Judges Opinions, — March 7, 2012 12:16 — 0 Comments

Wall, et ux vs. Casler, et ux

WALL, et ux vs. CASLER, et ux

Civil Action – Ejectment – Trespass – Boundary Dispute – Intent of the Parties – Plain Reading of Deed – Principles of Deed Construction – Doctrine of Senior Rights – Evidence – Maps – Expert Testimony.

 

 

  1. Ejectment is an action that is filed by a plaintiff who does not possess the land, but has the right to possess it, against a defendant who has actual possession.  A plaintiff cannot rely on the weakness of the defendant’s title to recover in an ejectment action, but has the burden of proving a prima facie title.
  2. Ejectment does not require exclusive possession, but requires a paramount title to land of which the plaintiff is out of possession.
  3. In a boundary dispute, the plaintiffs must prove a specific boundary by a preponderance of the evidence.
  4. Parole evidence is admissible to establish the existence of monuments.
  5. To maintain an action in trespass, a plaintiff must show that the defendant unlawfully entered onto the plaintiff’s land without permission.  The fact that the trespass results from an innocent mistake or negligence does not relieve the trespasser of liability; rather, one trespasses if that person intended to enter upon the particular place, irrespective of whether the trespasser knows or should know that he or she is not entitled there.
  6. Failure to remove a structure or chattel on another’s property constitutes a continuing trespass.
  7. The measure of damages in a trespass action is the actual damage to the land, or if there are no actual damages, the loss of the value of the use of the land during the trespass.
  8. It is well established that the primary function of a court faced with a boundary dispute is to ascertain and effectuate the intent of the parties at the time of the original subdivision.
  9. The question of what is a boundary line is a matter of law, but the question of where a boundary line, or corner, is actually located is a question of fact.
  10. The plain meaning of the deed is the best indication of the intent of the common grantors to the parties’ predecessors in title.  A description that is repugnant or inconsistent to the general intention of the instrument should be rejected, but an adequate description in the instrument will remain.
  11. Pennsylvania Courts have noted that the law recognizes that legal title to real property and the precise location of boundaries thereon, is not always clear from a plain reading of the deed.  Accordingly, in an ejectment action, a court must often employ established principles of deed construction to assist in arriving at the parties’ intentions by artificial means.
  12. Where the deed is ambiguous and the intention of the parties cannot be ascertained from the language, courts should consider extrinsic evidence and subsequent acts of the parties that bear on the interpretation they placed on the instrument.
  13. Where the terms of a deed are doubtful, the court will adopt that construction that is most strongly in favor of the grantee and against the grantor.
  14. The general rules of construction that are applied to deeds also apply to boundary disputes.
  15. The doctrine of senior rights provides that where there is a conflict between boundaries described in deeds from the same grantor, the deed first executed has priority, and the grantee named therein has superior title.
  16. Boundaries may be established by circumstantial as well as direct evidence.  Any inconsistencies in evidence for establishment of boundaries go only to evidentiary weight, not competence.
  17. As a general rule, if maps are referred to in a grant or conveyance, they are to be regarded as incorporated into the instrument and are given considerable weight in determining the true description of land.
  18. Boundaries are defined by lines that are indicated by various descriptive elements.  Although some terms of description are usually entitled to more probative value than others, the true construction is ascertainable by the totality of their combined effect and not wholly and exclusively by any one term when it is irreconcilable with the other terms of description.
  19. Where the calls for the location of boundaries to land are inconsistent, other things being equal, resort is to be had to the first natural objects or landmarks, next to artificial monuments, then to adjacent boundaries, and thereafter to courses and distances.
  20. Where it is apparent that a mistake exists with respect to any calls, an inferior means of location
    may control a higher one and the call adopted as the controlling one should be that most consistent with the apparent intent of the parties.
  21. Lines actually marked on the ground constitute the survey and control the distances, even where the draft of the survey or description of the deed calls for natural or other fixed boundaries.
  22. Monuments are visible markers or indications left on natural or other objects indicating a line of a survey.
  23. Although natural objects take precedent over monuments, ordinarily, when there is a conflict between courses and distances or quantity of land on the one hand and natural or artificial monuments on the ground on the other hand, it is well settled that the monuments prevail, especially where a purchaser inspects the property and has an opportunity to see the physical boundaries.
  24. The preference of monuments over courses and distances recognizes the possibility of error in measurement as greater than the possibility of error in the existence and location of monuments used to set a boundary.  The rationale for preference of monuments over courses and distances to determine boundaries is not as compelling when the dispute is not over a few feet but, rather, is over many feet.
  25. Given the fact that there are possibilities for mistakes, there are exceptions to the general rules.  For example, courses and distances prevail over monuments where absurd consequences might ensue by giving controlling influence to call for the latter or where the consideration of all facts and circumstances shows a call for distance to be more reliable or certain or the call for monument has been inserted by mistake or inadvertence.
  26. The certain and locative calls of adjoining landowners may be treated as monuments although they are not as decisive as a natural boundary, such as a stream.
  27. Where land is described in the deed of conveyances by courses and distances and also by calls for adjoiners, the calls for adjoiners must govern when there is a discrepancy.
  28. Evidence of the acreage of land, especially where the number of acres is followed by the words more or less, has little weight against specific boundaries, and is in its nature an uncertain method of description and often a mere estimate.  The words more or less have been frequently construed as words of safety and precaution, intended to cover some slight or unimportant inaccuracy, not so gross as to justify a suspicion of willful deception or mistake amounting to fraud, and of which the purchaser takes the risk as to quantity.
  29. The Court held that Plaintiffs presented sufficient evidence that identifies a specific boundary to warrant judgment in their favor.  While it found that both surveyors were competent in their field of expertise, the Court afforded more weight to Plaintiffs’ surveyor’s testimony because his analysis presented a more tenable theory.
  30. In cases where expert testimony is necessary, the expert shall testify that his or her opinion is made with a reasonable degree of certainty.
  31. Expert testimony cannot be based solely upon conjecture or speculation; rather, an expert must base his or her opinions on an adequate factual foundation or legitimate inference.
  32. The Court rejected Defendants’ objection that Plaintiffs’ surveyor did not state that he testified to a reasonable degree of certainty because the surveyor had been qualified as an expert, his opinion was based upon an adequate factual foundation, and Plaintiffs’ attorney expert who reviewed the surveyor’s analysis and findings did testify to a reasonable degree of certainty.

