J-A12014-15



                              2015 PA Super 170

W. LOWELL STARLING AND NANCY                   IN THE SUPERIOR COURT OF
STARLING,                                            PENNSYLVANIA

                         Appellants

                    v.

LAKE MEADE PROPERTY OWNERS
ASSOCIATION, INC.,

                         Appellee                   No. 1779 MDA 2014


            Appeal from the Order Entered September 26, 2014
             In the Court of Common Pleas of Adams County
                    Civil Division at No(s): 2010-S-498

BEFORE: BOWES, DONOHUE AND ALLEN, JJ.

OPINION BY BOWES, J.:                             FILED AUGUST 11, 2015

     W. Lowell and Nancy Starling (the “Starlings”) appeal from a final

order entered in this case after the trial court granted partial summary

judgment to Appellee Lake Meade Property Owners Association, Inc. (the

“Association”) as to the key issues in this property dispute. After considered

review, we reverse and remand.

     This matter concerns the ownership and/or use of certain property in

the Lake Meade Subdivision of Adams County.       A map of one-third of the

Lake Meade Subdivision, which was recorded in three parts, follows:
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     The Lake Meade Subdivision is a tract of 1097.24 acres of real

property located in two adjacent townships of Adams County, Pennsylvania,

and is now owned by approximately 1040       families.   The Association was

formed to manage the Lake Meade Subdivision. All property owners of real

property located in the Lake Meade Subdivision are members of the

Association, which is run by a Board of Directors.         The Lake Meade

Subdivision, including the section depicted above, was recorded in the Office

of the Recorder of Deeds of Adams County, on January 20, 1967, by the



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developer of the subdivision, Lake Meade, Inc.      By deed dated September

25, 1968, the developer purported to grant to the Association ownership, in

fee simple absolute, of all of the roads in the Lake Meade Subdivision. In

that same deed, the Association was conveyed approximately thirty-five lots

still owned by the developer as well as the dam creating Lake Meade, the

lake, and its basin.

      The area at issue in this litigation is the northern part of the peninsula

shown on the above subdivision map. An enlarged depiction follows:




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      The arrow to the left points to the first piece of land at issue in this

case. We will refer to this property as the triangular-shaped piece of land.

The Starlings own Lots 725 and 726 designated by the arrows on the right.

This appeal involves ownership of the triangular-shaped piece of land, which

the Starlings claim is part of Lot 726. This appeal also involves the types of

activities that can be performed on the portion of Custer Drive and its cul de

sac running to the west of Lots 725 and 726. Custer Drive and its cul de

sac, as platted, were never fully paved. Rather, a narrow portion running

directly down the center to an oval shaped portion of the cul de sac was

paved. In aerial pictures taken of the area, Lot 726 appears contiguous to

the triangular-shaped piece of property:




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      The Starlings acquired title to Lots 725 and 726 in the Lake Meade

subdivision by deed dated August 12, 2002, from A. Bailey Wood and Doris

A. Wood. Their deed contains the following description of the land:

      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 in Plat Book 1, Page 5,
      and subject to all legal highways, easements and rights of way
      and restrictions of record.

The Woods acquired Lots 725 and 726 on December 21, 1977, from Louise

I. Cookson.    Ms. Cookson bought the two lots on August 12, 1974, from

W.F.O. and Elinor T. Rosenmiller. The Rosenmillers acquired Lots 725 and

726 by two deeds dated May 16, 1967, from Lake Meade, Inc.

      Pertinent to this appeal are two claims that the Starlings raised in their

complaint.    The Starlings sought a determination that they owned the

triangular-shaped piece of land and the entry of a permanent injunction

prohibiting any type of activity on Custer Drive and its cul de sac other than

vehicular traffic.

