Zeglin v. Gahagen

OPINION

In this appeal involving a boundary dispute, the question presented is whether privity of estate between succeeding landowners is required to support tacking periods of ownership to form the requisite twenty-one-year period under acquiescence theory.

Appellants, Frank and Tammy Zeglin, and Appellees, Sean and Kimberlee Gahagen, own adjoining properties in Windber, Paint Township, Somerset County. The Zeglins purchased in 1977 from Cora Murphy, who, together with her late husband, had owned the property since 1937. The Gahagens bought from Margaret Swincinski in 1989, who had acquired the parcel in 1979 from the previous owners since 1972.

In 1995, the Gahagens employed a professional to survey their property and learned that their deed described a boundary on the Zeglins’ side of a line marked by a row of bushes, utility pole, and fence that had been added by the Zeglins. The surveyor therefore concluded that the Gahagens’ property extended over such visible line, and this was confirmed in a subsequent survey commissioned by the Zeglins. The Gahagens notified the Zeglins that a portion of their driveway encroached on their land, removed the bushes, and constructed a retaining wall adjacent to the surveyed boundary. The Zeglins responded by filing a complaint against the Gahagens sounding in ejectment and trespass and claiming ownership up to the line previously demarcated by the bushes, utility pole, and fence. In furtherance of this position, the Zeglins relied, inter alia, on the doctrine of acquiescence in a boundary, alleging that their occupancy and possession, together with that of their predecessors in title, for a period of more than twenty-one years established the visible line as the legal boundary. The Gahagens filed an answer and counterclaim.

*324 In March of 2000, following a non-jury trial, the common pleas court issued a decree nisi in favor of the Zeglins, which it later made final. In accompanying opinions, the court summarized the acquiescence doctrine as follows:

an occupation up to a fence on each side by a party or two parties for more than 21 years, each party claiming the land on his side as his own, gives to each an incontestable right up to the fence, whether the fence is precisely on the right line or not; and this is so although the parties may not have consented specifically to the fence in question.

Zeglin v. Gahagen, No. 869 Civ.1999, slip op. at 4 (C.P. Somerset Feb. 10, 2000) (Gibson, J.) (“Common Pleas Court Opinion”) (quoting Berzonski v. Holsopple, 28 Som. Leg. J. 842, 358 (1973) (Coffroth, P.J.)). The court identified as the basis for the principle public policy favoring peace and the repose of titles. It reasoned that, for a period of more than twenty-one years, the Zeglins, the Gahagens, and their predecessors in interest had recognized and acquiesced in a boundary line demarcated by the hedgerow (and also highlighted by the fence maintained by the Zeglins through a portion of that time period). Although the Zeglins had occupied the property for only eighteen years prior to the Gahagens’ actions, the court permitted them to tack the period of ownership by the Murphys, despite the fact that Cora Murphy had not specifically and formally conveyed her purported interest in the disputed tract to the Zeglins in the written deed. As pertains to tacking under the doctrine of adverse possession, the court recognized the requirement in Pennsylvania of privity of estate, namely, a higher degree of relation than that of mere grantor and grantee of a main parcel, generally comprised of specific and formal conveyance of the predecessor’s interest in the disputed tract where the transfer is between unrelated parties. See Common Pleas Court Opinion, slip op. at 15 (quoting Baylor v. Soska, 540 Pa. 435, 438-39, 658 A.2d 743, 744-45 (1995)). The common pleas court found, however, that Pennsylvania courts had distinguished acquiescence in a boundary by applying the less rigorous requirement of privity of possession to claims predicated on such theory. See id. at 5 *325 (“Pennsylvania courts have adopted the view that succeeding owners of property are bound by the fences that were accepted and recognized by former owners even without any other privity or formal transfer of the area possessed adversely.” (citing Berzonski, 28 Som. Leg. J. at 358)).

On the Gahagens’ appeal, the Superior Court reversed in a published decision. See Zeglin v. Gahagen, 774 A.2d 781 (Pa.Super.2001). At the outset, it acknowledged the limitations on appellate review pertaining to matters of equity. See id. at 783 (“ ‘Our scope [and standard] of review in matters of equity [are] narrow and limited to determining whether the findings of fact are supported by competent evidence, whether an error of law has been committed or whether there has been a manifest abuse of discretion’ ” (citation omitted; interlineations in original)). The court determined, however, that, just as in the case of adverse possession, privity of estate is an essential prerequisite to employment of tacking to perfect a claim under acquiescence theory. See id. at 784-85 (citing Plott v. Cole, 377 Pa.Super. 585, 596, 547 A.2d 1216, 1222 (1988)). Accordingly, the Superior Court held that the common pleas court erred by permitting the Zeglins to tack the period of the Murphys’ ownership based on privity of possession alone. See id.

