J-A28039-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    DAVID AND SHERRIE CLIFF,                   :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellants              :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    ASSOCIATES AT CHAPMAN LAKE,                :
    INC.                                       :       No. 223 MDA 2018

                Appeal from the Judgment Entered April 13, 2018
              in the Court of Common Pleas of Lackawanna County
                       Civil Division at No(s): 2015-00099

BEFORE: LAZARUS, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                          FILED FEBRUARY 01, 2019

       David and Sherrie Cliff (collectively, “the Cliffs”) appeal from the

Judgment entered against them and in favor of Associates at Chapman Lake,

Inc. (“the Associates”).1      We affirm.

       In its Opinion, the trial court summarized the relevant factual history

underlying the instant appeal as follows:

____________________________________________


1 The Cliffs filed the instant appeal prior to the entry of judgment on the trial
court’s verdict. “Orders denying post-trial motions … are not appealable.
Rather it is the subsequent judgment that is the appealable order when a trial
has occurred.” Harvey v. Rouse Chamberlin, Ltd., 901 A.2d 523, 524 n.1
(Pa. Super. 2006) (citation omitted). Judgment subsequently was entered on
April 13, 2018. As Judgment has been entered on the verdict, we will treat
the Notice of Appeal previously filed in this case as filed after the entry of
judgment. See Pa.R.A.P. 905(a)(5). The appeals statement has been
corrected to reflect the entry of judgment.
J-A28039-18


      [The Cliffs] are adult individuals who own real estate known as 4
      George Street in Scott Township, Lackawanna County,
      Pennsylvania. [The Cliffs] claim a right of passage over George
      Street and other roads within the McNulty and Rogan subdivision
      [(“the Subdivision”)] areas[,] as well as riparian/lake rights to
      Chapman Lake[,] by virtue of various deeds contained within their
      chain of title. In the past, [the Cliffs] have accessed Chapman
      Lake by way of George Street and neighboring roads. [The Cliffs’]
      property is not adjacent to Chapman Lake.

          [The Associates] is a corporation duly organized and existing
      under the laws of the Commonwealth. … [The Associates] owns
      the lake bed of Chapman Lake, which is a spring[-]fed lake of
      approximately one hundred (100) acres, located in Scott
      Township, Pennsylvania. [The Associates] obtained title to the
      lake bed by virtue of three (3) deeds recorded in Lackawanna
      County.[FN]


         Said deeds were recorded on March 29, 1999, October 23,
      [FN]

      2007, and July 9, 2012.


          In the summer of 2008, the Associates decided to authorize
      neighboring property owners to use Chapman Lake for recreation
      purposes, for a cost, and established a flat fee of one hundred
      dollars ($100.00) per year for said use. The Associates agreed to
      allow [the Cliffs] to use Chapman Lake for recreational purposes
      for $100.00 per year, the same payment that is charged to all
      other homeowners on or near the lake. However, [the Cliffs] took
      the position that they had a legal right to use [Chapman] Lake as
      riparian land owners, pursuant to the deeds in their chain of title,
      and with this in mind[,] they offered to pay the Associates the
      $100.00 fee only on the stipulation that [the Associates] would
      acknowledge the legal basis for their lake rights. The Associates
      refused, contending that it[,] alone[,] has the officially-recognized
      right to regulate the use of Chapman Lake, and that others may
      use the [l]ake only with their permission….

Trial Court Opinion, 7/14/17, at 1-2 (footnote in original).

      Subsequently, the Cliffs filed a Complaint seeking declaratory relief, and

to quiet title regarding their interest in Chapman Lake. The Associates filed

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J-A28039-18


an Answer and New Matter, asserting its ownership of Chapman Lake, and

averring that the Cliffs have no right to use Chapman Lake pursuant to the

deeds in their chain of title. New Matter, ¶¶ 4-5. Following a non-jury trial,

the trial court entered a verdict in favor of the Associates. The Cliffs filed

post-trial Motions, which, after a hearing, the trial court denied. Thereafter,

the Cliffs filed the instant timely appeal, followed by a court-ordered Pa.R.A.P.

