J-A33011-16

                                   2017 PA Super 49



RODGER WEIBLE                                           IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                            Appellee

                       v.

WILLIAM P. WELLS AND ELIZABETH
LOUISE WELLS

                            Appellants                       No. 46 WDA 2016


                    Appeal from the Order December 8, 2015
               In the Court of Common Pleas of Jefferson County
                      Civil Division at No(s): 923-2009 CD


BEFORE: LAZARUS, J., SOLANO, J., and STRASSBURGER, J.*

OPINION BY LAZARUS, J.:                                 FILED FEBRUARY 27, 2017

        William P. Wells and Elizabeth Louise Wells (the Wellses) appeal from

the trial court’s order ejecting them from the subject property, a portion of

Appellant Rodger Weible’s property, and ordering them to pay to resurvey

the line between the parties’ properties. The trial court concluded that the

Wellses did not adversely possess the subject property because they only

demonstrated the required elements of adverse possession for 20 years

before local counties, predecessors in title to Weible, became the owners of

and publicly used the property.                After careful review, we reverse and

remand.


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*
    Retired Senior Judge assigned to the Superior Court.
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     Weible and the Wellses own neighboring residential property located,

respectively, at 703 East Main Street and 717 East Main Street in

Reynoldsville, Pennsylvania.    The Wellses obtained title to their parcel by

deed dated August 2, 1965, from Ralph August. Weible purchased his parcel

from Jefferson and Clearfield Counties (the Counties) on December 22,

1998. The Wellses installed landscaping and a driveway upon a portion of

703 East Main Street in August 1975 and October 1979 (collectively, subject

property). The Counties jointly operated a facility that housed and provided

services to mental health patients on the subject property from May 1995

through December 1998.

     In 2008 a tree fell from the Wellses’ property and caused damage to

surrounding power lines and power sources.        When the Wellses offered to

pay the borough to repair the lines, they were notified that the fallen tree

had come from Weible’s property and that they were not responsible for the

cost of repairs. After the borough attempted to collect payment from Weible

for the damage, Weible paid Alexander & Associates, Inc., to survey his

property to determine the boundary line between 703 and 717 East Main

Street. Weible discovered that the Wellses’ landscaping and driveway were

encroaching    on   his   property;   he   requested   that   they   remove   the

landscaping.

     On August 28, 2009, Weible filed the current action in ejectment

against the Wellses alleging that since August 2, 1965, the Wellses caused

landscaping and a driveway to be installed on his property.          The Wellses

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filed an answer, new matter and counterclaim to quiet title to the subject

property and also raised the affirmative defense of adverse possession.

       On September 11, 2015, the court held a non-jury trial.1        The trial

court found, as a fact, that the Wellses have “open[ly] notoriously, visibly

and adversely” used the subject property “for a period well in excess of 21

years” and that the subject property “has been in virtually the same position

and condition since the date of [its] initial placement which is well in excess

of 21 years.”     Trial Court’s Findings of Fact, 12/8/15, at ¶ 16.   The court

ultimately determined that “because Weible received his property from a

political subdivision, [the] Well[ses’] adverse possession claim cannot stand

until 21 years after the date of conveyance from these political subdivisions.”

Id. at ¶ 22 (emphasis added). The court reasoned that because the Wellses

were not “capable of adverse possession against those counties’ ownership,

the 21[-]year period would start anew after the counties sold the property.”

Id. at ¶ 23.     Because the Wellses only possessed the subject property for

eleven years after the Counties sold it to Weible, the court found that they

did not adversely possess it for the requisite 21 years.




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1
   We note that “the factual findings of a trial court sitting without a jury
carry the same weight as a jury verdict, and we will not disturb those
findings on appeal absent an error of law or abuse of discretion.” Arcadia
Co., Inc. v. Peles, 576 A.2d 1114, 1116 (Pa. Super. 1990) (citing Pato v.
Cernuska, 493 A.2d 758, 759 (Pa. Super. 1985)).



