed itself." Id., 5 Pa. at 128, 357 Pa. Super. at 193-94, 515 A.2d at -3- 01-6131 CIVIL TERM 930-31. include it. Shafferv. Lauria, 50 Pa. Super. 135 (1912). In sum, Superior Court has held that periods of the prior owner's adverse possession may be tacked, assuming that the prior owner as well as the present owner meet the requirements set out above for adverse possession, when the grantor purports to convey the disputed parcel in the instrument of conveyance to the present owner or when the circumstances of the case indicate an intent to convey more land than that which is described. Our research reveals no cases in which this court has defined the "circumstances" which indicate that the predecessor in title intended to convey his claim of adverse possession. For the reasons that follow, we believe that the entire concept of "circumstances" in the context of tacking is misplaced. In Wolfe v. Porter, 405 Pa. Super. 385, 390, 592 A.2d 716, 719 (1991), Superior Court was called upon to decide whether in a conveyance from mother to son, the son was entitled to tack his mother's alleged period of adverse possession when the deed conveyed only the land for which the mother had record title. The court wrote: Appellant argues that an intent to include the disputed tract can be inferred from the language of the deed. We disagree. A careful examination of the deed discloses no reference to the disputed tract or to any inchoate right thereto .... In the absence of a conveyance of the grantor's inchoate rights, we assume that appellant's predecessors either occupied the disputed land permissively or that they abandoned every intention of holding adversely before the conveyance. (Emphasis added.) Superior Court, in sum, has held that whenever a grantor seeks to convey an inchoate claim of adverse possession, what is required is a reference to the disputed tract or to the grantor's inchoate right. There is good reason for this requirement. Interested parties have a right to discern from the record the state of the title of any parcel of land. If tacking were to be permitted because of vague, undefined "circumstances," there could and most likely would be no way for one not a party to the conveyance to know this. But the law mandates that a person asserting a claim of adverse possession make this assertion openly and notoriously to all the world. There must be no secret that the adverse possessor is asserting a claim to the land in question. Tioga Coal Co. v. Supermarkets Gen. Corp., 519 Pa. 66, 75, 546 A.2d 1, 3 (1988) (Opinion Announcing the Judgment of the Court). If the adverse possessor's claim is to be passed on to a successor in title, therefore, there must be some objective indicia of record by which it can be discerned with some degree of certainty that a claim of title by adverse possession is being made and that the duration of this claim has been passed on to a successor in title. -4- 01-6131 CIVIL TERM It might be argued that if the original adverse possessor were simply to remain on the land and there were no action in ejectment, nothing of record would appear to indicate the adverse possessor's interest, and therefore, there should be no requirement that the record reveal the adverse interest of a successor in title. First, nothing of record need appear concerning the successor's adverse possession claim. It is only the predecessor's claim which the successor seeks to tack that is at issue. Second, public policy requires that when an interest in land is conveyed to another, the interest of the successor in title be described as nearly as possible, withholding nothing which could and should at that time be made visible. Otherwise, needless complexity and uncertainty is introduced into conveyancing. Accordingly, we hold that the only method by which an adverse possessor may convey the title asserted by adverse possession is to describe in the instrument of conveyance by means minimally acceptable for conveyancing of realty that which is intended to be conveyed. In this case, the predecessor in title did not meet this requirement so fare as regards the disputed tract. (Emphasis added.' As stated in Baylor, acquiring title by adverse possession requires 21 years of actual, continuous, exclusive, visible, notorious, distinct and hostile possession of another's land. Thus, prior to 21 years, a person in possession of another person's land is a trespasser.1 In Baylor, and in Wolfe v. Porter, supra, upon which the Supreme Court placed considerable reliance, each predecessor in title to each plaintiff had been in possession of the disputed land for at least 21 years.: Thus, the 21-year period having matured, each predecessor had title by adverse possession which could then have been conveyed to each plaintiff. In their respective 1 See Lawyer v. Westwood Hills Associates, (99-2549, Cumberland County, opinion filed November 28, 2001 .) : In Wolfe, the plaintiff's immediate predecessor in title had possessed the disputed land between 1952 and 1979. In Baylor, the predecessor in title to the plaintiff had possessed the parcel of land upon which there was a garage addition from at least -5- 01-6131 CIVIL TERM 1952 until 1973. -6- 01-6131 CIVIL TERM deeds to each plaintiff, neither predecessor described in any way the land to which they claimed title by adverse possession. Similar facts are pleaded by plaintiff in the case sub judice. Plaintiffs aver that the encroachments onto defendant's property were "[c]onstructed and maintained by their predecessor in title for more than twenty-one years." (Emphasis added.) Accordingly, Baylor is on point. Plaintiffs' predecessor in title did not include in their conveyance to plaintiffs the disputed land which plaintiffs claim title by adverse possession. Notwithstanding, plaintiffs maintains that the "corrective deed" on October 22, 2001, from the estate of Mabel Hess, which includes a description of the disputed tract, still allows them to tack the period of possession of the disputed tract by the Hess estate, to their possession since June 15, 1999, the date of their original deed from the Hess estate. The problem with this position is that the corrective deed seeks to convey to plaintiffs the disputed tract to which the Mabel Hess estate no longer had claim by adverse possession after it deeded its land to plaintiffs on June 15, 1999. As noted in Wolfe v. Porter, if a conveyance does not sufficiently describe the land claimed by adverse possession, it is assumed that the grantors "[e]ither occupied the disputed land permissively or that they abandoned every intention of holding adversely before the conveyance." Accordingly, the "corrective deed," executed over one year and four months after the deed of June 15, 1999, could not convey to plaintiffs the land here in dispute. For the foregoing reasons, plaintiffs have not pleaded a cause of action upon which relief could be granted on the basis of title by adverse possession. Therefore, the following order is entered. -7- 01-6131 CIVIL TERM AND NOW, this ORDER OF COURT day of January, 2002, the preliminary objection of defendants in the form of a demurrer to plaintiffs' complaint, IS GRANTED. complaint IS DISMISSED. By the Court, Plaintiffs' Robert G. Radebach, Esquire For Plaintiffs Marlin McCaleb, Esquire For Defendants :saa Edgar B. Bayley, J. -8-