J-A11006-19

                              2019 PA Super 321

 JAMES M. LANDIS AND DONETTA M.           :   IN THE SUPERIOR COURT OF
 LANDIS                                   :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
 LUTHER H. WILT                           :
                                          :
              v.                          :
                                          :
 ORCHARD GLEN CONDOMINIUM                 :
 ASSOCIATION, INC.                        :
                                          :
                    Appellants            :   No. 1655 MDA 2018

           Appeal from the Judgment Entered November 14, 2018
    In the Court of Common Pleas of York County Civil Division at No(s):
                            2016-SU-002182-93

BEFORE: BOWES, J., OLSON, J., and STABILE, J.

OPINION BY BOWES, J.:                             FILED OCTOBER 23, 2019

      Orchard Glen Condominium Association, Inc. (“the Association”) appeals

from the judgment entered upon the trial court’s order quieting title in a strip

of land in favor of James and Donetta Landis (collectively “the Landises”). We

affirm.

      Luther and Helen Wilt owned land in York County, Pennsylvania, which

they proposed to develop as a residential neighborhood. In 1967, the Wilts’

revised subdivision plan for Smith Gardens was approved by the East

Manchester Township Board of Supervisors and recorded. The recorded plan

included 50-foot-wide Orchard View Drive among the proposed roadways of

the subdivision. The instant action arose from the fact that most of Orchard

View Drive was never opened as a roadway.
J-A11006-19


       The Stonesifers, Donetta Landis’s parents, purchased Lot 45 in Smith

Gardens in 1967. They built a house on the lot, which was known as 55 Lincoln

Place. In 1976, they acquired the lot behind the home: Lot 41 of the Smith

Gardens subdivision plan, which abutted unopened Orchard View Drive. In

2012, the Landises acquired Lots 45 and 41 from the Stonesifers.1           From

1976 onward, the Stonesifers and Landises mowed and fertilized the twenty-

five-foot-wide strip of land behind their property that was to have been one

half of Orchard View Drive (hereafter “Disputed Area”). The Landises also

installed a fence along their property line, separating their yard from

unopened Orchard View Drive.

       Meanwhile, although additional lots and streets were developed

according to the Smith Gardens plan, more than a dozen lots along unopened

Orchard View Drive were not.           Instead, these lots were consolidated2 and

converted into a new subdivision plan for the Orchard Glen Residential

Development.       The Orchard Glen plan was reviewed by the York County



____________________________________________


1 The Landises ultimately combined Lots 41 and 45 into a single lot though a
reverse subdivision plan that was approved and recorded in 2012.

2 Many of the undeveloped lots at issue, including lot 41, were purchased from
the original Smith Gardens developers by the Fitzes in 1974. Although the
deed transferring Smith Gardens land referred to Tracts 1, 2 and 3, these
“tracts” were described both by metes and bounds and by reference to Smith
Gardens lot numbers. Landises’ Answer to Post-trial Motion, 5/14/18, at
Exhibit 2. For example, Tract 1 in the Wilt-to-Fitz deed is described, inter alia,
as “being Lots Nos. 42, 41, 40, 39, 38 and 37 on the Plan of Smith Gardens
. . . .” Id.

                                           -2-
J-A11006-19


Planning Commission in 1997, approved by the East Manchester Township

Board of Supervisors in 1998, and recorded with the Recorder of Deeds. This

new Orchard Glen subdivision entirely subsumed Orchard View Drive in some

places where it combined lots that were on opposite sides of that proposed

street. Where Smith Gardens lots remained on the opposite side of Orchard

View Drive, the Orchard Glen subdivision plan incorporated only the half of

Orchard View Drive abutting its land.     Condominiums were constructed

according to the Orchard Glen plan, and the Association’s half of what would

have been Orchard View Drive was paved and named Yarrow Court.

     For ease of visualization, we offer the following diagram showing the

land occupied by the Orchard Glen condominiums superimposed on the Smith

Gardens plan.




