Risinger, S. v. Litzinger, M. ( 2019 )

J-A18042-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SHIRLEY H. RISINGER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
MARY LOIS LITZINGER, MICHAEL L. : No. 248 WDA 2019
APJOK, AND MEGAN F. APJOK :
Appeal from the Order Entered January 14, 2019
In the Court of Common Pleas of Indiana County Civil Division at No(s):
No. 10183 CD 2015
SHIRLEY H. RISINGER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARY LOIS LITZINGER, MICHAEL L. :
APJOK, AND MEGAN F. APJOK :
: No. 264 WDA 2019
Appellants :
Appeal from the Judgment Entered January 14, 2019
In the Court of Common Pleas of Indiana County Civil Division at No(s):
No. 10183 CD 2015
BEFORE: BOWES, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY BOWES, J.: FILED DECEMBER 31, 2019
These consolidated cross-appeals follow the judgment entered upon the
trial court’s verdict as to the locations of boundary lines separating the
properties of Shirley H. Risinger (“Risinger”), Mary Lois Litzinger (“Litizinger”),
and Michael L. and Megan F. Apjok (“the Apjoks”). We affirm.
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The Indiana County, Pennsylvania land in question in this appeal had
been farmland at the start of the 20th century, belonging to Hill on the one
side and Cramer on the other, before it eventually came to be owned by the
parties in this case. In the 1950s, the boundary between the Hill and Cramer
properties had been recognized as the line marked by a barbed wire fence.
N.T. Trial, 9/7/16, at 24, 42, 125.
Risinger owns two parcels west of the defendants’ property: the “Hill
Parcel” to the north, and the “House Parcel” to the south. Until 1982, the
Apjok Property was part of the Litzinger Property, such that the entire eastern
border of Risinger’s abutted Litzinger land. Id. at 12, 14-15. Litzinger erected
a wooden fence on or about the same line as the old barbed wire fence line in
the 1970s. Id. at 81-83, 95-96, 125. When the wood fence fell into disrepair
and was torn down, the present row of hemlocks was planted in its stead, a
few feet away from the fence line to allow for the trees to grow without
encroaching on Risinger’s side of the line. Id. at 83-84.
In 2015, the Apjoks obtained a survey of their parcel (“Hudak survey”),
intending to place a fence along the property line where Litzinger’s wood fence
once stood. That survey placed the property line west of the location of the
wood fence/row of hemlocks, such that Risinger’s driveway encroached upon
Apjok’s land. Risinger obtained her own survey (“Botsford survey”), which
indicated that the boundary corresponded with the hemlock row.
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Purely for ease of visualization, we offer the following diagram showing
the House Parcel, which is a modified version of exhibit attached to the trial
court’s March 16, 2018 order clarifying its verdict.
We also offer the below diagram, modified from Risinger’s trial Exhibit
1, depicting the Hill Parcel.
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In February 2015, Risinger filed a complaint against Litzinger and the
Apjoks (collectively “Defendants”), stating claims of, inter alia, quiet title and
trespass, seeking to establish the boundaries as depicted in the Botsford
survey that Risinger had obtained. Following a non-jury trial, the trial court
held that (a) Defendants’ Hudak survey properly established the boundary
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between Risinger’s Hill Parcel and Litzinger’s land; and (b) the eastern
boundary of Risinger’s House Parcel is a straight line five feet west of the
center of the hemlock row. These timely cross-appeals followed the entry of
judgment on the verdict after the denial of post-trial motions. The parties and
the trial court complied with Pa.R.A.P. 1925.
In her appeal, Risinger challenges the propriety of the trial court’s
adoption of the Hudak survey as the boundary for the Hill Parcel, contending
that such was both unsupported by competent evidence and the result of an
error of law. See Risinger’s brief at 5. Specifically, Risinger claims that the
trial court gave improper weight to Hudak’s survey, and should have instead
found the Botsford survey to be more accurate. Id. at 13-14.
Litzinger and the Apjocks, in their cross-appeal, argue that the trial court
erred in (1) not holding that the Hudak survey also properly denoted the
boundary between their land and Risinger’s House Parcel; (2) holding that a
consentable boundary had been created; (3) determining where the
consentable line was located; and (4) failing to apply laches to bar Risinger’s
claims. Cross-Appellants’ brief at 7.
We begin with our standard of review:
Our 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
favorable to the verdict winner. We will reverse the trial court
only if its findings of fact are not supported by competent evidence
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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.
Wyatt Inc. v. Citizens Bank of Pennsylvania, 976 A.2d 557, 564
(Pa.Super. 2009) (quoting Wilson v. Transp. Ins. Co., 889 A.2d 563, 568
(Pa.Super. 2005)).
We first address the claims of Defendants regarding the establishment
of a consentable boundary between their property and the House Parcel,
mindful of the following legal principles:
The establishment of a boundary line by acquiescence for
the statutory period of twenty-one years has long been recognized
in Pennsylvania to quiet title and discourage vexatious litigation.
Based upon a rule of repose sometimes known as the doctrine of
consentable line, the existence of such a boundary may be proved
either by dispute and compromise between the parties or
recognition and acquiescence by one party of the right and title of
the other.
