Judges Opinions, — January 4, 2023 15:33 — 0 Comments

Kenneth L. and Bobbie J. Ginder, v. Carissa L. Eby

Kenneth L. and Bobbie J. Ginder, v. Carissa L. Eby

 

Civil Action-Property Law-Quiet Title-Unopened Street-Dedication by Municipality-Subdivision Plan-Easement-Adverse Possession

 

Kenneth L. and Bobbie J. Ginder (“Plaintiffs”) filed a Complaint to Quiet Title with regard to a strip of land on Water Street adjoining their property and the property of Carissa L. Eby (“Defendant”).  The strip of land was a proposed street pursuant to a subdivision plan prepared and recorded in 1974.  Plaintiffs’ property was included as part of the subdivision plan.  Defendant’s property was not included as part of the subdivision plan.  Plaintiffs assert that the Township of Annville never designated or accepted the proposed street, which caused title of that portion of the unopened street to revert to them.  Plaintiffs also assert that they acquired title to the unopened street by adverse position.  Defendant asserts that she has acquired title to the center line of the proposed street in light of the fact that Water Street is named a boundary of her property by the deed conveying her property to her.

 

  1. Upon a conveyance of land bounded by a street, unless otherwise provided, the grantee takes to the middle of the street if the grantor owned that far subject to the public easement. This portion of it reverts to the grantee when the street is vacated.

 

  1. The public’s right to a portion of a subdivision reserved for a street effectively is foreclosed where the municipality does not use or open the street within twenty-one (21) years of its dedication to the public, at which time the abutting lot owners acquire fee to the center line.

 

  1. While the public easement or right of use of a subdivision street is lost based upon the failure to use or to open the street within twenty-one (21) years, the purely private rights of easement of the individual property owners in the plan of lots to use the street is not extinguished.

 

  1. Title to and easements over an unopened street revert only to those property owners whose title may be traced back to the original grantor/developer as part of the original subdivision.

 

  1. Once a street in a subdivision plan is not accepted within twenty-one (21) years, the municipality and the general public lose all rights to the street.

 

  1. Any rights to the unopened street are based upon private contractual rights that come into existence when the developer conveys lots included in the plan.

 

  1. An abutting landowner whose lot was not part of the subdivision plan does not acquire title to any portion of the unopened street upon a municipality’s failure to accept the street within twenty-one (21) years.

 

  1. Since Defendant’s property was not part of the subdivision plan and Annville Township never opened the street in question, Defendant’s grantor had no title to the disputed area and passed no title of any portion of that area to Defendant when she purchased her property.

 

  1. In light of the fact that Plaintiffs are the only abutting landowners whose property was included as part of the subdivision plan, the entire portion of the disputed area reverted to them when Annville Township failed to accept the street within twenty-one (21) years of its dedication.

 

  1. Defendant’s predecessor in title had no easement to pass to Defendant.

 

  1. The conduct of Plaintiffs including caring for and using the area for years at the exclusion of others would have accorded them title by adverse possession with their gratuitous allowance of the public to access the area for different purposes not serving to preclude acquisition of title in this manner.

 

L.C.C.C.P. No. 2021-00638, Opinion by John C. Tylwalk, President Judge, March 18, 2022.

 

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CIVIL DIVISION

 

KENNETH L. AND BOBBIE J. GINDER,  :         NO. 2021-00638

Plaintiffs     :

:

  1. :

:

CARISSA L. EBY,                                      :

Defendant   :

 

ADJUDICATION

 

Findings of Fact

Plaintiffs Kenneth and Bobbie J. Ginder (“Ginders”) are the owners of real property located at 150 Water Street in Annville.  The Ginder property is located on the east side of South King Street and the south side of Water Street.  Defendant Carissa L. Eby (“Eby”) purchased the property located at 138 South King Street in Annville on February 17, 2017 and has resided there since March 2017.  Eby’s property is located on the east side of South King Street and the north side of Water Street.