      The Starlings set forth certain facts about another lawsuit that bears

relevance herein. In 1976, Louise I. Cookson, who then owned parcels 725

and 726, brought an action against the Association.      Ms. Cookson claimed

that the Board of Directors of the Association had agreed to reduce the size

of the Custer Drive cul de sac from that outlined in the subdivision plan and

that she owned that portion of the cul de sac that was not paved.


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      Ms. Cookson did not prevail in that litigation. The court therein noted

that the agreement was not enforceable due to the legal precept that a

platted road in a recorded subdivision creates an easement in favor of all

property owners in the subdivision. The trial court in the 1976 action ruled

that the board could not agree to reduce the rights over Custer Drive’s cul

de sac that were possessed by all of the owners of property in the Lake

Meade Subdivision.

      Ms. Cookson also asked that the trial court declare that Custer Drive,

including its cul de sac, could not be used for recreational purposes.    The

trial court declined to rule on that issue, concluding that there was no case

or controversy in that respect since Ms. Cookson provided no proof that the

Association either used or intended to use any portion of the cul de sac for

recreational purposes. In the 1976 lawsuit, the court described parcel 726

as being bounded on three sides by Lake Meade, thereby implicitly indicating

that the triangular shaped piece of land was part of parcel 726.

      The Starlings averred in the present lawsuit that the Association did

indeed start to allow the cul de sac and the northern part of Custer Drive, as

well as the triangular-shaped piece of land, to be used for various

recreational purposes.     The Starlings outlined in their complaint the

following. People regularly fished, picnicked, sunbathed, socialized, parked,

loitered, created bonfires, and partied on Custer Drive, its cul de sac, and

the triangular-shaped piece of land to the west. Some of the activities were


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loud, boisterous, and profane, and some individuals were hostile to the

Starlings. Vehicles were parked on Custer Drive and its cul de sac as well as

on the Starlings’ lawn, which had been damaged by bonfires, parked

vehicles, and rocks thrown on it by strangers. The Starlings further noted

that the majority of the vehicles used by individuals engaging in these

activities did not have stickers issued by the Association and that, under the

rules and regulations recorded with subdivision map, such vehicles were not

permitted on the land in question.

        The Starlings also alleged the following.   In 2006, they began to

complain to the Association about the many improper activities occurring on

and around the northern portion of Custer Drive and its cul de sac, including

the unauthorized use of the Lake Meade Subdivision by people who were not

property owners.     The Association refused to take any action to remove

unauthorized people from the disputed property.      Instead, the Association

informed the Starlings that it owned a fee simple interest in Custer Drive

and the cul de sac and that it had the authority to determine who could use

the property and how it could be used. It then sponsored a Fourth of July

celebration on the triangular-shaped piece of land and the portion of Custer

Drive that abuts Lots 725 and 726.

        In their second amended complaint, the Starlings raised five causes of

action. Count one was a trespass claim as to the triangular-shaped piece of

land.    In that count, the Starlings claimed ownership of that land and


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demanded that the Association be prevented from trespassing on it.         In

count two, the Starlings asked that the Association be ejected from the

triangular-shaped piece of land.     Count three was a nuisance cause of

action. Counts four and five sounded in declaratory judgment. Count four

asked for a declaration of the boundaries for Lot 726.     Count five related

primarily to the use being made of Custer Drive and its cul de sac. Therein,

the Starlings sought a “decree enjoining permanently the Association from

using Custer Drive and its cul-de-sac for purposes other than vehicular

travel.” Second Amended Complaint, 10/21/10, at ¶ 177 (a).

      The Association moved for partial summary judgment claiming fee

simple absolute ownership of Custer Drive, its cul de sac, and the triangular-

shaped piece of land. It averred that it could use all of that property in any

manner that it wanted. The Starlings countered that the Association was not

the fee simple absolute owner of Custer Drive and its cul de sac since the

developer did not own a fee simple absolute interest in the platted roads in

the Lake Meade Subdivision in 1968, when the developer executed the deed

to the Association purporting to give the Association that type of ownership

interest in the subdivision roads.   The Starlings argued that the platted

roads, by virtue of the Lake Mead Subdivision plan recorded in 1967, were

easements over which all the owners in the Lake Meade Subdivision had the

right of travel. The Starlings also averred that there was a genuine issue of




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material fact as to the ownership of the triangular-shaped piece of land as

well as where the cul de sac on Custer Drive ended.