Moore v. Moore, 921 A.2d 1, 4-5 (Pa.Super. 2007) (cleaned up). The
doctrine “is a form of estoppel, whereby once a consentable line has been
clearly established, the line becomes binding under application of the doctrine
of estoppel after twenty-one years.” Long Run Timber Co. v. Dep’t of
Conservation & Nat. Res., 145 A.3d 1217, 1233 (Pa.Cmwlth. 2016)
(cleaned up). “[W]hen a consentable line is established, the land behind such
a line becomes the property of each neighbor regardless of what the deed
specifies. In essence, each neighbor gains marketable title to that land behind
the line, some of which may not have been theirs under their deeds.”
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Soderberg v. Weisel, 687 A.2d 839, 843 (Pa.Super. 1997) (citation
omitted).
Two elements must be proven to establish a boundary by consentable
line: “1) that each party has claimed the land on his side of the line as his own
and 2) that he or she has occupied the land on his side of the line for a
continuous period of 21 years.” Moore, supra at 5. In other words, in order
for a legal boundary to be established by acquiescence, “[i]t must . . . appear
that for the requisite twenty-one years a line was recognized and acquiesced
in as a boundary by adjoining landowners.” Plauchak v. Boling, 653 A.2d
671, 676 (Pa.Super. 1995) (quoting Inn Le’Daerda, Inc. v. Davis, 360 A.2d
209, 215-16 (Pa.Super. 1976)). Since “the finding of a consentable line
depends upon possession rather than ownership, proof of the passage of
sufficient time may be shown by tacking the current claimant’s tenancy to that
of his predecessor.” Moore, supra at 5 (cleaned up).
“‘Acquiescence’ in the context of a dispute over real property, ‘denotes
passive conduct on the part of the lawful owner consisting of failure on his
part to assert his paramount rights or interests against the hostile claims of
the adverse user.’” Id. at 5 (quoting Zeglin v. Gahagen, 812 A.2d 558, 562
n.5 (Pa. 2002)). “A consentable line by recognition and acquiescence is
typically established by a fence, hedgerow, tree line, or some other physical
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boundary by which each party abides.”1 Long Run Timber Co., supra at
1234. “However, the fence line need not be as substantial as that required
for adverse possession.” Id.
The trial court determined that the line where the wooden fence had
been prior to the planting of the hemlock trees had been recognized and
acquiesced to as the boundary between the House Parcel and the
Litzinger/Apjock property for more than twenty-one years. It explained its
reasoning as follows:
[W]hen [the Apjocks’ predecessor] Kington purchased her
property in 1980 from the Litzingers she planted a row of trees
separating it from the Risinger property. These trees are still in
existence and testimony given by the adult children of both
Kington and the Litzingers indicates that the trees were purposely
planted away from the property line in order to accommodate
growth. Although Kington is now deceased, her son Clark Kington,
who lived in the home for most of his life, testified that he
remembered the fence being replaced with the hemlocks and that
their future growth was considered when they were planted. He
testified that his mother had the hemlocks planted closer to her
side of the property than the fence originally was so that once
they grew they would not be encroaching over the property line.
Testimony was also given by Lori Baker, the Litzingers’ other
daughter, that the hemlock row was planted closer to the Apjoks’
residence than the fence was.
Michael Apjok testified that he maintained the hemlocks and
trimmed them on both sides, without objection from Risinger.
Although the Apjoks maintained both sides of the trees, they
sought permission to enter Risinger’s property in order to perform
____________________________________________
1 See, e.g., Zeglin v. Gahagen, 812 A.2d 558 (Pa. 2002) (fence and row of
bushes); Plauchak v. Boling, 653 A.2d 671 (Pa.Super. 1995) (hedge); Niles
v. Fall Creek Hunting Club, Inc., 545 A.2d 926 (Pa.Super. 1988) (strand of
wire along survey line); Inn Le’Daerda, Inc. v. Davis, 360 A.2d 209
(Pa.Super. 1976) (tree line and fence).
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the maintenance on the side facing her residence. These actions
would indicate that the Apjoks understood the trees to be theirs
but also that they were very close to the property line, hence why
they asked for permission. Likewise, Risinger’s failure to maintain
the trees or otherwise improve the area within close proximity of
them indicates a knowledge that the trees were on the Apjoks’
property, but close to hers. Finally, it was undisputed that the
treerow was planted in 1980 when Kington took ownership of the
property, thus satisfying the twenty-one year time requirement.
For these reasons, the court finds that by way of the parties’
actions the treerow serves as a consentable boundary by
recognition and acquiescence. In making this determination, the
court also considered testimony from those who had knowledge
of the placement of the trees in relation to the fence that was
replaced. All who testified regarding the trees indicated that they
were intentionally not placed directly on the former fence line in
order to allow for growth. As a result, an allowance must be made
to provide for the setback for the growth of the trees. Accordingly,
the boundary line between the Risinger and Apjok properties shall
extend five feet from the center of the treerow in the direction of
the Risinger property. The parties have indicated that the trees
do not extend along the entire length of the parcels; therefore, to
accommodate the area where no trees exist, the parties shall set
a straight line running from the center of the treerow to Risinger
Road.
Trial Court Opinion, 3/9/17, at 5-6 (unnecessary capitalization omitted).
The trial court’s factual findings are supported by the record and clearly
satisfy the requirements for establishment of a consentable line boundary.
