Opinion
J-A18042-19 No. 248 WDA 2019 No. 264 WDA 2019
12-31-2019
SHIRLEY H. RISINGER Appellant v. MARY LOIS LITZINGER, MICHAEL L. APJOK, AND MEGAN F. APJOK SHIRLEY H. RISINGER v. MARY LOIS LITZINGER, MICHAEL L. APJOK, AND MEGAN F. APJOK Appellants
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered January 14, 2019
In the Court of Common Pleas of Indiana County Civil Division at No(s): No. 10183 CD 2015 Appeal from the Judgment Entered January 14, 2019
In the Court of Common Pleas of Indiana County Civil Division at No(s): No. 10183 CD 2015 BEFORE: BOWES, J., NICHOLS, J., and MUSMANNO, J. MEMORANDUM BY BOWES, J.:
These consolidated cross-appeals follow the judgment entered upon the trial court's verdict as to the locations of boundary lines separating the properties of Shirley H. Risinger ("Risinger"), Mary Lois Litzinger ("Litizinger"), and Michael L. and Megan F. Apjok ("the Apjoks"). We affirm.
The Indiana County, Pennsylvania land in question in this appeal had been farmland at the start of the 20th century, belonging to Hill on the one side and Cramer on the other, before it eventually came to be owned by the parties in this case. In the 1950s, the boundary between the Hill and Cramer properties had been recognized as the line marked by a barbed wire fence. N.T. Trial, 9/7/16, at 24, 42, 125.
Risinger owns two parcels west of the defendants' property: the "Hill Parcel" to the north, and the "House Parcel" to the south. Until 1982, the Apjok Property was part of the Litzinger Property, such that the entire eastern border of Risinger's abutted Litzinger land. Id. at 12, 14-15. Litzinger erected a wooden fence on or about the same line as the old barbed wire fence line in the 1970s. Id. at 81-83, 95-96, 125. When the wood fence fell into disrepair and was torn down, the present row of hemlocks was planted in its stead, a few feet away from the fence line to allow for the trees to grow without encroaching on Risinger's side of the line. Id. at 83-84.
In 2015, the Apjoks obtained a survey of their parcel ("Hudak survey"), intending to place a fence along the property line where Litzinger's wood fence once stood. That survey placed the property line west of the location of the wood fence/row of hemlocks, such that Risinger's driveway encroached upon Apjok's land. Risinger obtained her own survey ("Botsford survey"), which indicated that the boundary corresponded with the hemlock row.
Purely for ease of visualization, we offer the following diagram showing the House Parcel, which is a modified version of exhibit attached to the trial court's March 16, 2018 order clarifying its verdict.
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We also offer the below diagram, modified from Risinger's trial Exhibit 1, depicting the Hill Parcel.
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In February 2015, Risinger filed a complaint against Litzinger and the Apjoks (collectively "Defendants"), stating claims of, inter alia, quiet title and trespass, seeking to establish the boundaries as depicted in the Botsford survey that Risinger had obtained. Following a non-jury trial, the trial court held that (a) Defendants' Hudak survey properly established the boundary between Risinger's Hill Parcel and Litzinger's land; and (b) the eastern boundary of Risinger's House Parcel is a straight line five feet west of the center of the hemlock row. These timely cross-appeals followed the entry of judgment on the verdict after the denial of post-trial motions. The parties and the trial court complied with Pa.R.A.P. 1925.
In her appeal, Risinger challenges the propriety of the trial court's adoption of the Hudak survey as the boundary for the Hill Parcel, contending that such was both unsupported by competent evidence and the result of an error of law. See Risinger's brief at 5. Specifically, Risinger claims that the trial court gave improper weight to Hudak's survey, and should have instead found the Botsford survey to be more accurate. Id. at 13-14.
Litzinger and the Apjocks, in their cross-appeal, argue that the trial court erred in (1) not holding that the Hudak survey also properly denoted the boundary between their land and Risinger's House Parcel; (2) holding that a consentable boundary had been created; (3) determining where the consentable line was located; and (4) failing to apply laches to bar Risinger's claims. Cross-Appellants' brief at 7.