                                   -3-
J-A11006-19


Landises’ Trial Exhibit GG (modified). We also present a modified photograph

of the land at issue.




Association’s Trial Exhibit A.3

       Residents of Orchard Glen condominiums began to use the Smith

Gardens’ half of unopened Orchard View Drive, including the Disputed Area,

for activities such as dog walking and playing ball. N.T. Trial, 2/7/18, at 163-

64. The Association’s landscaper also plowed snow onto the Disputed Area

when there were significant snowfalls. Id. at 172-73.

       Although the Landises acknowledged that their predecessors had never

complained or interfered with anyone’s use of the Disputed Area during the

time they owned lot 41, after they acquired the Stonesifers’ property, they

began to take steps “to exclude people from the disputed land . . . to exert

____________________________________________


3 We have added captions and lines on the photograph solely to aid
understanding of the facts and issues discussed.        The placement is
approximate and does not represent a determination of any boundaries.

                                           -4-
J-A11006-19


their . . . dominion and control over the property.” Findings of Fact, 2/13/18,

at 4-5. For example, the Landises planted bushes, placed “no trespassing”

signs along the edges of the Disputed Area, yelled out the window at people

to stay off the land, called the police when snow was plowed onto the Disputed

Area,4 picked up dog feces that was left in the area and left it at the residence

of an Association board member, and set up motion-activated cameras to

monitor the Disputed Area. N.T. Trial, 2/7/18, at 42, 45-46, 49, 51-52, 134.

       In 2016, the Landises filed a complaint to quiet title, naming the

successors, heirs, and assigns of Smith Gardens developer Luther Wilt as the

defendants. Therein, the Landises alleged that they and their predecessors

exercised exclusive, visible, notorious, distinct, and hostile possession of the

Disputed Area for an uninterrupted period of more than twenty-one years.

Complaint, 8/18/16, at 2. The Association filed a petition to intervene in the

action, claiming that it had used and maintained all or a portion of the Disputed

Area, and that determination of the action could adversely affect its legal

interests. Petition to Intervene, 12/13/16, at 2. Following a hearing, the trial

court determined that the Association showed a prima facie case that it had

an interest in maintaining access to the Disputed Area, and permitted it to

intervene.    Order Allowing Intervention, 10/18/17, at 2-3.     The court also

scheduled a trial on the matter, and provided that the Landises were permitted


____________________________________________


4The bushes that the Landises planted in the Disputed area died as a result
of the Association causing snow to be piled upon them.

                                           -5-
J-A11006-19


to assert a claim that they obtained title to the Disputed Area through the

failure of Orchard View Drive to have been opened as a public road, in addition

to their adverse possession contentions. Order Scheduling Trial, 10/18/17, at

2.

      At trial, the parties offered testimony and exhibits to establish the facts

detailed above regarding the ownership and use of the land at issue. After

the parties’ submission of post-trial briefs, the trial court entered an order

indicating that its verdict was in favor of the Landises, and directing them to

prepare a deed describing the Disputed Area.            Order, 4/19/18.      The

Association filed a timely post-trial motion seeking judgment notwithstanding

the court’s order/verdict, or modification of the order to acknowledge an

easement in favor of the Association. The trial court denied the motion after

entertaining oral argument and briefing by the parties. The Association filed

a premature notice of appeal from the order denying its post-trial motion,

which we treat as an appeal from the judgment upon the trial court’s verdict

subsequently entered on November 14, 2018.          See Pa.R.A.P. 905(5) (“A

notice of appeal filed after the announcement of a determination but before

the entry of an appealable order shall be treated as filed after such entry and

on the day thereof.”). Both the Association and the trial court complied with

Pa.R.A.P. 1925.

      The Association presents two questions for this Court’s consideration,

which we have reordered for ease of disposition:


                                      -6-
J-A11006-19


       A.    Whether [the Association’s] motion to modify the order
       should be granted because the order fails to acknowledge an
       easement of access over the Disputed [Area] in favor of [the
       Association] as an abutting owner?

