Weible v. Wells, 46 WDA 2016

156 A.3d 1220

Rodger WEIBLE, Appellee

v.William P. WELLS and Elizabeth Louise Wells, Appellants

No. 46 WDA 2016

Superior Court of Pennsylvania.

Argued November 29, 2016.

FILED FEBRUARY 27, 2017

Matthew R. Zwick, Dubois, for appellants.

Gregory M. Bazylak, Brookville, for appellee.

BEFORE: LAZARUS, J., SOLANO, J., and STRASSBURGER, J.^*

OPINION BY LAZARUS, J.:

William P. Wells and Elizabeth Louise Wells (the Wellses) appeal from the trial court's order ejecting them from the subject property, a portion of Appellant Rodger Weible's property, and ordering them to pay to resurvey the line between the parties' properties. The trial court concluded that the Wellses did not adversely possess the subject property because they only demonstrated the required elements of adverse possession for 20 years before local counties, predecessors in title to Weible, became the owners of and publicly used the property. After careful review, we reverse and remand.

Weible and the Wellses own neighboring residential property located, respectively, at 703 East Main Street and 717 East Main Street in Reynoldsville, Pennsylvania. The Wellses obtained title to their parcel by deed dated August 2, 1965, from Ralph August. Weible purchased his parcel from Jefferson and Clearfield Counties (the Counties) on December 22, 1998. The Wellses installed landscaping and a driveway upon a portion of 703 East Main Street in August 1975 and October 1979 (collectively, subject property). The Counties jointly operated a facility that housed and provided services to mental health patients on the subject property from May 1995 through December 1998.

In 2008 a tree fell from the Wellses' property and caused damage to surrounding power lines and power sources. When the Wellses offered to pay the borough to repair the lines, they were notified that the fallen tree had come from Weible's property and that they were not responsible for the cost of repairs. After the borough attempted to collect payment from Weible for the damage, Weible paid Alexander & Associates, Inc., to survey his property to determine the boundary line between 703 and 717 East Main Street. Weible discovered that the Wellses' landscaping and driveway were encroaching on his property; he requested that they remove the landscaping.

On August 28, 2009, Weible filed the current action in ejectment against the Wellses alleging that since August 2, 1965, the Wellses caused landscaping and a driveway to be installed on his property. The Wellses filed an answer, new matter and counterclaim to quiet title to the subject property and also raised the affirmative defense of adverse possession.

On September 11, 2015, the court held a non-jury trial.¹ The trial court found, as a fact, that the Wellses have "open[ly] notoriously, visibly and adversely" used the subject property "for a period well in excess of 21 years" and that the subject property "has been in virtually the same position and condition since the date of [its] initial placement which is well in excess of 21 years." Trial Court's Findings of Fact, 12/8/15, at ¶ 16. The court ultimately determined that "because Weible received his property from a political subdivision, [the] Well[ses'] adverse possession claim cannot stand until 21 years after the date of conveyance from these political subdivisions." Id. at ¶ 22 (emphasis added). The court reasoned that because the Wellses were not "capable of adverse possession against those counties' ownership, the 21 [–]year period would start anew after the counties sold the property." Id. at ¶ 23. Because the Wellses only possessed the subject property for eleven years after the Counties sold it to Weible, the court found that they did not adversely possess it for the requisite 21 years.

On December 8, 2015, the court entered an order ejecting the Wellses from the property, requiring them to pay the costs of resurveying the line between their property and Weible's property, and giving them until April 30, 2016, to remove any of their items from Weible's property. The Wellses filed a timely motion for reconsideration, which the trial court properly treated as a post-trial motion. The court denied the motion and this timely appeal follows. On appeal, the Wellses raise the following issues for our consideration:

(1) Whether the lower court committed clear error in granting [Weible's] Complaint in Ejectment and dismissing [the Wellses'] counterclaim for quiet title of the disputed real property, because [the Wellses] established during trial that they continuously and exclusively mowed and adversely cared for and possessed the real property at dispute from August 1965 through the time of trial.^[2]

(2) Whether, based upon the pleadings, as well as the evidence presented in the instant matter, the lower court committed clear error in finding that [the Wellses] failed to satisfy the elements of adverse possession during their open, exclusive, continuous, and adverse possession of the real property in dispute from August 1965 through the time of trial.

