J.S15043/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


EDYTHE H. BOSSERT TRUST,                    :     IN THE SUPERIOR COURT OF
C/O TRUSTEES W. MAX BOSSERT, JR.,           :          PENNSYLVANIA
THOMAS H. BOSSERT, AND SUSAN                :
HANNEGAN, LIVING THRUSTEES,                 :
                                            :
                  v.                        :
                                            :
PATRICK O. MCGHEE,                          :
                                            :     No. 1124 MDA 2013
                          Appellant         :


                       Appeal from the Decree June 3, 2013
                 In the Court of Common Pleas of Clinton County
                           Civil Division No(s).: 144-12

BEFORE: BOWES, OLSON, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED DECEMBER 30, 2014

        Appellant, Patrick O. McGhee, appeals from the decree entered in the

Clinton County Court of Common Pleas in favor of Appellees, Edythe H.

Bossert Trust, c/o Trustees W. Max Bossert, Jr., Thomas H. Bossert, and

Susan Hannegan, Living Trustees, in this action to quiet title.1      Appellant

contends the court erred in finding the boundary line between the parties’

properties is a standard wire fence, depicted in a 1917 railroad map, which

is no longer standing. We affirm.



*
    Former Justice specially assigned to the Superior Court.
1
 Appellant purports to appeal from the March 11, 2013 preliminary decree
and the June 3, 2013 decree. The March 11th decree was not the final
decree. See Pa.R.A.P. 341(a). Therefore, we have amended the caption.
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      The trial court summarized the procedural posture and facts of this

case as follows:

            Before us is a quiet title action filed by [Appellees on
         February 8, 2012] with respect to a small parcel of land in
         Beech Creek Township which [Appellees] contend was
         acquired by them through a conveyance from the Fearon
         Estate in 1992. [Appellant] claims ownership of the same
         parcel through Deed from the Beech Creek Railroad
         Company and the Penn Central Corporation in 1978.
         [Appellant] filed an Amended Answer and Counterclaim
         seeking quiet title, ejectment, trespass, and a request for
         injunction. [Appellees] responded by filing an Amended
         New Matter and Counterclaim seeking attorney’s fees,
         court costs, and surveyor’s costs, in addition to their claim
         for damages for removal of soil contained in their original
         Complaint.

Prelim. Decree, 3/12/13, at 1.

      Robert Ohl testified at trial as an expert for Appellant. N.T., 2/26/13,

at 26. He testified on cross-examination, inter alia, as follows:

         [Counsel for Appellees]: Now, when you do surveying
         work, do you look for spikes and pipes and pins?

         A: Yes. I look for any monumentation that it calls for in
         the survey.

         Q: Did you look for old fence wire?

         A: Yes. There is, . . . , marking trees with barbed wire on
         what we found and also [a] fence post on the property
         line between [Appellees’] and Day’s . . . .

         Q: That fence line that you found, that was strictly on the
         old fence wire between Day and [Appellees], correct?

         A: Day and [Appellees] and [Appellant].

Id. at 39-40 (emphasis added).



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        Kerry Uhler testified as an expert for Appellees regarding his survey of

the property:

           [Counsel for Appellees]: And in this corner of [Appellees’]
           property, what kind of monuments and boundaries did you
           find in relationship to the survey?

           A: We found possession in the manner of occupation and
           use of a significant portion of the area for agricultural
           purposes.     Beyond that, we found very little
           monumentation other than the standing stone . . .

           Q: What about trees and brush?

           A: There are significant trees, brush, and we’ll say debris
           toward the northern portion of the disputed area.

                                   *    *    *

           Q: That 1896 deed describes woven wire and smooth wire;
           does it not?

           A: Yes, sir, it does.

           Q: Can you tell the Court the significance of that?

