Bussard v. Pa. Dep't of Conservation & Natural Res.

278 A.3d 422

Donald L. BUSSARD, Barbara J. Bussard, Edward F. Lynch and Carol L. Lynch, Petitioners

v.PENNSYLVANIA DEPARTMENT OF CONSERVATION AND NATURAL RESOURCES (State Board of Property), Respondent

No. 516 C.D. 2021

Commonwealth Court of Pennsylvania.

Argued May 16, 2022

Decided June 10, 2022

Larry D. Lashinsky, Hollidaysburg, for Petitioners.

Robert Pawlinski, Harrisburg, for Respondent.

BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE ELLEN CEISLER, Judge, HONORABLE STACY WALLACE, Judge

OPINION BY JUDGE FIZZANO CANNON

Petitioners, Donald L. Bussard, Barbara J. Bussard, Edward F. Lynch, and Carol L. Lynch (collectively, Bussards), seek review of an order of the State Board of Property (Board), which sustained the preliminary objections of the Pennsylvania Department of Conservation and Natural Resources (Department) to the Bussards’ Amended Petition Seeking Confirmation of Ownership of Real Property (Amended Petition) and dismissed the Amended Petition with prejudice. We vacate the Board's order and remand this matter for further proceedings.

I. Background

At issue in this matter is the title to a tract of land consisting of 103.04 acres in Southampton Township, Bedford County (Property). Reproduced Record (RR) at 130a. The Bussards and the Department rely on competing chains of title to the Property. Thus, the Bussards contend they are record owners of the Property, and the Department counters that the Commonwealth owns the Property.

A. Commonwealth Chain of Title

Title to the Property originated in a warrant¹ issued by the Commonwealth to Jesse Dicken in 1863 (Dicken Warrant) for a tract of land that purportedly included the Property. RR at 150a-51a. In 1864, Jesse Dicken and Rebecca Dicken sold land granted under the Dicken Warrant, including the Property, to Robert Ash. Id. at 135a & 201a-02a. In 1896, Abram and Marian V. Ash sold land including the Property to Hilary H. Hartsock. Id. at 135a & 204a-05a. However, as no deed from Robert Ash to Abram and Marian Ash was found, in 1911, Robert Ash and Ann B. Ash, who were located in Nebraska, executed a quitclaim deed to Hilary H. Hartsock. Id. at 135a-36a, 207a & 209a-10a. Also in 1911, Hilary Hartsock and Ida G. Hartsock conveyed almost all of the land subject to the Dicken Warrant, including the Property, to the Commonwealth of Pennsylvania. Id. at 134a & 197a-99a.

The foregoing facts are largely undisputed. However, the Bussards argue that a 1937 patent issued to McKinley Morris (Morris Patent) perfected title to the Property in McKinley Morris. RR at 137a-38a. In the alternative, the Bussards assert that even if the Morris Patent did not transfer title to the land subject to the Dicken Warrant, the present Property includes only 39.4 acres from the Dicken Warrant, limiting the Commonwealth's claim of title to that portion of the Property.²

B. Bussard Chain of Title

The Bussards’ chain of title, as pleaded in the Amended Petition, begins with a 1923 deed from Rhoda May Strut and Robert S. Strut to McKinley Morris and Nellie P. Morris. RR at 131a. After purchasing, by that deed, land including the Property, McKinley Morris, evidently recognizing the existence of the Dicken Warrant, sought to perfect his title to the purchased land by obtaining a patent from the Commonwealth for the land in the Dicken Warrant. See id. at 132a. In 1937, McKinley Morris succeeded in obtaining the Morris Patent from the Pennsylvania Department of Internal Affairs. Id. at 132a, 150a & 153a-60a. In 1951, McKinley Morris and Nellie P. Morris conveyed land including the Property to Earl Ketterman. Id. at 131a. In 1984, Earl Ketterman conveyed the same land to Earl Ketterman and Frances L. Ketterman. Id. at 131a-32a. In 2010, Frances L. Ketterman, widow of Earl Ketterman, conveyed land including the Property to the Bussards. Id. at 130a-31a & 141a-47a.

The foregoing facts are also largely undisputed. However, the Department demurs to the Amended Petition, arguing that the Bussards have failed to state a viable claim because they cannot trace their chain of title back to the Dicken Warrant. RR at 225a. Further, the Department challenges the legal effect of the Morris Patent; the Commonwealth, having ostensibly obtained title to the Property from Hilary H. Hartsock in 1911, argues that the Morris Patent was ineffective to divest its ownership of the Property. Id. at 225a-27a.

