                                 [J-91-2016]
                  IN THE SUPREME COURT OF PENNSYLVANIA
                              MIDDLE DISTRICT

    SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.


W. LOWELL STARLING AND NANCY                :   No. 30 MAP 2016
STARLING,                                   :
                                            :   Appeal from the Order of the Superior
                    Appellees               :   Court at No. 1779 MDA 2014 dated
                                            :   August 11, 2015, Reconsideration
                                            :   Denied October 14, 2015, Reversing
             v.                             :   and Remanding the Order of the Adams
                                            :   County Court of Common Pleas, Civil
                                            :   Division, at No. 2010-S-498 dated
LAKE MEADE PROPERTY OWNERS                  :   September 26, 2014.
ASSOCIATION, INC.,                          :
                                            :   ARGUED: September 14, 2016
                    Appellant               :


                                      OPINION


JUSTICE WECHT                                         DECIDED: May 25, 2017
      In Pennsylvania, planned communities are sufficiently common that twenty years

ago our General Assembly adopted a uniform act regulating aspects of their inception,

organization, and management.1 This case involves a dispute in one such community

between property owners and their governing homeowners association. At issue is the

ownership and use of certain undesignated property and the road that runs the length of

a peninsula jutting into Lake Meade, the man-made lake at the heart of the community.

We granted review in order to consider ownership and permissible uses of the road and

the adjacent strip of undesignated, undeveloped property.


1
      See Uniform Planned Community Act, Act of Dec. 19, 1996, P.L. 1336, No. 180,
68 Pa.C.S. §§ 5101, et seq.
I.     Background

       Because this case reaches us following the Superior Court’s reversal of the trial

court’s order granting summary judgment in favor of the Lake Meade Property Owners

Association, Inc. (“the Association”), the following account of the facts is as alleged by

homeowners W. Lowell and Nancy Starling (“the Starlings”), the non-moving parties

relative to that determination, with all inferences drawn in their favor.2 Thus, we begin

with the facts as alleged in the Starlings’ operative Second Amended Complaint (“the

Complaint”) and their answer and brief in opposition to the Association’s motion for

partial summary judgment.

       The Lake Meade Subdivision (“the Subdivision”), originally purchased,

subdivided, and developed by Lake Meade Incorporated (“LMI”), is a gated community

comprised of more than 1,000 residential units surrounding Lake Meade in Adams

County.     The Association was incorporated on June 25, 1966.          LMI recorded the

Subdivision Plan (“the Plan”) in the Office of the Recorder of Deeds of Adams County

on January 20, 1967.3 The Dedication describing the Plan provided that the “[p]rimary

purpose of this plan is for the enjoyment of out of door recreation and will so provide for

the owners of lots purchased a healthful atmosphere for themselves, their children and

friends.”    See Association’s Motion for Partial Summary Judgment, Exh. E

(“Dedication”).

       By deed dated May 16, 1967, LMI transferred title in separate deeds to Lots 725

and 726 (collectively, “the Starling Tract”) to W.F.O. Rosenmiller, III, and Elinor T.

2
       We review the record in the light most favorable to the nonmoving party, and we
resolve all doubts as to the existence of a genuine dispute regarding a material fact
against the moving party. Gilbert v. Synagro Cent., LLC, 131 A.3d 1, 10 (Pa. 2015).
3
     For ease of reference, the relevant portion of the Subdivision Plan as recorded is
appended hereto.



                                     [J-91-2016] - 2
Rosenmiller.4 The Starling Tract lies at the end of the aforesaid peninsula, which is

accessed via Custer Drive, a dead-end road that terminates in a cul-de-sac at the

northern end of the peninsula, which is bordered to the east by the Starling Tract, to the

north by a narrow strip of contested land that descends to rip-rap5 along the lakeshore,

and to the west by a narrow strip of contested land along the western shore of the

peninsula (we refer to the contested property along both the northern and western

shores of the peninsula, collectively, as “the Disputed Property”). On the Plan, the

Disputed Property is neither identified nor enumerated as one or more discrete lots, is

not clearly bounded by any lines resembling the boundary lines used to denote

individual properties in the Plan, and is not designated as a “recreational area” or for

“lake access.”   However, since at least 2002, the Association has maintained a

community bulletin board and garbage cans on the Disputed Property, encouraging the

impression that the Disputed Property is intended for communal use, and during that

span it has been used as such.

      On September 25, 1968, after it had sold most of the lots in the Plan, LMI deeded

to the Association “ALL those roads, the dam, lake and basin, and [thirty-six specifically

enumerated lots,] all more particularly shown on the plans of lots titled Lake Meade

Subdivision, duly recorded in the office of the Recorder of Deeds of Adams County.”

Complaint, Exh. D (Indenture, 9/25/1968, at 1) (“the 1968 Deed”).           Notably, this

conveyance made no direct reference to the Disputed Property.

4
      Each deed conveyed, by its terms, “ALL That certain lot of land situated in
Reading Township, Adams County, Pennsylvania, being more particularly described as
Lot No. [725/726] on a plan of lots of LAKE MEADE SUBDIVISION, duly entered and
appearing of record in the Office of the Recorder of Deeds of Adams County . . . .”
5
       Rip-rap is “[a] loose assemblage of broken stones erected in water or on soft
ground as a foundation.” THE AMERICAN HERITAGE COLLEGE DICTIONARY 1177 (3d ed.
1993).



                                     [J-91-2016] - 3
      The Rosenmillers sold the Starling Tract to Louise I. Cookson in 1974; Cookson

conveyed the Starling Tract to A. Bailey and Doris A. Wood in 1977. The Starlings

purchased the Starling Tract from the Woods on August 12, 2002. 6 A few years later,

the Starlings built a house and, in 2006, they moved into their new home. Beginning

more or less immediately, the Starlings “regularly encountered problems with

unidentified individuals and groups fishing, picnicking, sunbathing, lounging, socializing,

parking and loitering on and around . . . Custer Drive and the [Disputed Property].”

Complaint at 9 ¶51. These same individuals parked their cars on Custer Drive and the

Disputed Property, littered the cul-de-sac, and damaged the Starlings’ lawn.

      The Starlings began to complain to the Association in 2006.              At first, the

Association took steps to address the Starlings’ concerns—for example, placing

boulders and no trespassing signs around the cul-de-sac. However, the Association did

not enforce the prohibition against trespassing and eventually removed the signs.

Furthermore, it did not place such boulders along the western edge of Custer Drive.

      In 2007, following a meeting between the Starlings and officers of the

Association, the Association’s attorney sent the Starlings a letter in which he contended

that the Association held a fee simple interest in the Disputed Property that was

conveyed by LMI in the 1968 Deed. See id. Exh. M (Letter of John W. Phillips, Esq., to

the Starlings, 2/15/2007, at 1). The Starlings’ attorney responded that the Starlings had

“a genuine claim to extend the eastern[7] property line of [their] Lot 725 completely

6
       Like all post-Rosenmiller deeds that preceded it, the deed conveying Lots 725
and 726 to the Starlings conveyed “ALL THAT CERTAIN lot of land situate in Reading
Township, Adams County, Pennsylvania, being more particularly described as Lot #725
and Lot #726 on a plan of lots of Lake Meade Subdivision, duly entered and appearing
of record in the Office of the Recorder of Deeds of Adams County.”
7
      This appears to be a reference to the southern property line of Lot 725, which
runs east to west.