       B.    Whether [the Association’s] motion for judgment
       notwithstanding the order should be granted because [the
       Landises] should not have been granted title of the Disputed
       [Area] to the center of Orchard View Drive since they did not
       submit into evidence the initial deed for Lot No. 41 (the lot
       abutting the depicted [right of way]) from defendant Wilt into [the
       Landises’] chain of title?

Association’s brief at 4 (unnecessary capitalization omitted).

       We begin with a review of the applicable law.

       Our standard of review in non-jury cases is limited to: a
       determination of whether the findings of the trial court are
       supported by competent evidence and whether the trial court
       committed error in the application of law. Findings of the trial
       judge in a non-jury case must be given the same weight and effect
       on appeal as a verdict of a jury and will not be disturbed on appeal
       absent error of law or abuse of discretion. When this Court
       reviews the findings of the trial judge, the evidence is viewed in
       the light most favorable to the victorious party below and all
       evidence and proper inferences favorable to that party must be
       taken as true and all unfavorable inferences rejected.

Kowalski v. TOA PA V, L.P., 206 A.3d 1148, 1159 (Pa.Super. 2019) (cleaned

up).

       “An action to quiet title is designed to resolve a dispute over the title to

real estate of which the plaintiff is in possession. The plaintiff bringing a quiet

title action has the burden of proof and must recover on the strength of its

own title.” Woodhouse Hunting Club, Inc. v. Hoyt, 183 A.3d 453, 457

(Pa.Super. 2018) (citations omitted). It has long been the law in Pennsylvania

that “where the side of a street is called for as a boundary in a deed, the

                                       -7-
J-A11006-19


grantee takes title in fee to the center of it, if the grantor had title to that

extent, and did not expressly or by clear implication reserve it[.]” Rahn v.

Hess, 106 A.2d 461, 464 (Pa. 1954). It is also well-settled that, “where an

owner of land subdivides it into lots and streets on a plan and sells his lots

accordingly, there is an implied grant or covenant to the purchaser that the

street shall be forever open to the use of the public and operates as a

dedication of them to public use.” Id. at 463.

       In 1889, in an effort “to relieve land upon which streets have been laid

out by the owners, but not used, from the servitude imposed,” legislation was

enacted to limit the time in which a paper road must be opened to retain its

nature as a public thoroughfare.5 Id. The statute, codified at 36 P.S. § 1961,

provides as follows:

       Any street, lane or alley, laid out by any person or persons in any
       village or town plot or plan of lots, on lands owned by such person
       or persons in case the same has not been opened to, or used by,
       the public for twenty-one years next after the laying out of the
       same, shall be and have no force and effect and shall not be
       opened, without the consent of the owner or owners of the land
       on which the same has been, or shall be, laid out.

36 P.S. § 1961.

       However, there is “a clear distinction between the public right of passage

over dedicated streets and the individual rights of property [owners] involved

in such dedication.” Rahn, supra at 464. As the consideration paid for the


____________________________________________


5 “The ‘opening’ of a street occurs when the street is actually graded and
constructed.” Lillo v. Moore, 704 A.2d 149, 153 (Pa.Super. 1997).

                                           -8-
J-A11006-19


lots included the increased value imparted by the access to the land promised

by the laid-out streets and alleys, “while the public easement or right of use

in such lanes or alleys is lost as the result of the passage of such time and

lack of use, the purely private rights of easement of individual property

owners in the plan of lots to use the alley or way [are] not extinguished.”

Riek v. Binnie, 507 A.2d 865, 867 (Pa.Super. 1986) (emphasis in original).