Plaintiffs’ Petition for Relief.  C.P. of Lebanon County, Civil Action-Law, No. 2010-00324.

Adrienne Snelling, Esquire, for Plaintiffs

Mark Schappell, Esquire, for Defendants

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

 

CIVIL DIVISION

 

 

GARY WALL and KATHY WALL,       :

Plaintiffs                                                    :

                                                                   :

          v.                                                       :                            No. 2010-00324

                                                                   :

ROBERT CASLER and JULIE              :

CASLER,                                                   :

Defendants                                                 :

                                                                   :

 

ORDER

 

AND NOW, this 23rd day of February, 2012, after careful consideration of the record, Plaintiffs’ Petition for Relief is HEREBY GRANTED. Accordingly, Defendants shall remove the fence and fill in the holes no later than thirty (30) days from the date of this Order. As a result of Defendants’ trespass onto Plaintiffs’ Property, Defendants shall pay the sum of $105.60 to Plaintiffs within thirty (30) days of this Order.

 

 

BY THE COURT:

____________________________, J.

CHARLES T. JONES, JR.

 

 

APPEARANCES:

 

Adrienne Snelling, Esquire                                                     For Plaintiffs

Sullivan, Sullian & Snelling

 

Mark Schappell, Esquire                                                        For Defendants

Hill, Hill & Schappell

 

OPINION BY JONES, JR., J.:

Before this Court is an action in ejectment and trespass to resolve a boundary dispute. For the reasons set forth herein, we grant judgment in favor of Plaintiffs.