C. Procedural History

In 2018, the Bussards filed a petition with the Board asserting ownership of the Property. RR at 1a-52a. The Department filed preliminary objections³ asserting that the petition was insufficiently specific and the Bussards had failed to plead a complete chain of title. Id. at 57a-69a. The Board sustained the preliminary objections in part and directed the Bussards to file an amended petition. Id. at 126a-27a. The Bussards timely filed the Amended Petition. Id. at 129a-216a. The Department again filed preliminary objections. Id. at 221a-31a. This time, the Board sustained the preliminary objections and, concluding the Bussards did not recite a complete chain of title, dismissed the Amended Petition with prejudice. Id. at 301a & 305a-06a. The Board also rejected the Bussards’ alternative claim that land from the Dicken Warrant comprised only 39.4 acres of the Property; the Board reasoned that because the Bussards did not establish title to the Property as a whole, they likewise did not establish title to the portion of the Property purportedly outside the Dicken Warrant. Id. at 305a. The Bussards filed a timely petition for review in this Court, which is presently before us for disposition.

II. Discussion⁴

A. Effect of the 1937 Morris Patent

The parties generally agree concerning the applicable law. A "warrant" constituted an original grant of land by the Commonwealth and authorized a survey of the granted land; upon payment of the purchase price, it conveyed equitable title constituting "a perfect title against all the world but the Commonwealth," which retained a lien solely for payment of the separate fee for issuing the patent. Dep't Br. at 26 (quoting Hoffman v. Bell , 61 Pa. 444, 454 (1869) (additional quotation marks omitted)); see also Bussards Br. at 11. The patent subsequently issued upon payment of the patent fee was "merely a perfection and confirmation of the title by warrant." Dep't Br. at 26 (quoting Delaware & Hudson Canal Co. v. Dimock , 47 Pa. 393, 397 (1864) (additional quotation marks and bracket omitted)); see also Bussards Br. at 11 (likewise citing Delaware & Hudson ). The person entitled to obtain a patent was the person who held ownership under the warrant; therefore, issuance of a patent to the wrong person would not convey any ownership interest, and the patentee would merely hold the legal title in trust for the true owner, the warrantee. Dep't Br. at 27 (citing Keller v. Powell , 21 JA. 796 (Pa. 1891) ; then Duer v. Boyd , 1 Serg. & Rawle 203, 208 (Pa. 1814) ; then Gregg v. Patterson , 9 Watts & Serv. 197, 205 (Pa. 1844) ); see also Bussards Br. at 11 (citing Delaware & Hudson ).

Here, the Dicken Warrant was the original warrant to land purportedly including the Property issued by the Commonwealth in 1863. RR at 150a-51a. Through subsequent conveyances by deeds, the Commonwealth obtained title once again in 1911. Id. at 134a-36a, 197a-99a, 201a-02a, 204a-05a, 207a & 209a-10a. McKinley Morris, however, ostensibly purchased the Property in 1923 from Rhoda May Strut and Robert S. Strut, persons not in the Commonwealth's chain of title, and then, in 1937, succeeded in obtaining the Morris Patent relating to the Property. Id. at 131a-32a, 150a & 153a-60a. The Department insists the Bussards have not pleaded a prima facie claim of title to the Property sufficient to survive preliminary objections, because they have not extended their chain of title any further back than 1923. We disagree.

The Department posits that where competing claims of title do not originate from a common source, the person challenging another's title must trace his own chain of title back to its origin. See Bonaffon v. Peters , 134 Pa. 180, 19 A. 499, 500 (1890) ; Faux v. Cooke , 107 Pa.Super. 88, 163 A. 384, 385 (1932) ; Dep't Br. at 19. The Department insists that the Bussards have not done so. This argument rests on the premise that the Morris Patent was ineffective to convey title in the Dicken Warrant to McKinley Morris. However, if the Morris Patent was effective to convey title from the Commonwealth to McKinley Morris, then the Morris Patent, which undisputedly related to the Dicken Warrant, would necessarily carry with it the chain of title going back to the Dicken Warrant.

The Bussards contend that they have pleaded sufficient facts to raise a question of fact concerning the validity of the Morris Patent. We agree.

It is true that the Bussards have not specifically pleaded a chain of individual deeds extending all the way back to the Dicken Warrant. However, they have attached to their Amended Petition two particularly significant documents relating to the Morris Patent that relate to the Dicken Warrant and the chain of title to the Property.

First, by letter dated November 21, 1928 (1928 Letter), the Deputy Secretary of the Pennsylvania Department of Internal Affairs responded to McKinley Morris's inquiry concerning a patent relating to the Dicken Warrant, stating, in pertinent part:

[O]ur records show that the title to this tract of land passed from the Commonwealth when they [sic] granted the warrant to Jesse Dicken to make a survey of the same. ... If your title to this land through William C. O'Neal and his successors in title comes from the above named Jesse Dicken , then your title to the land is presumably good. ...

In order to procure a patent to this land from the Commonwealth in your own name, it will be necessary for you to fill out the enclosed blank, giving under the heading "Statement of Title" a reference of the deeds of transfer from Jesse Dicken through the various

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