We begin with our standard of review:
Our appellate role in cases arising from non-jury trial verdicts is to determine whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in any application of the law. The findings of fact of the trial judge must be given the same weight and effect on appeal as the verdict of a jury. We consider the evidence in a light most favorable to the verdict winner. We will reverse the trial court only if its findings of fact are not supported by competent evidence
in the record or if its findings are premised on an error of law. However, [where] the issue . . . concerns a question of law, our scope of review is plenary.Wyatt Inc. v. Citizens Bank of Pennsylvania , 976 A.2d 557, 564 (Pa.Super. 2009) (quoting Wilson v. Transp. Ins. Co., 889 A.2d 563, 568 (Pa.Super. 2005)).
We first address the claims of Defendants regarding the establishment of a consentable boundary between their property and the House Parcel, mindful of the following legal principles:
The establishment of a boundary line by acquiescence for the statutory period of twenty-one years has long been recognized in Pennsylvania to quiet title and discourage vexatious litigation. Based upon a rule of repose sometimes known as the doctrine of consentable line, the existence of such a boundary may be proved either by dispute and compromise between the parties or recognition and acquiescence by one party of the right and title of the other.Moore v. Moore , 921 A.2d 1, 4-5 (Pa.Super. 2007) (cleaned up). The doctrine "is a form of estoppel, whereby once a consentable line has been clearly established, the line becomes binding under application of the doctrine of estoppel after twenty-one years." Long Run Timber Co. v. Dep't of Conservation & Nat. Res., 145 A.3d 1217, 1233 (Pa.Cmwlth. 2016) (cleaned up). "[W]hen a consentable line is established, the land behind such a line becomes the property of each neighbor regardless of what the deed specifies. In essence, each neighbor gains marketable title to that land behind the line, some of which may not have been theirs under their deeds." Soderberg v. Weisel , 687 A.2d 839, 843 (Pa.Super. 1997) (citation omitted).
Two elements must be proven to establish a boundary by consentable line: "1) that each party has claimed the land on his side of the line as his own and 2) that he or she has occupied the land on his side of the line for a continuous period of 21 years." Moore , supra at 5. In other words, in order for a legal boundary to be established by acquiescence, "[i]t must . . . appear that for the requisite twenty-one years a line was recognized and acquiesced in as a boundary by adjoining landowners." Plauchak v. Boling , 653 A.2d 671, 676 (Pa.Super. 1995) (quoting Inn Le'Daerda , Inc. v. Davis , 360 A.2d 209, 215-16 (Pa.Super. 1976)). Since "the finding of a consentable line depends upon possession rather than ownership, proof of the passage of sufficient time may be shown by tacking the current claimant's tenancy to that of his predecessor." Moore , supra at 5 (cleaned up).
"'Acquiescence' in the context of a dispute over real property, 'denotes passive conduct on the part of the lawful owner consisting of failure on his part to assert his paramount rights or interests against the hostile claims of the adverse user.'" Id. at 5 (quoting Zeglin v. Gahagen , 812 A.2d 558, 562 n.5 (Pa. 2002)). "A consentable line by recognition and acquiescence is typically established by a fence, hedgerow, tree line, or some other physical boundary by which each party abides." Long Run Timber Co., supra at 1234. "However, the fence line need not be as substantial as that required for adverse possession." Id.
See , e.g., Zeglin v. Gahagen , 812 A.2d 558 (Pa. 2002) (fence and row of bushes); Plauchak v. Boling , 653 A.2d 671 (Pa.Super. 1995) (hedge); Niles v. Fall Creek Hunting Club , Inc., 545 A.2d 926 (Pa.Super. 1988) (strand of wire along survey line); Inn Le'Daerda , Inc. v. Davis , 360 A.2d 209 (Pa.Super. 1976) (tree line and fence).
The trial court determined that the line where the wooden fence had been prior to the planting of the hemlock trees had been recognized and acquiesced to as the boundary between the House Parcel and the Litzinger/Apjock property for more than twenty-one years. It explained its reasoning as follows:
[W]hen [the Apjocks' predecessor] Kington purchased her property in 1980 from the Litzingers she planted a row of trees separating it from the Risinger property. These trees are still in existence and testimony given by the adult children of both Kington and the Litzingers indicates that the trees were purposely planted away from the property line in order to accommodate growth. Although Kington is now deceased, her son Clark Kington, who lived in the home for most of his life, testified that he remembered the fence being replaced with the hemlocks and that their future growth was considered when they were planted. He testified that his mother had the hemlocks planted closer to her side of the property than the fence originally was so that once they grew they would not be encroaching over the property line. Testimony was also given by Lori Baker, the Litzingers' other daughter, that the hemlock row was planted closer to the Apjoks' residence than the fence was.