                                     [J-91-2016] - 4
across the right[-]of[-]way of Custer Drive to the water line of Lake Meade and that

[their] lot essentially surrounds and encompasses the full end of the cul-de-sac of

Custer Drive.”   Id., Exh. N (Letter of Jeffrey Ernico, Esq., to John Phillips, Esq.,

4/26/2007, at 1).8

       A few months later, the Association hosted an Independence Day celebration on

the Disputed Property. Numerous vehicles, including fire trucks, parked along Custer

Drive, and the party stretched late into the evening.       On August 8, 2007, Attorney

Phillips sent a letter to the Starlings on behalf of the Association reporting on the

board’s “consensus . . . that the measures taken to date, which have included placing

boulders in the right[-]of[-]way to discourage parking on the Starling[s’] property, moving

the bulletin board further down the cul-de-sac, increasing monitoring of the area, and

increasing safety patrols have had the desired effect” of ensuring that all activities on

8
        The Starlings here claimed ownership of the entire end of the peninsula north of
Lot 725’s southern property line. This claim differs from the claim made in their
Complaint that their parcel wrapped around the cul-de-sac and down the western shore
of the peninsula. See Complaint at 7-8 ¶¶35-40 (asserting only ownership of that strip
of land around the cul-de-sac). These competing accounts have remained a source of
confusion throughout this litigation, not least because the Starlings at each judicial level
have at times maintained one or the other position. Even in the trial court, their position
appeared to shift between the filing of their Complaint and the filing of their brief in
opposition to summary judgment. See Starlings’ Brief in Opposition to Motion for Partial
Summary Judgment at 5 (“The Starlings contend that the entire tip of Custer Peninsula
is part of their Lots 725 and 726, subject to the Association’s easement over the Custer
Drive Right-of-Way.”). Thus, the Superior Court’s contention that the Starlings simply
never laid claim to ownership of the entire end of the peninsula, including some portion
of Custer Drive, is inaccurate. See, e.g., Starling v. Lake Meade Prop. Owners Ass’n,
Inc., 121 A.3d 1021, 1032-33 (Pa. Super. 2015) (contending that the trial court
misconstrued the Starlings as seeking ownership of the cul-de-sac itself when they
claimed only ownership of the Disputed Property). Furthermore, before this Court, they
again assert ownership over Custer Drive. See, e.g., Starlings’ Supreme Court Brief at
18 (proposing that if, as they maintain, the Association does not own the fee to Custer
Drive, then “the Starlings own the underlying fee subject to the [Association’s]
ownership of an easement for ingress or egress”). For reasons set forth below, we
consider both claims.



                                      [J-91-2016] - 5
Custer Drive and the Disputed Property were “consistent with the uses allowed on other

common areas.”      Id., Exh. Q (Letter of John Phillips, Esq., to Jeffrey Enrico, Esq.,

8/8/2007, at 1). Acknowledging the ongoing disagreement, Attorney Phillips suggested

that the Starlings initiate a quiet title action to settle the ownership question.

       The Starlings declined to file suit at that time, and discussions continued. The

Association went on to host Independence Day parties on the Disputed Property in

2008 and 2009. In a 2009 Association newsletter, the Association promoted “[f]ishing

[a]long Custer Drive,” explaining that “the narrow strip of land facing toward the Marina

is owned by [the Association]. Everything on the other side of the street is private

property. Please respect the owners.” Id., Exh. U (Lake Meader, vol. 34 no. 4 (July

2009), at 2).

       In December 2009, the Starlings and the board again met, but failed to reach an

agreement.      Adopting a new tack, the Starlings transmitted an email to the board

contending that a lawsuit commenced against the Association by Louise Cookson in

1976 (“the Cookson Litigation”) had resulted in a binding 1977 decree establishing that

the Disputed Property and Custer Drive north of the southern boundary of Lot 725 were

part of the Starling Tract. The Starlings noted that the common pleas court in Cookson

had described Lot 726 as being bounded by Lake Meade on three sides and Lot 725 as

being bounded by Lake Meade to both the east and west. See id., Exh. L (Decree Nisi

and Adjudication in Cookson v. Bd. of Dirs., Lake Meade Prop. Owners Ass’n, No. 5

Feb. Term 1976, at 1 (CCP Adams March 2, 1977) (“[Lots 725 and 726] are located on

a part of the development [that] extends out into [Lake Meade] with Lot No. 726 being

surrounded on three sides by the lake and Lot No. 725 being bounded on the east and

west by the lake.”)). The Association was unpersuaded.




                                       [J-91-2016] - 6
      The Starlings then filed suit against the Association, alleging trespass (Count I),

ejectment (Count II), and seeking a declaratory judgment (Count IV) to the effect that

the Starlings own the Disputed Property—specifically, they asked that the court “enter

an Order conclusively establishing the boundary line of [the] Starling Tract at [the]

southern end of the Disputed Portion of the Starling Tract and further declaring that the

entire Starling Tract belongs to the Starlings.” Id. at 26.9 The Starlings asserted that

the Association had exercised wrongful possession of the Disputed Property, as

evinced by the placement of Association’s garbage cans and bulletin board.

Additionally, the Starlings claimed nuisance (Count III), alleging that the Association

intentionally and unreasonably “permitted, encouraged and sponsored trespass and

nuisance activity” infringing on their property rights.   Id. at 25 ¶154.     Finally, the

Starlings sought declaratory and injunctive relief (Count V) to establish “the appropriate

use of the [Disputed Property] and the Starling Tract and the appropriate use of Custer

Drive.” Id. at 29 ¶177.

      After preliminary proceedings and discovery, the Association moved for partial

summary judgment.         It contended that the Starling Tract ended at Custer Drive’s

eastern edge.    Thus, the Starlings had no claim to Custer Drive or the Disputed

Property.   The Association further averred that the Subdivision’s Restrictions and

Covenants did not preclude unit owners, their families, and their guests from “walking,

biking, fishing, or socializing along [Custer Drive or the Disputed Property].”

Association’s Brief in Support of Its Motion for Partial Summary Judgment at 21.


9
        The Starlings’ choice of terminology is somewhat confusing, but we read this as
seeking a declaration that the Starlings own the entirety of what we refer to as the
Disputed Property, ostensibly to some point near where the western shore of the
peninsula turns west at the peninsula’s base. In light of our ruling, the Starlings’
intention as reflected in this wording is immaterial; its gist is clear.



                                      [J-91-2016] - 7
       Regarding ownership, the Association observed that the Plan depicts courses

and distances for the Starling Tract that measure from the eastern waterline to the

eastern edge of Custer Drive. No corresponding east-west boundary lines transect the

road or appear on the Disputed Property west of Custer Drive. As to Lot 726, no course

or distance denotes where the northern boundary lay, but the Plan depicts a point of

tangency between the waterline and the northern edge of the Custer Drive cul-de-sac.

As well, note 2 on the lower right-hand corner of the Plan (appended to this Opinion)

provides: “Water-line (500 ft. elev.) is waterfront property line on all waterfront lots.”

Thus, the Association contended, the boundary of Lot 726 is where the water-line

becomes tangent to the cul-de-sac’s northern edge; nothing in the Plan’s depiction

suggests that Lot 726 wraps around the northern edge of the peninsula to continue

down the western side. Because the Plan is unambiguous, the Starlings’ attempt to

introduce extrinsic evidence in the form of the Cookson decision and post-recordation

surveys, tax maps, and behavior was impermissible. Thus, the Association was entitled

to judgment as a matter of law on Counts I, II, and IV (trespass, ejectment, and the

ownership claim), because each of those counts required the Starlings to establish a

question of material fact regarding ownership or the right to possession of the Disputed

Property, and the Starlings had failed to do either.

       Regarding the Starlings’ claim for declaratory and injunctive relief as to the use of

Custer Drive and the Disputed Property, the Association contended that the Starlings’

reliance upon the Plan’s Restrictions and Covenants was infirm.           The Association

asserted that the restriction providing that lots other than those designated as “business

or commercial areas” “shall be used exclusively for residential purposes” did not




                                      [J-91-2016] - 8
encompass Custer Drive or the Disputed Property.10              Id. at 22.     Instead, the

undesignated Disputed Property was free to be utilized in service of the outdoor

recreation that was the stated purpose of the Subdivision. Furthermore, applying the

Starlings’ strict definition of “residential purposes” would effectively “exclude activities

incidental to residential uses, such as walking, biking, fishing, and other forms of

socialization.” Id. at 23. The Association maintained that the restriction relied upon by

the Starlings was designed simply to ensure that lots designated for residential use

were not converted to commercial purposes. The Starlings also failed to identify any

restrictive covenant limiting Custer Drive to “vehicular travel.” Id. at 24. Furthermore,

although it was enacted after the creation of the Subdivision, the Uniform Planned

Community Act, see supra n.1, retroactively conferred upon the Association the power

to “[r]egulate the use . . . of common elements” within the Subdivision.        68 Pa.C.S.