      Although the resulting right of way over the plan’s streets and alleys is

an easement by implication rather than an express easement, the usual

criteria for establishment of an implied easement “do not apply to an

easement by reference to a map or plate, which is a particular type of implied

easement controlled by its own principles.” Potis v. Coon, 496 A.2d 1188,

1192 (Pa.Super. 1985). “References to a plan contained in deeds make

the plan a part of the deed or conveyance and constitute a dedication of

the streets, alleys and ways shown on the plan, to the use of the purchasers

as public ways.” Id. (cleaned up) (emphasis in original). Moreover,

      [t]he rights of a non-abutting property owner within the plan are
      no less than those of a property owner abutting upon the street in
      question. The non-abutting property owner’s rights in the street
      grid of the plan are not limited to those streets which are
      necessary to the enjoyment of his property or which materially
      benefit or add to its value.

Id. at 1193 (cleaned up).

      The owner of the land abutting the unopened road “has the right to

make use of his property as he chooses, if, by so doing, he does not

substantially interfere with the easement.” Dyba v. Borowitz, 7 A.2d 500,

                                     -9-
J-A11006-19


502 (Pa.Super. 1939) (cleaned up). If the landowners abutting the unopened

road interfere with the easement to the extent that the elements of adverse

possession are satisfied,6 the owners may extinguish the private easement

over their half of the unopened road. Estojak v. Mazsa, 562 A.2d 271, 275

(Pa. 1989).

       To extinguish an easement over (or use of) the servient
       tenements, the servient tenement owner must demonstrate a
       visible, notorious and continuous adverse and hostile use of said
       land which is inconsistent with the use made and rights held by
       the easement holder, not merely possession which is inconsistent
       with another’s claim of title.

Id.

       With these tenets in mind, we consider the Association’s claims of error.

The Association first contends that the trial court erred in not including in its

order an indication that the Landises’ interest in the Disputed Area is subject

to an easement in favor of the Association. Association’s brief at 13. It posits

that, as the landowner on the opposite side of unopened Orchard View Drive,

it is the beneficiary of a private right of way pursuant to Rahn, supra, and its

progeny. Association’s brief at 19.

       The Association also asserts that the trial court erred in quieting title in

the disputed area to the Landises based upon insufficient evidence.



____________________________________________


6 “[T]he possession that will acquire title or extinguish an easement must be
actual, continuous, adverse, visible, notorious, and hostile possession of the
land in question for the prescriptive period of twenty-one years.” Estojak v.
Mazsa, 562 A.2d 271, 274 (Pa. 1989).

                                          - 10 -
J-A11006-19


Specifically, it maintains that, in order to establish their title in the half of

Orchard View Drive that constitutes the Disputed Area, the Landises had the

burden to prove not only that their deed referenced Orchard View Drive as a

boundary, but also that the Wilts did not by express reservation or clear

implication reserve that land when Lot 41 was originally conveyed pursuant to

the Smith Gardens subdivision plan. Id. at 9. Missing from the Landises’

proof, the Association contends, was the original Wilt-to-Fitz deed conveying

Lot 41 to the Landises’ predecessors. Id. at 10-11.

      The trial court held that the Association’s first claim of error was not ripe

for disposition. The court questioned whether the Association had “standing

to pursue the easement issue” given that it “did not purchase property subject

to the plot plan set forth” by the Wilts in the Smith Gardens plan. Id. at 7-8.

However, because there was “no evidence that [the Landises] are presently

trying to exclude anyone from the property[,]” the trial court declined to

determine easement rights. Id. at 8.

      Regarding the Association’s second claim, the trial court concluded that,

by offering the 1976 deed that conveyed Lot 41 from the Fitzes to the

Stonesifers and described the lot by reference to the Smith Gardens plan and

Orchard View Drive, and by establishing that the relevant portion of Orchard

View Drive not been opened as a public road, the Landises had presented

sufficient evidence to demonstrate that they had title of the Disputed Area.

Trial Court Opinion, 9/5/18, at 6-7. It further noted that it found no case law


                                      - 11 -
J-A11006-19


that necessitated that the Landises enter the Wilt-to-Fitz deed into evidence,

and that nothing in the record suggested that the Wilts had reserved the right

of way to themselves. Id. at 5-6.

