Long Run Timber Co., Ltd. P'ship v. Dep't of Conservation & Natural Res.
| Decision Date | 30 August 2016 |
| Docket Number | No. 2313 C.D. 2015,2313 C.D. 2015 |
| Citation | 145 A.3d 1217 |
| Parties | Long Run Timber Company, Limited Partnership, Petitioner v. Department of Conservation and Natural Resources, Respondent |
| Court | Pennsylvania Commonwealth Court |
Helen L. Gemmill, Harrisburg, for petitioner.
Mark C. Baldwin, Assistant Counsel, Harrisburg, for respondent.
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION BY JUDGE RENÉE COHN JUBELIRER
Long Run Timber Company, Limited Partnership (Company) petitions for review of the Order of the State Board of Property (Board) that dismissed Company's Complaint to Quiet Title (Complaint) in which it sought a determination regarding its right, title, and interest in approximately 56.97 acres in Tioga County (Disputed Property). The Complaint also sought to preclude the Commonwealth of Pennsylvania (Commonwealth), Department of Conservation and Natural Resources (DCNR) from asserting any interest in the Disputed Property.1 At issue here is the boundary line between tracts of land known as Warrant 1180, owned by DCNR, and Warrant 1179, owned by Company. Because the Board accepted DCNR's evidence as credible and rejected Company's evidence as not credible, it concluded that the boundary was located where DCNR asserted; Company's action to quiet title therefore failed and so the Board dismissed the Complaint. On appeal, Company argues2 that: (1) the Board erred in using a natural monument not described in the original patent and artificial monuments associated with a subsequently conveyed property to identify the location of the boundary line of the Disputed Property; (2) the Board's determination of the boundary line between Warrant 1179 and Warrant 1180 is not supported by substantial evidence; and (3) the Board's finding that there was no settlement agreement between the Commonwealth and a prior record owner of Company's property that established a compromised boundary line (Compromise Line) is not supported by substantial evidence. Although we conclude that the Board did not err on the first two issues, we must vacate the Order and remand for further proceedings for the Board to consider Company's parol evidence regarding the existence of a Compromise Line which it did not consider in its initial determination.
Company filed the Complaint on January 18, 2012, DCNR responded with an Answer with New Matter, and Company filed its answer to the New Matter. Formal hearings were held before the Board in February 2015.3 At the hearings, Company presented documentary evidence and the testimony of its general partner, Robert Sher, and professional land surveyor K. Robert Cunningham, PLS (P.S. Cunningham), whom Company offered as an expert witness. DCNR presented documentary evidence and its own expert witnesses, Rodger O. Cook, PLS (P.S. Cook) and Justin J. Daubert, PLS (P.S. Daubert). The documentary evidence included the original Patents for Warrant 1179 and Warrant 1180,4 a current survey by P.S. Cunningham and five historical surveys of Warrant 1179 and Warrant 1180, deeds, current and historic maps, computer-aided design (CAD) calculations and drawings, tax records, photographs, and surveyors' notes. From that evidence, the Board found the following facts.
Warrants were issued to Charles Willing on April 21, 1792 for adjacent, rectangular parcels of land of approximately 1,100 acres each in what became Tioga County. Both Warrant 1179 and Warrant 1180, which share a north/south border, were surveyed by James Ellis (Surveyor Ellis) in June 1793. These surveys (Ellis Surveys) showed that each parcel was “432 perches along the east/west axis and 431 ½ perches along the north/south axis, and the common boundary was marked by a birch tree to the west and a beech tree to the east.”5 (Final Adjudication, Findings of Fact (FOF) ¶ 4.) In his accompanying drawing, Surveyor Ellis identified “a waterway crossing the western side of Warrant 1179 very close to the northwest corner.” (Id.¶ 5; R.R. at 719a.) The Ellis Surveys were not returned to the land office until March 1806. Mr. Willing transferred Warrant 1179 and Warrant 1180 to William Bingham, who owned significant amounts of surrounding real estate, in July 1793. Mr. Bingham died in 1804, and the Bingham Estate became the common owner of Warrant 1179 and Warrant 1180. (FOF ¶¶ 6-7.) The Bingham Estate received the Patents for Warrant 1179 on May 26, 1806, and for Warrant 1180 on May 26, 1807. The Patent for Warrant 1179 does not reference any waterways in describing the property, but does refer to various trees at the corners of the property, courses from each of those trees, and that Warrant 1179 runs “thence by land of John Barron.” (R.R. at 724a.)