 

 

On June 28, 2021, the Ginders filed a Complaint in an Action to Quiet Title against Eby regarding a strip of land which adjoins both parties’ properties on Water Street.  The property was a proposed street pursuant to the Anthony Clodoveo Subdivision Plan (Exhibit “7”) (“Subdivision Plan”) which was prepared by Matthews & Hockley in 1974 and recorded on August 12, 1974.   In their Complaint, the Ginders allege that the Township of Annville never designated or accepted the proposed street and that title to the land reverted to the Ginders due to the Township’s failure to accept it.  In the alternative, the Ginders claim ownership of the entire unopened portion of Water Street (“disputed area”) by virtue of their adverse possession.   Eby counters that she has title to the disputed area to the center line of the proposed street and/or has an easement over it because Water Street is named as a boundary line of her property in her deed.  We conducted a bench trial on November 18, 2021, the transcript has been lodged, and both parties have filed post-hearing proposed facts and conclusions of law.  The matter is now before us for disposition.

At trial, the testimony of Douglas Herr, a professional land surveyor with Diem & Sons, was presented by the Ginders.  Herr testified that he had prepared a boundary survey of the Ginders’ property by using an iron pipe found along the northwest of the Ginder property and a pin at the northeast corner of the Forbes property which adjoins the Ginders’ property on the east.  He used those two points to draw a line to King Street using the deed distance.  He determined that the unopened portion of West Water Street is 20 feet by 88 feet long. (Exhibits “1” and “2”)  In preparing his survey, Herr reviewed the Subdivision Plan.  Herr explained that the Subdivision Plan included the Ginder and the Forbes properties and that the deeds to both properties referenced the Subdivision Plan.  The Subdivision Plan and both deeds described Water Street as being 20 feet wide.  Herr personally did the field survey work.  He looked for monumentation for the Eby property on the northern side of Water Street, but did not locate any markers.  He also located a pin on the western property line of the neighboring property to the west of the Ginders, which is owned by Sandy Hitz, and believed that the location of that pin supported his survey of the Ginder property.

Eby called Russel Frantz, a professional land surveyor with Matthew & Hockley, who had prepared a survey of Eby’s property.  (Exhibit “D-11”)  Frantz explained that he had never personally been to the site, but that he had obtained the measurements from a field surveyor who had visited the property.  He assessed the measurements provided to him along with the legal paperwork and physical evidence from the field to determine the location of Eby’s property lines and to prepare the survey.  Frantz explained that the field surveyor had used monuments located on two properties to the north of the Eby property.  He acknowledged that the outline of the property on the survey did not match the legal description in the deed, but that it was accurate as to the boundary with the disputed area of West Water Street.   Frantz also prepared a plan for Eby’s property which extended the boundary to the center line of the disputed area should it be determined that the Eby property extended to that point.  (Exhibit “D-19”)

During cross-examination, Frantz explained that he was not involved with the preparation of the Subdivision Plan as he was not employed by Matthew  & Hockley in 1974. He acknowledged that he had not reviewed the Subdivision Plan before preparing the survey for the Eby property and that he did not look at any monuments or other information regarding the boundary lines of the properties on the other side of Water Street, including the Ginders’ property.  Frantz noted that the fence erected by Eby to the south of her property is actually outside of her property line and extends into the disputed area by approximately 6 feet.    He testified that the width of the disputed area is 33 feet and that that Eby would like to claim 16 ½ feet of the disputed area.  He found that the distance between the midpoint of Water Street and the existing fence on the south side of the Eby property is ten feet.

Nicholas Yingst, Annville Township Administrator, testified that it was the Township’s position that the Township never opened the disputed area and never owned it.  The Township does not claim any interest to that portion of Water Street other than an easement for a sanitary sewer line.  Yingst recalled that the Ginders had attended Township meetings between March and June 2021 and raised the issue of the ownership of the disputed area.   From his contact with the Ginders, Yingst believed that they believed they owned the property or had acquired it by virtue of their continued maintenance of it.  Yingst recalled that the Township solicitor had advised that the disputed area was likely owned by the Estate of Zacharias Bowman.