      On January 15, 2013, the trial court granted partial summary

judgment to the Association and dismissed all counts except the nuisance

cause of action.   The trial court ruled that the Association owned in fee

simple absolute Custer Drive, its cul de sac, and the triangular-shaped piece

of land running to the west of Custer Drive.        It rejected the Starlings’

position that the Association’s “interest in the roads is only a right-of-way

rather than fee simple ownership.” Trial Court Opinion, 1/15/13, at 4. In

support of that ruling, the trial court examined the September 25, 1968

deed from the developer to the Association and concluded that, in that

document, the developer conveyed to the Association all platted roads in the

Lake Meade Subdivision in fee simple absolute. It ruled that the Association

owned the triangular-shaped piece of land by construing the deed to the

Starlings as excluding that property.      The trial court also permitted the

Association to continue to use Custer Drive, the cul de sac, and the

triangular-shaped piece of land for recreational activities and parking.

      On September 26, 2014, by consent order, the remaining count

pending in this action was withdrawn and the Starlings agreed to abandon

any request for damages. The Starlings appealed from this final order

resolving all outstanding claims. They raise these issues:




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      1. Did the trial court err in holding that the Appellants’ deed and
      the incorporated subdivision plan unambiguously define the
      Appellants' northern boundary line as where the subdivision plan
      shows Custer Drive as being tangent with Lake Meade?

      2. Did the trial court err in granting partial summary judgment in
      favor of the Appellee without resolving the factual issue of where
      the drafters of the original subdivision plan and deeds intended
      for the Appellants' property lines to be located?

      3. Did the trial court misapprehend the import and effect of the
      fact that the common grantor's grant of the Appellants' property
      to the Appellants' predecessors in interest predated the common
      grantor's deed purporting to convey the roads in the subdivision
      to the Appellee in fee simple and improperly ignore the plain
      language of the Declarations and Restrictions purporting to
      reserve an easement "on, over, or under all road rights-of-way"
      when it held that the Appellee owns Custer Drive in fee simple?

      4. Did the trial court err in granting partial summary judgment in
      favor of the Appellee where there are unresolved factual issues
      as to whether the drafters of the subdivision intended that
      Custer Drive and the area to the west of Custer Drive be used by
      the Appellee's membership for recreational purposes?

Appellant’s brief at 4.

      Since the trial court granted summary judgment to the Association,

the following legal principles govern our review of this matter.

         When reviewing a trial court's grant of summary judgment,
      our standard and scope of review are as follows:

         Our scope of review is plenary, and our standard of review is
      the same as that applied by the trial court. Our Supreme Court
      has stated the applicable standard of review as follows: An
      appellate court may reverse the entry of a summary judgment
      only where it finds that the lower court erred in concluding that
      the matter presented no genuine issue as to any material fact
      and that it is clear that the moving party was entitled to a
      judgment as a matter of law. In making this assessment, we
      view the record in the light most favorable to the non-moving


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      party, and all doubts as to the existence of a genuine issue of
      material fact must be resolved against the moving party. As our
      inquiry involves solely questions of law, our review is de novo.

      Thus, our responsibility as an appellate court is to determine
      whether the record either establishes that the material facts are
      undisputed or contains insufficient evidence of facts to make out
      a prima facie cause of action, such that there is no issue to be
      decided by the fact-finder. If there is evidence that would allow a
      fact-finder to render a verdict in favor of the non-moving party,
      then summary judgment should be denied.

Reinoso v. Heritage Warminster SPE LLC, 108 A.3d 80, 84 (Pa.Super.

