Thompson v. Maryland and Pennsylvania R.R. Preservation Soc.

• Decision Date: 30 June 1992
• Citation: 612 A.2d 450,417 Pa.Super. 216
• Parties: Richard E. THOMPSON and Darlene I. Thompson, His Wife v. The MARYLAND AND PENNSYLVANIA RAILROAD PRESERVATION SOCIETY, Appellant.
• Court: Pennsylvania Superior Court

Page 450

612 A.2d 450

417 Pa.Super. 216

Richard E. THOMPSON and Darlene I. Thompson, His Wife v. The MARYLAND AND PENNSYLVANIA RAILROAD PRESERVATION SOCIETY,

Appellant.

Superior Court of Pennsylvania.

Argued April 8, 1992.

Filed June 30, 1992.

Steven M. Hovis, York, for appellant.

Ronald L. Hershner, York, for appellees.

Vincent E. Duane, pro se.

Christopher R. Cook, pro se.

Before OLSZEWSKI, BECK and HOFFMAN, JJ.

HOFFMAN, Judge.

This is an appeal from judgment entered August 8, 1991, denying the Maryland and Pennsylvania Railroad Preservation Society's ["Preservation Society"] post-verdict motions, and upholding a jury verdict finding that Preservation Society did not have an interest in the property which was the subject of the dispute. Preservation Society contends that the trial court erred (1) by not allowing the society to introduce evidence on the issue of whether the railroad owned a fee simple interest; (2) by not granting Preservation Society's motion for a directed verdict; (3) by not entering judgment notwithstanding the verdict; (4) by committing reversible error in its jury instructions; and (5) by mischaracterizing the Preservation Society's predecessor's interest in the disputed property. For the following reasons, we reverse. ¹

The instant dispute involves a portion of land in which the Maryland & Pennsylvania Railroad Company ("M & P") possessed a right of way interest conveyed to them by Elizabeth Shaul in 1872. ² The property through which the right of way passes is now owned by Richard and Darlene Thompson ["the Thompsons"], appellees herein. Specifically, this dispute arises out of M & P's quitclaiming its interest in an eight-mile stretch of the railroad to Preservation Society, which organized to oppose dismantlement of the railway after M & P had terminated service on the line and begun to remove the tracks.

M & P operated a passenger and freight railway service until the early 1980s, when the service was discontinued. In February 1985, M & P petitioned the Interstate Commerce Commission ("ICC") for permission to abandon service on that line. ³ That petition was granted in 1986. M & P then sought to sell the line, but was unable to do so. Thus, M & P entered into a Salvage Agreement with Pohl Corporation ("Pohl") in September 1986, under which M & P sold to Pohl all of the tracks and rails for scrap value. Pohl began removing the tracks starting from both ends. Additionally, M & P began issuing quitclaim deeds to other land owners adjoining the Thompsons along the length of the right of way, thus clearing itself of the rights of way that it had acquired across private property for operation of its railroad.

During this time, Preservation Society, concerned with maintaining the railroad's historical value, organized to oppose dismantlement of the railroad. Preservation Society approached M & P with a plan to purchase an eight-mile stretch of the railroad, a portion of which is situated on the Thompsons' property. M & P advised Preservation Society to contact Pohl, who agreed to refrain from removing the eight-mile stretch of track if Preservation Society paid Pohl the profit it would have realized from the track's salvage value. On May 18, 1987, M & P executed a quitclaim deed conveying to Preservation Society its interest in the eight-miles of land.

The Thompsons brought an action to quiet title on January 4, 1988, in the Court of Common Pleas of York County. A jury trial was conducted on February 4-6, 1991. At the conclusion, a verdict was rendered for the Thompsons. Preservation Society's post-trial motions were filed and denied. This timely appeal followed.

Preliminarily, we note that when reviewing a trial court's decision in a quiet title action, an appellate court must determine whether the findings of fact that led to the legal conclusion of abandonment of a property interest were supported by competent evidence. Leet v. Vinglas, 366 Pa.Super. 294, 298, 531 A.2d 17, 19 (1987) (citing MacCurdy v. Lindey, 349 Pa. 655, 658, 37 A.2d 514, 516 (1944)), appeal denied, 518 Pa. 626, 541 A.2d 1138 (1988). Ordinarily, an appellate court will not reverse a determination of the trial court in a quiet title action absent an error of law or capricious disregard of the evidence. Klebach v. Mellon Bank, 388 Pa.Super. 203, 207, 565 A.2d 448, 450 (1989), appeal granted, 527 Pa. 647, 593 A.2d 420 (1990).

I.

Preservation Society first contends that the lower court erred by not allowing it to introduce evidence at trial on the issue of whether M & P owned a fee simple interest in the disputed property. The trial court entered an order on October 2, 1990 following a hearing, in which it found as a matter of law that the interest conveyed to M & P was not a fee simple interest, but rather a right of way. See Order, October 2, 1990, at 2.