Since at least the late 1970s, the parties and/or their predecessors in interest
recognized and acquiesced to the line adopted by the trial court as the
boundary between their properties. The argument of Litzinger and the
Apjocks that Risinger did not sufficiently utilize the House Parcel up to the
fence/tree row to establish a “hostile occupation” of their land, Defendants’
brief at 40, is more aptly addressed to an adverse possession claim, not the
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separate and distinct doctrine of consentable lines. As the trial court noted,
Defendants and their predecessors treated the land on the other side of the
fence as belonging to Risinger, planted the hemlocks far enough away from
the fence line so that they would not encroach upon Risinger’s side of the line,
and asked Risinger’s permission to go onto her side of that fence line to trim
the trees. Accordingly, the trial court committed no error in concluding that
the boundary by consent is located five feet west of the center of the hemlock
tree line, which is where Litzinger’s fence was in the 1970s.2
Defendants alternatively argue that, even if a boundary line by consent
was established, the trial court erred in determining its location because (1)
the hemlock trees were planted away from, rather than on, the fence line, and
(2) the hemlock row did not establish a consentable line with Litzinger because
it does not extend south past the Apjoks’ property. Id. at 41-44. Neither of
these arguments has merit.
First, as discussed above, the trial court did not conclude that the
consentable boundary is located on the line along which the hemlocks were
planted. Rather, the trial court demonstrated that it considered and
____________________________________________
2 Since the trial court did not err in holding that the doctrine of consentable
lines established the boundary between the House Parcel and the defendants’
land, the line described in the deed is irrelevant, as is the Hudak survey of the
location of that line. See, e.g., Soderberg, supra at 843 (“[W]hen a
consentable line is established, the land behind such a line becomes the
property of each neighbor regardless of what the deed specifies.”).
Consequently, Defendants’ argument concerning the trial court’s failure to
accept the Hudak survey merits no relief.
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appreciated the meaning of the placement of the hemlock trees by holding
that the boundary by consent was established five feet closer to Risinger’s
house than the line formed by the center of the trees. That was the location
of Litzinger’s wood fence, which was recognized and acquiesced to by the
parties for more than twenty-one years, and which now constitutes the
boundary line between the Apjocks’ land and Risinger’s House Parcel.
Second, as we noted above, Litzinger erected his wood fence in the
1970s on or about the same line as the old 1950s barbed wire fence line that
predated the properties’ ownership by either Litzinger or Risinger. N.T. Trial,
9/7/16, at 81-83, 95-96, 125. The evidence thus supports the trial court’s
determination the Litzingers had recognized the old barbed wire fence line as
the boundary between their land and Risinger’s before the parcel that is now
owned by the Apjocks was subdivided out of Litzinger’s parcel. See Trial Court
Opinion, 8/29/18, at 4-5. Therefore, the trial court did not err in concluding
that the southeast boundary between the House Parcel and the Litzinger
Property south of the Apjocks’ land is a line extending from the row of the
hemlocks, as that line is substantially the same as the one which had been
indicated by the barbed wire fence that had separated the Litzinger Property
from the land now owned by Risinger.
With their final issue, Defendants contend that Risinger’s claims were
barred by the doctrine of laches. We offer the following summary of the
applicable law.
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Laches is an equitable remedy that bars relief when the
complaining party is guilty of want of due diligence in failing to
promptly institute the action to the prejudice of another. It is
well-settled that the doctrine of laches applies by reason of the
original transactions having become so obscured by time as to
render the ascertainment of the exact facts impossible.
In order to prevail on an assertion of laches, respondents
must establish: a) a delay arising from petitioner’s failure to
exercise due diligence; and b) prejudice to the respondents
resulting from the delay. The sort of prejudice required to raise
the defense of laches is some changed condition of the parties
which occurs during the period of, and in reliance on, the delay.
The question of laches is factual and is determined by examining
the circumstances of each case. Thus,
The correct inquiry in determining whether one’s
conduct resulted in a want of due diligence is to focus
not upon what the plaintiff knows, but what he might
have known, by the use of the means of information
within his reach, with the vigilance the law requires of
him. What the law requires of petitioner is to discover
those facts which were discoverable through the
exercise of reasonable diligence.
A.M.M. v. Pennsylvania State Police, 194 A.3d 1114, 1118 (Pa.Super.
2018) (cleaned up).
Defendants contend that the trial court should have held that Risinger’s
claims were barred by laches because not only should she have earlier
“discovered the alleged boundary issue through the exercise of due diligence,
but Risinger actually filed suit regarding this exact boundary line in 1978
before withdrawing the action of her own accord.” Defendants’ brief at 46.
They maintain that they were prejudiced by the delay because important
witnesses are now deceased or incapacitated. Id. Again, we disagree.
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As the trial court noted, Risinger’s 1978 action was initiated when she
and her husband filed a praecipe for a writ of summons against the Litzingers.
However, “a complaint was never filed and the suit did not move forward.”