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       On December 8, 2015, the court entered an order ejecting the Wellses

from the property, requiring them to pay the costs of resurveying the line

between their property and Weible’s property, and giving them until April 30,

2016, to remove any of their items from Weible’s property.        The Wellses

filed a timely motion for reconsideration, which the trial court properly

treated as a post-trial motion. The court denied the motion and this timely

appeal follows.     On appeal, the Wellses raise the following issues for our

consideration:

       (1)    Whether the lower court committed clear error in granting
              [Weible’s] Complaint in Ejectment and dismissing [the
              Wellses’] counterclaim for quiet title of the disputed real
              property, because [the Wellses] established during trial
              that they continuously and exclusively mowed and
              adversely cared for and possessed the real property at
              dispute from August 1965 through the time of trial.[2]


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2
  There is a dispute regarding whether the Wellses maintained the subject
area prior to installing the landscaping and driveway consistently since they
owned the land in 1965 (while possessed by Ralph August and his family).
If this were the case, 21 years would have passed prior to the Counties
owning the subject property. Although Ralph August testified that they all
took turns mowing the grass right to the edge of the Wellses’ property line,
because a split-rail fence was installed after the Augusts moved from the
subject property, the evidence of the Wellses’ maintenance of the area was
not conclusive. See N.T. Non-Jury Trial, 9/11/15, at 156-57 (“[W]e always
mowed that edge to their property.”). Therefore, we find that the time the
clock started running for purposes of adverse possession was the date that
the landscaping (1975) and driveway (1979) were installed. Thus, finding
that the Wellses established that they adversely possessed the land from the
latter dates, see infra pp. 5-10, this issue is moot.




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     (2)   Whether, based upon the pleadings, as well as the
           evidence presented in the instant matter, the lower court
           committed clear error in finding that [the Wellses] failed to
           satisfy the elements of adverse possession during their
           open, exclusive, continuous, and adverse possession of the
           real property in dispute from August 1965 through the
           time of trial.

     (3)   Whether the lower court committed clear error in
           determining that the 21-year statutorily prescribed period
           for [the Wellses] to obtain the real property in dispute by
           virtue of adverse possession started anew or reset – as
           opposed to being tolled or paused – during the time that
           Clearfield and Jefferson Counties purportedly owned said
           real property.

     (4)   Whether the lower court committed clear error in
           determining that the disputed real property was devoted to
           public use by Clearfield County and Jefferson County from
           May 1995 through December 1998.

     (5)   Whether the lower court committed clear error in ruling
           that political subdivisions of this Commonwealth are
           immune from a claim of adverse possession, when, as in
           the present matter, Clearfield and Jefferson Counties
           owned a residential property, of which county officials and
           personnel visited and observed on a regular, daily basis
           from May 1995 through December 1998.

     (6)   Whether the lower court committed clear error in finding
           that [the Wellses] did not contest the survey map
           prepared    by    [Weible’s]  surveyor,   Alexander    and
           Associates, and ordering that [the Wellses] are required to
           retain and pay Alexander and Associates to resurvey the
           line between [the parties’ properties] to determine the
           proper location of said boundary.

     Adverse possession is an extraordinary doctrine which permits one to

achieve ownership of another’s property by operation of law; it is dependent

upon possession for a set period of time and authorized by statute. See 68

P.S. §§ 81-88 (claim by adverse possession).       One who claims title by

adverse possession must prove actual, continuous, exclusive, visible,

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notorious, distinct and hostile possession of the land for twenty-one years.3

Flannery v. Stump, 786 A.2d 255, 258 (Pa. Super. 2001) (citations

omitted). Each of these elements must exist; otherwise, the possession will

not confer title.     Id. Moreover, until the full expiration of the statutory

period,    “a   property     owner’s     record     title   remains   unaffected   and

untrammeled.”       Hershey v. Poorbaugh, 21 A.3d 434, 488 (Pa. Super.

1941).

Counties’ Possession (1995-1998)

       The trial court relies upon the common law doctrine, nullum tempus

occurrit regi, which translated means “time does not run against the king” to

come to its decision that the Wellses cannot be successful in their claim of

adverse possession against the Counties. Specifically, the court determined

that “the law, as it has long stood and currently stands, does not allow this

Court to rule against the political subdivision even when it owns a residential

neighborhood, and as such, judgment must be for the plaintiff.”                    Trial

Court’s Discussion, 12/8/15, at 6.             While the court was correct that one

cannot adversely possess land against a political subdivision like the

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3
  Typically, if a party’s use of the property is adverse from its inception, one
of the true title-holders, in order to interrupt the adverse possessor's
continuous adverse use and toll the running of the statute of limitations
against that true owner, must: a) bring and pursue to judgment legal
proceedings in which the use is determined to be without legal justification;
or b) cause a cessation of the use without the aid of legal proceedings.
Reed v. Wolyniec, 471 A.2d 80, 85 (Pa. Super. 1983).



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Counties, it does not necessarily prevent that person from adversely

possessing the land against the individual that purchases the property from

the political subdivision, its successor.   Rather, during the time that the

political subdivision owns the property the 21-year statutory period for

adverse possession is tolled or stops running.