§ 5302(a)(6); see 68 Pa.C.S. § 5102(b) (providing for retroactive application to pre-

enactment planned communities). Thus, the Association was free to allow authorized

individuals and their vehicles to utilize Custer Drive for more than just vehicular travel

and to use the Disputed Property for recreational purposes.

       The trial court granted the Association’s motion.         Regarding the ownership

questions, the court noted that it must seek to “ascertain and effectuate the intentions of

the parties at the time of the original subdivision.”      Trial Court Opinion (“T.C.O.”),

1/15/2013, at 5 (citing Pa. Elec. Co. v. Waltman, 670 A.2d 1165, 1169

(Pa. Super. 1995)). Where, as in this case, a deed describes the land to be conveyed


10
       Interestingly, the Association does not argue that the last clause of the
Restrictions and Covenants, which grants the Association discretion to “redesignate
certain areas . . . to assure adequate facilities for its members” effectively authorized the
Association to treat the undesignated Disputed Property as land to be used for
recreation and lake access. In any event, this omission is immaterial to our disposition.



                                      [J-91-2016] - 9
only by lot number in a subdivision plan, the plan is “an essential part of the deed, giving

[it] the same force and effect as if the plan had been copied into the conveyance.” Id.

at 5-6 (citing Richardson v. McKeesport, 18 Pa. Super. 199, 204 (1901)); see

Birmingham v. Anderson, 48 Pa. 253, 260 (1864) (“Where a map or plan is thus referred

to [in a deed] it becomes a material and essential part of the conveyance, and is to have

the same force and effect as if it was incorporated into or copied into the deed.”).

       Turning to the Plan, the court recited the distances specified thereupon for the

southern boundaries of Lots 721, 722, 723, 724, and 725, and underscored that those

boundary lines extend from the eastern waterline only to the eastern edge of Custer

Drive and no farther. Addressing Lot 726’s lack of a measured northern boundary, the

court recited the Plan’s notation establishing that the waterline, at 500 feet elevation, “is

[the] waterfront property line on all waterfront lots.” Id. at 6; see Plan, Appendix note 2.

Furthermore, “the northwest boundary of Lot 726 becomes tangent with [the Custer

Drive cul-de-sac] at the 500[-]foot elevation water[-]line,” establishing an unambiguous

boundary at the depicted point of tangency. T.C.O. at 6-7. Accordingly, the Plan could

sustain neither the Starlings’ theory that Lot 725’s southern boundary traversed Custer

Drive to the western shore nor their contention that Lot 726 wrapped around the

northern edge of the cul-de-sac and incorporated any portion of the Disputed Property.

Regarding the wrap-around theory, the trial court observed that the Starlings’ contention

would lead to the absurd result that the owner of Lot 1020, located at the southwestern

corner of the peninsula, also would have a competing claim to the Disputed Property.

That is to say, if a point of tangency combined with the absence of clear dimensions

could not bound Lot 726, the same logic would suggest that the northeastern boundary

of Lot 1020, unaffected by its own depicted point of tangency with Custer Drive, extends

northward along the peninsula’s westward shore to include the Disputed Property.




                                      [J-91-2016] - 10
Because the wrap-around theory would provide the owners of Lots 726 and 1020 with

equally viable claims to the Disputed Property, such a theory could not reflect LMI’s

intent in designing the Plan.

       Although the trial court evidently believed that the Plan was unambiguous,11 it

nonetheless reviewed the parol evidence submitted by the Starlings in opposition to

summary judgment. The trial court first rejected the Starlings’ reliance upon an Adams

County tax map that purportedly showed the boundary of Lot 726 reaching around the

northern edge of Custer Drive, observing that the Starlings’ payment of taxes on the

Disputed Property, if any,12 would not be competent evidence of ownership. T.C.O. at 8

(citing James v. Bream, 106 A. 722, 723 (Pa. 1919)13). Next, the trial court rejected the

Starlings’ reliance upon the April 1974 survey that was attached to the 1974 deed from

the Rosenmillers to Cookson. Although the survey was attached to that conveyance,

neither that deed nor any other in the succeeding chain of title referred to that survey in

describing the Starling Tract. Rather, each deed in the chain of title described the

Starling Tract solely by reference to the Plan. Regarding the Starlings’ reliance upon

the Cookson Litigation, the court carefully delineated the issues that were decided in

that case, explaining that the only boundary in dispute was that between the eastern


11
       See T.C.O. at 7 (discussing the parol evidence introduced by the Starlings,
“[d]espite the unambiguous Subdivision Plan which does not show boundary lines that
extend over Custer Drive and through the land west of Custer Drive”).
12
       Based upon the information before it, the trial court disputed that the Starlings
actually had done so.
13
        Specifically, in James this Court held that “[a]ssessment and payment of taxes do
not prove title, but are circumstances tending to support a claim of possession.” 106 A.
at 723. As discussed herein, possession and the right thereto may bear on trespass
and/or ejectment, but in this case, as a practical matter, the Starlings seek to support
their right to relief on these claims by virtue of ownership only, not some non-ownership-
based possessory right.



                                     [J-91-2016] - 11
part of the cul-de-sac and the Starling Tract, which had no bearing on the Disputed

Property.   Thus, the passing description of the boundaries of the Starling Tract in

Cookson were dicta of no binding effect.14

       Of particular relevance to our analysis, not least because it appears to have been

the view adopted by the Superior Court, the trial court next considered the Starlings’

argument that they must own the Disputed Property (and, ostensibly, Custer Drive)

because the Association possesses only a right-of-way or easement15 over Custer

Drive, but no fee interest in the land beneath it. The Starlings argued that, by 1968,

when LMI purported to convey to the Association, inter alia, all Subdivision roads, LMI

no longer held a fee in those roads. Rather, upon its sale of many of the Subdivision’s

residential parcels, and in retaining the lots enumerated in the 1968 Deed, LMI

effectively granted access easements to those purchasers as a matter of law and

retained only such easements itself to the extent they attached to the properties it had

retained until the 1968 Deed, somehow simultaneously converting its own fee interest in

the Subdivision roads to no more than the same easement enjoyed by all holders of

Subdivision parcels.16 In rejecting this argument, the trial court found that, at the time of

the 1968 Deed, LMI retained its fee interests in the Subdivision roads, and that the deed

from LMI to the Association unambiguously reflected LMI’s intention to convey the roads

14
       See Cinram Mfg., Inc., v. W.C.A.B. (Hill), 975 A.2d 577, 581-82 (Pa. 2009)
(holding that statements that are inessential to the reasoning in a judicial opinion are not
binding in future cases).
15
      These terms may be, and are herein, used interchangeably. See Lease v. Doll,
403 A.2d 558, 561 (Pa. 1979) (“A right[-]of[-]way is an easement.”).
16
       See Kao v. Haldeman, 728 A.2d 345 (Pa. 1999) (“When . . . lots are sold
according to a subdivision plan on which a street has been plotted by the grantor, the
purchasers acquire property rights in the use of the street. Such a right is sometimes
called an easement of access[,] which means the right of ingress and egress to and
from the premises of the lot owners.” (internal quotation marks omitted)).



                                      [J-91-2016] - 12
in fee to the Association.17 Thus, the Association took fee simple ownership of the

Subdivision roads subject only to the access easements of all Subdivision owners

(including those who would come to own the residential lots that LMI conveyed to the

Association in fee in the 1968 Deed).

      For the foregoing reasons, the trial court granted the Association’s motion for

partial summary judgment as to the Starlings’ claims for trespass, ejectment, and

declaratory judgment regarding ownership of Custer Drive and/or the Disputed Property.