The Ginders’ neighbor, Sandy Hitz, testified that she has resided at 210 Water Street for 50 years.  She has known the Ginders since they moved into their home and is familiar with both the Ginder and the Eby properties.  Mrs. Hitz testified that the Ginders have maintained the area on the north side of their property since they moved there.  She recalled that they erected a fence and  placed macadam on a portion of the area.  Hitz testified that the Ginders have always used the area and parked their cars there.  No one else parks there other than the Ginders’ family members or guests.  She noted that others do walk through the area, including her own grandchildren and other schoolchildren.  She did not ask permission for her grandchildren to walk through the area, but the Ginders know her grandchildren.  She had never seen the Ginders stop people from walking through the area or put up no trespassing signs.  Hitz explained that she had observed that Eby and her boyfriend sometimes cut the grass, but that had only started the previous summer and that they usually did so after Mr. Ginder had already cut it.  Other than that, she had not seen Eby use the disputed area at all.

Mrs. Ginder testified that she and Mr. Ginder acquired the property from her parents in 1984 with the intention of constructing a home.  The deed was recorded on October 23, 1985.   Mrs. Ginder’s parents had obtained the property from Richard Clodoveo in 1979.  Clodoveo had obtained the property from the Administrator of the Estate of Anthony Clodoveo by deed dated June 15, 1974.  The Anthony Clodoveo Land Subdivision Plan, which included the proposed street, also included the Ginder’s property and the Forbes property and was recorded August 12, 1974.  (Exhibit “7”)  The Ginders’ home was completed in 1986 and they have resided there since that time.

Mrs. Ginder explained that she and Mr. Ginder own the entire area of unopened Water Street which extends to the north end of their property line, and measures 20 feet by 88 feet.  They have believed that this area has belonged to them since they acquired their property.  Her parents had also behaved as though they owned the property and she was present when Richard Clodoveo had told her parents that it belonged to them.  She claimed that a Township official had also informed them that they owned the disputed area.

Mrs. Ginder explained that since 1985, no one else has taken care of the disputed area.  Over the years, the Ginders have continuously maintained and improved the property by planting grass, trees, shrubs and flowers, and cutting the grass.  They put dirt fill on the property, took down a telephone pole, created a border with timbers and stones, and erected several fences.  At one point, Mr. Ginder fenced off an area to keep people from walking on the grass. They asphalted part of the property and used it to park their automobiles and trailers at various times.  Their family also used the area for outdoor recreation.  Mr. Ginder also takes care of snow removal.

Mrs. Ginder further explained that they have openly maintained the disputed area and never hid the fact that they claimed it as their own.  They have allowed children to cut through their land to go to school after the parents asked permission.  They have also allowed people access as the land borders the Quittapahilla Creek and many people have requested permission to cut through on their way to fish in the creek.  They have not posted no trespassing signs but did ask some of their neighbors’ guests not to park in their driveway one time.  No one else ever parked in the area since that time.   The Ginders have permitted bike and foot traffic, but no vehicles ever drove through the area.

Mrs. Ginder explained that in 2018, the Township had removed some tree branches from a nearby property and one of the Township employees told Eby that he thought half of the disputed area belonged to her.  Prior to that time, neither Eby or her boyfriend, Dustin Ferrillo (“Ferrillo”) ever used the area.  Mrs. Ginder noted that Eby had erected a new fence between the properties in or about September 2020.  The prior owners of Eby’s property had also erected a fence, but it was approximately three feet inside of where the new fence was placed by Eby.  After 2018, Eby and her boyfriend began cutting some of the grass on the disputed area.  This sometimes occurred three or four times a week and sometimes within an hour after Mr. Ginder had cut it.  The Ginders finally asked Eby and Ferrillo to stop cutting the grass.  She also noted that after Eby received notice of this lawsuit, Ferrillo began to park his truck in the disputed area.  The Ginders called the police and had him move the car because it was blocking access to their house.  Eby and Ferrillo would also set their sprinklers close to the Ginder’s vehicles when their vehicles were parked in that area.

During her testimony, Mrs. Ginder identified a number of photographs dating from the time the Ginders acquired the property to the present.  (Exhibit “P-8”) The photographs depict the appearance of the area over the course of those years, improvements they made to the property, and their family using the area for recreation and parking.  She estimated that people started to walk through the property around 1997 when they laid the asphalt for the driveway and that, prior to that time, only Richard Clodoveo and his family had used it to get to a nearby relative’s home.