We cannot consider whether this order was correct, as Preservation Society did not raise the issue in post-trial motions, nor did the trial court address it in its opinion. Thus, Preservation Society has failed to preserve it for our review. See Pa.R.Civ.P. 227.1(b)(2); Pa.R.A.P. 302(b). See also Bryant v. Girard Bank, 358 Pa.Super. 335, 344, 517 A.2d 968, 973 (1986).

II.

Preservation Society next contends that the trial court erred by denying its motion for a directed verdict. Specifically, Preservation Society argues that the Thompsons did not present sufficient evidence to satisfy the two-prong test establishing abandonment. This claim is without merit.

Initially, we note that "[i]n reviewing the grant or denial of a motion for a directed verdict, we must determine if 'an abuse of discretion or error of law which controlled the outcome of the case occurred'.... If so, only then will we reverse." Fleck v. Timmons, 374 Pa.Super. 417, 426-27, 543 A.2d 148, 153 (1988) (quoting Bucchianeri v. Equitable Gas Company, 341 Pa.Super. 319, 328, 491 A.2d 835, 840 (1985)). In deciding a motion for a directed verdict, the trial court must consider the facts in the light most favorable to the party against whom the motion is made and must accept as true all evidence which supports that party's contention and must reject all adverse testimony. Cooke v. Travelers Ins. Co., 350 Pa.Super. 467, 471, 504 A.2d 935, 936 (1986) (citations omitted).

Moreover, "[t]he determination of whether a railroad has actually abandoned its right of way by acting upon and effecting its expressed intention to abandon is a question for a jury to decide." Quarry Office Park Assoc. v. Philadelphia Electric Co., 394 Pa.Super. 426, 437, 576 A.2d 358, 363 (1990) (citations omitted). Thus, a directed verdict may be granted only where the facts are clear and there is no room for doubt. Cooke v. Travelers Ins. Co., supra, 350 Pa.Super. at 471, 504 A.2d at 936.

In order to find that a right of way has been abandoned, there must be an intention to abandon, accompanied by external acts by which the intention is carried out. Quarry, supra, 394 Pa.Super. at 437, 576 A.2d at 363. This court has further stated:

It is well established in Pennsylvania law that in order to show an abandonment of a right-of-way or easement created by deed, the evidence must clearly show some conduct on the ground by the holder of the right-of-way which manifests that he intended to abandon and give up permanently his right to use it. Such conduct must consist of some affirmative act on his part which renders use of the easement impossible, or of some physical obstruction of it by him in a manner that is inconsistent with its further enjoyment.

Sabados v. Kiraly, 258 Pa.Super. 532, 535, 393 A.2d 486, 487-88 (1978) (emphasis in original) (quoting Hatcher v. Chesner, 422 Pa. 138, 221 A.2d 305 (1966)).

The Thompsons introduced the following evidence to prove abandonment:

(1) testimony by Alfred Smith, President of M & P, regarding the company's successful application to the ICC to abandon its rail line from Delta to York, the line that is the subject of the instant case. See N.T., February 4-6, 1991, at 54.

(2) testimony of Walter Pohl, President of Pohl Corporation, regarding the salvage agreement between Pohl and M & P. Id. at 127-28.

(3) testimony of Alfred Smith regarding the other property owners along the rail line seeking quitclaim deeds, and the letter that M & P sent to those property owners, as well as to appellees, regarding the procedure to be followed by each respective owner of property through which a right of way ran, in order to obtain a quitclaim deed. Id. at 64-71.

(4) authenticated photographs of the disputed portion of the rail line which had become overrun with weeds and brush. Id. at 338-39.

(5) testimony of Alfred Smith that the salvage agreement was intended to apply to the entire thirty-three miles of track, and that Pohl had begun dismantlement of the M & P tracks pursuant to the salvage agreement. Id. at 58, 61-62.

We must now consider whether this evidence was sufficient to raise a question of fact for the jury as to whether M & P abandoned its interest in the right of way running through the Thompsons' property.

A certificate of abandonment issued by the ICC may be evidence of intent to abandon. Lacy v. East Broad Top R.R. & Coal Co., 168 Pa.Super. 351, 359, 77 A.2d 706, 710 (1951). When such evidence is presented, a question of fact is raised for the jury as to whether the holder of the right of way interest intended to abandon that interest. Quarry, supra, 394 Pa.Super. at 439, 576 A.2d at 364.

Similarly, the evidence that M & P entered into the salvage agreement with Pohl and that it had begun to execute quitclaim deeds to other property owners along the line raises a question of fact as to M & P's intent to abandon. The salvage agreement provided for the purchase, dismantlement and removal of "facilities, equipment, structures, and/or material." Salvage Agreement, September 22, 1986, at 1 p 1. Specifically, Pohl was hired as an independent contractor to remove trackage, cut...