Because each count required a showing of ownership or the right to possession of the

contested property, and because the Starlings had failed to establish a genuine issue of

material fact as to either, those claims failed as a matter of law. See T.C.O. at 13 &

nn.2 & 3 (citing Hartley v. Spencer, 75 Pa. Super. 449 (1920), for the proposition that

one may recover for trespass only upon proof of ownership and possession or the right

thereto of the land at the time of the trespass, and Wells Fargo Bank, N.A. v. Long, 934

A.2d 76, 79 (Pa. Super. 2007), for the proposition that ejectment may only be had by

one with the right to possess the property in question); see Soffer v. Beech, 409 A.2d

337, 340-41 (Pa. 1979) (“[T]he right to possession is the central element of [an action in

ejectment],” which “has long been the general method for obtaining possession of real

property. . . . [O]ur cases involving fee claimants speak only of the right to possession

by one not presently in possession.” (citations omitted)).       In so ruling, the court

determined that the Association retained a fee to Custer Drive and that the Starlings



17
       Absent contrary indications on the face of the deed, the use of the word “grant” in
a conveyance of land connotes the grantors’ intent to pass fee simple title of the land so
conveyed. See 21 P.S. § 2 (“[I]n any deed or instrument in writing for conveying or
releasing land hereafter executed, unless expressly limited to a lesser estate, the words
“grant and convey,” or either one of said words, shall be effective to pass to the grantee
or grantees named therein a fee simple title to the premises conveyed . . . .”).



                                    [J-91-2016] - 13
had no ownership or possessory interest in the Disputed Property outside the depicted

point of tangency of the water-line and the northern edge of the cul-de-sac.

       With regard to the Starlings’ claim for an injunction restricting the use of Custer

Drive to “vehicular travel,”18 the court noted that no Subdivision covenant so limited the

use of that road. The trial court observed that, were it to limit use of Custer Drive to

“vehicular purposes” in the sense ventured, “activities such as walking, running and

biking would not be permitted.” T.C.O. at 16. Indeed, were the Starlings to host a party,

their own guests would not be allowed to park on Custer Drive, because parking is not

“vehicular travel.” Id. This would contravene what the court deemed the “main purpose

of the Subdivision, . . . the enjoyment of outdoor activities.” Id. at 16-17.

       With regard to the Starlings’ claim for declaratory and injunctive relief precluding

non-residential use of the Disputed Property,19 the trial court found that the lack of

designation of the Disputed Property for recreation or lake access was not conclusive in

favor of the Starlings’ claim. Rather, the Plan’s stated “primary purpose” was to serve

“the enjoyment of out of door recreation.” Association’s Motion for Partial Summary

Judgment, Exh. E. Furthermore, the “Dedication” section of the Plan specified that all

lots not designated “water supply” or “commercial” would be “either recreational areas,

lake access areas, or residential lots.” Id. The Disputed Property not having been

designated water supply, commercial, recreational, lake access, or residential, the trial

court found that “any lawful use is permitted” on the Disputed Property. T.C.O. at 15.


18
       See Complaint at 28 ¶175 (alleging that “[t]he Association is using and permitting
its membership to use Custer Drive for purposes other than vehicular travel”), 29
¶177(a) (seeking “[a] decree enjoining permanently the Association from using Custer
Drive and its cul-de-sac for purposes other than vehicular travel”).
19
       See Complaint at 29 ¶177(b) (seeking “[a] decree enjoining the Association from
using the [Disputed Property] for non-residential purposes of any kind”).



                                      [J-91-2016] - 14
Finding no further controversy with respect to Count V, the court granted the

Association summary judgment on Count V.

       Following the trial court’s entry of partial summary judgment for the Association,

the parties entered a consent order dismissing the Starlings’ remaining nuisance count

(Count III), and the Starlings agreed not to seek damages. This rendered the trial

court’s judgment final, and the Starlings appealed to the Superior Court.

       In a unanimous precedential opinion that largely adopted the Starlings’

arguments, a three-judge panel of the Superior Court rejected the trial court’s

determination that the Association held a fee simple interest in Custer Drive.          The

Superior Court found it of “vast importance” that the Plan was recorded in 1967, the

year before LMI deeded, inter alia, its interests in the Plan’s roads to the Association.

Starling v. Lake Meade Prop. Owners Ass’n, Inc., 121 A.3d 1021, 1028 (Pa.

Super. 2015). It also was in 1967 that the Rosenmillers acquired the lots comprising the

Starling Tract. The court correctly noted that, “when lots are sold as part of a recorded

subdivision plan on which ‘a street has been plotted by the grantor, the purchasers

acquire property rights in the use of the street.’” Id. at 1028 (quoting Kao v. Haldeman,

728 A.2d 345, 347 (Pa. 1999)).         This “easement of access” “is a property right

appurtenant to the land [that] cannot be impaired or taken away without compensation.”

Id. (internal quotation marks omitted); see id. (quoting RESTATEMENT (3d)                 OF

PROPERTY—SERVITUDES § 2.13(1)) (“A description of the land conveyed that refers to a

plat or map showing streets . . . implies creation of a servitude restricting use of the land

shown on the map to the indicated areas.” (Superior Court’s emphasis omitted)).

       From this uncontroversial proposition, though, the Superior Court proceeded to

an inference that is unprecedented in Pennsylvania law:

       As of [the date of the 1968 Deed, LMI] did not own any road in fee interest
       absolute because it had . . . sold lots in the [S]ubdivision. As owner of


                                      [J-91-2016] - 15
      certain unsold lots in 1968, [LMI] owned an easement in the platted roads
      shown on the [Plan] when it conveyed the roads to the Association. The
      grantor in a deed cannot convey title to property greater than that owned
      by the grantor.         See Ecenbarger v. Lesoine, 438 A.2d 969
      (Pa. Super. 1981) (where grantor did not own property in fee but was co-
      owner, grantor could not convey easement over section of property owned
      in common with other grantors without joinder of other property owners).
      [LMI] simply did not own a fee simple interest in the platted roads in the
      [Subdivision] in 1968, when it purported to grant such an interest to the
      Association. The trial court therefore erred, as a matter of law, in ruling
      that the 1968 [D]eed created a fee simple absolute interest to the
      Association to Custer Drive in the [Subdivision] and that, as fee simple
      owners, the Association could continue to use Custer Drive as it wished.

      Indeed, the logical implications of a finding that the Association owns, in
      fee simple absolute, the platted roads in the subdivision are far-reaching
      and counter-intuitive. If the Association owned the roads in fee simple
      absolute, it could sell those roads and permit houses to be built on them.
      It could allow them to be used as parking lots. The Association could
      thereby prevent access by [Subdivision] property owners to their lots.


Id. at 1029 (citation modified; emphasis added).

      Thus, the Superior Court held that the trial court not only erred in entering

summary judgment with regard to trespass, ejectment, and ownership of Custer Drive,

but it also erred in denying declaratory and injunctive relief regarding the Association’s

usage of Custer Drive. It held that, because the Association has no greater right to the

use of Custer Drive than is enjoyed by any holder of a Subdivision lot, the Association

was entitled only to use Custer Drive for “vehicular and pedestrian ingress and

egress.”20 Starling, 121 A.3d 1031. Thus, the Superior Court reversed the trial court’s

entry of judgment on Counts I, II, and on Count IV to the extent that it established the

Association’s ownership of Custer Drive, and it directed the trial court to enter judgment



20
      The Superior Court characterized this remedy as “the relief requested in Count V
of the Complaint,” but, as noted supra, the Starlings actually sought an injunction
precluding all use but “vehicular travel,” without any allowance for pedestrians.



                                    [J-91-2016] - 16
in the Starlings’ favor on their prayer for injunctive relief regarding the use of Custer

Drive.

         That left only the question of ownership and use of the Disputed Property. In this

connection, the Superior Court found that the Plan was ambiguous. The court then

reviewed the Starlings’ parol evidence, every item of which post-dated the recordation

of the Plan, and found that genuine issues of material fact remained regarding whether

Lot 726 wrapped around the cul-de-sac to encompass some portion of the strip of land

west of Custer Drive. Thus, the court specifically remanded for further fact-finding on

the ownership question. With regard to use, the court was less clear, but its opinion at

least suggested that the absence of an express Plan designation of the Disputed

Property for common use precluded non-residential use such as that alleged by the

Starlings. See id. at 1031 (“The fact that the Starlings do not own the triangular shaped

piece of land, however, does not mean that the Association does own it and can allow

people to use it for recreational purposes.”), 1033 (“In sum, we remand for the grant of

partial relief to the Starlings as to [C]ount [V] . . . and for entry of an injunction

permanently enjoining use of the entirety of the platted Custer Drive and the entirety of

its platted cul[-]de[-]sac to any use other than for ingress and egress.”).

