Nevling v. Natoli

• Citation: 434 A.2d 187,290 Pa.Super. 174
• Parties: Joseph D. NEVLING and Francis Elensky, Administrators d/b/n/c/t/a of the Estate of Abraham Nevling, Deceased, Appellants, v. Joanne C. NATOLI, Jack Carns and James Carns, Devisees of Edgar Nevling andMargaret Nevling Carns.
• Decision Date: 28 August 1981
• Court: Pennsylvania Superior Court

434 A.2d 187

290 Pa.Super. 174

Joseph D. NEVLING and Francis Elensky, Administrators d/b/n/c/t/a of the Estate of Abraham Nevling, Deceased, Appellants, v. Joanne C. NATOLI, Jack Carns and James Carns, Devisees of

Edgar Nevling andMargaret Nevling Carns.

Superior Court of Pennsylvania.

August 28, 1981

Submitted April 30, 1981.

Carl A. Belin, Jr., Clearfield, for appellants.

James K. Nevling, Clearfield, for appellees.

Before CERCONE, President Judge, and BROSKY and HOFFMAN, JJ.

BROSKY Judge:

Appellants commenced this action to quiet title against appellees claiming ownership of rights to coal located below the surface of a certain tract of land located in Clearfield County.

Appellees claim title to both the surface and underlying coal rights by inheritance from one who received his title by deed.

Appellants argue that the deed conveyed an interest only in the land surface and allege that the lower court erred in its decision to grant appellees' motion for judgment on the pleadings. Specifically, appellants contest the lower court's conclusion that the deed clearly conveyed to appellees' predecessor in title, interests in both the surface and the coal. Appellants also contend that the lower court erred in holding that they could not be found to have adversely possessed the subject property. We agree with appellants' contentions and reverse the order.

In reviewing the order of the lower court, we are guided by the following principles. To grant a motion for judgment on the pleadings the court must be confronted with a very clear case; if there is any issue of fact which is unresolved, the motion should not be granted. Coal Operators Casualty Co. v. Charles T Easterley and Co., Inc., 440 Pa. 218, 221, 269 A.2d 671 672 (1970). See also Eckborg v. Hyde-Murphy Co., 442 Pa. 283, 276 A.2d 513 (1971). A judgment on the pleadings should not be granted unless the moving party's right to prevail is "so clear that 'a trial would clearly be a fruitless exercise' ..." Wade v. Heisey, 243 Pa.Super. 8, 364 A.2d 423 (1976) (citing cases). All of the well pleaded allegations of the party opposing the motion must be accepted as true, while only those facts specifically admitted by the party opposing the motion may be considered against him. Wade v. Heisey, supra.

The pleadings filed in the present case reveal the following facts. ^[1] Appellants and appellees are heirs of Abraham Nevling who, until his death on July 2, 1904, was the owner of the subject premises which was comprised of 159 acres and 121 perches of coal and approximately 105 acres of surface overlying the coal. The remaining 54 acres of surface had earlier been sold to one of his daughters.

In his holographic will, Mr. Nevling made separate devises of the surface and coal interests. His will provided in pertinent part:

ARTICLE FOURTH: I direct that in case I do not dispose of the coal under the old homestead farm or what is known as the Lionell place during my lifetime, then and in such case I direct that the coal be sold or leased by my executor to the best advantage and the proceeds divided equally among the above mentioned heirs herein mentioned.

* * *

ARTICLE SIXTH: I direct that all the residue or remainder of my land being the surface only after deducting the 54 acres deeded to my daughter, Jane Merifield, be sold to the best advantage by my executor and the proceeds of such sale be distributed among my ten heirs already mentioned.

L. Z. Nevling, named executor in Abraham Nevling's will, served in that capacity until his death in 1928. Neither the coal nor surface rights were sold during L. Z. Nevling's tenure as executor. Following his death, Letters of Administration d.b.n.c.t.a. were granted to Clayton Nevling who made the conveyance in question to Edgar Nevling by deed of March 12, 1943.

The deed to Edgar Nevling conveyed the following property.

BEGINNING at a post corner of Samuel K. Hegarty's survey in the line of James H. Hegarty; thence by lands of James H. Hegarty, South one and a half (11/2) degrees West seventy-seven (77) perches to a post where an old hickory formerly stood; thence by lands of Lionel Weld and Aaron Weld, North eighty-eight and a half (881/2) degrees West two hundred and thirty-one (231) perches to an old dogwood corner burnt down; thence by lands commonly called Broadhead surveys, North one and a half (11/2) degrees East, one hundred and sixty-two (162) to a hemlock; thence by lands lately belonging to John Spangle, South eighty-eight and a half (881/2) degrees East one hundred and sixteen (116) perches to a post of said John Spangle's survey; thence by lands surveyed for Samuel K. Hegarty South one and a half (11/2) degrees West eighty (80) perches to a dead hemlock; thence by same South eighty-eight and a half (881/2) degrees East one hundred and twelve (112) perches to the place of beginning and containing one hundred and fifty-nine (159) acres and one hundred and twenty-one (121) perches and usual allowance. Being part of a larger tract of land surveyed under Warrant to John Funk.

EXCEPTING AND RESERVING THEREFROM, HOWEVER, all that certain tract or parcel of land conveyed by Abraham Nevling on September 12, 1894, by deed recorded in Deed Book 120, page 137, to Jane Marefield, otherwise known as Jane Merrifield, who by deed dated April 22, 1929, recorded in Deed Book 291, page 263, conveyed to Nellie Nevling such premises being described as follows: ...

Upon Edgar Nevling's death on November 2, his title to the premises descended by his will to his sister, Margaret Nevling Carns. Upon her death on January 5, 1970, title descended to her three children, Joanne C. Natoli, Jack Carns and James Carns, the present appellees.

On April 9, 1979, appellants commenced this action to quiet title averring that the coal underlying the above described street was not conveyed by the 1942 deed to Edgar Nevling and seeking to have title declared to rest in them as administrators d.b.n.c.t.a. of the Estate of Abraham Nevling. Appellants cite that portion of the deed wherein title is recited as support for their position. That portion of the deed states:

The present conveyance comprises one hundred and five (105) acres, more or less, out of the said one hundred and fifty-nine (159) acre tract which the Executors and Trustees of Hardman Philips conveyed to Abraham Nevling, by deed dated May 30, 1864, recorded in Deed Book "AA", page 647 and the said Abraham Nevling being so thereof seized, died testate on the 2nd day of 1904 and by his Will dated the 19th day of September, 1901, remaining of record in Clearfield, in Will Book "M" page 46, devised the coal hereunder to his Executor for the purpose of lease or sale for the benefit of all the heirs and empowered his Executor, L. Z. Nevling, to sell the surface.

Appellants claim that this section of the deed indicated that only the surface was to be conveyed. The lower court dismissed that argument saying that a recital in a deed cannot diminish a grant contained elsewhere in the...