1925(b) Concise Statement of matters complained of on appeal. Judgment

subsequently was entered on the verdict.

      The Cliffs present the following claims for our review:

      A. Did the [t]rial [c]ourt err when it did not determine that [the
         Cliffs] owned [a] property interest appurtenant to their
         property[,] as defined by the 1895 Settlement Agreement filed
         in the condemnation action of the Jermyn and Rushbrook Water
         Company [(“the Water Company”)] against the Estate of Ellen
         Lee[,] set forth [at] Docket No. 422 September [T]erm 1895[,]
         and acquired riparian rights as successors in title to a portion
         of the original Lee Farm?

      B. Did [the trial court] err by failing to determine that [the Cliffs],
         as owners of property in the [Subdivision,] had acquired a right
         to enter the water of Chapman Lake to the extent that the lake
         bed formed a portion of the roads of the property of the
         [Subdivision]?

      C. Did [the trial court] err by determining that riparian rights did
         not include recreational rights?

Brief for Appellants at 5.

      The Cliffs first claim that the trial court improperly failed to recognize

that they “possessed as an appurtenant interest, rights from the settlement

agreement (“the Agreement”) between the Water Company and the Estate of


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J-A28039-18


Ellen Lee and its heirs pursuant to a condemnation action filed to Docket No.

422 September Term 1895 (“the Condemnation Action”). Brief for Appellants

at 19. The Cliffs assert that they are the owners of Lots 9 and 10 of the

Subdivision, as identified on the 1950 Subdivision map. Id. They assert that

a portion of their property incorporates a portion of the property “deriving

from the original Lee Farm.” Id. The Cliffs state that in 1885, the Water

Company condemned a portion of the Lee Farm, which was subsequently

submerged and incorporated into the lake bed. Id. According to the Cliffs,

the Agreement stated that the Water Company

      disclaimed[ed] any intention of depriving the owners of said land
      … of access to the water of said Chapman Lake where it adjoins
      the said lands, or of the free and uninterrupted use of said water
      for the stock and other uses thereof in connection with said farm
      as riparian owners of said land and water, and do give and grant
      unto said parties the right to take water from the lake if it recedes
      or is drawn below the line of low water mark and to have the use
      of same as riparian owner and to fish in the water over the land
      taken from said [owners].

Id. at 20-21 (citation omitted). Thus, the Cliffs assert that “[t]he conveyance

of the appurtenant interest by the [Water Company] clearly was a grant of

riparian rights and the use of the water to the successors and assigns of any

portion of the Lee Farm property.” Id. at 22.

      As this Court has explained,

      [o]ur appellate role in cases arising from non-jury trial verdicts is
      to determine whether the findings of the trial court are supported
      by competent evidence and whether the trial court committed
      error in any application of the law. The findings of fact of the trial
      judge must be given the same weight and effect on appeal as the
      verdict of a jury. We consider the evidence in a light most

                                      -4-
J-A28039-18


      favorable to the verdict winner. We will reverse the trial court
      only if its findings of fact are not supported by competent evidence
      in the record or if its findings are premised on an error of law.
      However, [where] the issue ... concerns a question of law, our
      scope of review is plenary.

             The trial court’s conclusions of law on appeal originating
      from a non-jury trial are not binding on an appellate court because
      it is the appellate court’s duty to determine if the trial court
      correctly applied the law to the facts of the case.

Stephan v. Waldron Elec. Heating & Cooling LLC, 100 A.3d 660, 664-65

(Pa. Super. 2014) (citation omitted).

      The Cliffs claim riparian rights as to Lake Chapman.

      In Pennsylvania, if a body of water is navigable, it is publicly
      owned and may only be regulated by the Commonwealth;
      ownership of the land beneath would not afford any right superior
      to that of the public to use the waterway. If a body of water is
      non-navigable, it is privately owned by those who own the land
      beneath the water’s surface and the lands abutting it, and may be
      regulated by them.…

Mountain Props. v. Tyler Hill Realty Corp., 767 A.2d 1096, 1099-1100

(Pa. Super. 2001) (citations and internal quotation marks omitted).            The

parties do not dispute that Chapman Lake is non-navigable. Thus, the trial

court was asked to determine whether the Cliffs had acquired riparian rights

to Chapman Lake through their chain of title.