Trial Court Opinion, 3/9/17, at 8. Defendants point to no evidence that the
action related to the boundary at issue in the instant case. At trial, Risinger
testified that the action was filed based upon Lloyd Litzinger’s plan to install a
septic tank and drainage mound near or on Risinger’s land contrary to
township regulations. N.T. Trial, 9/7/16, at 86-87. Risinger indicated that
Lloyd Litzinger ultimately abandoned that plan, and they all went “back to
using what [they] considered a boundary line.” Id. at 88. These
circumstances do not establish that Risinger delayed in seeking to vindicate
her property rights, rather, they appear to indicate that she acted when
someone encroached upon what she believed was her property. If anything,
the record suggests that it is Defendants who sat on their rights, given that
they believe Risinger has been encroaching for decades upon their property
as described in their deeds, yet they have never initiated an action against
her. No relief is due.
We now turn to Risinger’s claims regarding the Hill Parcel. Risinger
claims that, in adopting the Hudak survey as the boundary for the Hill parcel,
the trial court gave improper weight to that survey, and should have instead
found the Botsford survey to be more accurate. See Risinger’s brief at 5, 13-
14.
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After a thorough review of the certified record, the parties’ briefs and
the pertinent law, we discern no abuse of discretion on the part of the trial
court as to Risinger’s issues, and we affirm as to those claims based upon the
cogent and well-reasoned opinions that the Honorable William J. Martin
entered on March 9, 2017, and August 29, 2018. Specifically, Judge Martin
explained that, while the two surveys were consistent as to two of the three
points at issue, Hudak’s finding as to the third was supported by physical
monuments on the ground that were consistent with deed descriptions. See
Trial Court Opinion, 3/9/17, at 7-8; Trial Court Opinion, 8/29/18, at 3-4. The
trial court thus properly applied the law that, “As a general rule, where there
is conflict between courses and distances or quality of land and natural or
artificial monuments, the monuments prevail. . . . Thus, the courses and
distances must yield to monuments on the ground.” Haan v. Wells, 103 A.3d
60, 71 (Pa.Super. 2014) (cleaned up).
Risinger’s remaining arguments attack the credibility determinations of
the trial court, which this Count will not disturb on appeal. See Brown v.
Halpern, 202 A.3d 687, 706 (Pa.Super. 2019) (“[A] witness’[s] alleged bias
goes to his or her credibility, which the fact-finder must assess when deciding
what weight to accord to the witness’[s] testimony.”); Keystone Dedicated
Logistics, LLC v. JGB Enterprises, Inc., 77 A.3d 1, 6 (Pa.Super. 2013)
(“[W]e are bound by the trial court’s credibility determinations.”) (internal
quotation marks omitted)).
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As the trial court’s determinations are the product of neither an error of
law or other abuse of discretion, we affirm.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/31/2019
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Circulated 09/27/2019 02:43 PM
SHIRLEY H. RISINGER, IN THE COURT OF COMMON PLEAS
INDIANA COUNTY, PENNSYLVANIA
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MARY LOIS LITZINGER, MICHAEL \.D
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OPINION AND ORDER OF COURT
MARTIN, P.J.
This matter came before the Court at a non-jury trial on September 7, 2016. At dispute
among the parties are the locations of boundary lines running between their respective
properties. Plaintiff, Shirley Risinger (hereinafter "Risinger") owns two relevant parcels of
property, one of which adjoins property to the north owned by Defendant Mary Lois Litzinger
(hereinafter "Litzinger") and is referred to by the parties as the "Hill parcel". The other parcel
owned by Risinger adjoins property now owned by Litzinger's grandson, Michael Apjok and
his wife, Megan Apjok (hereinafter "Apjoks"). The Risingers originally purchased their
property in 1951. Litzinger, along with her late husband Lloyd, purchased a tract of land in
1967 and built a home during the 1970s. In 1980, the Litzingers sold the parcel including their
home to another party, Bonnie Kington (hereinafter "Kington"), who is also now deceased. In
2012, Kington conveyed the property to the Apjoks.
The instant dispute arose when the Apjoks made plans to build a fence on the side of
their property that adjoins Risinger's parcel. In January 2015, when preparing to construct the
fence, the Apjoks obtained a survey through Applegate Services, Inc., showing that their
western property boundary traveled through an area that includes part of a driveway used by
Risinger. After receiving this information, Michael Apjok approached Risinger, showed her
the results, and the parties agreed that Risinger could obtain her own survey. In early February
2015, rebar posts were placed along the line set by the Apjoks' survey, directly to the right of
the driveway path used by Risinger. If the location of these posts correctly identifies the
boundary line, it effectively places the path of the driveway on the Apjok property. According
to the Apjoks, the posts were placed so that proper measurements for their proposed fence
could be determined by the township. Also running between the Apjok and Risinger properties
is a row of hemlock trees that has been in existence for at least twenty-five years. After the
Apjoks obtained their survey, Risinger also had her own survey completed by Botsford
Surveying, which placed her boundary in close proximity to the side of the hemlock row facing
her property. ff Risinger's survey correctly identifies the boundary, the entire area of the
driveway path would fall on her property. Due to the disagreements in the surveys and the
inability of the parties to reach a resolution, Risinger filed the instant action.