(3) Whether the lower court committed clear error in determining that the 21–year statutorily prescribed period for [the Wellses] to obtain the real property in dispute by virtue of adverse possession started anew or reset —as opposed to being tolled or paused —during the time that Clearfield and Jefferson Counties purportedly owned said real property.

(4) Whether the lower court committed clear error in determining that the disputed real property was devoted to public use by Clearfield County and Jefferson County from May 1995 through December 1998.

(5) Whether the lower court committed clear error in ruling that political subdivisions of this Commonwealth are immune from a claim of adverse possession, when, as in the present matter, Clearfield and Jefferson Counties owned a residential property, of which county officials and personnel visited and observed on a regular, daily basis from May 1995 through December 1998.

(6) Whether the lower court committed clear error in finding that [the Wellses] did not contest the survey map prepared by [Weible's] surveyor, Alexander and Associates, and ordering that [the Wellses] are required to retain and pay Alexander and Associates to resurvey the line between [the parties' properties] to determine the proper location of said boundary.

Adverse possession is an extraordinary doctrine which permits one to achieve ownership of another's property by operation of law; it is dependent upon possession for a set period of time and authorized by statute. See 68 P.S. §§ 81 –88 (claim by adverse possession). One who claims title by adverse possession must prove actual, continuous, exclusive, visible, notorious, distinct and hostile possession of the land for twenty-one years.³ Flannery v. Stump , 786 A.2d 255, 258 (Pa. Super. 2001) (citations omitted). Each of these elements must exist; otherwise, the possession will not confer title. Id. Moreover, until the full expiration of the statutory period, "a property owner's record title remains unaffected and untrammeled." Hershey v. Poorbaugh , 145 Pa.Super. 482, 21 A.2d 434, 488 (1941).

Counties' Possession (1995–1998)

The trial court relies upon the common law doctrine, nullum tempus occurrit regi , which translated means "time does not run against the king" to come to its decision that the Wellses cannot be successful in their claim of adverse possession against the Counties. Specifically, the court determined that "the law, as it has long stood and currently stands, does not allow this Court to rule against the political subdivision even when it owns a residential neighborhood, and as such, judgment must be for the plaintiff." Trial Court's Discussion, 12/8/15, at 6. While the court was correct that one cannot adversely possess land against a political subdivision like the Counties, it does not necessarily prevent that person from adversely possessing the land against the individual that purchases the property from the political subdivision, its successor. Rather, during the time that the political subdivision owns the property the 21–year statutory period for adverse possession is tolled or stops running.

In Torch v. Constantino , 227 Pa.Super. 427, 323 A.2d 278 (1974), a panel of this Court addressed the issue of "whether land held for tax sale after return for nonpayment of taxes tolls the prescription period" for adverse possession. Id. at 279 (emphasis added). There, our Court held that "adverse possession does not run against the political subdivisions holding land for tax sales for nonpayment of taxes, as trustee, and ... this function is a governmental one." Id. at 281. Specifically, the court acknowledged that local governments have immunity from a claim of adverse possession when the land in question is devoted to public use. Id. SeeLysicki v. Montour School Dist. , 701 A.2d 630 (Pa. Cmwlth. 1997) (as to political subdivisions, such as counties, townships and boroughs, rule seems to be that title by presumption against such governing bodies may be asserted unless land in question is devoted to public use); see alsoFred E. Young, Inc. v. Brush Mt. Sportsmen's Ass'n , 697 A.2d 984, 992 (Pa. Super. 1997) ("Adverse possession does not lie against land held by the county in connection with a tax sale."); 68 P.S. § 88 ("Nothing contained in this act [claim by adverse possession] shall be construed to give any title to any lands by a claim of title adverse to that of the Commonwealth of Pennsylvania, and no claim of title adverse to the Commonwealth of Pennsylvania shall be made or recorded under the provisions of this act.").

Instantly, the trial court concluded that the subject property was publicly used by the Counties from 1995 to 1998. Specifically, the court noted that:

[O]ur government and governmental agencies are tasked with the care and housing of mentally challenged individuals, and in fulfilling that duty they often acquire property and operate facilities through which they can provide

...