2015) (en banc) (citation omitted).

      We first address the last two issues presented on appeal as our

resolution of those questions aids in resolution of the first two contentions.

We conclude that the trial court committed an error of law in finding that the

Association has a fee simple ownership interest in Custer Drive and its cul de

sac. There is a well-ensconced principle of law pertinent to this matter. The

Starlings have consistently sought application of this principle and have not

waived its invocation, as suggested by the Association.

      It is of vast importance herein that the Lake Meade Subdivision was

recorded in 1967, the year before the developer purportedly deeded all of

the Lake Meade Subdivision roads in fee simple absolute to the Association.

The first owner in the Starlings’ chain-of-title acquired Lot 726 in 1967.

According to the September 25, 1968 deed, as of that date, Lake Meade Inc.

owned approximately thirty-five of the over one thousand lots depicted on

the recorded subdivision map. As our Supreme Court articulated in Kao v.


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Haldeman, 728 A.2d 345, 347 (Pa. 1999), upon which the Starlings rely in

their appellate brief, 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.” Specifically, all purchasers

of property in a subdivision acquire an easement over all platted roads in the

subdivision plan. This right is described as “an ‘easement of access’ which

means the right of ingress and egress to and from the premises of the lot

owners.   It is a property right appurtenant to the land which cannot be

impaired or taken away without compensation.”          Id. (citation omitted).

Accord Potis v. Coon, 496 A.2d 1188, 1193 (Pa.Super. 1985) (“It is well

settled that the grantee of a lot, which is sold according to a plan of lots on

which streets or alleys not previously opened or projected as a public street

are plotted out by the grantor, acquires an easement over those streets and

alleys as a private right of property arising out of the grant, of which he

cannot be deprived without compensation.”). This precept is settled law in

this Commonwealth, Kao, supra, and is outlined in the Restatement of

Property thusly:

      § 2.13 Servitudes Implied from Map or Boundary Reference

      In a conveyance or contract to convey an estate in land,
      description of the land conveyed by reference to a map or
      boundary may imply the creation of a servitude, if the grantor
      has the power to create the servitude, and if a different intent is
      not expressed or implied by the circumstances:




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      (1) A description of the land conveyed that refers to a plat
      or map showing streets, ways, parks, open space, beaches, or
      other areas for common use or benefit, implies creation of a
      servitude restricting use of the land shown on the map to
      the indicated uses.

      (2) A description of the land conveyed that uses a street, or
      other way, as a boundary implies that the conveyance includes
      an easement to use the street or other way.

Restatement (3d) of Property-Servitudes § 2.13 (emphasis added).

      The developer, Lake Meade Inc., of the Lake Meade Subdivision

recorded the subdivision map in 1967, before it purported to grant, in fee

simple absolute, the roads outlined on that subdivision map. When the map

was recorded, all the property owners who then purchased land in the Lake

Mead Subdivision acquired an easement of ingress and egress over all roads

platted on the subdivision map.   Many lots were sold by Lake Meade Inc.

between the recording of the subdivision map and the deed to the

Association.

      As of September 25, 1968, the developer did not own any road in fee

interest absolute because it had recorded the subdivision map and sold lots

in the subdivision. As owner of certain unsold lots in 1968, the developer

owned an easement in the platted roads shown on the subdivision map 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


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easement over section of property owned in common with other grantors

without joinder of other property owners).     The developer simply did not

own a fee simple interest in the platted roads in the development 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 deed

created a fee simple absolute ownership interest in the Association to Custer

Drive in the Lake Meade 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 Lake Meade Subdivision property owners to their lots.

      No one would suggest that the Association could allow the part of

Custer Drive running along lots 715 through 719 to be used as a parking lot,

for parties, and for bonfires. If that were the case, the owners of lots 720

through 726 would be denied access to their land.         Why then should the

portion of Custer Drive in front of Lots 725 and 726 be used for these types

of activities? All of the property owners in the Lake Meade Subdivision own

a right of way over Custer Drive, in its entirety, for purposes of ingress and

egress. That is the extent of their ownership interest.


