Moore v. Duran

• Decision Date: 12 February 1997
• Citation: 687 A.2d 822,455 Pa.Super. 124
• Parties: William M. MOORE and Richard L. Moore, Appellants (at 148). v. Timothy P. DURAN and Victoria Duran, His Wife. William M. MOORE and Richard L. Moore v. Timothy P. DURAN and Victoria Duran, His Wife, Appellants (at 217).
• Court: Pennsylvania Superior Court

Page 822

687 A.2d 822

455 Pa.Super. 124

William M. MOORE and Richard L. Moore, Appellants (at 148). v. Timothy P. DURAN and Victoria Duran, His Wife.

William M. MOORE and Richard L. Moore v. Timothy P. DURAN and Victoria Duran, His Wife, Appellants (at 217).

Superior Court of Pennsylvania.

Argued Oct. 2, 1996.

Filed Dec. 4, 1996.

Reargument Denied Feb. 12, 1997.

Arthur M. Wilson, Washington, for Moore.

John W. McCreight, Washington, for Duran.

Before KELLY, JOHNSON and OLSZEWSKI, JJ.

JOHNSON, Judge.

In these cross-appeals, we are asked to determine the propriety of the Order dated December 29, 1995, finalizing the decree nisi that barred Timothy P. and Victoria Duran (the Durans) from asserting any right to certain land located in Washington County, Pennsylvania. The order in question found that title to the disputed property properly resided in William M. and Richard L. Moore (the Moores). The Order also granted the Durans a prescriptive easement over a portion of the disputed land for the purposes of ingress and egress. We find that the court did not err in amending the final decree to include an easement in favor of the Durans on the property in question. In addition, we find that the Durans have failed to establish continuous possession of the tract for the required twenty-one year period which is necessary to establish adverse possession. Accordingly, we affirm the order in all respects.

This appeal began as a quiet title action filed by the Moores in December 1993. The Moores own three tracts of land in Smith Township, Washington County; one tract consists of a 150 acre farm that shares a common boundary with the Durans' 110 acres that they have used to raise and pasture cattle. The disputed parcel of land is a triangular section consisting of .534 acres, enclosed by a fence on two sides, and contains access to an unused township road leading into the Duran residence. Moore is the record owner of the six-acre parcel of land that includes the .534 acre section in dispute. In November 1993, Timothy Duran noticed Richard Moore hunting on this disputed section of land inside the fence, and informed Moore that he was trespassing on Duran's property.

As a result, the Moores filed an action to quiet title to the six-acre parcel of land. The Durans defended the action by asserting that they held a prescriptive easement over the former township road leading into their property, and that they had acquired title to the disputed .534 acres through adverse possession. Following a bench trial, the court entered a decree nisi that declared the Moores to be the owners of the .534 acre section of property in dispute, free and clear of the Durans' claims. The decree nisi did not mention any prescriptive easement. The Durans filed a motion for post-trial relief, which was argued before the trial court en banc. On December 29, 1995, the en banc court entered an order that denied the Durans post-trial motions but clarified the decree nisi to "grant[ the Durans] continued enjoyment of the former public roadway across the subject premises for purposes of ingress and egress." Both parties have appealed.

The Moores' Appeal at No. 148 Pittsburgh 1996

The Moores contend on appeal that the trial court erred in "clarifying" its decree nisi to include the rights of ingress and egress. The Moores claim that this action by the en banc court denied them the right to present testimony at trial regarding the claimed easement. The Moores maintain that, instead of inserting the easement provision in the final order, the trial court should have ordered a new trial limited to a determination of the easement.

The Moores claim support for their position in Rules 227.1(a)(1) and 1038 of the Pennsylvania Rules of Civil Procedure. Rule 227.1 sets forth the procedures relating to post-trial motions; specifically, section (a)(1) states that following a party's motion for post-trial relief, the trial court may "order a new trial as to all or any of the issues." Pa.R.C.P. 227.1(a)(1). Rule 1038 relates to trials held without a jury. Section (b) of this rule states that "[t]he decision of the trial judge ... shall dispose of all claims for relief." Pa.R.C.P. 1038(b). The Moores argue that when the trial court concluded that it had failed to dispose of all of the Durans' claims for relief, the only recourse available to the court was to conduct a new trial limited to the Durans' claimed easement on the disputed property.