Michael Apjok testified that he maintained the hemlocks and trimmed them on both sides, without objection from Risinger. Although the Apjoks maintained both sides of the trees, they sought permission to enter Risinger's property in order to perform
the maintenance on the side facing her residence. These actions would indicate that the Apjoks understood the trees to be theirs but also that they were very close to the property line, hence why they asked for permission. Likewise, Risinger's failure to maintain the trees or otherwise improve the area within close proximity of them indicates a knowledge that the trees were on the Apjoks' property, but close to hers. Finally, it was undisputed that the treerow was planted in 1980 when Kington took ownership of the property, thus satisfying the twenty-one year time requirement.Trial Court Opinion, 3/9/17, at 5-6 (unnecessary capitalization omitted).
For these reasons, the court finds that by way of the parties' actions the treerow serves as a consentable boundary by recognition and acquiescence. In making this determination, the court also considered testimony from those who had knowledge of the placement of the trees in relation to the fence that was replaced. All who testified regarding the trees indicated that they were intentionally not placed directly on the former fence line in order to allow for growth. As a result, an allowance must be made to provide for the setback for the growth of the trees. Accordingly, the boundary line between the Risinger and Apjok properties shall extend five feet from the center of the treerow in the direction of the Risinger property. The parties have indicated that the trees do not extend along the entire length of the parcels; therefore, to accommodate the area where no trees exist, the parties shall set a straight line running from the center of the treerow to Risinger Road.
The trial court's factual findings are supported by the record and clearly satisfy the requirements for establishment of a consentable line boundary. Since at least the late 1970s, the parties and/or their predecessors in interest recognized and acquiesced to the line adopted by the trial court as the boundary between their properties. The argument of Litzinger and the Apjocks that Risinger did not sufficiently utilize the House Parcel up to the fence/tree row to establish a "hostile occupation" of their land, Defendants' brief at 40, is more aptly addressed to an adverse possession claim, not the separate and distinct doctrine of consentable lines. As the trial court noted, Defendants and their predecessors treated the land on the other side of the fence as belonging to Risinger, planted the hemlocks far enough away from the fence line so that they would not encroach upon Risinger's side of the line, and asked Risinger's permission to go onto her side of that fence line to trim the trees. Accordingly, the trial court committed no error in concluding that the boundary by consent is located five feet west of the center of the hemlock tree line, which is where Litzinger's fence was in the 1970s.
Since the trial court did not err in holding that the doctrine of consentable lines established the boundary between the House Parcel and the defendants' land, the line described in the deed is irrelevant, as is the Hudak survey of the location of that line. See , e.g., Soderberg , supra at 843 ("[W]hen a consentable line is established, the land behind such a line becomes the property of each neighbor regardless of what the deed specifies."). Consequently, Defendants' argument concerning the trial court's failure to accept the Hudak survey merits no relief.
Defendants alternatively argue that, even if a boundary line by consent was established, the trial court erred in determining its location because (1) the hemlock trees were planted away from, rather than on, the fence line, and (2) the hemlock row did not establish a consentable line with Litzinger because it does not extend south past the Apjoks' property. Id. at 41-44. Neither of these arguments has merit.
First, as discussed above, the trial court did not conclude that the consentable boundary is located on the line along which the hemlocks were planted. Rather, the trial court demonstrated that it considered and appreciated the meaning of the placement of the hemlock trees by holding that the boundary by consent was established five feet closer to Risinger's house than the line formed by the center of the trees. That was the location of Litzinger's wood fence, which was recognized and acquiesced to by the parties for more than twenty-one years, and which now constitutes the boundary line between the Apjocks' land and Risinger's House Parcel.
Second, as we noted above, Litzinger erected his wood fence in the 1970s on or about the same line as the old 1950s barbed wire fence line that predated the properties' ownership by either Litzinger or Risinger. N.T. Trial, 9/7/16, at 81-83, 95-96, 125. The evidence thus supports the trial court's determination the Litzingers had recognized the old barbed wire fence line as the boundary between their land and Risinger's before the parcel that is now owned by the Apjocks was subdivided out of Litzinger's parcel. See Trial Court Opinion, 8/29/18, at 4-5. Therefore, the trial court did not err in concluding that the southeast boundary between the House Parcel and the Litzinger Property south of the Apjocks' land is a line extending from the row of the hemlocks, as that line is substantially the same as the one which had been indicated by the barbed wire fence that had separated the Litzinger Property from the land now owned by Risinger.