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      The trial court in the 1976 action brought by Ms. Cookson clearly

recognized this principle of law. It ruled that the Board of Directors of the

Association could not reduce the size of the platted cul de sac on Custer

Drive and convey a portion of the cul de sac to the owner of Lot 726.       It

reasoned that such a conveyance would impair the vested property right of

ingress and egress over Custer Drive enjoyed by all property owners in the

Lake Meade Subdivision.

      The law provides that platted roads in a recorded subdivision plan

constitute right of ways for purposes of ingress and egress running to the

benefit all subdivision property owners. Hence, the trial court committed an

error of law in concluding that the Association owns Custer Drive and its cul

de sac in fee simple absolute.

      Since we have determined that the Association does not own Custer

Drive and its cul de sac in fee simple absolute, the secondary question

becomes what use the property owners in the subdivision are permitted to

make of Custer Drive. In this respect, the law is also settled. The owner of

an easement can make any use of it that is not inconsistent with the

purpose for which the easement was created.         Minard Run Oil Co. v.

Pennzoil Co., 214 A.2d 234, 235 (Pa. 1965).

      Sides v. Cleland, 648 A.2d 793 (Pa.Super. 1994), upon which the

Starlings also rely, is dispositive. The litigants in that case owned property

on Hill Island, almost entirely a recreational property, in the Susquehanna


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River.     The Clelands purchased undeveloped riverfront property on the

island, and there was a recorded plan that established a right-of-way over

the Clelands' property. In Sides, we were asked to determine “the scope of

this right-of-way.” Id. at 794.

         The plan wherein the Clelands purchased their property described the

right-of-way as a “30 foot trail,” which was designated for the “common use

of the residents of Hill Island.” Id. When the Clelands bought the property,

the trail was covered by forestation and used by no one. They began to use

it as a foot trail.     Eventually, the island inhabitants poured shale and rock

over the trail and began to ride motorcycles over it at excessive speeds.

They also began to throw parties on the right-of-way and allowed guests to

use it.

         The Clelands erected barriers across the right-of-way preventing its

use other than for foot travel and impeding the driving of vehicles at

excessive speeds. The Sides and other Hill Island inhabitants brought the

lawsuit and claimed that they could use “the designated trail for any purpose

they saw fit.”    Id.    The trial court disagreed and restricted the use of the

right of way by Hill Island's residents “to daylight walking and vehicles

travelling no more than ten miles per hour.” Id. at 795.

         This Court affirmed, noting at the inception that “where a deed

incorporates a plan which makes specific reference to a right of way, an

easement is implied over that property.” Id. We continued that, under that


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principle of law, the plan created a private right in each resident of Hill

Island to use the trail on the Clelands’ land.    In Sides, this panel then

specifically rejected the Sides’ position that they were permitted to use the

trail for any purpose that they wished.

      The Sides court noted that the scope of an easement holder’s right to

use the easement is limited to the use contemplated when the easement

was created.    We continued that “the circumstances attendant to the

easement's creation are important when defining the easement's purpose.”

Id.   This Court affirmed the trial court’s ruling because the court made

“reasonable efforts to determine the intent of the parties when the easement

was created. It reviewed the maps, heard testimony from the parties with

regard to the customary use of the trail, and actually viewed the trail in its

current state.” Id. at 796.

      The Sides decision held that the Hill Island residents and vacationers

could use “the trail in every manner consistent with a wilderness trail: they

may walk on it and enjoy the natural setting of the island, they may use it

reasonably to carry supplies from one person's tract . . . .” Id. Particularly

relevant herein, we noted that the trail could not be used as “a highway or a

gathering place” or an “an amusement park where thrill seekers can drive

all-terrain vehicles at potentially dangerous speeds at any time during the

day and night.” Id.