We first note that Rule 227.1 does not require the trial court to conduct a new trial regarding an issue that was not covered by its original decree nisi; rather, this is one of five possible options the trial court has when faced with a motion for post-trial relief. Section (a)(4) of Rule 227.1 specifically provides that the trial court may modify or change a decree nisi after review of a post-verdict motion. Pa.R.C.P. 227.1(a)(4). Neither section of the Rule is mandatory; both are avenues that the trial court may follow when faced with post-verdict motions.

In addition, although the Moores claim that they were denied the right to be heard on this issue, this assertion is belied by the record. In their pleadings, the Durans specifically assert that they are entitled to a prescriptive easement to the lands abutting the former public road or contained within the fences adjacent to such road. Answer and New Matter filed on behalf of Timothy P. Duran and Victoria Duran, filed January 5, 1994, at p 10. The Reply to New Matter filed on behalf of the Moores overlooks this assertion, merely denying that the Durans' have acquired title to the disputed parcel by adverse possession. Reply to New Matter, filed January 21, 1994. The Durans' easement claim is re-asserted in their motion for post-trial relief. See Defendants' Motion for Post-Trial Relief, filed August 8, 1994, at pp 2, 4, and 5.

An easement by prescription arises by adverse, open, continuous, notorious, and uninterrupted use of the land for twenty-one years. Matakitis v. Woodmansee, 446 Pa.Super. 433, 667 A.2d 228 (1995), appeal denied, 545 Pa. 680, 682 A.2d 311 (1996). To establish a prescriptive easement, the proponent of the easement need not prove constant use of the property; the proponent of the easement may instead produce evidence of a settled course of conduct that indicates an attitude of mind on the part of those using the property that such use is the exercise of a property right. Id. at 440, 667 A.2d at 231. Therefore, to establish a prescriptive easement, the Durans must have produced evidence at trial of a settled course of conduct on their part to use this road as an avenue of ingress and egress into their property.

At trial, Timothy Duran testified that, for as long as he could remember (and he had lived on that farm since he was a child), the township road was the right-of-way onto his property. N.T., April 18, 1994, at 26-27. He further testified that cows were driven up the lane and across the property to pasture during the spring and summer months in order to graze. Id. at 40. Timothy Duran's father, Michael Duran, testified that the township road had been leading into this land for a very long time. Id. at 63. Mildred Duran, Michael's wife and Timothy's mother, stated that she remembered chasing the cows down the township road to get them to pasture, beginning when she and Michael Duran first bought the property in 1946. Id. at 72-73. Mildred Duran further testified that she had always obtained access to the property through the old township road. Id. at 76. A neighbor, Doris Yoder, repeatedly referred to the old township road as it was listed on the survey maps as "Tim's driveway." Id. at 85, 89, 90-91.

Richard Moore was the sole witness for the plaintiffs in this case. Moore's testimony on direct examination was limited to his ownership of the six-acre tract of land that included the .534 acre portion in dispute and the location of the boundary line between his farm and the disputed parcel of land. However, Moore was questioned on cross-examination regarding his occupancy of the property and the use of the township road. Id. at 17-22. Moore stated that he was aware that Duran used the road to drive into and away from his home. Id. at 20. Moore also testified to being familiar with the dairy cattle being driven down the road and onto the Duran's farm, as he had helped to do such work when he was a child. Id. at 98.

Based upon this evidence, we conclude that there was ample support for the trial court's conclusion that the easement by prescription had been established. We also find that the trial court acted within the parameters of Rule 227.1 in modifying the decree nisi to include the easement. The Moores had notice of the Durans' claimed easement through the pleadings, and testimony regarding the issue was taken at trial. A new trial limited to the question of the easement was therefore not warranted. Accordingly, we conclude that the Moores' appeal is without merit.

Appeal at No. 148 Pittsburgh, 1996: We AFFIRM.

The Durans' Appeal at No. 217 Pittsburgh 1996

In the cross-appeal, the Durans claim that the trial court erred in granting relief to the Moores in the action to quiet title. The Durans also assert that the court erred in denying their claim of adverse possession to the .534 acre tract of land in question. Specifically, the Durans maintain that the disputed portion of land has been within their sole possession throughout this dispute.

The Durans' allege in their brief to this Court that "the trial court refused efforts by the Durans to compel the Moores to proceed in ejectment of the matters raised by [the] Durans and conducted trial of the matter solely on issues of quiet title." Brief of Timothy P. Duran and Victoria Duran, at 3. A plaintiff in an action to quiet title must be in possession of the land in controversy; if he is not in possession, his sole remedy is an action in ejectment. Plauchak v. Boling, 439...