With their final issue, Defendants contend that Risinger's claims were barred by the doctrine of laches. We offer the following summary of the applicable law.
Laches is an equitable remedy that bars relief when the complaining party is guilty of want of due diligence in failing to promptly institute the action to the prejudice of another. It is well-settled that the doctrine of laches applies by reason of the original transactions having become so obscured by time as to render the ascertainment of the exact facts impossible.
In order to prevail on an assertion of laches, respondents must establish: a) a delay arising from petitioner's failure to exercise due diligence; and b) prejudice to the respondents resulting from the delay. The sort of prejudice required to raise the defense of laches is some changed condition of the parties which occurs during the period of, and in reliance on, the delay. The question of laches is factual and is determined by examining the circumstances of each case. Thus,
A.M.M. v. Pennsylvania State Police , 194 A.3d 1114, 1118 (Pa.Super. 2018) (cleaned up).The correct inquiry in determining whether one's conduct resulted in a want of due diligence is to focus not upon what the plaintiff knows, but what he might have known, by the use of the means of information within his reach, with the vigilance the law requires of him. What the law requires of petitioner is to discover those facts which were discoverable through the exercise of reasonable diligence.
Defendants contend that the trial court should have held that Risinger's claims were barred by laches because not only should she have earlier "discovered the alleged boundary issue through the exercise of due diligence, but Risinger actually filed suit regarding this exact boundary line in 1978 before withdrawing the action of her own accord." Defendants' brief at 46. They maintain that they were prejudiced by the delay because important witnesses are now deceased or incapacitated. Id. Again, we disagree.
As the trial court noted, Risinger's 1978 action was initiated when she and her husband filed a praecipe for a writ of summons against the Litzingers. However, "a complaint was never filed and the suit did not move forward." Trial Court Opinion, 3/9/17, at 8. Defendants point to no evidence that the action related to the boundary at issue in the instant case. At trial, Risinger testified that the action was filed based upon Lloyd Litzinger's plan to install a septic tank and drainage mound near or on Risinger's land contrary to township regulations. N.T. Trial, 9/7/16, at 86-87. Risinger indicated that Lloyd Litzinger ultimately abandoned that plan, and they all went "back to using what [they] considered a boundary line." Id. at 88. These circumstances do not establish that Risinger delayed in seeking to vindicate her property rights, rather, they appear to indicate that she acted when someone encroached upon what she believed was her property. If anything, the record suggests that it is Defendants who sat on their rights, given that they believe Risinger has been encroaching for decades upon their property as described in their deeds, yet they have never initiated an action against her. No relief is due.
We now turn to Risinger's claims regarding the Hill Parcel. Risinger claims that, in adopting the Hudak survey as the boundary for the Hill parcel, the trial court gave improper weight to that survey, and should have instead found the Botsford survey to be more accurate. See Risinger's brief at 5, 13-14.
After a thorough review of the certified record, the parties' briefs and the pertinent law, we discern no abuse of discretion on the part of the trial court as to Risinger's issues, and we affirm as to those claims based upon the cogent and well-reasoned opinions that the Honorable William J. Martin entered on March 9, 2017, and August 29, 2018. Specifically, Judge Martin explained that, while the two surveys were consistent as to two of the three points at issue, Hudak's finding as to the third was supported by physical monuments on the ground that were consistent with deed descriptions. See Trial Court Opinion, 3/9/17, at 7-8; Trial Court Opinion, 8/29/18, at 3-4. The trial court thus properly applied the law that, "As a general rule, where there is conflict between courses and distances or quality of land and natural or artificial monuments, the monuments prevail. . . . Thus, the courses and distances must yield to monuments on the ground." Haan v. Wells , 103 A.3d 60, 71 (Pa.Super. 2014) (cleaned up).
Risinger's remaining arguments attack the credibility determinations of the trial court, which this Count will not disturb on appeal. See Brown v. Halpern , 202 A.3d 687, 706 (Pa.Super. 2019) ("[A] witness'[s] alleged bias goes to his or her credibility, which the fact-finder must assess when deciding what weight to accord to the witness'[s] testimony."); Keystone Dedicated Logistics , LLC v. JGB Enterprises , Inc., 77 A.3d 1, 6 (Pa.Super. 2013) ("[W]e are bound by the trial court's credibility determinations.") (internal quotation marks omitted)).
As the trial court's determinations are the product of neither an error of law or other abuse of discretion, we affirm.
Judgment affirmed. Judgment Entered. /s/
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/31/2019
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