           A: The reference to woven wire is just the same as any
           other monumentation. Survey is an attempt to retrace the
           original surveyor’s footsteps.     Any reference by a
           stream, an iron pin, a stone, fence, those are all
           monuments. The original deed from . . . Annie Fearon, to
           the railroad[2] in 1896 referenced a fence which would be
           installed by and maintained by the railroad. We have
           found that fence was installed at the described location to
           the west of Maple Avenue, but it was not installed at
           the─to every piece of information we found, it was not
           installed at the described location to the east of Maple
           Avenue in the disputed area.

                                   *    *    *

2
    The railroad is the Beech Creek Railroad Company. Id. at 89.



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           . . . I found historic documentation showing that there
           actually was a fence installed at the location that we
           are calling the property line, which is the same
           location Warren Ohl surveyed.[3]

                                   *    *    *

           Q: Tell the court when [Appellant’s Exhibit K, a right-of-
           way and tract map of the Beech Creek Railroad] was
           prepared.

           A: This document was prepared in June of 1917. . . .

           Q: Of the entire length in the area in question and beyond?

           A: Yes, sir.

           Q: Can you show the Court where the disputed area is?

           A: The disputed area─

           The Court: Is marked with a number 5.

           The Witness: Yes, sir. Right in the area marked number 5.

                                   *    *    *

           [Counsel for Appellees]: What are we looking at there?
           What do you see there?

           A: What I’m looking at there─well, I see the area in
           question is delineated by the railroad as according to
           historical documentations. When I look down very close to
           the south line of the original 66 foot right-of-way, I see it
           labels fence there. It says STD for standard wire
           fence. . . .       So it appears to me the railroad
           constructed their fence line in the current location of
           the property line . . . .

Id. at 91-93, 94, 95-96 (emphases added).


3
    Warren Ohl, an engineer and surveyor, was Robert Ohl’s uncle. Id. at 34.



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      There was an aerial photo taken in 1938 which showed “a very fine

and clear line . . . which is indicative of what a maintained fence line looks

like in an aerial photo.” Id. at 99.

         [Counsel for Appellees]: Now, is this aerial photograph, the
         1938 aerial photograph, and where the fence line
         appears to be in that photograph consistent with
         Warren Ohl’s survey?

         A: Yes, it is.

         Q: Is it consistent with [Appellees’] boundary line?

         A: Yes, it is.

                                 *     *     *

         Q: So that I’m clear, when you’re doing surveying, do
         monuments like fence lines control over legal descriptions?

         A: In the situation of a division of land where land is
         divided and described in a deed and the original division of
         that land on the ground as witnessed by monuments do
         not agree, those monuments will prevail over the
         written documentation.

         Q: Is a fence line a monument?

         A: Yes, it is.

         Q: So based upon all of the things that you’ve done, the
         actual being present on site on more than one occasion, I
         believe─

         A: Yes, sir.

         Q: ─reviewing everything that you’ve reviewed, including
         that 1896 deed and reviewing all of the photographs and
         all of the surveys, what is your opinion within a
         reasonable degree of certainty as to who owns this
         disputed land?



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         A: . . . It is my opinion that the title to that land never
         transferred to the railroad as the railroad monumented
         their line further north at that point. And, therefore, that
         [disputed] land remains with [Appellees].

         Q: Fearon and then [Appellees]?

         A: Fearon and then [Appellees], yes, sir.

Id. at 100, 101 (emphases added).

      The trial court found that Appellees were “the owners of all land lying

south of the location of this standard wire fence. Because [they] have failed

to establish their claim for adverse possession of land lying north of the

standard wire fence, their claim of ownership fails.” Prelim. Decree at 3-4.

Accordingly, the court directed Uhler to “amend his survey to eliminate from

[Appellees’] claim land lying to the North of the ‘std. wire fence’ line set

forth on [Appellant’s] Exhibit K-1 and submit his modified survey to the

Court for the entry of a final Decree.” Id. at 4.

      On April 25, 2013, Uhler submitted a revised survey which the court

found established the boundary line. Decree, 6/4/13, at 1. Appellant filed a

motion for reconsideration. On June 4, 2013, the court denied the motion

for reconsideration and entered a final decree establishing the boundary line

and awarding Appellees damages.        Appellant’s motion for post-trial relief

was denied.    This timely appeal followed.    Appellant filed a court-ordered

Pa.R.A.P. 1925(b) statement of errors complained of on appeal.          The trial

court’s Rule 1925(a) statement relied upon its prior decrees.