      In its Opinion, the trial court addressed the Cliffs’ claim of riparian rights

through the Lee Farm parcel, and concluded that it lacks merit.          See Trial

Court Decision and Decree, 1/18/18, at 2-3.           We agree with the sound

reasoning of the trial court, as stated in its Opinion, and affirm on this basis

with regard to the Cliffs’ first claim. See id. We additionally point out the

                                       -5-
J-A28039-18


evidence presented at trial, which supports the trial court’s findings and

determination.

      The Cliffs presented evidence that Chapman Lake is a freshwater lake

located in Scott Township. N.T., 2/21/17, at 18. The Cliffs presented the

testimony of David Durkovic (“Durkovic”), a title searcher, regarding their

claim of ownership of riparian rights to Chapman Lake. N.T., 2/21/17, at 26.

Durkovic testified that in 1895, Ellen Lee (“Lee”) owned a large parcel that

included a portion of the lake bed. Id. at 28. According to Durkovic, just

prior to 1900, the Water Company condemned property in and around

Chapman Lake. Id. at 9-10. Durkovic testified that the condemnation was

effectuated to increase the water level four feet above the original outlet. Id.

at 31. Another nearby farm, the Finch Farm, was not condemned by the Water

Company. Id. at 38. Durkovic testified that the Finch property extended into

the lake bed. Id. at 42.

      According to Durkovic, the Water Company thereafter entered into the

Agreement, which provided that the Lees, their heirs and assigns, would retain

the use of the water for their livestock or other uses in connection thereof.

Id. at 32-33. The Agreement further permitted the Lees and their successors

to take water from the lake if it fell below the low-water mark, and to fish over

the condemned property. Id. at 33.

      Durkovic testified that in 1950, the Subdivision plan was filed. Id. at

27. The Subdivision was comprised of the Lee Farm parcel, and two parcels


                                      -6-
J-A28039-18


comprising the Finch Farm.     Id. at 44.   According to Durkovic, the Cliffs

acquired title to a parcel in the Subdivision. Id. at 46. However, according

to Durkovic, the Cliffs’ property was part of the original Finch Farm parcels,

and not the Lee Farm parcel. Id. at 48. Thus, Durkovic’s testimony supports

the trial court’s determination that the Cliffs did not secure riparian rights

through the Lee Farm’s chain of title. Because the evidence supports the trial

court’s determination, and its legal conclusion is sound, we cannot grant the

Cliffs relief on this claim.

      In their second claim, the Cliffs argue that they have acquired, as an

appurtenant interest to their property, the ability to access the waters of

Chapman Lake. Brief for Appellants at 24. The Cliffs contend that the actions

of the Water Company raised the level of Chapman Lake, resulting in the

submersion of some of the Subdivision’s roads and common areas. Id. The

Cliffs assert that “[t]he title to the roadways maintained with the property

owners of the [Subdivision].” Id. The Cliffs argue that “to the extent that

each roadway extends to the original low water mark of [Chapman Lake], that

portion of the lake which covers these areas is accessible by the owners of

lots in the [S]ubdivision.” Id. at 25. Because the Associates purportedly have

no ownership interest in the submerged roadways or common areas, the Cliffs

argue that they have the right to use the lake above the roadways and

common areas “as an easement appurtenant to their ownership interest and

property created by the [S]ubdivision.” Id. at 26.


                                    -7-
J-A28039-18


      While the Cliffs argue that certain common areas and roads are now

submerged, they did not raise this as a basis to use Chapman Lake in their

pleadings, nor was it addressed at trial. A party “may not, at the post-trial

motion stage, raise a new theory which was not raised during trial.”           E.S.

Mgmt. v. Yingkai Gao, 176 A.3d 859, 864 (Pa. Super. 2017). Consequently,

we cannot grant the Cliffs relief on this claim.

      Finally, the Cliffs claim that the trial court erred by establishing a set of

legal rights for access of Chapman Lake based upon “a separate and distinct

classification of riparian rights[,] which the court identified as ‘recreation

rights.’” Brief for Appellants at 26. The Cliffs take exception to the trial court’s

reference to “recreation rights,” rather than “riparian rights.”        Id. at 28.