Risinger now claims that her survey correctly retlects the boundary lines and requests
that the Court quiet title the disputed portion of the property to her. She also makes claims for
quiet title under the doctrine of consentable boundary based on the location of the natural
border formed by the hemlock trees, or alternatively under the doctrine of adverse possession
due to her use of the disputed area. Risinger additionally filed counts seeking damages for
trespass and injunctive relief. The Court previously granted the request for injunctive relief on
February 5, 2015, enjoining the Defendants from entering the disputed property, causing any
changes, or blocking Risinger's access. The Apjoks maintain that their survey shows the
correct location of the boundary lines and reject Risinger's contention that the row of hemlock
trees was ever intended to serve as a natural border. They also deny that Risinger has met the
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requirements to sustain a claim of adverse possession or that they have caused any damage to
her property. The Apjoks further argue that Risinger's claims are barred by )aches because
there was a prior dispute involving the boundary line with the Apjok property as early as 1978,
thus giving Risinger notice that a question as to its location may exist. The Defendants, by way
of Counterclaim, seek a declaratory judgment as to the location of the boundary line.
ln addition to the dispute initially giving rise to this matter regarding the boundary
between the Apjok and Risinger properties, the two surveys also revealed a discrepancy as to
the location of a boundary line in the HiIJ parcel to the north. For the sake of clarity, the Court
will first determine the boundary between the Risinger and Apjok properties and then address
the boundary of the Hill parcel.
Testimony at trial indicated that the boundary line between Risinger and Apjok first
became a matter of contention in 1978, shortly after the Litzingers constructed the now Apjok
residence. At that time, the Risingers filed a claim in equity against the Litzingers citing
continuous trespass and a disputed property line. During her testimony, Risinger denied that the
dispute was over the boundary, but rather, the placement of the Litzingers' septic system.
Testimony of Janet Apjok, the Litzingers' daughter, contradicted this statement, as the house
was already built at the time the lawsuit was filed. Nevertheless, during this time frame, the
Litzingers erected a fence between their property and the Risingers' property, and the Risingers
did not proceed with further legal action. In 1980, Kington purchased the home from the
Litzingers and proceeded to replace the fence with a row of hemlock trees which has remained
intact to this day.
At trial, surveyors for both parties testified; Timothy Botsford (hereinafter "Botsford")
for Risinger, and John Hudak (hereinafter "Hudak"), from Applegate Services, Inc. for the
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Apjoks. Each testified that when preparing their surveys, they examined the courses and
distances in prior deeds, consulted available maps and surveys, and located physical
monuments. Testimony from both surveyors indicated that over the passage of many years,
various iron pins had been set to denote the locations of certain points along property
boundaries. The main disagreement between the two surveyors in determining the boundary
between the Risinger and Apjok properties was which monument served as the correct starting
point for taking measurements because more than one was located. As a result, the lines placed
by the two surveyors were approximately nine feet apart depending on which monument was
used. The Court finds the testimony of both Botsford and Hudak to be credible and the
reasoning of how they reached their respective determinations to be sound. Given the question
of which of the two iron pins is the correct starting point, either surveyor is able to provide a
competent explanation of why the one he chose should prevail. Absent knowledge of the
circumstances at the time these pins were placed, the Court cannot say with certainty which one
indicates the proper starting point, therefore, an inquiry into the past actions of the parties with
respect to the boundary must be made.
Aside from the boundary shown in her survey, Risinger also claims that the row of
hemlocks forms a consentable boundary and should serve to mark the property line. While a
consentable boundary can be established by showing that the parties reached a compromise
following a dispute of the location of a property line, it can also be established by recognition
and acquiescence. Sorg v. Cunningham, 687 A.2d 846, 849 (Pa.Super. 1997). For example, "a
boundary line may be proved by a long-standing fence without proof of a dispute and its
settlement by a compromise." Sorg at 849, (Quoting Dimura v. Williams, 286 A.2d 370 (Pa.
1972)). ln other words, a property line need not have been disputed and then agreed upon by
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the parties to be considered a consentable boundary. To establish a consentable boundary by
recognition and acquiescence, two elements are required: "I) each party must have claimed and
occupied the land on his side of the line as his own; and 2) such occupation must have
continued for the statutory period of twenty-one years." Zeglin v. Gahagen, 812 A.2d 558, 561
(Pa. 2002).
As mentioned above, when Kington purchased her property in 1980 from the Litzingers
she planted a row of trees separating it from the Risinger property. These trees are still in
existence and testimony given by the adult children of both Kington and the Litzingers
indicates that the trees were purposely planted away from the property line in order to
accommodate growth. Although Kington is now deceased, her son Clark Kington, who lived in
the home for most of his life, testified that he remembered the fence being replaced with the
hemlocks and that their future growth was considered when they were planted. He testified that
his mother had the hemlocks planted closer to her side of the property than the fence originally
was so that once they grew they would not be encroaching over the property line. Testimony
was also given by Lori Baker, the Litzingers' other daughter, that the hemlock row was planted
closer to the Apjoks' residence than the fence was.
Michael Apjok testified that he maintained the hemlocks and trimmed them on both
sides, without objection from Risinger. Although the Apjoks maintained both sides of the
trees, they sought permission to enter Risinger's property in order to perform the maintenance
on the side facing her residence. These actions would indicate that the Apjoks understood the
trees to be theirs but also that they were very close to the property line, hence why they asked
for permission. Likewise, Risinger's failure to maintain the trees or otherwise improve the area
within close proximity of them indicates a knowledge that the trees were on the Apjoks'
5
property, but close to hers. Finally, it was undisputed that the treerow was planted in 1980
when Kington took ownership of the property, thus satisfying the twenty-one year time
requirement.