         Interestingly, in analyzing this consideration, the court appeared to understand

the Starlings as seeking only the northwestern bulge opposite Lot 726, which the court

referred to as “the triangular-shaped piece of land.” Id. at 1024. However, based upon

our review, the Starlings never restricted their claim in that fashion before the trial court,

nor did they do so in their briefing to the Superior Court.         Indeed, contrary to the

Superior Court’s claim, before that court the Starlings were less than clear about

whether they sought ownership of the entire peninsula north of the southern boundary

of Lot 725 or merely some indeterminate portion of the land to the north and west of




                                      [J-91-2016] - 17
Custer Drive, and in any event, nowhere did the Starlings so much as refer to any land

as triangular.   Thus, while the Superior Court correctly observed that the Starlings’

Complaint never appeared to assert ownership of Custer Drive, the court was simply

wrong to suggest that the Starlings never raised that argument in the trial court at all,

see supra n.8, or that their arguments on appeal were so focused.21

II.    Analysis

       We granted allowance of appeal to consider three issues. Although the two

issues we reach were stated in terms of the Superior Court’s apparent determination

that the fee to Custer Drive was surrendered by LMI (or effectively extinguished entirely)

as soon as LMI sold the first Subdivision lot and the Superior Court’s alleged conclusion

that “extrinsic evidence can vary property boundaries on a recorded subdivision plan,” 22



21
       Cf. Starlings’ Superior Court Brief at 10 (“The Starlings contend that the entire tip
of Custer Peninsula is part of their Lots 725 and 726, subject to the Association’s
easement over Custer Drive.”), 22 (quoting the affidavit of an agent for the developer
that was submitted in the Cookson Litigation: “[T]hrough inadvertence of [LMI], the
Plans of Lots 725 and 726 prior to the recording were not corrected to show the actual
intent of the parties but rather to show the [sic] Custer Drive to extend through Lot 725
to the shoreline of Lake Meade” (emphasis in original)), 26 (“Accordingly, the trial
court’s holding that the area between Custer Drive and Lake Meade on the western side
is owned by the Association is without support in the existing record.”).
22
      Adopting the Association’s formulation of the issues verbatim, our order granted
review of the following issues:

       1.    Whether the Superior Court erred as a matter of law in holding that
       a fee simple owner of a private road who grants an easement over that
       road extinguishes its fee simple ownership of the road?

       2.      Whether the Superior Court’s decision conflicts with
       Pa.R.C.P. 1035 when the court reversed the trial court’s grant of summary
       judgment and directed the entry of injunctive relief in favor of the
       [Starlings] and did so without considering the facts of record found by the
       trial court, without considering the record in the light most favorable to [the
(continued…)

                                      [J-91-2016] - 18
the lower courts, and now we, find that the most sensible way to resolve these issues is

to address ownership and use of Custer Drive and the Disputed Property as such,

which implicate and are encompassed by the issues as stated. For clarity of analysis,

we address both ownership questions first, then take up the question of use.

      A. Standard of Review

      Appellate review of summary judgment entails a question of law. Accordingly,

we review the Superior Court’s reversal of the trial court’s order de novo, and we need

not defer to either lower tribunal’s determinations. See Summers v. Certainteed Corp.,

997 A.2d 1152, 1159 (Pa. 2010). In reviewing the lower courts’ rulings, we apply the

same legal standard as the trial court. Albright v. Abington Mem. Hosp., 696 A.2d 1159,

1165 (Pa. 1997).

      Summary judgment is appropriate only in those cases where the record
      clearly demonstrates that there is no genuine issue of material fact and
      that the moving party is entitled to judgment as a matter of law. . . . The
      reviewing court must view the record in the light most favorable to the
      nonmoving party, resolving all doubts as to the existence of a genuine
      issue of material fact against the moving party. When the facts are so
      clear that reasonable minds cannot differ, a trial court may properly enter
      summary judgment.




(…continued)
     Association], and where there are general issues of material fact
     precluding the entry of judgment in the [Starlings’] favor?

      3.     Whether the Superior Court erred as a matter of law in concluding
      that extrinsic evidence can vary property boundaries on a recorded
      subdivision plan?

Starling v. Lake Meade Prop. Owners Ass’n, Inc., 133 A.3d 733 (Pa. 2016) (per curiam).
As explained below, our disposition of the ownership and use-related issues provides
the answers to issues one and three and renders issue two moot.



                                    [J-91-2016] - 19
Gilbert v. Synagro Cent., LLC, 131 A.3d 1, 10 (Pa. 2015) (quoting Atcovitz v. Gulph

Mills Tennis Club, 812 A.2d 1218, 1221-22 (Pa. 2002) (citations omitted)).            In the

specific context of boundary disputes, we have drawn the following distinction, which is

critical to understanding what we can—and cannot—decide in the summary judgment

phase:

      The meaning of a deed—that is, what it covers—is a question of law for
      the court; what the boundaries of a given piece of land are is a question of
      construction for the court also; where they are is a question of fact for the
      jury. Where the boundary lines of a grant are fixed by the grant itself, the
      question as to what these lines are is purely one of law.”

Miles Land Co. v. Hudson Coal Co., 91 A. 1061, 1064 (Pa. 1914) ((citations and internal

quotation marks omitted))

      B. The Ownership Issues

      We first must address the above-mentioned confusion regarding whether the

Starlings asserted ownership of the entire northern section of the peninsula

encompassing some portion of Custer Drive, with the southern boundary of their claim

presumably delineated as the extension of Lot 725’s southern boundary across Custer

Drive to the western water-line—what we have referred to as the cross-cutting theory—

or asserted only ownership of the Disputed Property itself, i.e., some contiguous portion

of the Plan extending Lot 726 around the northern edge of the cul-de-sac and down the

western shore, west of Custer Drive, to some southern boundary the location of which

cannot conclusively be gleaned from the Starlings’ pleadings, i.e., the wrap-around

theory. For the reasons set forth supra, we conclude that the Starlings gave both the

trial court and the Superior Court ample reason to believe that they pursued both

theories in the alternative. See, e.g., supra nn.8, 21, and accompanying text. The trial




                                    [J-91-2016] - 20
court appeared to approach the case upon this basis, but the Superior Court nominally

rejected it, although its opinion nonetheless seemed to address aspects of both

theories. In any event, there is no question that the Starlings now maintain that their

tract actually extends across the peninsula entirely and encompasses Custer Drive. In

their view, the Association enjoys only the same access easement enjoyed by the other

owners in the Subdivision. Nonetheless, in the analysis that follows, we give them the

benefit of, and address at length, both theories, not least because the Starlings’

underlying complaint clearly is more consistent with the wrap-around theory.        See

Complaint at 26 (seeking a declaration “establishing the boundary line of [the] Starling

Tract at [the] southern end of the Disputed Portion of the Starling Tract,” i.e., the

Disputed Property).

      The same principles that apply to the interpretation of a contract apply to the

interpretation of a deed. See New Charter Coal Co. v. McKee, 191 A.2d 830, 834

(Pa. 1963).   The nature and quantity of the interest conveyed by a deed “must be

ascertained from the instrument itself.” In re Property of W.R. Covert, 186 A.2d 20, 23

(Pa. 1962) (quoting Yuscavage v. Hamlin, 137 A.2d 242, 244 (Pa. 1958)). When a

deed incorporates by reference a subdivision plan, the plan becomes “a material and

essential part of the conveyance, and is to have the same force and effect as if it was

incorporated into or copied into a deed.” Birmingham, 48 Pa. at 260. “[W]e seek to

ascertain not what the parties may have intended by the language but what is the

meaning of the words,” or, in this case, the words as informed by the Plan’s depiction.

Property of W.R. Covert, 186 A.2d at 23 (emphasis omitted). Thus, “the language of the

deed shall be interpreted in the light of the subject matter, the apparent object or




                                    [J-91-2016] - 21
purpose of the parties and the conditions existing when it was executed.” Highland v.

Commonwealth, 161 A.2d 390, 402 (Pa. 1960). “If the deed is ambiguous, then all of

the attending circumstances existing at the time of the execution of the instrument

should be considered to aid in determining the apparent object of the parties.” Stewart

v. Chernicky, 266 A.2d 259, 263 (Pa. 1970) (emphasis added); accord Clancy v.