      Appellant raises the following issues for our review:


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         I. Did the court err in finding that the boundary line
         between the parties’ properties should be in the location of
         a standard wire fence noted on a railroad map dated June
         30, 1917, instead of in the location of the actual boundary
         line clearly shown on the same map and as described in
         the deeds in the chain of title of [Appellant]?

         II. Did the court err in awarding [Appellees] twelve
         hundred dollars ($1,200.00) when there was no testimony
         or evidence offered at trial to enable the factfinder to
         determine the amount or the value of the topsoil/fill
         removed from the property the court awarded [Appellees].

Appellant’s Brief at 5.

      First, Appellant argues the trial court erred in determining “that the

proper location of the boundary line separating the parties’ property should

be in the location of where a standard wire fence was shown to be on a

railroad map dated June 30, 1917 and revised December 31, 1955.” Id. at

16. Appellant contends “[t]he fence was not a monument on the ground

to control over a metes and bounds description in the Deed.” Id. at

17 (emphasis added).      He maintains, “The standard wire fence does not

exist today nor was it ever in existence at any point where any of the parties

saw evidence of a fence in that location.” Id. Appellant avers that instead,

the October 6, 1896 deed in his chain of title from Fearon to the Railroad

shows the proper boundary line between the properties. Id. at 24.        We find

no relief is due.

      “The question of where a boundary line actually is located is a question

for the trier of fact. Where, as here, the trial court sat as the fact-finder, we

will not reverse on appeal unless the court’s findings are not supported by


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credible evidence.” Schimp v. Allaman, 659 A.2d 1032, 1034 (Pa. Super.

1995) (citations omitted).      “Further, the test is not whether we, the

appellate court, would have reached the same result had we been acting as

the hearing judge who saw and heard the witnesses, but whether a judicial

mind, on due consideration of the evidence, as a whole, could reasonably

have reached the conclusion of the chancellor.” Barthelmes v. Keith, 732

A.2d 644, 646 (Pa. Super. 1999) (citation omitted).

     “The general rules to be applied in boundary cases were set forth in

Walleigh v. Emery, [ ] 163 A.2d 665, [667 (Pa. Super. 1960),] as follows:

‘Courses and distances in a deed must give way to monuments on

the ground.’       Merlino v. Eannotti, [110 A.2d 783. 787 (Pa. Super.

1955)].”    Baker v. Roslyn Swim Club, 213 A.2d 145, 148 (Pa. Super.

1965) (emphasis added).        “As a general rule, where there is a conflict

between courses and distances or quantity of land and natural or artificial

monuments, the monuments prevail.” Pencil v. Buchart, 551 A.2d 302,

306 (Pa. Super. 1988) (emphasis added).

     Instantly, the trial court reasoned:

              With respect to the respective cross-claims for adverse
           possession, we are not satisfied that either party has
           established adverse, hostile, notorious, and exclusive
           possession. While [Appellees’] Exhibit 2, aerial photos in
           the 1930’s and 1970’s, suggests tree lines enclosed the
           area in dispute on [Appellees’] side of the trees, the
           testimony establishes that, at least with respect to the
           northern portion of the area in dispute, that area was used
           for miscellaneous purposes by both parties. With respect
           to the southern portion of the area in dispute, it is clear


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       from the aerial photographs that much of that area has
       historically been farmed by [Appellees] and their
       predecessors.

          With respect to [Appellees’] claim, we accept generally
       the survey of Alan Uhler ([Appellees’] Exhibit 1) which
       establishes the area in dispute as lying entirely within
       [Appellees’] parcel.    On the other hand, we cannot
       ignore the presence of a “standard wire fence”
       which was in existence in 1917. We find that fence
       to be the most significant factor in this dispute as
       discussed hereafter and base our Decree on the location of
       that fence in conjunction with the Uhler survey.