       In addressing whether the trial court’s rulings entitle the Association to

relief, we preliminarily observe that the Association did not intervene in the

instant action to assert that it, rather than the Landises, held title to the

Disputed Area. Rather, it intervened because it sought to preserve its ability

to plow snow from the Orchard Glen roadways into the Disputed Area for the

safety of its residents.      N.T. Trial, 2/7/18, at 172-73.   Not only was the

easement question at issue in the trial, it was the only reason the Association

intervened and a trial was held. Accordingly, we shall consider the substance

of the Association’s easement argument rather than deem it unripe.7

       In resolving the merits of the easement question, we find our Supreme

Court’s decision in Nord v. Devault Contracting Co., Inc., 334 A.2d 276

(Pa. 1975), instructive. In that case, the defendants purchased property that

abutted Mulberry Street pursuant to the Phoenix Heights subdivision plan. A


____________________________________________


7 The Association’s desired use of the Disputed Area—as a place to pile snow—
is not a proper use of a right of way created for ingress and egress. See,
e.g., Kao v. Haldeman, 728 A.2d 345, 349 (Pa. 1999) (“Where an easement
is concerned, . . . the owners of the dominant and servient estates must not
unreasonably interfere with each other’s uses.”); Taylor v. Heffner, 58 A.2d
450, 453 (Pa. 1948) (“An easement cannot be used for a purpose different
from that for which it was created.”). Hence, the Association’s pursuit of this
litigation appears to have been futile ab initio. Nonetheless, we shall proceed
to address whether the Association established any legal interest in use of the
Disputed Area as a right of way.

                                          - 12 -
J-A11006-19


building company subsequently purchased the land on the opposite side of

Mulberry Street and re-subdivided it into the Pennypacker Gardens Plan. The

new subdivision made no reference to Mulberry Street, and instead included

a different street at another location.       The plaintiffs in the case were

homeowners who purchased lots pursuant to the Pennypacker Gardens Plan.

The plaintiffs’ deeds did not mention Mulberry Street or the original Phoenix

Heights Plan. In fact, the Pennypacker Gardens lots were at a “substantially

lower” elevation than the Phoenix Heights properties such that Mulberry Street

“could no longer be used as a right-of-way . . . to supply ingress and egress

to the properties of all plaintiffs and all defendants.”     Id. at 278.       The

defendants sought to open Mulberry Street on level with their properties, but

plaintiffs claimed that it would violate their easement in the right of way.

      The Court noted the general rule of law “merely gives effect to the intent

implicit in the conveyance”: i.e., that “[w]here the property is described by

reference to an abutting driveway, the natural inference and the normal

expectation of the purchaser is that the owner is entitled to use the driveway

for ingress and egress.” Id. at 278. However, nothing in the facts of the case

before it suggested that the plaintiffs had any expectation as to the unopened

Mulberry Street laid out in the Phoenix Heights Plan. On the contrary, the

plaintiffs purchased their lots pursuant to the Pennypacker Gardens Plan; the

record contained no indication that the plaintiffs even knew of the Phoenix

Heights Plan’s reference to Mulberry Street; and the plaintiffs’ developers had


                                     - 13 -
J-A11006-19


graded the land such that Mulberry Street was not usable to the plaintiffs. Id.

Therefore, the plaintiffs had no right of way over Mulberry Street.

      Although not fully square with the facts of the case sub judice, the

principles of the Nord case demonstrate that neither the Association nor the

residents of the Orchard Glen condominiums had any reason to expect that

they were entitled to use the unopened portion of Orchard View Drive

referenced in the Smith Gardens plan. The Association offered no evidence at

trial that it acquired its land through a conveyance that made reference to

Orchard View Drive or the Smith Gardens subdivision plan. The trial court

duly held that the Association did not purchase property subject to the Smith

Gardens subdivision plan. Trial Court Opinion, 9/5/18, at 7. Indeed, at trial,

the Association made a point of establishing that its lands are outside of the

Smith Gardens subdivision. See, e.g., N.T. Trial, 2/7/18, at 35.