Recker, 316 A.2d 898, 902 (Pa. 1974). When parol evidence is admissible, “it must

generally have a foundation in pre-existing evidence of fraud, accident or mistake,”

except when it is introduced “not to contradict or vary, but to explain the contract, as

when something is omitted . . . so as to qualify the tribunal passing upon the writing to

interpret it truly according to the intent of the parties.” Baltimore & Phila. Steamboat Co.

v. Brown, 54 Pa. 77, 81-82 (1867). Because no one maintains that any relevant deed or

the Plan itself is the product of fraud, accident, or mistake, it is necessary to focus upon

the Plan. If we conclude that the Plan’s depiction is ambiguous, we may consider only

such parol evidence as bears upon LMI’s contemporaneous intention in preparing and

recording the Plan. See Highland, 161 A.2d at 402; Wilkes-Barre Twp. Sch. Dist. v.

Corgan, 170 A.2d 97, 98 (Pa. 1961).23



23
        Before the Superior Court, the Starlings acknowledged that LMI’s intention
governs the interpretation of the Plan. See Starlings’ Superior Court Brief at 23 (“[T]he
trial court correctly recognizes that the intent of [LMI] is what controls the interpretation
of the [Plan].”). Thus, even if we find the Plan ambiguous, no parol evidence unrelated
to LMI’s intent at the time of the Plan’s recordation would be pertinent. While one might
colorably argue that LMI’s conduct in the time between their recordation of the Plan and
the 1968 Deed is relevant, insofar as their conduct immediately in the wake of devising
and recording the Plan might imply something about their contemporaneous
understanding of the Plan, certainly no extrinsic evidence after the 1968 Deed has any
bearing upon LMI’s “apparent object or purpose . . . when [the Plan was recorded].”
Highland, 161 A.2d at 402. Thus, the learned Dissent’s reliance upon the Starlings’
evidence that they pay taxes on some portion of the disputed property and its citation of
(continued…)

                                      [J-91-2016] - 22
                                       Custer Drive

       Given the indisputable fact that LMI owned the fee to the property under Custer

Drive at some point during the design and development of the Subdivision, the Superior

Court’s determination that the Association had no fee interest in Custer Drive when it

purported to convey the fee to the Subdivision’s roads to the Association in the 1968

Deed24 necessarily derived from one of two conclusions: Either LMI surrendered its fee



(…continued)
the Association’s putative 2007 “admission” that Lot 726’s boundary line “is
undeterminable,” see Conc. & Diss. Op. at 8, to establish a disputed issue of material
fact are misplaced. See City of Pittsburgh v. Weinman, 134 A. 382 (Pa. 1926)
(“[A]ssessment and payment of taxes on property is not proof of title . . . .”); James, 106
A. at 723 (same); Grace Bldg. Co. v. Parchinski, 467 A.2d 94 (Pa. Cmwlth. 1983)
(rejecting proffered tax deed and county tax map because the documents were
insufficient both to identify the boundaries of the parcel in dispute and to locate them on
the ground); cf. T.C.O. at 8 (noting that the most recent tax documents of record in fact
disfavor the Starlings’ claim of ownership). The same can be said about the Starlings’
invocation of the 1974 Survey, which cannot, by itself, inform LMI’s intention at the time
of Recordation. The Dissent’s suggestion that these matters are cited “only to
demonstrate the record contains genuine issues of material fact regarding ownership”
does not alleviate the problem. Conc. & Diss. Op. at 8 n.1. The evidence is (and by
definition, must be) legally irrelevant to the resolution of any factual dispute regarding
the contemporaneous intention reflected in a conveyance that preceded the evidence
by years. It logically follows that the same incompetent evidence cannot establish that
such a dispute existed in the first place. That the current parties dispute ownership
does not, by itself, establish a factual dispute regarding the question of what the
boundary was intended to be at the time of the recordation of the Plan and the
conveyances by LMI of Lots 725 and 726 to those lots’ first owner.
        Regarding the Dissent’s suggestion that an ambiguous deed must be interpreted
in favor of the non-drafting party, id. at 4, we note that the Association did not draft the
Plan or the deeds in question; rather, LMI did. Hence, this particular interpretive
principle has no bearing upon this case. The remaining interpretive principles cited by
the Dissent as “more properly applicable to interpreting a deed or subdivision plan,” id.
at 3, are not only consistent with the familiar array of tools at our disposal for the
interpretation of ambiguous contracts of any sort, they also are reflected in our own
recitation of the governing principles.
24
       “As of [the date of the 1968 Deed, LMI] did not own any road in fee interest
absolute because it had . . . sold lots in the [S]ubdivision. As owner of certain unsold
(continued…)

                                     [J-91-2016] - 23
upon its first sale of a residential lot, presumably in sections corresponding to each lot

as those lots were purchased, or the fee to all roads entirely ceased to exist upon that

first residential sale. This, in turn, would appear to require the utterly unintuitive result

that all Subdivision owners and the Association itself own an access easement over

land that, by virtue of being owned by no one, presumably need not be servient to such

an easement to ensure its availability for use to all authorized entrants to the

Subdivision itself. Thus, in just a few sentences, and without reference to supporting

authority, the Superior Court cast a shadow over the title to the roads, and for that

matter all common areas, of every planned community in the Commonwealth of

Pennsylvania.

       As well, the court’s sweeping account of the Association’s prerogatives if it held a

fee to the roads25 is patently at odds with hornbook law regarding a property owner’s

rights when the property in question is servient to an easement. It is beyond cavil in

Pennsylvania that a property owner may use his property only in ways that do not

interfere with the rights of the easement holder. See Minard Run Oil Co. v. Pennzoil

Co., 214 A.2d 234, 235 (Pa. 1965) (“The owner of the servient tenement may make any

use thereof which is consistent with or not calculated to interfere with the exercise of the

easement.” (citation omitted)); Mercantile Library Co. of Phila. v. Fid. Trust Co., 83 A.



(…continued)
lots in 1968, [LMI] owned an easement in the platted roads shown on the [Plan] when it
conveyed the roads to the Association.” Starling, 121 A.3d at 1029 (emphasis added).
25
        “If the Association owned the roads in fee simple absolute, it could sell those
roads and permit houses to be built on them. It could allow them to be used as parking
lots. The Association could thereby prevent access by [Subdivision] property owners to
their lots.” Starling, 121 A.3d at 1029.



                                      [J-91-2016] - 24
592, 595 (Pa. 1912) (“The grant of a fee, subject to an easement, carries with it the right

to make any use of the servient soil that does not interfere with the easement . . . .”

(citation omitted)). Thus, insofar as the Superior Court correctly noted that all owners in

the Subdivision held an access easement to the roads, it necessarily followed that no

fee owner of Custer Drive could permit houses to be built upon it, designate it as a

parking lot, or otherwise “prevent access by . . . property owners to their lots,” Starling,

121 A.3d at 1029, and the Starlings never have suggested that the Association has

sought in any way to do so.

       In arguing in favor of affirmance of the Superior Court’s rejection of the

Association’s ownership of Custer Drive, the Starlings direct our attention to two

authorities, Allen v. Scheib, 101 A. 102 (Pa. 1917), and Sides v. Cleland, 648 A.2d 793

(Pa. Super. 1994), the latter of which the Superior Court deemed “dispositive,” albeit

perhaps of the use issue rather than the ownership issue (on this point, the intermediate

court was not entirely clear). See Starling, 121 A.3d at 1029. In any event, we address

these cases in turn.

       In Allen, a testator devised forty acres of his 142-acre property to four family

members in various acreages, but without specifying the portion of the larger estate

from which to take those forty acres. Later, the family arranged for the forty acres to be

taken from a corner of the farm inaccessible from the public highway adjacent to the

larger estate. By the same arrangement, a private road from the public road along the

border of the full property to the captive property was set aside by agreement, and that

private road was used without conflict for approximately twenty years by the occupants

of the devised properties.    Later, the title to the entire forty-acre tract, along with




                                     [J-91-2016] - 25
“whatever interest the owners thereof had in the lane,” became vested in John Scott

Harbison, who conveyed the full tract to Eleanor Allen in 1911. Id. at 102-03.