Mr. Ginder testified that he and his wife have maintained the disputed property and paid for all improvements made to the property for at least 21 years.  They are claiming ownership of the entire unopened portion of Water Street.  No one else had ever taken any steps toward caring for the property prior to 2018 when Eby and her boyfriend began to cut the grass.  The Ginders have allowed others to pass through the property on foot but have erected a fence to prevent vehicular traffic.  On two occasions, they asked people to move their vehicles when they parked in the area.

Mr. Ginder recalled that, initially, Eby and her boyfriend only cut the grass in the area of the fence to the south of the Eby property.  At that time, Mr. Ginder told them not to cut it too low.  By 2020, when they were cutting the grass to the halfway point of the disputed area, Mr. Ginder asked them not to cut it at all.  Mr. Ginder ultimately stopped communicating with Eby and Ferrillo about the matter, however, as they complained that he was harassing them.

Eby presented the testimony of Matthew Clements.  Clements resided at 145 Water Street beginning in 2005 when he purchased the property until his home was destroyed by a flood in 2011.  He still owns the property but has not lived there since the flood.  He usually accessed his property through Concord Alley and parked in front of the home on Water Street.  He recallaed that only neighborhood traffic would use Water Street and that pedestrians and sometimes bike traffic would regularly use the disputed area.  He observed that the Ginders did not take any measures to prevent the pedestrians or bikes from passing through the area.

Ferrillo testified that Eby is his girlfriend and he resides with her on her property; however, his name is not on the deed.  Eby purchased the property on February 17, 2017 and the couple moved into the home in March 2017.  At that time, there was no fence on the southern boundary line.  They erected an orange construction fence which lined up with end of the King Street curb in 2018.  Ferrillo explained that they placed the fence at that point based on the representations of the real estate agent, the contractor who renovated the house, and Mr. Ginder.  However, Ferrillo had suspicions that it was not the true boundary.  In 2020 they began cutting the grass to the halfway point of the disputed area.  Prior to that time, they had cut the grass closer to the fence.  They extended the cutting line at that time due to their understanding that they owned to the center line of the unopened street.  He admitted that Mr. Ginder told him to stop cutting his grass at one point; however, at other times Mr. Ginder had only asked him not to cut the grass too low.  When they installed the permanent fence in September 2020, they did not realize that it was located six feet beyond their property line.

Ferrillo testified that he frequently observed pedestrians, bicycles and scooters passing through the disputed area and that he never saw the Ginders attempt to prohibit anyone from using it.  He identified a series of photographs and video recordings which were taken from cameras installed at the Eby home which showed the disputed area and the Ginder property.  (Exhibits “D-1” and “D-3”)  The photographs showed pedestrians and bicyclists passing through the area.  At times Mr. Ginder was present and did nothing to obstruct their passage.  Ferrillo denied that he and Eby tried to hit the Ginders’ car with their sprinkler as they were consistently watering their property including half of Water Street.  He claimed that prior to 2018, the Ginders were parking their vehicles under their house and only started to park near the fence after the dispute over the ownership arose.  When they first moved in, Ferrillo had pulled his truck into the disputed area on two occasions when he was removing a tree limb from the Eby property and the Ginders did not prevent him from being there.

On cross-examination, Ferrillo acknowledged that he did not have times depicted on the photographs or the videos and that most of them appeared to have been taken during daytime hours when the Ginders would have been at work.  He also admitted that when they were home from work, the Ginders routinely parked some of their vehicles under the house and some on the macadam portion of the disputed area.  Ferrillo further acknowledged that the Eby property is not contained within the Clodoveo Land Subdivision Plan; however, he maintained that because the street was mentioned in the deed, Eby had the right of ownership to the center line.  He explained that the couple would like to continue to have the option to access the back of the property for vehicular/bike and foot traffic.

Discussion

“It is settled law in Pennsylvania that where the side of a street is called for as a boundary in a deed, the grantee takes title in fee to the center of it, if the grantor had title to that extent, and did not expressly or by clear implication reserve it.”  Rahn v. Hess, 106 A.2d 461, 463-464 (Pa. 1954).  Upon a conveyance of land bounded by a street, unless otherwise provided, the grantee takes to the middle of the street, if the grantor owner thus far, subject to the public easement; and when the street is vacated this portion of it reverts to the grantee.  Ferko v. Spisak, 541 A.2d 327 (Pa. Super. 1988), citing Rahn v. Hess, 106 A.2d 461 (Pa. 1954).