Again, the Cliffs argue that riparian rights as to Chapman Lake were conveyed

to all owners of the Lee Farm property. Id.

      As set forth above the Cliffs did not acquire their property through the

Lee Farm property’s chain of title and therefore, their claim does not entitle

them to relief. Accordingly, we affirm the Judgment entered by the trial court.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/01/2019

                                       -8-
                                                                     Circulated 01/16/2019 04:18 PM




                           IN THE COURT
                         OF COMMON PLEAS
                OF LACKAWANNA COUNTY, PENNSYLVANIA
                      ORPHANS' COURT DMSION


DAVID CLIFF and SHERRIE CLIFF,
Plaintiffs

v.
ASSOCIATES AT CHAPMAN LAKE, INC.,
Defendant

                                                                       35-2015-00099


                           DECISION and DECREE


On February 21, 2017, this Court held a non-jury trial in the land and water
rights case captioned above. Plaintiffs David Cliff and Sherrie Cliff sought
declaratory, injunctive, and quiet title relief related to the use of Chapman Lake,
a non-navigable body of water located in Lackawanna County, Pennsylvania. At
the trial, testimony was presented by witnesses for the Plaintiffs and for the
Defendant, and documentary evidence was entered. Counsel for Plaintiffs later
determined that one of the survey documents submitted into evidence was not
complete as to the boundary line of their property. On May 25, 2017, this Court
conducted a supplemental hearing to admit a supplemental survey map. On July
14, 2017, we issued a decision and Order entering verdict in favor of Defendant
on Plaintiffs' ciaims for relief,' Plaintiffs have filed a Motion for Post Trial relief,
which was recently argued before the undersigned. For the following reasons,
we deny the Motion for Post Trial Relief.

The first allegation of error is stated by Plaintiffs as follows:

       The decision of the Court did not render findings on the title to Plaintiffs'
       property. Specifically, the Court did not find that a portion of the
       Plaintiffs' property was part of the original Lee Farm. The remainder of
       the property was from the Finch Farm.



                                                                                         1
            The historical title to the property is essential in determining the property
            rights which existed on the Plaintiffs' property by way of acquisition of
            thee property rights going back to the condemnation of 1895 of the Lee
            Farm property and the investing of certain lake rights in the chain of title.1

The evidence offered at the hearing showed that in the 1800s and 1900s, the
Lee Farm and the Finch Farm were two properties which existed just to the west
of Chapman Lake. After the Lee farm was condemned in 1895, the Jermyn and
Rushbrook Water Company granted the Lees certain rights to use the waters of
the Lake. Plaintiffs alleged that their land derives in part from the Lee Farm,
which thereby grants them the rights granted to the Lees by said Water
Company. However, at the bench trial, the testimony of Title Searcher David
Durkovic was introduced, and Mr. Durkovic stated that Plaintiffs' property was
from the former Finch Farm, and not the Lee Farm.

After the proceedings closed, Plaintiffs sought to reopen the matter to introduce
a map from Barrett's Surveying and Mapping, which supposedly backed their
claim regarding the Lee Farm and its title history. However, the Barrett Map did
not show in any conclusive manner that Plaintiffs" property was part of the Lee
Farm. As The Associates at Chapman Lake point out, under Pennsylvania Law,
the party asserting a fact has the burden of establishing it by competent
evidence . v . w. v. Department of Public Welfare, 51 A.3d 282 (Pa.
Cmwlth. 2012). As the Plaintiffs were unable to show that they derive rights,
including an easement to use the waters of Chapman Lake, from the Lee Farm,
this assertion fails to persuade the Court to rethink its earlier ruling, as the Cliffs'
property is not in the Lee Farm chain of title.