For these reasons, the Court finds that by way of the parties' actions the treerow serves
as a consentable boundary by recognition and acquiescence. ln making this determination, the
Court also considered testimony from those who had knowledge of the placement of the trees
in relation to the fence that was replaced. All who testified regarding the trees indicated that
they were intentionally not placed directly on the former fence line in order to allow for
growth. As a result, an allowance must be made to provide for the setback for the growth of
the trees. Accordingly, the boundary line between the Risinger and Apjok properties shall
extend five feet from the center of the treerow in the direction of the Risinger property. The
parties have indicated that the trees do not extend along the entire length of the parcels;
therefore, to accommodate the area where no trees exist, the parties shall set a straight line
running from the center of the treerow to Risinger Road.
Risinger also raised a claim of adverse possession in this matter. As far as any use of
the disputed area, testimony indicated that Risinger occasionally used a portion as a driveway,
but her primary source of access to her property is another section of driveway not in question
in this matter. There is also no evidence that Risinger ever performed any upkeep or made any
improvements in the disputed area to support such a claim. Having found that a consentable
boundary has been established, further consideration of this claim is unnecessary.
Additionally, there is no evidence to support Risinger's claim for damages for trespass,
therefore, this claim is without merit.
6
Looking now to the Hill parcel, the Court must resolve boundary line discrepancies
arising from the surveys that are unrelated to the primary dispute between the parties. The
section of this parcel in question is a triangular area with two upper points at the northeast and
northwest comers that taper to meet at one point to the south. ln the northeast comer, a pin was
located consistent with a former survey used by Hudak and deed calls used by Botsford from an
original 1907 deed associated with the land. Also consistent with the findings of both Botsford
and Hudak was an iron pipe placed as a marker in the northwest comer. While prior surveys
called for a stone marker where the iron pipe was located, neither surveyor found it atypical
that the pipe had replaced the stone. Both surveyors were in agreement with the location of
these two points to the north.
Where the two surveys begin to deviate is along the line extending from the northeast
point to the point at the south. The line marked by Botsford extends slightly more to the east
and to the south than the one marked by Hudak. Botsford testified that he created this line by
using descriptions from the deed and set iron pins along the line accordingly. ln addition to the
pin and iron pipe located at the two points in the northern comers, Hudak also identified an iron
pin consistent with a prior survey where he believes the southern point of the parcel should be
marked.
Once again, both surveyors have provided reasonable explanations for the methods used
to mark the boundaries, however, Botsford relied primarily on measurements taken from deed
descriptions while Hudak was able to locate physical monuments on the ground that coincided
with the points he set out to mark. Generally, "where there is a conflict between courses and
distances or quantity of land and natural or artificial monuments, the monuments prevail."
Doman v. Brogan, 592 A.2d 104, 110 (Pa.Super. 1991), (Quoting Roth v. Halberstadt, 392
7
A.2d 855, 857 (Pa.Super. 1978)). For this reason, the Court finds that with respect to the Hill
parcel, the boundary line between the Risinger and Litzinger properties as marked by Hudak
must prevail.
The remaining issue for the Court to decide in this matter is the Defendants' argument
that this action is barred by laches due to Risinger's failure to exercise due diligence in bringing
her claims when she was aware that a possible issue with the boundary existed as early as 1978.
In support of this argument, they point to the previous lawsuit filed in 1978 by Risinger and her
late husband against the Litzingers. A review of that prior matter shows that while the
Risingers filed a praecipe for a writ of summons in equity, that a complaint was never filed and
the suit did not move forward. Based on this limited information, the Court cannot determine
what factual situations were involved in the prior matter and how they may or may not relate to
the matter presently before the Court.
Wherefore the Court makes the following Order.
8
SHIRLEY H. RISINGER, IN THE COURT OF COMMON PLEAS
INDIANA COUNTY, PENNSYLVANIA
Plaintiff,
vs NO. 10183 CD 2015
MARY LOIS LITZINGER, MICHAEL
L. APJOK, and MEGAN F. APJOK
-·
.::::,
... .. · .. : ..
Defendants.
I
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ORDER OF COURT
MARTIN, P.J.
AND NOW, this f!t- day of March 2017, this matter having come before the
Court for resolution, it is hereby ORDERED and D[RECTED that the boundary line between
the property owned by Plaintiff, Shirley Risinger, and the property owned by Defendants,
Michael and Megan Apjok, shall be marked from the center of the line of the row of hemlocks
running between the respective properties and shall extend five (5) feet from the center to
points on the side of the treerow facing the Risinger property. In the area at the end of the
treerow where no trees are present, the boundary shall be marked as a straight line extending
directly to Risinger Road. The boundary line running through the Hill parcel between property
owned by Plaintiff and property owned by Defendant Lois Litzinger shall be marked in
accordance with the survey conducted by John Hudak of Applegate Services, Inc. The parties
shall come to an agreement for marking such lines and shall equally bear the cost of doing so.
Plaintiffs claim for damages for trespass is DENIED.
BY THE COURT,
9
SHIRLEY H. RISINGER, IN THE COURT OF COMMON PLEAS
INDIANA COUNTY, PENNSYLVANIA
Plaintiff,
vs NO. 10183 CD 2015
MARY LOIS LITZINGER, MICHAEL
L. APJOK, and MEGAN F. APJOK
Defendants.