      In Torch v. Constantino, 323 A.2d 278 (Pa. Super. 1974), a panel of

this Court addressed the issue of “whether land held for tax sale after return

for nonpayment of taxes tolls the prescription period” for adverse

possession.   Id. at 279 (emphasis added).       There, our Court held that

“adverse possession does not run against the political subdivisions holding

land for tax sales for nonpayment of taxes, as trustee, and . . . this function

is a governmental one.” Id. at 281. Specifically, the court acknowledged

that local governments have immunity from a claim of adverse possession

when the land in question is devoted to public use.     Id.    See Lysicki v.

Montour School Dist., 701 A.2d 630 (Pa. Cmwlth. 1997) (as to political

subdivisions, such as counties, townships and boroughs, rule seems to be

that title by presumption against such governing bodies may be asserted

unless land in question is devoted to public use); see also Fred E. Young,

Inc. v. Brush Mt. Sportsmen’s Ass’n, 697 A.2d 984, 992 (Pa. Super.

1997) (“Adverse possession does not lie against land held by the county in

connection with a tax sale.”); 68 P.S. § 88 (“Nothing contained in this act

[claim by adverse possession] shall be construed to give any title to any

lands by a claim of title adverse to that of the Commonwealth of

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Pennsylvania, and no claim of title adverse to the Commonwealth of

Pennsylvania shall be made or recorded under the provisions of this act.”).

      Instantly, the trial court concluded that the subject property was

publicly used by the Counties from 1995 to 1998.       Specifically, the court

noted that:

      [O]ur government and governmental agencies are tasked with
      the care and housing of mentally challenged individuals, and in
      fulfilling that duty they often acquire property and operate
      facilities through which they can provide valuable services
      persons satisfying their criteria. It is true, of course, that a
      relatively limited segment of the population directly takes
      advantage of these services. It is also true, however, that they
      are available to many others who choose not to utilize them.

      It would be shortsighted to conclude that only persons who are
      mentally ill or handicapped benefit from the services afforded
      them, though, because in offering those services, the
      government and its agencies also attempt to alleviate the
      familial, and societal burdens often associated with mental
      illness and retardation.    In short, Jefferson and Clearfield
      Counties were operating 703 East Main Street for everyone’s
      benefit. Whether or not every person in Jefferson and Clearfield
      County could actually go and receive the public services offered
      at and from that location, therefore, the counties clearly made
      public use of the property.

Trial Court Opinion, 12/22/15, at 1-2. We agree that the Counties publicly

used the subject property, upon which they housed and provided services to

a special subset of the local population, namely those with mental

disabilities.   See Dornan v. Philadelphia Hous. Auth., 200 A. 834 (Pa.

1938) (because low-income housing on subject parcel would not be occupied

by all, but only few of public, does not change fact that property’s use

constituted public use).


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         Therefore, accepting the trial court’s conclusion that the subject parcel

was publicly used, we must determine whether the three-year period in

which the Counties owned the parcel merely tolled or completely reset the

Wellses’ 21-year statutory clock upon the Counties’ sale of the land to

Weible.     We find that the statutory period was tolled and not completely

reset.

         While it is well established that the Wellses could not have legally

obtained title to the land by adverse possession against the Counties while

the Counties were the legal title owners of the subject property, it does not

necessarily prevent the Wellses from asserting a claim of adverse possession

against the Counties’ successor in title, Weible. The trial court maintained

that while the Counties owned the parcel from 1995-1998, the Wellses were

unable to adversely possess the land. This is a distinction with a difference.

Whether one can assert a claim of adverse possession against a landowner is

distinguishable from whether that party can adversely possess land while it

is owned by that same landowner.               As Torch clearly stated, local

governments have immunity from a claim of adverse possession when the

land in question is devoted to public use. Nelson v. Dibble, 510 A.2d 792,

794 (Pa. Super. 1986).        Moreover, not only can a claim not be brought

against these entities, but the 21-year statute does not continue to run




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during that time period. It is simply “tolled.” 4 See Torch, 323 A.2d at 430

(“question before us is whether land held for tax sale . . . tolls the

prescription period”) (emphasis added); see also Duffy v. Duffy, 20 Pa.

Super. 25, 28 (1902) (issue on appeal concerned whether recovery in

ejectment action, without surrender, “toll[s] the statute of limitations and

interrupt[s] adverse possession.”) (emphasis added).