Plaintiffs call our attention to Matthews v. Bagnik, 41 A.2d 875 (Pa. Super.
 1945), which speaks to riparian rights generally but does not address
recreational water rights. This case states that ownership of land bordering a
lake does not give said owner rights to use the lake. Further, Pennsylvania law
provides that an easement can only be used for the purposes for which it was
dedicated. In this matter, the easement was issued long ago, at a time when
the Lee Farm parcel was contiguous to the lake, and because of that, the Lees
were riparian owners. Again, the Jermyn and Rushbrook Water Company
unambiguously limited the use of the easement granted to use the waters of the
lake for uses connected to the farm, such as using water for livestock. For these
reasons, even assuming that Plaintiffs established that their property is in the
chain of title to the Lee Farm, the Plaintiffs do not have any valid claim to the
rights granted to Lee and the Lee heirs, to use Chapman Lake.



1
    Plaintiffs' Motion for Post-Trial Relief, page two.

                                                                                         2
Plaintiffs Cliff also allege that this Court erred in determining that they are not
riparian owners. Our decision in this regard stands. A riparian owner, under
Pennsylvania law, is an owner of land contiguous to a body of water. Fuller v.
Cole, 33 Pa. Super. 563 (1907). Plaintiffs Cliff own property in the vicinity of
Chapman Lake, but the property is not bounded by the Lake. By way of their
property ownership, the Cliffs do not have the right to unfettered use of
Chapman Lake as riparian owners, and further, the non-navigability of the Lake
works against the Cliffs as well.

In the Commonwealth, the law distinguishes between rights of riparian owners of
land adjoining navigable bodies of water, and the rights of riparian owners of
land adjoining non-navigable bodies of water. Village of Four Seasons
Association, Inc. v. Elk Mountain Ski Resort, 103 A.3d 814 (Pa. Super.
2014). Whether a land is navigable depends upon whether it is used or usable
for commerce and the transport in quantity of goods or people or whether the
water remains a local focus of attraction. Lakeside Park Co. v. Forsmark,
153 A.2d 486 (Pa. 1959). In the matter now before us, the body of water at
issue, Chapman Lake, has a lake bed of approximately one hundred acres which
is spring-fed, with no inlet. The Lake's outlet is a narrow stream, and has not
been used to move persons or goods in commerce; there has never been any
commercial activity on Chapman Lake, according to the Associates. Put simply,
Chapman Lake is not navigable, and as such, is privately owned by those who
own the lake bed and activities on the surface may be controlled by them.
Associates of Chapman Lake v. Gerchman (C.P. Lackawanna County, 10
CIV 391, slip opinion).

The final issue presented for our review concerns the roads in the McNulty
subdivision in the neighborhood surrounding Chapman Lake. In our decision
issued after the bench trial, we stated that the language in the deeds contained
in Plaintiffs' chain of title affords them the right to ingress and egress from
Chapman Lake over certain streets. This Court did not, in that written decision,
suggest or infer that this access over roads translates to the unencumbered right
to use Chapman Lake for recreational purposes. That issue was not addressed
further, in the bench trial or in our earlier decision, and there is no valid reason
now to evaluate an issue that was not raised at trial. Failure to specify in a post-
trial motion where and how the grounds for relief were asserted at trial or pre-
trial will result of a waiver of said issue. Hinkson v. Commonwealth of
Pennsylvania, 871 A.2d 301 (Pa. Cmwlth. 2005). As this legal theory was
not addressed in the pleadings or at trial, we find the issue to be waived.

As pointed out by the Associates, this case is now before the Court on post-trial
motions in the nature of a Judgment Notwithstanding the Verdict. There are two
reasons on which a Judgment Notwithstanding the Verdict can be entered: the
moving party must demonstrate that he or she is entitled to judgment as a

                                                                                      3
matter of law or, in the alternative, that the evidence introduced in this case was
such that no two reasonable minds could disagree that the outcome should have
been rendered in favor of the moving party. Holt v. Navarro, 932 A.2d 915
(Pa. Super. 2007). After reviewing the record in this matter, including the
exhibits, this Court can only conclude that, despite the well-made arguments
which were presented during the bench trial, that the Cliffs are not entitled to
judgment in their favor. The applicable law required a verdict in favor of the
Associates, and after further consideration, that circumstance is unchanged, and
the verdict will remain in favor of the Associates.

Our Order is attached.




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