ORDER OF COURT
MARTIN, P.J.
AND NOW, this /l, flz day of March 2018, this matter having come before the
Court for clarification of its prior Order dated March 8, 2017, it is hereby ORDERED and
DIRECTED that the boundary line between the property owned by Plaintiff, Shirley Risinger,
and the property owned by Defendants, Michael and Megan Apjok, shall be marked from the
center of the line of the row of hemlocks running between the respective properties and shall
extend five (5) feet from the center to points on the side of the treerow facing the Risinger
property. In the area at the end of the treerow where no trees are present, the boundary shall be
marked as a straight line extending directly to Risinger Road. This line shall extend the entire
length of Plaintiffs property, running between Point A and Point Bas labeled by the Court on
the Property Line Exhibit attached to this Order. The boundary line running through the Hill
parcel between property owned by Plaintiff and property owned by Defendant Lois Litzinger
shall be marked in accordance with the survey conducted by John Hudak of Applegate
Services, Inc. The parties shall come to an agreement for marking such lines and shall equally
bear the cost of doing so.
Plaintiffs claim for damages for trespass is DEN[ED. This Order is WrTHOUT
PREJUDICE to either party to file Post-Trial Motions.
BY THE COURT,
2
Circulated 09/27/2019 02:43 PM
SHIRLEY H. RISINGER, : IN THE COURT OF COMMON PLEAS
INDIANA COUNTY, PENNSYLVANIA
Plaintiff,
vs : NO. 10183 CD 2015
MARY LOIS LITZINGER, MICHAEL
L. APJOK, and MEGAN F. APJOK
Defendants.
OPINION AND ORDER OF COURT
MARTIN.Pol,
This matter arises from a boundary line dispute and is presently before the Court on the
Post-Trial Motions of Plaintiff and Defendants. Following a non-jury trial, the Court entered
an Opinion and Order on March 8, 2017. determining the location of the boundaries. On March
16, 2018, the Court entered a subsequent Order, clarifying the boundaries. After receiving the
clarification, the surveyors for both parties met on the properties and agreed that the boundary
lines should be set as depicted in Plaintiff's "Property Line Exhibit", dated October 9, 2017.
The parties now dispute additional findings from the Court's original Opinion and Order. For
the reasons set forth below, the Post-Trial Motions are DENIED.
The purpose of post-trial motions is to give the trial court an opportunity to review and
reconsider its earlier rulings and correct its own errors that may have occurred at the trial court
level before an appeal is taken. Lahr v. City of York, 972 A.2d 41, 4 7 (Pa. Cmwlth. 2009).
Post-trial motions should be granted only where there is clear error of some kind, whereby
someone has suffered prejudice by that error. Id. (Citing Hannan v. Borah, 756 A.2d 1116,
1123 (Pa. 2000)). Acting as factfinder, the Court is free to believe all, part, or none of the
evidence presented. Tumey Media Fuel, Inc. v. Toll Bros., Inc., 725 A.2d 836, 841 (Pa.Super.
l
1999). Additionally, it is the duty of the Court to assess and resolve issues of credibility and
conflicts of evidence. Id. Absent an abuse of discretion or lack of evidentiary support, a trial
court's decision should not be disturbed. Firestone v. Luther Ford Sales, Inc. 414 A.2d 355
(Pa.Super. 1979).
The dispute over the location of the boundary lines arose when Defend ants Michael and
Megan Apjok ("Apjoks") had John Hudak ("Hudak") of Applegate Services conduct a survey
in preparation for the construction of a fence between their property and Plaintiff's adjoining
property. The two properties are separated by a row of hemlock trees, with a driveway path
used by Plaintiff running on the side of the trees facing her property. With the exception of the
Apjoks' western boundary that adjoins Plaintiff's land, the Apjoks' property is bordered on all
other sides by the property of Defendant Mary Lois Litzinger ("Litzinger"), who is
grandmother of Defendant Michael Apjok.
I
The Apjoks' survey placed the boundary line to the right of the driveway path, which I
I
would preclude Plaintiff's use of this area. Plaintiff then had a survey conducted by Timothy
I
Botsford ("Botsford"), placing the boundary line closer to the row of trees and showing that the I
entire driveway path was on her property. Additionally, the surveys revealed a discrepancy in I
the boundary of a separate parcel to the north, hereinafter, the "Hill" parcel. After the parties I
were unable to reach an agreement as to the boundaries, Plaintiff filed a quiet title action.
II I
I
I
Following the trial, the Court determined that a consentable boundary had been I
established by the parties with respect to the row of trees and that the line should extend five
(5) feet from the center of the tree row toward Plaintiff's property. The Court also determined
that the boundary lines of the Hill parcel should be set in accordance with the survey prepared
by Hudak for the Apjoks.
2
Plaintiff now argues that the Court should reconsider the placement of the boundary
lines for the HiJl parcel to reflect Botsford's survey as well as her claim for adverse possession
with respect to the driveway area. Defendants argue that the Court erred in failing to find
Hudak's survey correct in its entirety, in finding that a consentable boundary was established,
and in finding that the boundary extended past the Apjoks' property, and along Litzinger's
property line. Defendants also maintain that the Court erred in finding that Plaintiff's claims
were not barred by laches.