Presently, the Zeglins argue that privity of estate as a prerequisite to tacking is inappropriate to, and contrary to the doctrine of, acquiescence in a boundary, since an underlying premise of such theory is that the evidence of longstanding acquiescence in a physical boundary by adjoining property owners will control over contrary deed calls. The Zeglins distinguish Plott v. Cole, cited by the Superior Court, as allowing for creation of privity by “other acts,” and not solely by references culled from a deed. The Gahagens concede that the privity of estate requirement has not expressly been attached by Pennsylvania courts in acquiescence cases, but contend that such a requirement would alleviate confusion among landowners.

The establishment of a boundary line by acquiescence for the statutory period of twenty-one years has long *326 been recognized in Pennsylvania. 1 Two elements are prerequisites: 1) each party must have claimed and occupied the land on his side of the line as his own; and 2) such occupation must have continued for the statutory period of twenty-one years. See Jedlicka v. Clemmer, 450 Pa.Super. 647, 654, 677 A.2d 1232, 1235 (1996); Plott, 377 Pa.Super. at 594, 547 A.2d at 1221. As recognized by the Superior Court and the common pleas court, the doctrine functions as a rule of repose to quiet title and discourage vexatious litigation. See id. at 592, 547 A.2d at 1220.

Although the elements are simply stated, courts have had difficulty tracing the theoretical underpinnings of. the acquiescence precept. 2 In Pennsylvania, courts frequently have distinguished the doctrine from adverse possession, see, e.g., Niles v. Fall Creek Hunting Club, Inc., 376 Pa.Super. 260, 267, 545 A.2d 926, 930 (1988); Inn Le’Daerda, Inc. v. Davis, 241 Pa.Super. 150, 163 n. 7, 360 A.2d 209, 215 n. 7 (1976), and in recent cases have categorized it, under the umbrella of “consentable boundaries,” with a separate theory premised on dispute and compromise. 3 An examination of the *327 decisional law demonstrates, however, that the doctrinal roots of acquiescence are grounded in adverse possession theory; 4 indeed, occupancy with open manifestations of ownership throughout the statutory period will generally satisfy the traditional'elements of adverse possession. 5 Decisions involv *328 ing acquiescence are frequently distinguishable from adverse possession cases only in that possession in the former are often based on a mistake as to the location of property lines. See generally Annotation, Adverse Possession Involving Ignorance or Mistake as to Boundaries — Modem Views, 80 A.L.R.2d 1171,1173 (1961 & Supp.2002). 6

This confluence between acquiescence and adverse possession principles militates against the Zeglins’ position, in light of this Court’s determination, presently recognized by both the Superior Court and the common pleas court, that privity of estate is a prerequisite to tacking under adverse possession theory. See Baylor, 540 Pa. at 441, 658 A.2d at 746 (holding that “the only method by which an adverse possessor may convey the title asserted by adverse possession is to describe in the instrument of conveyance by means minimally acceptable for conveyancing of realty that which is intended to be conveyed”).

Even so, the contrary analysis reflected in the Somerset County decisions is noteworthy and merits further consideration. Prior to Baylor, in the decision presently relied upon by the common pleas court, President Judge Coffroth made the case that the lesser standard of privity of possession *329 should govern tacking successive periods of adverse possession, at least in boundary controversies. He reasoned that:

[t]he circumstances of unified use, and physical transfer of possession of the disputed tract, and continued adverse use thereof and of the conveyed tract as an incorporated and unified whole, show that the parties intended to transfer not only the title to the conveyed tract, but also the possession to the disputed area whose use was integrated with the conveyed tract, notwithstanding the omission from the deed of any mention of the disputed area.

Berzonski, 28 Som Leg. J. at 370. Further, he described privity of possession as “the almost universal rule” supporting tacking in the boundary dispute context. See id. at 367 (citing 3 Am.Jur.2d Adverse Possession § 80 (Supp.2002)). 7 , 8 With *330 regard to Pennsylvania, President Judge Coffroth observed that both this Court’s decision in Scheetz v. Fitzwater, 5 Pa. 126 (1847), and the Superior Court’s in Stark v. Lardin, 133 Pa.Super. 96, 1 A.2d 784 (1938), approved tacking on such terms, where there was no valid written transfer of the grantor’s adverse possession of the disputed area to the subsequent owner. See Berzonski, 28 Som. Leg. J. at 369; 9 accord Lenihan v. Davis, 152 Pa.Super. 47, 49-50, 31 A.2d 434, 435 (1943).