The Bingham Estate proceeded to convey various portions of Warrant 1180 and Warrant 1179, including approximately 48.5 acres, identified as Lot 67, to Martin Repherd by deed dated June 1, 1850 (Repherd Tract). (FOF ¶ 8; R.R. at 727a.) Various maps show the Repherd Tract straddling Warrant 1179 and Warrant 1180. (Id.¶ 29; R.R. at 731a, 760a, 1043a, 1123a, 1125a, 1322a, 1362a, 1366a-67a, 1459a.) Thereafter, on December 28, 1875, the Bingham Estate conveyed land, including the unsold remainder of Warrant 1180, to the Blossburg Coal Company (Blossburg) without performing a survey. (FOF ¶¶ 10-11.) The deed to Blossburg (Blossburg Deed) referenced the Repherd Tract as abutting Warrant 1180's southern border on its eastern and western borders. (Id.; R.R. at 918a.) Blossburg transferred its interests in Warrant 1179 and Warrant 1180 to the Commonwealth by deed dated November 10, 1954, and recorded November 12, 1954. (FOF ¶ 12; R.R. at 957a, 965a.) Prior to the sale, in October 1952, Allen R. Fine, Jr. (Surveyor Fine) surveyed the area at the direction of John C. Rex, P.E. (Fine Survey). (FOF ¶¶ 13, 16.) The Fine Survey supports the finding “that the northern edge of the disputed area constitutes the boundary between Warrant 1180 and Warrant 1179, because [Surveyor Fine] found stone piles at the endpoints of this line consistent with the corners of the ... Repherd [Tract] and property to the east of that lot.” (Id.¶ 13.) In particular, Surveyor Fine “found a stone pile marking the northern-western corner of the ... Repherd [Tract] approximately 50 rods north of a stone pile he found marking the boundary between Warrants 1180 and 1179 [that] abutted against the western side of the ... Repherd [Tract], and he found a stone pile along that same line at the eastern side of the ... Repherd [Tract].” (Id.¶ 14.) The Fine Survey also “shows a waterway crossing the western boundary of Warrant 1179 ... near [its] northwest corner.” (Id.¶ 15.)
The Bingham Estate conveyed, without a survey, the unsold portions of Warrant 1179 to William, Oliver and Mark Hoyt (the Hoyts) on June 23, 1882. (Id.¶¶ 17-18.) This deed (Hoyt Deed) likewise mentioned the Repherd Tract in relation to the southern border of Warrant 1180. (Id.¶ 17; R.R. at 729a.) Through various deeds and tax sales between 1893 and 2001, these portions of Warrant 1179 were conveyed to multiple, successive owners, with Company eventually purchasing the land in 2001. (FOF ¶¶ 19-28, 38-40, 44.) The deeds continued to reference the southern line of Warrant 1180 abutting the Repherd Tract. (Id.¶¶ 21, 24, 26-28.) At one point, in August of 1952, the owner of Warrant 1179 conveyed a portion of property along its southern edge to an adjoining landowner to form a consented boundary. (FOF ¶ 37.) In 1969, the Commonwealth and the owner of Warrant 1179 at the time, L.G. Niles Lumber Company (Niles), discussed a possible compromise line that would run diagonally from the upper left to the lower right of the Disputed Property. (Id.¶ 45.) There was no deed executed and recorded reflecting that a settlement was reached and that land was transferred, but the alleged compromise line did appear in the Township's Tax Map, and the tax card for Mr. Niles suggested that a reduction of property had occurred. (Id.; R.R. at 1321a-22a.) Further, photographs were offered at the hearings that showed white paint marks or blazes on trees and rocks that would have been consistent with the Compromise Line asserted by Company. (R.R. at 1170a-1205a.)
In addition to the Ellis Surveys and Fine Survey, surveys of the area were performed in: 1910 by L.M. Otto, Jr. (Otto Survey); 1952 by Tom O. Bietsch (Bietsch Survey); 1998 by Boyer Kantz, PLS (Kantz Survey) (of the southern boundary of Warrant 1179); and 2004 by P.S. Cunningham (Cunningham Survey). (FOF ¶¶ 22-23, 31-36, 41-43, 49-52.) All the surveys, except the Bietsch Survey and the Cunningham Survey, show a waterway crossing the western border of Warrant 1179 near its northwestern border and reference the stone piles along the Repherd Tract at the southern boundary of Warrant 1180. (Id.¶¶ 5, 15, 23, 42, 48.) In contrast, the Bietsch Survey shows the water crossing significantly south of the northwestern border of Warrant 1179, the Cunningham Survey does not show a waterway crossing Warrant 1179 at all, and neither survey references the Repherd Tract. (Id.¶¶ 33, 36, 51-52; R.R. at 804a, 1043a.) After counsel for the owner of Warrant 1179 in 1952 could not “locate ... a definite point whereby [Surveyor Bietsch] would be able to fix the Northern line of Warrant ... 1179,” Surveyor Bietsch placed the northern line 431 ½ perches/rods “north of the identified southern line without any reference to the ... Repherd [Tract] and showed this boundary of [Warrant 1179] as a single straight line.” (FOF ¶¶ 32-33.) The Cunningham Survey relied on the Bietsch Survey. Mr. Sher presented CAD calculations that showed the waterway crossing Warrant 1179's western border south of the Disputed Property and significantly south of the northern boundary of Warrant 1179. (Id.¶ 48; R.R. at 916a.)
The experts testified as follows. P.S. Cunningham testified, based on his survey, the Bietsch Survey,...
To continue reading
Request your trial