With respect to the Hill parcel, Plaintiff argues that Hudak used old survey pins to
calculate the line as opposed to actual physical monuments, and accordingly, Botsford's
boundary should be recognized as the correct one. As the Court discussed in its Trial Opinion
and Order, both surveyors were able to locate the two northernmost comers of the property and
did not disagree on those points. From those points, the eastern and western boundaries taper
into one southern point, forming a triangular parcel. Although both Hudak and Botsford used
the same northern points, Botsford's boundary extends more to the east as it runs to a southern
point Botsford's southern point is also set slightly farther south than the southern point
recognized by Hudak.
Here, Hudak did not simply use old survey pins as Plaintiff suggests, but rather was
able to locate physical monuments on the ground that were consistent with deed descriptions.
In the northwest comer of the Hill parcel, Hudak located an iron pipe where a stone had been
previously called for and an iron pin in the northeast comer. Hudak explained that he was also
able to locate a roof bolt along what he marked as the eastern boundary line of the Hill parcel
and an iron pin that he recognized as the southern point. In contrast, Botsford explained that he
located the eastern boundary by using deed descriptions and setting pins accordingly.
3
When a discrepancy exists between courses and distances in a deed and physical
monuments on the ground, the monuments will prevail. Doman v. Brogan, 592 A.2d I 04, l l O
(Pa.Super. 199 l ). Here, Hudak was able to locate physical monuments coinciding with deed
descriptions and these points must prevail to set the boundaries of the Hill parcel.
With respect to reconsideration of her claim for adverse possession, Plaintiff failed to
satisfy the requirements for such a claim at trial and has not provided any additional
information in support of it. For these reasons, further discussion of this claim is unnecessary.
Defendants now argue that their survey must prevail in its entirety because it was
determined to be accurate with respect to the Hill parcel. Further analysis of the surveys is
unnecessary, because even if the Court were to find Defendants' survey to be correct on all
points, a consentable boundary by recognition and acquiescence exists. While Defendants
disagree with the finding that a consentable boundary was established, this issue was discussed
at length in the Trial Opinion, and they have offered no additional evidence or information to
support an alternative outcome.
Defendants raise another related issue, however, claiming that the boundary cannot
extend along Litzinger's property to the south of the Apjoks' property because the row of
hemlocks was planted by the Apjoks' predecessor in title, Bonnie Kington ("Kington"). They
argue that by extending the boundary south of the Apjoks' property, Litzinger is being bound
by the actions of Kington, her former neighbor. To the contrary, Litzinger is bound by her own
actions, as Kington's predecessor in title. Trial testimony indicated that the original barrier
between the properties was a fence erected by Litzinger and her late husband, Lloyd. Kington
merely replaced the fence with the hemlock trees, leaving an allowance for their growth. From
the end of the row of hemlocks, an older tree row and fence line also continue between the
4
properties to the southeastern comer of Plaintiff's land, indicating the recognition of a
boundary along that line.
Finally, Defendants argue that Plaintiff's claim should be barred by laches based on her
failure to move forward with a lawsuit she filed in 1978 due to a property disagreement with
the Litzingers, As mentioned in the Trial Opinion, a review of that matter shows only that a
writ of summons in equity was filed and Plaintiff never proceeded to file a complaint.
"Laches bars relief when the complaining party is guilty of want of due diligence in
failing to promptly institute the action to the prejudice of another. Thus, in order to prevail on
an assertion oflaches, respondents must establish: a) a delay arising from petitioner's failure to
exercise due diligence; and, b) prejudice to the respondents resulting from the delay. Moreover,
the question of laches is factual and is determined by examining the circumstances of each
case." Fulton v. Fulton, 106 A.3d 127, 131 (Pa.Super. 2014).
Defendants claim that Plaintiff believed Litzinger's fence and later, Kington's
hemlocks, encroached on her property yet failed to act without any explanation for doing so.
As a result, Defendants argue that they are prejudiced because Litzinger is unable to participate
in this litigation due to Alzheimer's disease and Kington and Lloyd Litzinger are now
deceased.
There is no evidence indicating that Plaintiff believed the fence or the hemlocks were
encroaching on her property, or even realized an issue existed until Defendants conducted their
survey. For this reason, the Court lacks a factual basis for determining that Plaintiff failed to
exercise due diligence. Although individuals who were involved in past events are either
deceased or unable to testify, other individuals with knowledge of the circumstances did offer
5
I
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l
testimony. As a result, the Court finds that Defendants have failed to show that they were
prejudiced due to any delay by Plaintiff.
Wherefore, the Court makes the following Order.
!
!
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i
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I
6
SHIRLEY H. RISINGER, : IN THE COURT OF COMMON PLEAS
: INDIANA COUNTY, PENNSYLVANIA
Plaintiff,
vs : NO. 10183 CD 2015
MARY LOIS LITZINGER, MICHAEL
L. APJOK, and MEGAN F. APJOK
Defendants.
ORDER OF COURT
MARTIN, P.J.
AND NOW, this� day of August 2018, upon due consideration of both Plaintiff's
and Defendants' Motions for Post-Trial Relief, it is hereby ORDERED and DIRECTED that
the Motions are DENIED.
BY THE COURT,
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