Any street, lane or alley, laid out by any person or persons in any village or town plot or plan of lots, on lands owned by such person or persons in  case the same has not been opened to, or used b, the public for twenty-one years next after the laying out of the same shall be and have no force and effect and shall not be opened, without the consent of the owner or owners of the land on which the same has been, or shall be, laid out.

 

36 P.S. §1961.

 

The public’s right to a portion of a subdivision reserved for a street is effectively foreclosed where the municipality does not use or open the street within twenty-one years of its dedication to the public.  Leininger v. Trapizona, 645 A.2d 437 (Pa. Commw. 1994).   When a municipality does not open a street within twenty-one years of its dedication to the public, the abutting lot owners acquire fee in the street to the center line.  Id.  While the public easement or right of use in a subdivision street is lost as a result of a municipality’s failure to use or open the street within twenty-one years of its dedication to the public, the purely private rights of easement of the individual property owners in the plan of lots to use the street is not extinguished; therefore, section 1961 is inapplicable to private contracts between grantors and grantees.  Id.

The Subdivision Plan which dedicated the unopened portion of Water Street was recorded in August 1974.  By virtue of the municipality’s failure to open or use the street, the property was deemed abandoned twenty-one years later in August of 1995.  The Ginders contend that the entire portion of the disputed area reverted back to them at that point because they are the abutting landowners referenced in the Subdivision Plan and Water Street is referenced in their deed.  It is their position that Eby is not entitled to a portion of the disputed area because her property was not included within the Subdivision Plan which included Water Street.  Eby argues that she is entitled to the disputed area up to the center line because she is an abutting landowner and Water Street is referenced as a property boundary in her deed. Thus, we must determine whether a street in a subdivision reverts to an abutting landowner whose land wat not contained in the original subdivision plan or only one whose property was part of the plan.

In 1954, the Supreme Court of Pennsylvania also interpreted Section 1961 in Rahn v. Hess, 106 A.2d 461 (Pa. 1954).  In Rah, the Supreme Court noted that if a municipality does not accept the offer of a street included in a subdivision plan, the public’s right to accept is foreclosed and that the “owner or owners” referred to in Section 1961 refers to the “abutting lot oowners”:  “[t]hey acquired the fee in the streets.  The subdivider divested himself thereof by his deeds to them or their predecessors in title.”  Rahn, 106 A.2d at 464.

In Barnes v. Philadelphia, Newtown & New York Railroad Company, 27 Pa. Super. 84, 1905 WL 3546 (Pa. Super. 1904), the Superior Court interpreted Section 1961 as giving “no notice of an intention to take from a grantor his estate in an unopen street and vest it in an abutting owner,” and commented that “the Constitution denies such an effect to the act.”  27 Pa. Super. at 87.  In further explanation of Section 1961, the Court observed:

The statute is designed for the benefit of the landowner who has laid out a town plot or plan of lots; its purpose being to relieve his land from the servitude arising from a dedication to public use that has remained unaccepted for twenty-one years, … , and not to enable the owners of abutting lots to seize upon his interest in the unopened streets.  It does not, ipso facto, vacate the streets thus dedicated, nor require the owner to resume his original estate in them, with the consequences arising from conveyances like those in the present case, but leaves this optional with him by providing that they shall not be opened without his consent. He may prefer that they should be opened, from advantages to accrue to other property, and cannot be denied the right to hold them subject to public use, should he choose to do so. To deprive him of this right, by construing the statute as automatically operating to vacate the streets, is in effect taking his property without due process of law, and vesting it in abutting owners; moreover, the title of the statute, “An act relating to unused streets, lanes and alleys,” gives no notice, by even the remotest implication, of such a purpose. Hence the constitution denies such an effect to the act. In fact and in law, Philip Street still remains as created by the conveyances that gave it legal existence by describing it as the western boundary of the lots conveyed.