       With regard to the trial court’s claim that the Counties’ public use of

the property made it impossible for the Wellses to continuously possess the

land, a required element of adverse possession, we note that our Supreme

Court has described this element as when one “continue[s] a positive

appearance of ownership, by treating the property as his own, and holding it

within his exclusive control.” Stephens v. Leach, 19 Pa. 262 (1852). See

also Reed v. Wolyniec, 471 A.2d 80, 85 (Pa. Super. 1983) (in explaining

continuity element of doctrine of adverse possession, our Supreme Court has

noted that “[p]ossession of land is dominion over the land; it is not

equivalent to occupancy”). Merely because the Counties owned the subject

property does not automatically mean that the Wellses are unable to

concurrently use the land in a way consistent with adverse possession. This

is especially true where the record supports the trial court’s finding of fact

that “the [Wellses] continued their notorious and adverse possession of the

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4
  Toll is defined, in part, as “to delay, suspend or hold off the effect of a
statute.” http://dictionary.law.com.



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property claimed during the time period that Clearfield and Jefferson

Counties    owned     the    property    for    programs   for   mentally   challenged

individuals.” Trial Court’s Findings of Fact, 12/8/15, at ¶ 21. The court also

noted that county officials and other individuals that visited the county

property could see, just feet away, the landscaping that the Wellses put in

and maintained as well as the driveway that was paved over the line. See

Brennan v. Manchester Crossings, 708 A.2d 815 (Pa. Super. 2008) (to

constitute distinct and exclusive possession for purposes of establishing title

to real property by adverse possession, claimant’s possession need not be

absolutely exclusive; rather, it need only be type of possession which would

characterize owner’s use).

       The record bears out the fact that the Wellses have “consistently and

continuously maintained and notoriously used the property in plain view of

their neighbors,” id. at 6, from installation of the landscaping and driveway

(1975/1979) through the present.               We do not believe that the Counties’

immunity from suit eviscerates the Wellses actual, continuous, 5 exclusive,
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5
  The dissent relies upon Showalter v. Pantaleo, 9 A.3d 233 (Pa. Super.
2010), to conclude that the Wellses’ possession was not continuous and that
the 21-year period for purposes of adverse possession should run anew after
the local counties sold the land to Weible. We disagree. In Showalter, a
case involving land that became part of a bankruptcy estate, our Court relied
upon an Illinois decision that found that the mere act of a title holder
petitioning for reorganization under the federal bankruptcy act was
considered “an act of dominion over the property.”            General Iron
Industries, Inc. v. A. Finkl and Sons Co., 686 N.E.2d 1, 5 (Illinois 1997).
Instantly, Pennsylvania law clearly states that land held by a governmental
(Footnote Continued Next Page)


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visible, notorious, distinct and hostile possession of the subject property.

Stated another way, the Counties’ ownership of the tract does not “start

anew” the 21-year clock upon their sale of the land to Weible.           It merely

tolled the statutory period for the Wellses.        Title from adverse possession

comes from occupying the land in a manner consistent with ownership.

Here, the Wellses proved that they adversely possessed the subject property

for the requisite 21 years.         Accordingly, we reverse the trial court’s order

granting Weible title to the subject property and mandating that the Wellses

pay for resurveying, and remand the case for the entry of an order vesting

ownership of the property to the Wellses by adverse possession.6

                       _______________________
(Footnote Continued)

or political subdivision “tolls the prescription period.”           Torch v.
Constantino, 323 A.2d 278 (Pa. Super. 1974). Under such circumstances,
the statute is merely stalled or held in abeyance until the subdivision sells
the land. In the instant case, no overt act of “dominion” was ever exercised
by the counties like that in General Iron. In fact, the court found that the
Wellses have “consistently and continuously maintained and notoriously
used the property in plain view of their neighbors.” See supra p. 11.
Accordingly, we believe that the statutory period did not run anew once
Weible became the title holder to the subject property, but, rather, the years
that the counties owned the property are excluded from the running of the
21-year clock. See Bezjak v. Diamond, 135 A.3d 623, 629 (Pa. Super.
2016) (citing principles announced in Showalter and concluding that “by
excluding the time [when property was part of bankruptcy estate],”
adverse possessor claimants could not “establish the requisite twenty-one
years of continuous possession for adverse possession.”).
6
  We also recognize that an adverse possessor may accumulate the requisite
statutory 21 years as against multiple title owners of the disputed land. See
Brennan, supra (adverse possession proven by appellants where multiple
persons were successive title owners of subject property).




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       Order reversed. Case remanded. Jurisdiction relinquished.7

       Judge Solano joins this Opinion.

       Judge Strassburger files a Dissenting Opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/27/2017




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7
 Having disposed of the appeal on the bases of issues 2 and 3, we need not
address the Wellses’ remaining issues.



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