        Over time, the balance of the original farmstead was further subdivided such that,

ultimately, two distinct owners, the defendants in the Allen action, held the land on

either side of the access road. Setting aside those owners’ apparent disputes regarding

ownership of the road, Allen eventually contended that ownership in fee of the lane,

rather than a mere easement, was included with her ownership of the forty-acre tract.

Allen retained a contractor to install and maintain a gas line to run along the private

road.    However, the defendants managed “by opposition and threats” to prevent

construction. Id. at 103. The Allen litigation followed.

        This Court held first that if Allen owned only an easement, then she was entitled

to use it only for the use for which it was dedicated. Id. Conversely, if Allen owned the

fee to the road, then she was entitled to construct her gas line. Although no deed

showed conveyance of the road in fee by the original devisees to Allen’s predecessor,

reference was made in the conveyance corresponding to one of the other tracts, which

described a boundary of that tract as running “[t]hence along a certain road or lane

between the land herein conveyed and the land of John Stirling.”           Id.   Generally

speaking, we explained, “[t]he term ‘road,’ and especially ‘private road,’ is indicative of

an easement rather than a fee.” Id. Thus, “[t]he mere reference in a conveyance to a

private road does not tend to show ownership in fee thereof in the party for whose use it

may have been established.” Id. at 104. In such a situation, such a road “may, prima

facie, be used by all abutting owners, and defendants as such would have standing to

object to an additional use being made thereof by the construction therein of a gas line.”




                                     [J-91-2016] - 26
Id. The Court concluded that Allen, as owner of the captive forty-acre plot for the

benefit of which the road had been created, had “a right to the free and uninterrupted

use thereof as a way for purposes of passage over and upon the same; and, so far as

appears, defendants may lawfully make such use thereof as will not interfere with the

rights of plaintiff.”   Id.   However, being the claimant, Allen bore the burden of

establishing ownership and failed to do so. Accordingly, her interest was in the nature

of an easement, and she was not entitled to run a gas line to her captive property.

       This case actually undermines the Starlings’ argument in two regards. First,

nothing in Allen suggested that no party owned a fee to the road, or that the

conveyance of a road easement extinguished such a fee. Even given the Starlings’

decontextualized reading of our holding that, absent a contrary indication, the use of the

word “road” in a deed suggests the conveyance only of an easement, nothing about

Allen suggests that LMI, once having held the fee, conveyed, abandoned, or

extinguished that fee simply by selling off Subdivision lots, and, in so doing, retained

only access easements to the Subdivision roads. Second, in Allen we clearly imposed

the burden of establishing the necessary fee upon Allen as plaintiff rather than merely

negating the fee of others, which we never endeavored to ascertain. As set forth above,

the Starlings have failed to establish their own fee to Custer Drive, which undermines

their attempt to enjoin Association uses of Custer Drive that do not interfere with the

Starlings’ use and enjoyment of their own easement over that road.

       Sides has even less bearing in this case.        In Allen, at least, there was an

embedded fee issue. In Sides, however, at issue was not ownership of the trail; the

defendant in that case undisputedly held the fee to the trail, subject to a right-of-way




                                     [J-91-2016] - 27
explicitly reserved in the subdivision plan. Rather, the dispute in Sides concerned the

use of that right-of-way.   The Starlings’ discussion of Sides, although it appears in

connection with their argument regarding ownership of Custer Drive, basically assumes

that the Association does not own Custer Drive, and then attempts to use Sides to

support the Superior Court’s entry of injunctive relief against the Association concerning

Custer Drive. We take up the question of use, infra, but Sides is useful in neither

connection. Furthermore, as a Superior Court decision, Sides would not bind us even if

it was on-point.

       In light of the foregoing, we are left with the conclusion as a matter of law that the

Association retains the fee to Custer Drive. The trial court correctly so held, and the

Superior Court erred in overturning that determination.

                                  The Disputed Property

       This leaves the Starlings’ wrap-around theory.26 The Association argues that we

must reject the Superior Court’s determination that the Starlings’ pleadings and proofs

established a triable factual dispute regarding the Starlings’ alleged ownership and/or

possessory rights in the Disputed Property and restore the trial court’s determination

that the Starlings, in failing to establish such a factual dispute, did not state prima facie

claims for trespass and ejectment. See Soffer, 409 A.2d at 340-41.

       Two competing accounts of the Plan arise due to the lack of metes and bounds

defining the northern boundary of Lot 726 and the concomitant lack of unequivocal

26
       We are left to consider the wrap-around theory, because in determining that the
Starlings have no ownership interest in Custer Drive, their cross-cutting theory
necessarily is infirm for that reason, if no other. Thus, any tenable ownership and use
claims concerning the Disputed Property that remain can be sustained only pursuant to
the wrap-around theory, which also is consistent with the wording of their Complaint.



                                      [J-91-2016] - 28
denominations establishing the northern and southern ends of the Disputed Property.

However, the prohibition on any interpretation that leads to an absurd result enables us

to bring the Plan into sharper focus. See Pocono Manor Ass’n v. Allen, 12 A.2d 32, 35

(Pa. 1940) (“Before a court will interpret a provision in a . . .contract in such a way as to

lead to an absurdity or make the . . . contract ineffective to accomplish its purpose, it will

endeavor to find an interpretation which will effect the reasonable result intended.”).27

       In order for the Starlings’ wrap-around theory to succeed, it must be the case that

LMI did not intend for the depicted tangency between the cul-de-sac and the waterline

to constitute a boundary. However, if the tangency is immaterial to the determination of

Lot 726’s boundary, then that necessarily entails that we treat no similar point of

tangency on the peninsula as a boundary. As the trial court noted, such a conclusion

would lead to the patently absurd result that, just as there is no clearly intended

boundary to Lot 726 to the north or west, there also can be no clear northeastern

boundary to Lot 1020. See T.C.O. at 6-7. If those points of tangency bound neither Lot

726 nor Lot 1020, then the owners of those lots both have a viable claim to the entirety

of the Disputed Property, because there is no notation or boundary other than the

tangencies to suggest where one lot ends and the other begins. Taken to its logical



27
        The Dissent distinguishes Pocono Manor from the facts of this case at length,
see Conc. & Diss. Op. at 6-7, but appears not to appreciate that our “claim[ed] reliance”
on that case extends no further than the uncontroversial principle of contract and deed
interpretation stated, not as binding or analogous authority on the particular issues now
before us. Just as the Dissent relies upon the inapposite case, Toy v. Metro. Life Ins.
Co., 928 A.2d 186 (Pa. 2007), to establish the standard governing review of a motion for
summary judgment, see Conc. & Diss. Op. at 2, we cite Pocono Manor merely for a
legal principle that applies in myriad circumstances, including the interpretation of a
facially ambiguous deed.



                                      [J-91-2016] - 29
extreme, the Starlings’ argument could result in the Starlings and the owners of Lot

1020 having opposing claims to each other’s entire lot.

       In a case such as this, where the only metes and bounds available to us are

illustrated but not described, we confront an arguable ambiguity where the boundaries

are depicted with less information than is necessary to define with certainty the property

in question. However, we must interpret the Plan as a whole, and we need no parol

evidence to infer that LMI did not intend to invite a property dispute between the owners

of Lot 726 and Lot 1020. Thus, we must seek to construe the Plan in any reasonable

way that avoids that absurd result. Here, the interpretation this principle requires is

clear: LMI must have intended both properties to be bounded by their boundaries’

respective points of tangency with Custer Drive,28 because that is the only principled

interpretation that creates ascertainable boundaries to both 726 and 1020.

       That ruling alone does not eliminate the explanatory limitations of the Plan and

the actual location on the ground of that point of tangency with the northern edge of the

Custer Drive cul-de-sac as depicted on the Plan. It also is not clear that the Plan’s

shoreline as depicted in 1967 corresponds to the 500-foot elevation line described in

note 2 to the Plan. But it is LMI’s intent at the time of the Plan’s design and recordation

that must govern the identification of the intended boundary, and we find that LMI

intended Lot 726 to terminate where the depicted northern boundary becomes tangent

with the cul-de-sac. Thus, the Superior Court erred insofar as it determined that a fact


28
        It seems appropriate to note one last time the undisputed proposition that Custer
Drive, as depicted on the Plan, encompasses significantly more land than the paved
portion of Custer Drive. Indeed, the non-cul-de-sac portion of Custer Drive is measured
sixty feet wide on the Plan.