I.                  FACTUAL HISTORY

 

Plaintiffs, Gary Wall and Kathy Wall, reside at 1766 Quarry Road in Lebanon County (hereinafter referred to as “Wall Property”). Defendants, Robert Casler and Julie Casler, reside at the adjacent parcel located at 1764 Quarry Road in Lebanon County (hereinafter referred to as “Casler Property”). Plaintiffs acquired title to the Wall Property on October 27, 2000, from Ralph and Dorothy Houtz, through a deed recorded on December 30, 2000. Defendants acquired title to the Casler Property on May 31, 2005, from Leroy and Lois Legay, through a deed recorded on June 1, 2005. All of the tracts of land in the surrounding area were essentially described in the same fashion and reference the spike in the middle of Quarry Road and Troy Avenue.

The prior common owners of the Wall and Casler Properties were the Twiggs, who purchased a 10.3 acre tract of land from the Rebers in 1948. The description in the Twigg deed referenced the Reber property line and a road, which is now named Troy Avenue. (N.T. 37). The Twigg deed also referenced the adjoiner to the south, known as the Marks subdivision, also purchased from the Rebers (N.T. 36-38). The Twiggs sold the property to the Caprettis and the Caprettis to the Houtzs. The Houtz deed encompassed the Wall and Casler Properties. As previously mentioned, Plaintiffs purchased the Wall Property directly from Houtz in 2000. Houtz sold the Casler Property to the Gerberichs, who sold to the Legays. Defendants purchased the Casler Property from the Legays in 2005.

The parties have a strained relationship which stems from the boundary dispute of the parties’ property lines. In 2008 while Plaintiffs were vacationing, Defendants drove wooden stakes and steel rebars into the ground to show the property line after a survey was performed on the Casler Property. Plaintiffs believed the stakes encroached on their property, and thus, removed string the Defendants had put up. Defendants posted “no trespassing” signs and removed foliage planted by Plaintiffs that Defendants believed encroached on their property. Defendants hired Larry Kratz to perform a survey of their property, and upon establishing the property line, Defendants erected a fence. Plaintiffs obtained a property survey and advised Defendants to remove the fence as it encroached on their property. Defendants refused to remove the fence, and the instant action was commenced.

 

 

 

II.               PROCEDURAL HISTORY

 

A Complaint in Ejectment and Trespass was filed on February 17, 2010. An Answer was filed on March 23, 2010. A bench trial was held before this Court on December 20, 2011, wherein the parties presented testimony and exhibits. This Court entered an Order dated December 20, 2011, providing that it would take the matter under advisement and instructed the parties to file briefs no later than January 23, 2012. The Court granted an extension for filing briefs until January 30, 2012, as the transcript was not lodged until January 20, 2012. The parties have filed briefs in support of their positions, and the matter is ripe for disposition.

 

III.           STANDARD OF REVIEW

 

Ejectment is an action that is filed by a plaintiff who does not possess the land, but has the right to possess it, against a defendant who has actual possession.  Siskos v. Britz, 790 A.2d 1000 (Pa. 2002). It is the plaintiff’s burden to show, by a preponderance of the evidence, the right to immediate and exclusive possession. Hallman v. Turns, 482 A.2d 1284, 1288 (Pa.Super.1984). A plaintiff cannot rely on the weakness of the defendant’s title to recover in an ejectment action, but has the burden of proving a prima facie title. Blumner v. Metropolitan Life Ins. Co., 66 A.2d 245 (Pa. 1949); Doman v. Brogan, 592 A.2d 104 (Pa.Super.1991); Hallman v. Turns, 482 A.2d 1284 (Pa.Super.1984). Ejectment does not require exclusive possession, but requires a paramount title to land of which the plaintiff is out of possession. Billig v. Skvarla, 853 A.2d 1042, 1051 (Pa.Super.2004). In a boundary dispute, the plaintiffs must prove a specific boundary by a preponderance of the evidence. Seitz v. Pennsylvania Railroad Co., 116 A. 57 (Pa. 1922). Parole evidence is admissible to establish the existence of monuments. Baker v. Roslyn Swim Club, 213 A.2d 145, 148 (Pa.Super.1965).