      Hence, although the Association’s land, like that of the plaintiffs in Nord,

supra, was once part of a subdivision that called for roads that had not been

opened, it was actually developed pursuant to a wholly new subdivision plan.

Its development did not incorporate Orchard View Drive, but rather utterly

abandoned the roadway grid set forth in the Smith Gardens plan and

established new means of ingress and egress to the residences at altered

locations.

      As is clear from the map reproduced on page 3 supra, the Orchard Glen

plan does not contemplate any right of way in favor of the Smith Gardens


                                     - 14 -
J-A11006-19


landowners over those unopened portions of Orchard Drive and Merino Drive

that were “taken in” by Orchard Glen from Smith Gardens. We see nothing in

the record that would give rise to a “natural inference and the normal

expectation” of the Orchard Glen condominium purchasers that they are

“entitled to use the driveway for ingress and egress.” Nord, supra at 278.

       Therefore, after a thorough review of the trial testimony and exhibits in

light of the applicable law, we hold that, unlike the landowners who purchased

their property pursuant to the Smith Gardens subdivision plan,8 the

Association has no easement to use the Disputed Area as a right of way.

Accordingly, the trial court did not err in denying the Association’s request to

modify the verdict to provide for such an easement.


____________________________________________


8 As mentioned above, all purchasers of lots pursuant to a subdivision plan
enjoy a private easement over a paper road, regardless of whether their land
abuts the right of way. Potis v. Coon, 496 A.2d 1188, 1191-93 (Pa.Super.
1985). While the Landises proceeded at trial upon the alternative theory that
they acquired title to the Disputed Area through adverse possession, the trial
court concluded that such a theory was unavailable under the facts of this
case. Decision Granting Quiet Title, 4/19/18, at 7-8. Although that ruling is
not before us on appeal, we note the case law discussed supra provides that
adverse possession of land may extinguish an easement that existed upon it.
See, e.g., Estojak v. Mazsa, 562 A.2d 271, 275 (Pa. 1989). We further
observe that our Supreme Court had held that use of such land as an extension
of a lawn without erection of barriers “that would give the impression that
access to the right of way was restricted” was insufficient to extinguish the
private easement in favor of other landowners within the subdivision over the
unopened road. Id. at 276. While the trial court mentioned the Landises’
recent attempts to exclude others from the Disputed Area, the record does
not reflect that such hostile, exclusive possession of the Disputed Area had
continued uninterrupted for twenty-one years, as the Landises readily admit
that their predecessors took no steps to prevent other homeowners from using
the land. See, e.g., N.T. Trial, 2/7/18, at 46-47, 51.

                                          - 15 -
J-A11006-19


      Turning to the Association’s remaining issue on appeal, since the

Association did not contend that it held title to any portion of the Disputed

Area, and did not establish that it has any easement over that land, we fail to

see how it is aggrieved by any error the trial court may have made in quieting

title to the Disputed Area in the Landises without review of the 1974 Wilt-to-

Fitz deed.   Moreover, the result of the proceeding would not have been

different had the Landises produced that deed at trial. The Landises attached

it to their answer to the Association’s post-trial motion, and the deed contains

no indication that the Wilts expressly or by clear implication reserved to

themselves title in the land that was to be Orchard View Drive. See Landises’

Answer to Motion for Post-Trial Relief, 5/14/18, at Exhibit 2 (conveying, inter

alia, Lot 41 to the Fitzes with references to Orchard View Drive and the Smith

Gardens plan without reservation, subject to an easement for a water line).

Consequently, the Association was not prejudiced if any error was made, and

we discern no reason to disturb the trial court’s verdict or the judgment

entered upon it.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/23/2019

                                     - 16 -