                                     [J-91-2016] - 30
question remained regarding whether Lot 726 wraps around the northern end of the

peninsula to encompass some portion of the Disputed Property along the western

shore. Contract interpretation is a question of law for the court; ambiguities are to be

resolved in favor of a reasonable rather than an absurd or unreasonable interpretation;

and here it was unreasonable to imagine that LMI intended to leave the owners of Lots

726 and 1020 squabbling in perpetuity over who owns how much of the Disputed

Property. Interpreting the points of tangency as boundaries of the properties to which

they correspond is the reasonable of two alternative interpretations, and, as such, it is

the correct one.

       We emphasize, though, that we are not here called upon to determine where

precisely that point lies on the ground. Nor do we purport to do so. We declare here

only what the boundary is according to the Plan. See Miles Land Co., 91 A. at 1064.

The Starlings asked the trial court to “enter an Order conclusively establishing the

boundary line of [the] Starling Tract at [the] southern end of the Disputed Portion of the

Starling Tract and further declaring that the entire Starling Tract belongs to the

Starlings.” Complaint at 26. Thus, the question of where precisely the boundary lies is

not at issue; at issue is whether their tract includes the Disputed Property. It does not.

For the foregoing reasons, the trial court correctly granted the Association’s motion for

summary judgment on this claim, in effect determining that no fact question remained

the resolution of which would entitle the Starlings to the relief requested.29



29
       Much of the Dissent relies upon the premise that the boundary dispute regarding
Lot 726 cannot be decided as a matter of law, but rather must be submitted to a fact-
finder. See Conc. & Diss. Op. at 7 (“The identification of the boundary line in this matter
cannot be determined as a matter of law for purposes of summary judgment.”). This
(continued…)

                                      [J-91-2016] - 31
       C. The Use of Custer Drive and the Disputed Property

       In light of our above ruling, it is clear that the Starlings are not entitled to the

injunctive relief they seek with respect to Custer Drive and its cul-de-sac. We have

determined as a matter of law that the Association holds the fee to Custer Drive as

depicted on the Plan. Like every other Subdivision owner, the Starlings have an access

easement to Custer Drive and nothing more. The Association, as owner of Custer

Drive, can utilize that road however it sees fit, provided it does not interfere with the

Starlings’ (and any other Subdivision owner’s) access easement. See Minard Run Oil

Co., 214 A.2d at 235 (“The owner of the servient tenement may make any use thereof

which is consistent with or not calculated to interfere with the exercise of the easement.”

(citation omitted)); Mercantile Library Co. of Phila., 83 A. at 595 (“The grant of a fee,

subject to an easement, carries with it the right to make any use of the servient soil that

does not interfere with the easement . . . .” (citation omitted)). Thus, the Starlings have

no entitlement to injunctive relief restricting the Association’s non-interfering uses of

Custer Drive, and they have not claimed any such interference in the instant matter.



(…continued)
misunderstands the narrow scope of our ruling, which hinges upon a distinction—one
that the Dissent’s own citations reinforce—between identifying a boundary (a question
of law) and locating a boundary (a question of fact). See Miles Land Co., supra; cf.
Grace Bldg. Co., Inc., v. Parchinski, 467 A.2d 94, 96-97 (Pa. Cmwlth. 1983)
(recognizing the distinction between identifying boundaries and locating them). It also
disregards that, fairly construed, the Starlings’ complaint asserts ownership of the
Disputed Property generally, not by reference to a specific line or a clearly-defined
location. For present purposes, we decide only that the depicted point of tangency on
the Plan where Lot 726’s boundary touches the cul-de-sac bounds the Starlings’
property, which plainly is a ruling regarding what the boundary is. To the extent the
parties seek further clarification, our ruling is not intended to prejudice future efforts to
seek it, but that issue is not squarely presented in the case as we find it.



                                      [J-91-2016] - 32
For this reason, the Superior Court erred in directing the trial court to grant injunctive

relief to the Starlings vis-à-vis Custer Drive.

       With respect to the Disputed Property, having identified as a matter of law that

the point of tangency between the northern boundary line of Lot 726 and the cul-de-sac

as depicted in the Plan bounds the Starling Tract, we must conclude that the Starlings

have no ownership or possessory interest to any of the property that lies north, west,

and south of the point of tangency. However, in connection with the use of the Disputed

Property, the Starlings originally argued that even if they did not prevail on their claim

for ownership of that property, they nonetheless were entitled to injunctive relief

regarding its use for “non-residential purposes.” Complaint at 27-29 ¶164-177. Thus,

resolving the ownership question does not conclude the matter.

       The trial court granted the Association’s motion for summary judgment on this

issue, as well. It noted that the General Notes to the Subdivision Plan specify that the

primary purpose of the plan is “for the enjoyment of out of door recreation.” T.C.O. at

14. Reviewing the Dedication section of the Subdivision Plan, the court noted that,

“unless designated as a water supply lot or commercial area, all other lots are

recreational areas, lake access areas or residential lots.” Id. The Disputed Property,

being none of the above, but rather “a small strip of undesignated shoreline property”

“without a specific designation,” the trial court concluded that “any lawful use is

permitted” on the Disputed Property. Id. at 15. Thus, no relief was due.

       On appeal to the Superior Court, the Starlings challenged this ruling in tandem

with their challenge to the trial court’s entry of summary judgment in the Association’s

favor concerning the use of Custer Drive. However, while the Superior Court ruled in




                                       [J-91-2016] - 33
the Starlings’ favor with regard to Custer Drive, its determination that a question of fact

remained regarding ownership of the Disputed Property precluded deciding any

subsidiary questions regarding use of that property.        Although the Superior Court

seemed skeptical about the complained-of uses of the Disputed Property, it evidently

recognized that it would be premature to venture a legal opinion on that subject. If

further proceedings in the trial court resulted in a determination that the Starlings owned

the Disputed Property, any questions regarding Association use thereof would be moot.

Thus, when the court “remand[ed] for the grant of partial relief to the Starlings as to

count five” of their complaint, Starling, 121 A.3d at 1033, it referred to its entry of

injunctive relief as to “the entirety of the platted Custer Drive and the entirety of its

platted cul[-]de[-]sac,” id., i.e., the road and its right of way as designated on the Plan,

but did not dictate such relief with respect to the Disputed Property, the ownership of

which remained unresolved in the wake of the Superior Court’s ruling.

       With today’s decision, we effectively reinstate the trial court’s entry of partial

summary judgment.       We do not purport to rule upon the question of the Disputed

Property’s use, an issue as to which the Superior Court demurred as a consequence of

its divergent ruling.   Thus, on remand, the Superior Court is free to consider the

question whether the trial court erred in determining that the covenants and restrictions

did not preclude the Association’s recreational use of the Disputed Property.

       D. Conclusion

       For the foregoing reasons, we reverse the Superior Court’s order insofar as it

reversed the trial court’s entry of partial summary judgment in the Association’s favor

with respect to counts I, II, and IV of the Starlings’ Complaint. We further reverse the




                                     [J-91-2016] - 34
Superior Court’s order directing the entry of judgment in the Starlings’ favor on their

claim for injunctive relief regarding the use of Custer Drive, as well as its reversal of the

trial court’s determination that the Association did not own Custer Drive in fee simple

subject to Subdivision owners’ access easements and any other established rights-of-

way.30 We remand this case for further proceedings consistent with this Opinion.

       Chief Justice Saylor and Justices Todd and Mundy join the Opinion.

       Chief Justice Saylor files a concurring opinion.

       Justice Baer concurs in the result.

       Justice Dougherty files a concurring and dissenting opinion.

       Justice Donohue did not participate in the consideration or decision of this case.




30
       These rulings effectively dispose of the first and third issue as to which we
granted review, and obviate any need to consider the second issue. Because we find
that the Superior Court erred in granting relief to the Starlings for substantive reasons,
whether it overstepped its contextual authority in doing so is moot.



                                      [J-91-2016] - 35