To maintain an action in trespass, a plaintiff must show that the defendant unlawfully entered onto the plaintiff’s land without permission. 2 Summ. Pa. Jur. 2d Torts § 23:3. The fact that the trespass results from an innocent mistake or negligence does not relieve the trespasser of liability; rather, one trespasses if that person intended to enter upon the particular place, irrespective of whether the trespasser knows or should know that he or she is not entitled there. Kopka v. Bell Telephone Co., 91 A.2d 232 (Pa. 1952). Failure to remove a structure or chattel on another’s property constitutes a continuing trespass. Jones v. Wagner, 624 A.2d 166 (Pa.Super.1993). The measure of damages in a trespass action is the actual damage to the land, or if there are no actual damages, the loss of the value of the use of the land during the trespass. Glass v. Dean Coal Co., 7 Pa. D. & C.2d 657 (Pa.Com.Pl. 1957).

IV.           DISCUSSION

 

To determine whether Plaintiffs should prevail under ejectment and trespass theories, we must resolve the boundary dispute. It is well established that the primary function of a court faced with a boundary dispute is to ascertain and effectuate the intent of the parties at the time of the original subdivision. Corbin v. Cowan, 716 A.2d 614 (Pa.Super.1998). The question of what is a boundary line is a matter of law, but the question of where a boundary line, or corner, is actually located is a question of fact. Corbin, 716 A.2d at 617 (quoting Plott v. Cole, 547 A.2d 1216, 1219 (Pa.Super.1988)). The plain meaning of the deed is the best indication of the intent of the common grantors to the parties’ predecessors in title. Pencil v. Buchart, 551 A.2d 302 (Pa.Super.1998). A description that is repugnant or inconsistent to the general intention of the instrument should be rejected, but an adequate description in the instrument will remain. New York State Nat’l Gas Corp. v. Roeder, 120 A.2d 170 (Pa. 1956).

Pennsylvania courts have noted that the “law recognizes . . . that legal title to real property and the precise location of boundaries thereon, is not always clear from a plain reading of the deed.” See, e.g., Steward v. Chernicky, 266 A.2d 259 (Pa. 1970). Accordingly, in an ejectment action, a court of law must often employ “established principles of deed construction to assist in arriving at the parties’ intentions by artificial means.” Doman, 592 A.2d at 108. Where the deed is ambiguous and the intention of the parties cannot be ascertained from the language, courts should consider extrinsic evidence and subsequent acts of the parties that bear on the interpretation they placed on the instrument. Doman, 592 A.2d at 109. Where the terms of a deed are doubtful, the court will adopt that construction that is most strongly in favor of the grantee and against the grantor. 7 Summ. Pa. Jur. 2d Property § 22:23.

The general rules of construction that are applied to deeds also apply to boundary disputes. Doman v. Brogan, 592 A.2d 104 (Pa.Super.1991). The doctrine of senior rights provides that where there is a conflict between boundaries described in deeds from the same grantor, the deed first executed has priority, and the grantee named therein has superior title. Yoho v. Stack, 540 A.2d 307 (Pa.Super.1988); Wysinski v. Mazzotta, 472 A.2d 680 (Pa.Super.1984).

Boundaries may be established by circumstantial as well as direct evidence. Corbin, 716 A.2d at 617 (quoting Hostetter v. Commonwealth, 80 A.2d 719, 720 (Pa. 1951)). Any inconsistencies in evidence for establishment of boundaries go only to evidentiary weight, not competence. In re Petition of Viola, 838 A.2d 21 (Pa.Cmwlth.2003). Testimony of surveyors is often utilized to establish the location of boundary lines. Will v. Piper, 134 A.2d 41 (Pa.Super.1957); Penn. Game Comm’n v. Keown, 471 A.2d 937 (Pa.Cmwlth.1984). As a general rule, if maps are referred to in a grant or conveyance, they are to be regarded as incorporated into the instrument and are given considerable weight in determining the true description of land. Keown, 471 A.2d at 939-40.