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      In the present case, Custer Drive is designated as a road and cul de

sac. Vehicles and pedestrians use a road and cul de sac for travel purposes.

Indeed, the applicable legal precept is that any platted road in a subdivision

creates a legal right of ingress and egress in the subdivision owners. One

does not use a road for recreational activities such as parties, bonfires,

sunbathing, and fishing.       There is no recreational right attendant to the

easement that Lake Meade Subdivision property owners enjoy over Custer

Drive and its cul de sac.

      In count five of their complaint, the Starlings set forth that they were

seeking declaratory judgment relief as to the use of Custer Drive and its cul

de sac.    Section 7533 of Title 42, entitled construction of documents,

permits   the   courts   to   construe     documents   and   declare   rights   and

responsibilities thereunder:

            Any person interested under a deed, will, written contract,
      or other writings constituting a contract, or whose rights, status,
      or other legal relations are affected by a statute, municipal
      ordinance, contract, or franchise, may have determined any
      question of construction or validity arising under the instrument,
      statute, ordinance, contract, or franchise, and obtain a
      declaration of rights, status, or other legal relations thereunder.

42 Pa.C.S. § 7533.

      In this case, the Lake Meade Subdivision, as a recorded instrument,

establishes the rights of the parties to this action with respect to Custer

Drive and its cul de sac.        As detailed, supra, the platted roads on a

subdivision map constitute easements for purposes of ingress and egress


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inuring to the benefit of the landowners in the subdivision.        The law is

likewise settled that an easement cannot be used for purposes other than

those contemplated when the easement was created.           These roads were

created to provide ingress and egress to the owners in the Lake Meade

Subdivision in order to access their land. Custer Drive and its cul de sac are

not designed as common areas and cannot be used for recreational activities

and as parking lots. The Association does not enjoy the right to use Custer

Drive and its cul de sac for anything other than ingress and egress.

      We therefore reverse the trial court’s decision to grant summary

judgment to the Association and to declare that the Association is the fee

simple absolute owner of Custer Drive and its cul de sac.       We remand for

entry of a decree, in accordance with the relief requested in count five of the

Starlings’ second amended complaint, permanently enjoining the use of

Custer Drive and its cul de sac for any purpose other than vehicular and

pedestrian ingress and egress. This prohibition is not to be limited to that

portion of Custer Drive that is paved; it applies to Custer Drive and its cul de

sac, as platted in the Lake Meade Subdivision map recorded in 1967.

      We now address the first questions raised by the Starlings, whether

the trial court erred in granting summary judgment to the Association by

concluding that there was no genuine issue of material fact that the Starlings

did not own the triangular-shaped piece of land and that the Association did

own that piece of property and could continue to use it for recreational


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activities.   Our review substantiates that the Starlings are correct in

asserting that there is no evidence of record indicating that the Association

owns the triangular-shaped piece of land. The Association did not produce a

deed to the triangular-shaped piece of land, which is not a lot transferred to

the Association in the September 25, 1968 deed from the developer.

      The trial court’s conclusion that the Association owned the triangular-

shaped piece of land rested solely upon the trial court’s examination of the

deed to the Starlings and its conclusion that the Starlings’ deed did not

include the triangular-shaped piece of land. 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. The Starlings did not ask for summary judgment on this question,

and they produced evidence in opposition to the grant of summary judgment

to the Association.   Most significantly, the Starlings noted that the August

12, 1974 deed from the Rosenmillers to Ms. Cookson had an attached

survey also recorded with the deed. The survey is of Custer Drive and its cul

de sac and shows both the paved and unpaved portions:




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     This detailed survey indicates that there is a wide swath of land

between the cul de sac and Lake Meade and that Lot 726 could include land

to the north of Custer Drive’s cul de sac continuing to Lake Meade as its

western boundary. We believe that this survey establishes that there is a



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genuine issue of material fact as to whether Lot 726, which is not described

in the deed by metes and bounds, includes the triangular-shaped piece of

land. Hence, we conclude that summary judgment was improperly granted

in favor of the Association as to counts one, two, and four of the complaint

and that it should not have been declared owner of the triangular-shaped

piece of land and permitted to make recreational use of it.