 

Id. at 87-88

In Boyer v. Baker, 175 A.2d 143 (Pa. Super. 1961), a situation similar to the one at hand was involved.  In that case, the plaintiff and defendants owned land abutting on an alley which was dedicated to public use by a plan that was recorded on October 12, 1936.  Title to the alley was not reserved to the owner of the plan.  On October 12, 1957, the alley was conveyed to the one of the defendants by the estate of the owner of the plan.  Plaintiffs complained that all of the defendants thereafter appropriated the alley to private use and closed it to plaintiff and the public.  Plaintiff’s property was not included in the plan, but bordered on the alley and the sewer authority had laid a sewer on it. The plaintiff sought to enjoin the defendants from interfering with the use of the alley and to have the deeds stricken.  The lower court sustained preliminary objections to the complaint, on the basis that it failed to state sufficient facts to show any acceptance by the township of the alley which had been dedicated more than 21 years earlier and that therefore the plaintiff, who had no easement in the alley except as part of the general public, failed to allege any enforceable right.   In affirming, the Superior Court noted that the township’s failure to accept the street did not affect the easement rights of purchasers of the lots in the plan over the street.  It held that “[p]laintiff did not have such a right since his property, although abutting on Cairo Alley, was no within the Harrison Plan but was part of an adjoining tract.”  Boyer, 175 A.2d at 407-408.

The cases cited by the parties in their memoranda of law of post-hearing findings of fact and conclusions of law reveal that, pursuant to Section 1961,

The Subdivision Plan here was recorded on August 12, 1974.  There was no evidence here that the developer retained any interest in the disputed area.

When the Township failed to accept Water Street, it therefore reverted back to the Ginders as they are the abutting landowners who were part of the Subdivision Plan.  Eby’s predecessor in title did not acquire her land from the developer and the property was not part of the Subdivision Plan.  Therefore, her grantor had no title to the disputed area and, despite the fact that Water Street is mentioned in Eby’s deed as a boundary line, no portion of the disputed area could be passed to Eby when she purchased her property.

 

 

 

 

Conclusions of Law

 

  1. Annville Township never accepted the unopened portion of Water Street

as set forth in the Anthony Clodoveo Land Subdivision Plan.

  1. Annville Township is deemed to have abandoned the unopened portion

of Water Street and has no right of ownership in the disputed area.

  1. Annville Township retains an easement for a sanitary sewer line which runs through the disputed area.
  2. The entire unopened portion of Water Street reverted to Plaintiffs due to Annville Township’s failure to open the disputed area as a public street.
  3. Plaintiffs have exercised actual, continuous, exclusive, visible, notorious, distinct and hostile possession of the unopened portion of Water Street for a period in excess of twenty-one years.
  4. Plaintiffs have sole ownership interest of the unopened portion of Water Street by virtue of their adverse possession.

 

  1. Defendant has no right of ownership, use, or right of entry to the unopened portion of Water Street which is the subject of the Complaint.
  2. Accordingly, judgment is hereby entered in favor of Plaintiffs in this matter.

 

BY THE COURT:

 

 

                                                         

                                                          __________________________, P.J.

                                                          JOHN C. TYLWALK

 

JCT/jah

 

Cc:  Thomas P. Harlan, Esquire/Roberta Santiago, Esquire/Henry & Beaver LLP

       Timothy Engler, Esquire/Steiner & Sandoe, LLC

       Michelle Howard/Court Administration

       Judith Huber, Esquire/Law Clerk

 

 

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CIVIL DIVISION

 

KENNETH L. AND BOBBIE J. GINDER,  :         NO. 2021-00638

Plaintiffs     :

:

  1. :

:

CARISSA L. EBY,                                      :

Defendant   :

 

ORDER OF COURT

 

AND NOW, March 18, 2022, it is hereby Ordered that the matters set forth in the Adjudication entered on the docket in this matter on March 4, 2022 are hereby incorporated herein as an Order of Court.

 

BY THE COURT:

 

 

                                                         

                                                          __________________________, P.J.

                                                          JOHN C. TYLWALK

 

JCT/jah

 

Cc:  Thomas P. Harlan, Esquire/Roberta Santiago, Esquire/Henry & Beaver LLP

       Timothy Engler, Esquire/Steiner & Sandoe, LLC

       Michelle Howard/Court Administration

       Judith Huber, Esquire/Law Clerk

 

 

 

 

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