Boundaries are defined by lines that are indicated by various descriptive elements. 7 Summ. Pa. Jur. 2d Property § 22:28. Although some terms of description are usually entitled to more probative value than others, the true construction is ascertainable by the totality of their combined effect and not wholly and exclusively by any one term when it is irreconcilable with the other terms of description. Baker v. Roslyn Swim Club, 213 A.2d 145 (Pa.Super.1965). Where the calls for the location of boundaries to land are inconsistent, other things being equal, resort is to be had to the first natural objects or landmarks, next to artificial monuments, then to adjacent boundaries, and thereafter to courses and distances. Baker, 213 A.2d at 148. Where it is apparent that a mistake exists with respect to any calls, an inferior means of location may control a higher one and the call adopted as the controlling one should be that most consistent with the apparent intent of the parties. Doman, 592 A.2d at 110. Lines actually marked on the ground constitute the survey and control the distances, even where the draft of the survey or description of the deed calls for natural or other fixed boundaries. 7 Summ. Pa. Jur. 2d Property § 22:28.

Monuments are visible markers or indications left on natural or other objects indicating a line of a survey. Jedlicka v. Clemmer, 677 A.2d 1232 (Pa.Super.1996). Although natural objects take precedence over monuments, ordinarily, when there is a conflict between courses and distances or quantity of land on the one hand and natural or artificial monuments on the ground on the other hand, it is well settled that the monuments prevail, especially where a purchaser inspects the property and has an opportunity to see the physical boundaries. Jedlicka, 677 A.2d at 1234-35. The preference of monuments over courses and distances recognizes the possibility of error in measurement as greater than the possibility of error in the existence and location of monuments used to set a boundary. Baker, 213 A.2d at 149. The rationale for preference of monuments over courses and distances to determine boundaries is not as compelling when the dispute is not over a few feet but, rather, is over many feet. U.S. v. 0.08246 Acres of Land, 888 F.Supp. 693 (E.D.Pa. 1995) (dispute over 40 feet). Given the fact that there are possibilities for mistakes, there are exceptions to the general rules. For example, “courses and distances prevail over monuments where absurd consequences might ensue by giving controlling influence to call for the latter or where the consideration of all facts and circumstances shows a call for distance to be more reliable or certain or the call for monument has been inserted by mistake or inadvertence.” Baker, 213 A.2d at 149.

The certain and locative calls of adjoining landowners may be treated as monuments although they are not as decisive as a natural boundary, such as a stream. 7 Summ. Pa. Jur. 2d Property § 22:33. Where land is described in the deed of conveyances by courses and distances and also by calls for adjoiners, the calls for adjoiners must govern when there is a discrepancy. Murrer v. American Oil Co., 359 A.2d 817 (Pa.Super.1976). Evidence of the acreage of land, especially where the number of acres is followed by the words “more or less,” has little weight against specific boundaries, and is in its nature an uncertain method of description and often a mere estimate. Pencil, 551 A.2d at 307. The words “more or less” have been frequently construed as words of safety and precaution, intended to cover some slight or unimportant inaccuracy, not so gross as to justify a suspicion of willful deception or mistake amounting to fraud, and of which the purchaser takes the risk as to quantity. Pittsburgh Outdoor Advertising Co. v. Surowski, 64 A.2d 854 (Pa.Super.1949).

With the foregoing in mind, we turn to the facts of this case. Each party presented expert testimony. Plaintiffs presented testimony from Michael O’Donnell, a professional land surveyor in Pennsylvania. O’Donnell was initially contacted by the Defendants to survey the Casler Property in November 2009; however, Defendants ultimately hired another surveyor. O’Donnell stated that all of the parcels originally part of the Twigg deed referenced Troy Avenue. O’Donnell testified that the starting and ending point on the property in the Twigg deed evidenced a gap of approximately seventeen (17) feet, indicating an error in a description in the Twigg deed (N.T. 36).  In consideration of the fact that the Rebers were the grantors of the Twigg deed, O’Donnell believed that it was clear that the parcel came from Troy Avenue up against the other land owned by Reber. (N.T. 37). O’Donnell testified that it is his opinion that the error in the deed lies with the distance between the center line of Troy Avenue and where the Marks subdivision is monumented (N.T. 37). To account for the error, O’Donnell did not follow the distances as provided for in the deed (N.T. 37). Additionally, rather than working from Troy Avenue, O’Donnell worked from the Marks subdivision (N.T. 38). O’Donnell testified that he was unsure of where the center line of Troy Avenue was in 1948, when the description was created, and that it was safe to assume that the road would have been widened and improved over the years (N.T. 37).