          After consideration of all of the exhibits presented to us,
       we believe the area in dispute is designated as Parcel 5 on
       the right-of-way and tract map of the Beech Creek
       Railroad dated June 30, 1917 ([Appellant’s] Exhibit K).
       That map references Parcel 5 as . . . the premises
       conveyed to the Beech Creek Railroad Company by Annie
       W. Fearon, et al., dated October 6, 1896, and recorded in
       Clinton County Deed Book 43, Page 847. That Deed
       begins at the dividing line between Fearon and William
       McAlmont on the southern boundary line of the right-of-
       way of the railroad thirty-three (33) feet at right angles
       from the center line. The parties seem to be in agreement
       that the parcel currently owned by Michael Day is the
       McAlmont parcel. The sixty-six (66) foot right-of-way in
       question we believe to be the area contained in a land
       release obtained in the 1880’s.        In previous litigation
       between Day and [Appellant], we determined [Appellant
       and Debra McGhee, his wife] have no fee simple interest in
       the land release parcel, only a prescriptive easement, a
       decision which was affirmed by the Superior Court.[4]

          From the beginning point of the 1896 Deed, the call is a
       “curved line to the right with a radius of 3,853 feet (148
       feet) to a point in the westerly line of the public road
       leading from Lock Haven to Beech Creek” and thereafter
       23 feet along said public road. The documents submitted

4
  Day v. McGhee, 878 MDA 2008 (unpublished memorandum) (Pa. Super.
Feb. 2, 2009).



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        by [Appellant], prepared by H. Richard Ohl, Registered
        Surveyor, dated January 3, 1978, and Robert Ohl,
        Registered Surveyor, dated November 17, 2011, do not
        reflect a “curved line” nor do they designate the location of
        the 23 feet. The 1896 Deed then travels in a westerly
        direction along the railroad right-of-way to land of Joseph
        Merry, then in a southerly direction 381/2 feet, thence back
        in an easterly direction to another “curved line to the left
        with a radius of 3,903 feet (228 feet) to the lands of
        McAlmont.” The final call is North 37 degrees 50 minutes
        West 55 feet to the point of beginning. This call could
        conceivably be the 56.6 feet set forth in the Richard Ohl
        and Robert Ohl surveys if one ignores the two separate
        calls for a “curved line.”

           What is interesting about [Appellant’s] Exhibit K-1, [an
        enlarged] portion of [Appellant’s] Exhibit K, is that the
        placement of a “std. wire fence” extending from the
        roadway to the McAlmont line and beyond is clearly
        designated. . . .

Prelim. Decree, 3/12/13, at 1-3 (emphases added).

     Instantly, the trial court found the boundary between the parties’

properties was established by Appellees’ expert Uhler’s survey.         Decree,

6/4/13. The trial court agreed with Uhler that the standard wire fence was a

monument and it prevailed in the instant land dispute. Prelim. Decree at 2.

The court concluded the “fence [was] the most significant factor in this

dispute . . . and based [its] Decree on the location of that fence in

conjunction with the Uhler survey.” Id. We agree. See Pencil, 551 A.2d

at 306; Baker, 213 A.2d at 148.

     Appellant asks this Court to find his expert witnesses more credible.

The trial court was the finder of fact and concluded Appellees’ expert was




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more credible.     We find the court’s conclusion was reasonable.        See

Barthelmes, 732 A.2d at 646; Schimp, 659 A.2d at 1034.

     Lastly, Appellant contends there was insufficient evidence to enable

the court to determine that Appellees should be awarded $1,200 for the

material he removed from the disputed area. Appellant’s Brief at 25.

     As a prefatory matter, we consider whether Appellant has waived this

issue. The “failure to develop an argument with citation to, and analysis of,

relevant authority waives that issue on review.”   Harris v. Toys “R” Us-

Penn, Inc., 880 A.2d 1270, 1279 (Pa. Super. 2005). Instantly, Appellant

fails to cite any legal authority in support of this issue; therefore, it is

waived. See id.

     Decree affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/30/2014




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