Brouse v. Hauck
| Decision Date | 13 July 1984 |
| Parties | George F. BROUSE and Beverly Z. Brouse, Appellants v. Lee R. HAUCK. George F. BROUSE and Beverly Z. Brouse, Appellants v. Richard E. DITZLER and Dorothy E. Ditzler. |
| Court | Pennsylvania Superior Court |
Submitted Jan. 20, 1984.
Joey A. Storaska, Sunbury, for appellants.
R Michael Kaar, Milton, for appellees.
Before BROSKY, WIEAND and HESTER, JJ.
George and Beverly Brouse brought actions against Lee R. Hauck and against Richard and Dorothy Ditzler to quiet title to one-half of the bed of a vacated township road. They contended that they had acquired title by adverse possession or, at least, that they had acquired an easement by prescription with respect thereto. After they had presented their evidence to the court, which heard the action nonjury a compulsory nonsuit was entered. Thereafter, the court removed the nonsuit with respect to the Brouse claim of a prescriptive easement over the portion of the road abutting the land of Lee Hauck. In all other respects, the court refused to remove the nonsuit. The court's order is the subject of the present appeals.
In reviewing the propriety of a compulsory nonsuit, this Court will view the evidence in a light most favorable to the plaintiffs and give them the benefit of every reasonable inference arising therefrom. Francioni v. Gibsonia Truck Corp., 472 Pa. 362, 371, 372 A.2d 736, 740 (1977); Barney v. Foradas, 305 Pa.Super. 404, 407, 451 A.2d 710, 712 (1982); Adams v. Euliano, 299 Pa.Super. 348, 349-350, 445 A.2d 788, 789 (1982). A nonsuit can only be entered in a clear case. Barney v. Foradas, supra; Adams v. Euliano, supra; Peair v. Home Association of Enola Legion No. 751, 287 Pa.Super. 400, 403-404, 430 A.2d 665, 666-667 (1981).
A portion of appellants' farm in Milton, Northumberland County, abutted the northern edge of a township road. The southern edge of the township road was abutted by lands of appellant and also by lands of Hauck and Ditzler. When the township road was vacated in 1928, the center line of the former road became the common property line. The lands of the parties, with the disputed area shaded, appears from a sketch received in evidence as follows:
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Brouse's predecessor in title was Charles J. Hauck, [1] who took title by conveyance in 1945. Charles Hauck used the entire bed of the vacated road regularly and continuously to reach the entrance to a barn situated at a point approximately opposite a line dividing the properties of Lee Hauck 1 and Mr. and Mrs. Ditzler. Charles Hauck also used this route when he wished to gain access to the fields north of the railroad right of way with his farm equipment. The whole of the vacated road was maintained by Charles Hauck, who kept it clear of snow; it was used also by the Hauck children to play and ride their bicycles. Following the death of Charles Hauck, his widow conveyed the farm in 1963 to Homer Brouse, the father of George Brouse. George Brouse acquired title in 1975. He testified that he and his father had continuously used the vacated township road for similar purposes until the present time. This evidence was sufficient, if believed, to show a prescriptive right to use the disputed southern half of the vacated road for right of way purposes. See: Mather-Klock, Inc. v. Plymire, 349 Pa. 194, 36 A.2d 802 (1944); Minteer v. Wolfe, 300 Pa.Super. 234, 446 A.2d 316 (1982). Therefore, the court correctly removed the nonsuit as to appellants' claim against Lee Hauck. The refusal to remove the nonsuit as to appellants' claim of title by adverse possession was also correct. The burden of proof was on the appellants. In Reed v. Wolyniec, --- Pa.Super. ---, 471 A.2d 80 (1983), this Court said:
Inn Le'Daerda, Inc. v. Davis, 241 Pa.Super. 150, 158, 159, 360 A.2d 209, 213 (1976). An adverse possessor "must intend to hold the land for himself, and that intention must be made manifest by his acts." Kaminski Brothers, Inc. v. Grassi, 237 Pa.Super. 478, 480, 352 A.2d 80, 81 (1975). He must "keep his flag flying and present a hostile front to all adverse pretensions." Commonwealth v. Bierly, 37 Pa.Super. 496, 504 (1908). Building a residence on land or cultivating it in a regular and continuous way may after 21 years result in ownership. See The Susquehanna and Wyoming Valley RR and Coal Co. v. Quick, 68 Pa. 189 (1871); Cf. Ewing v. Dauphin County Tax Claim Bureau, 31 Pa.Cmwlth. 285, 375 A.2d 1373, 1375 (1977). However, as has been repeatedly said, "temporary acts on the land, ... are not the actual possession required." Inn Le'Daerda v. Davis, supra, 241 Pa.Super. at 159, 360 A.2d at 213 ....
It seems fair to summarize this case law as holding that only acts signifying permanent occupation of the land and done continuously for a twenty-one year period will confer adverse possession.
Id. at ---, 471 A.2d at 84, quoting Smith v. Peterman, 263 Pa.Super. 155, 160-161, 397 A.2d 793, 796 (1978). Appellants' evidence was sufficient, if believed, to show a prescriptive easement over that portion of the vacated road bed which abutted the land owned by Lee Hauck; the evidence was insufficient, however, to support a claim of title by adverse possession.
The evidence showed that Charles Hauck had also used the portion of the vacated road which abutted the Ditzler land for right of way purposes. After 1963, when title had been conveyed by Charles Hauck's surviving wife, Homer Brouse and his family continued to use the vacated road bed. However, the nature and quality of their use changed. Homer Brouse erected a fence along the southern edge of this part of the vacated road, and he and his son maintained the land north of the fence as their own. They cut the grass and used the land for the grazing of cattle and for the storage of lumber, wire and other items. After 1977, when the Ditzlers challenged appellants' continuing use of this part of the road bed a...
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