O’Donnell found that there are no distances, monuments, spikes, iron pins or anything within Quarry Rd; thus, he measured the distance along Quarry Road from the intersection of it and Troy Avenue to the northern Wall Property line. O’Donnell found that the distance is 493.46 feet rather than 496.7 as stated in the Capretti to Houtz deed. O’Donnell was able to establish the northern line of Wall using existing monuments to the north of the Wall property, and found that the distance along the western side of Wall Property (along Quarry Road) is 130.22 feet. O’Donnell then took the distance along the Casler Property (the 94.5 feet as stated in the deed) to find the total area along Quarry Road of the two properties of 224.72 feet. Recognizing the hierarchy of calls, O’Donnell found that the calls for adjoiners prevail over courses and distances; thus, the Caslers receive exactly what was called for in the deed to place it along the Marks plan. The remaining land would become Walls based on the doctrine of senior rights. O’Donnell concluded that the Casler’s fence encroaches the Wall Property by approximately nine (9) feet.[1]

Plaintiffs presented testimony from Thomas Harlan, a licensed attorney in Pennsylvania who focuses on real property law. Harlan was qualified as an expert and rendered his opinion with a reasonable degree of professional certainty. He reviewed O’Donnell’s analysis and agreed with his analysis and conclusion that the land unaccounted for belongs to the Walls. In arriving at his conclusion, Harlan noted that all outsales of the common grantor Houtz (including Wall and Casler) refer to the starting point as the spike in middle of Quarry Road. Harlan agreed with O’Donnell’s measurements along Quarry Road and the finding that the Wall tract is given the remaining road frontage along Quarry from the common Houtz deed and the Caslers receive exactly what is recited in the deed.

Defendants presented testimony from Lawrence Kratz, a professional land surveyor. Kratz chose the intersection of Troy Avenue and Quarry as his point of origin because all deeds (except Casler) referred to the intersection. Kratz then plotted the pins throughout the properties to reestablish the total tract in 1948. Kratz provided that there was a Worth/Twigg plan referred to in several of the lots, but it was not recorded and could not be found. However, given the fact that there was a plan, Kratz believed that the lots had to adjoin. Kratz followed the pins to put each parcel within the total tract as a “jigsaw puzzle” (N.T. 76). Kratz found that all of the pins fit within inches except for a pin used by O’Donnell to verify the Casler Property. Kratz opined that the gap exists between the Casler Property and edge of the Marks subdivision plan as result of an angular error in the Marks plan. By looking at the Houtz deed, which conveys Wall and Casler, Kratz testified that Houtz gave Casler 94 feet and Houtz receives the remaining land.

We hold that Plaintiffs have presented sufficient evidence that identifies a specific boundary to warrant judgment in their favor. While we find that both surveyors are competent in their field of expertise, we afford more weight to O’Donnell’s testimony because O’Donnell’s analysis presents a more tenable theory. First, O’Donnell’s point of origin was more appropriate than the one used by Kratz. Where the calls are readily ascertainable, all corners are of equal dignity and a survey may be started at any of them; however, where the beginning corner is the only one marked on the ground, it is necessarily of controlling force. Merlino v. Eannotti, 110 A.2d 783 (Pa.Super.1955). Where the location of the beginning corner of a survey is doubtful, the lines of the survey may be determined by commencing at some other natural or artificial object called for and identified. In re Conyngham Borough, Luzerne County, 224 A.2d 225 (Pa.Super.1966). O’Donnell recognized that the middle of Troy Avenue is not readily ascertainable because the middle of Troy Avenue in 1948 is unknown. It is very plausible that the road was widened or altered since 1948; thus, we find fault in Kratz’s analysis because his point of origin is uncertain. We agree with O’Donnell’s point of origin at the Marks subdivision, a clearly marked monument. Both O’Donnell and Kratz agreed on the location of the Marks subdivision.