        We observe that the Association’s brief presents the incorrect assertion

that the Starlings are claiming ownership of Custer Drive and its cul de sac.

E.g. Appellees’ brief at 29 (“The trial court did not err in determining that

the Starlings’ deed does not convey to them Custer Drive.”).                           The

Association    continually   conflates    the     distinct   properties   at   issue    by

referencing the triangular-shaped piece of land together with Custer Drive.

It fails to properly distinguish between the discrete remedies sought by the

Starlings with respect to Custer Drive and to the triangular-shaped piece of

land.

        The Starlings claimed ownership solely in the triangular-shaped piece

of land to the west of Custer Drive, which they called the Disputed Portion of

the Starling Tract in their second amended complaint.                     The specific

allegations were as follows:

              37. There is a narrow strip of unimproved real property
        located immediately to the west of Custer Drive and between
        Custer Drive and Lake Meade.




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            38. The Starlings maintain that the narrow strip of
      unimproved real property located to the west of Custer Drive
      and between Custer Drive and Lake Meade is part of the Starling
      Tract and therefore is owned by the Starlings.

            39. The narrow strip of unimproved real property located
      to the west of Custer Drive and between Custer Drive and
      Lake Meade (the "Disputed Portion of the Starling Tract")
      does, in fact, belong to the Starlings.

Second Amended Complaint, 10/21/10, at ¶ ¶ 37-40 (emphases added).

      A review of the second amended complaint establishes that the

Starlings’ trespass and ejectment counts pertained to the “Disputed Portion

of the Starling Tract.” See id. at ¶¶ 138-142, 146-152. As noted, that tract

was defined in paragraphs thirty-seven through forty as lying to the west of

Custer Drive.   In the declaratory judgment count set forth as count four, the

Starlings asked for a declaration as to the ownership of the Disputed Portion

of the Starling Tract. With respect to Custer Drive, the Starlings sought an

injunction restricting its use; they made no attempt to alter its boundaries.

      We also reject the Association’s suggestion that the Starlings admitted

that the Association owned Custer Drive. Appellee’s brief at 32. The portion

of the second amended complaint and answers to preliminary objections

relied upon by the Association in this respect constituted a description of the

contents of the 1968 deed from Lake Meade Inc. to the Association. Second

Amended Complaint, 10/21/10, at ¶ 13 (“By Deed dated September 25,

1968, Lake Meade, Inc. granted to the Association ownership of the roads in

the Lake Meade Subdivision, a dam, a man-made lake and lake basin


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(commonly referred to as Lake Meade) and certain, specified lots designated

on the recorded Lake Meade Subdivision Plan. . . . A true and correct copy of

the September 26, 1968 Deed is attached hereto as Exhibit "D" and made a

part hereof by reference.”); Plaintiffs Brief In Opposition To Defendant's

Preliminary Objections To Second Amended Complaint, at 3 (“By Deed dated

September 25, 1968, Lake Meade, Inc. granted to the Association ownership

of the roads in the Lake Meade Subdivision, a dam, a man-made lake and

lake basin (commonly referred to as Lake Meade) and certain, specified lots

designated on the recorded Lake Meade Subdivision Plan.”).             These

statements were part of a recitation of the pertinent procedural history and

were not admissions that the described deed was effective to grant a fee

simple absolute ownership interest in the roads to the Association.

     In sum, we remand for the grant of partial relief to the Starlings as to

count five of their second amended complaint 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.   We also reverse the grant of summary judgment in favor of the

Association as to counts one, two, and four of the second amended

complaint and remand for further proceedings consistent with this writing.

     Order reversed. Case remanded. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/11/2015




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