Berzonski nonetheless acknowledged a contrary line of Superior Court authority, exemplified by Masters v. Local Union No. 472, United Mine Workers, 146 Pa.Super. 143, 22 A.2d 70 (1941), which implemented a requirement of privity of estate to support tacking without mention of Scheetz or Stark. The court, however, criticized Masters’ reasoning as predicated on the erroneous assumption that landowners would generally lay claim to only part of the land that they possess or occupy, 10 *331 and observed that in another line of cases, the Superior Court persisted in the idea that an intent to convey more than the premises actually described in a deed could be inferred from acts or circumstances apart from the deed itself. See Berzonski, 28 Som. Leg. J. at 372-73 (citing Gerhart v. Hilsenbeck, 164 Pa.Super. 85, 89, 63 A.2d 124, 126-27 (1949)). Based on these latter decisions, President Judge Coffroth concluded that “Pennsylvania has joined or rejoined the main stream of authority and validates . .. that privity may be established by oral agreement.” Id. at 374.

Subsequent Pennsylvania cases generally followed Masters without reference to the view of a majority of jurisdictions as embodied in the reasoning of President Judge Coffroth. See Glenn v. Shuey, 407 Pa.Super. 213, 225, 595 A.2d 606, 612 (1991); Wittig v. Carlacci, 370 Pa.Super. 584, 589-90, 537 A.2d 29, 32 (1988); Plott, 377 Pa.Super. at 596, 547 A.2d at 1222; Castronuovo v. Sordoni, 357 Pa.Super. 187, 193-94, 515 A.2d 927, 930-31 (1986). Nevertheless, prior to Baylor, courts continued to note an “other circumstances exception” based on Scheetz and Stark. See, e.g., Glenn, 407 Pa.Super. at 226 n. 6, 595 A.2d at 613 n. 6; Wittig, 370 Pa.Super. at 589-90, 537 A.2d at 32; Castronuovo, 357 Pa.Super. at 193, 515 A.2d at 931. 11 In Baylor, however, this Court dismissed the portion of the privity rules permitting the tacking based on acts or circumstances extrinsic to written deeds, reasoning that:

[¡Interested parties have a right to discern from the record the state of the title of any parcel of land. If tacking were to be permitted because of vague, undefined “circumstances,” there could and most likely would be no way for *332 one not a party to the conveyance to know this. But the law mandates that a person asserting a claim of adverse possession make this assertion openly and notoriously to all the world. There must be no secret that the adverse possessor is asserting a claim to the land in question. If the adverse possessor’s claim is to be passed on to a successor in title, therefore, there must be some objective indicia of record by which it can be discerned with some degree of certainty that a claim of title by adverse possession is being made and that the duration of this claim has been passed on to a successor in title.

Id. at 440, 658 A.2d at 745-46 (citation omitted).

Although Baylor was a boundary case, it proceeded on the theory of adverse possession, as opposed to acquiescence. While we recognize that this is a fine basis for distinction given the relatedness of these doctrines, strict application of Baylor's holding in the acquiescence paradigm would eliminate tacking in cases involving successive owners and mistaken boundaries, which would appear to be the prevailing set of circumstances in this line of decisions. See Annotation, Tacking Adverse Possession, 17 A.L.R.2d at 1131. Indeed, perhaps for this reason, Pennsylvania and other courts have previously suggested the application of more flexible rules in the acquiescence paradigm. 12

*333 As President Judge Coffroth aptly observed, the reason why privity of estate should not be deemed necessary to support tacking in this setting is, simply, because a prospective purchaser will see the fence or similar marking; given its “obvious presence as apparent boundary,” he is therefore put on notice to inquire about its origin, history, and function. See Berzonski, 28 Som. Leg. J. at 361 (“After 21 years, the chips will be allowed to fall where they may, for reasons of equity and peace.”).

Accordingly, we find the majority view (requiring only privity of possession) better suited to claims brought under a theory of acquiescence in a boundary. We hold, therefore, that tacking is permitted in such context upon sufficient and credible proof of delivery of possession of land not within (but contiguous to) property described by deed of conveyance, which was previously claimed and occupied by the grantor and is taken by the grantee as successor in such interest.

The order of the Superior Court is reversed, and the case is remanded for reinstatement of the final decree of the common pleas court.