In addition, O’Donnell correctly utilized the general rules of construction and the order of preference between calls. The intent of the parties at the time of the original subdivision is paramount in a boundary dispute. Corbin v. Cowan, 716 A.2d 614 (Pa.Super.1998). The purpose of the rules of construction is to aid in determining the intention of the parties. Laflin Borough v. Yatesville Borough, 422 A.2d 1186 (Pa.Cmwlth.1980). Where the calls for the location of boundaries to land are inconsistent, other things being equal, resort is to be had to the first natural objects or landmarks, next to artificial monuments, then to adjacent boundaries, and thereafter to courses and distances. Baker, 213 A.2d at 148.

O’Donnell located the pins on the Marks property and found that the property closes. O’Donnell then followed the description in the Twigg deed for the Reber Property, the adjoining property to Marks which encompasses both the Wall and Casler Properties. O’Donnell was able to establish the north boundary of the Wall Property, which he double checked by using the distance from center of Troy Avenue to find that it was within three (3) feet of what the deed called for (N.T. 41). After establishing the northern line, O’Donnell established southern line—again using the Marks subdivision. O’Donnell found that “the distance from the northern line of Wall to the Marks subdivision along Quarry Road is more than what is called for in the deed” (N.T. 42). Since the deed did not call for a gap, O’Donnell concluded that the intent was for the properties to adjoin (N.T. 47). Harlan and Kratz both agreed with O’Donnell that adjoiners will prevail over courses and distances in the event of a discrepancy.

As previously stated, the Casler tract was the first tract out of the common grantor Houtz. The doctrine of superior rights provides that when there is a boundary dispute between adjoining properties originally conveyed from the same grantor, the parcel that was conveyed first is superior. Merlino v. Eannotti, 110 A.2d 783 (Pa.Super.1955). The rationale behind the doctrine is based on the fact that a grantor, having already conveyed the property described in the first conveyance, cannot later convey the same property to another. Applying the doctrine of senior rights to this case, O’Donnell concluded that the Caslers would be entitled to the distance as purchased in the deed and the extra land belongs to the Walls. Harlan agreed with O’Donnell’s location of the boundary line and that the Wall Property is 130.22 feet along Quarry Road from the Zechman property southwardly to the Casler Property and that Casler owns 94.5 feet from the southern property line of Wall to the northern line of Habecker. Accordingly, O’Donnell and Harlan concluded that the fence erected by the Caslers encroaches onto the Wall Property by approximately nine (9) feet.

In addition to Kratz’s uncertain starting point, we disagree with Kratz’s methodology. Kratz’s main focus was to determine the intent or “retrace the original surveyor’s tracts as much as possible” (N.T. 78). However, the original surveyor could have mistaken courses and distances and retracing mistakes only results in the same. Moreover, it is the intent of the parties at the time of the original subdivision—not the surveyors—that is controlling.

Lastly, we must address Defendants’ objection, both at trial and in their post-trial brief, to O’Donnell’s testimony being designated as “expert testimony” since he did not testify to a reasonable degree of certainty. In cases where expert testimony is necessary, the expert shall testify that his or her opinion is made with a reasonable degree of certainty. Detterline v. D’Ambrosio’s Dodge, Inc., 763 A.2d 935 (Pa.Super.2000). Expert testimony cannot be based solely upon conjecture or speculation; rather, an expert must base his or her opinions on an adequate factual foundation or legitimate inference. Albig v. Municipal Auth. of Westmoreland Co., 502 A.2d 658 (Pa.Super.1958). This Court noted Defendants’ objection at trial that O’Donnell did not state that he testified to a reasonable degree of certainty. Nonetheless, there was no objection by Defendants to the Court’s qualification of O’Donnell as an expert, and we believe that O’Donnell’s opinion was based upon an adequate factual foundation considering the hours he spent surveying the property and preparing his report. Moreover, Harlan, who extensively reviewed O’Donnell’s analysis and findings, did testify to reasonable degree of certainty. In conclusion, we adopt the findings of O’Donnell and Harlan, and grant judgment in Plaintiffs’ favor.

 

 



[1] The fence was erected starting from Quarry Road 121.11 feet south of the northern wall line, which is a nine (9) foot encroachment. The encroachment continues to expand as the south property line of Wall extends to the northeast as shown on the O’Donnell Boundary Survey Plan.

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