235 Pa. Super. 450 | Pa. Super. Ct. | 1975
Opinion by
This appeal concerns an action to quiet title to a 32% acre tract of unimproved land situated in Westmoreland County, brought by plaintiff-appellee Seven Springs Farm, Inc., against Theopholis and Catherine King, their heirs and assigns,
Herman Dupre, president of plaintiff, testified that Seven Springs was incorporated in 1959 by his mother, Helen Dupre, who transferred all her real property to the corporation. He stated that the family and the corporation always used the 321/4 acre tract as if it belonged to them. In the past, he testified, the use involved pasturing cattle and raising grain on the tract. However, at the time the complaint was instituted, the land was no longer cultivated and the barbed-wire fence that had been put up along one side of the property had gone unmaintained for 14 years and was in a bad state of disrepair with many openings in it. Currently, plaintiff’s resort guests use the land for hunting and fishing, a portion of a one acre pond constructed on plaintiff’s adjoining property covers a small fraction of the disputed tract, and plaintiff from time to time will remove occasional trees and surface rock for its own use.
Other acts upon which plaintiff seeks to establish its possession of the land include the cutting and taking of timber and removing of stone.
Finally, plaintiff asserts that its resort guests have been using the land for recreational purposes: hunting, fishing and picnicking. Ordinarily, use of land for recreational purposes, such as hunting and fishing, does not show actual possession. Camp Chicopee v. Eden, supra; Matthews v. Bagnik, 157 Pa. Superior Ct. 115, 41 A.2d 875 (1945). Where the recreational use is extensive and apparent, as where systematically conducted for commercial purposes, it can be sufficient to show possession.
Order reversed.
Hoffman, J., concurs in the result.
. The Kings, their heirs, devisees and assigns were served by publication as the plaintiff was unable to locate them or anyone claiming an interest in the land through them. When no appearance or answer was filed in their behalf, the court entered an order directing them to bring their action in ejectment within 30 days or be forever barred from asserting any interest in the property, pursuant to the Act of March 8, 1889, P.L. 10, §1, as amended, 12 P.S. §1543, the Act of March 8, 1889, P.L. 10, §2, 12 P.S. §1544, and Pa. R.C.P. 1061 and 1066. There being no response to this order, judgment was entered against the Kings and those claiming under them.
. Plaintiff-appellee alleges that the failure to include the 3214 acres in the deed-.description of the adjoining parcel was a mistake.
. The amended complaint avers that appellant Winona Wheat claims the land through her parents who purchased it at a tax sale. It further contends that the sale was a nullity but the treasurer’s deed to appellant’s father constitutes a cloud on plaintiff’s title.
. Pa.R.C.P. 1061 defines the scope of the action to quiet title. Section (h) (1) of that Rule provides: “(b) The action may be brought (1) to compel an adverse party to commence an action of ejectment.” Pa.R.C.P. 1066(b) (1) provides for the form of the order to be granted in such a case as follows: “ (b) Upon granting relief to the plaintiff, the court (1) shall order that the defendant be forever barred from asserting any right, lien, title or interest in the land inconsistent with the interest or claim of the plaintiff set forth in his complaint, unless the defendant takes such action as the order directs within thirty (30) days thereafter. If such action is not taken within the 30-day period, the prothonotary on praecipe of the plaintiff shall enter final judgment.” Initially, it would appear that the order compelling a defendant to bring an action of ejectment would be interlocutory and unappealable until the defendant allowed the 30-day period to lapse and the plaintiff caused final judgment to be entered. However, a review of prior decisions of the appellate courts convinces us that the present order is a final judgment from which appeal lies.
Under the Act of March 8, 1889, P.L. 10, §1, as amended, 12 P.S. §1543, which was suspended only as to practice and procedure by the Rules of Civil Procedure, Pa.R.C.P. 1455, and superseded in that respect by Pa.R.C.P. 1061-66, a rule could be granted, upon application of the person in possession of disputed land, against the party not in possession who claimed an interest therein, to bring an action of ejectment or show cause why the same could
. See In re Foster’s Petition, 243 Pa. 92, 89 A. 819 (1914), for a review of the legal requirements and the procedure under the Act of March 8, 1889, before the Rules of Civil Procedure.
. Herman Dupre, plaintiff’s president, testified that “on three sides of this property there are no fences or no marks,” that “the fence runs along this road and also takes in some other properties,” and “it come up along this road, then it went up over the hill; it’s a barbed wire fence and comes over and back here somewhere up the mountain (indicating).” No map or more detailed description is in the record. We cannot conclude that the record in its present state supports plaintiff’s contention that the property, or even a portion thereof, was enclosed in a fence.
. In his deposition Mr. Dupre refers to “quarrying” stone and states: “there’s a stone quarry in here where we have quarried stone out for years, it’s surface stone, which is back in here . . . we go in . . . every other year or so we’re in here.” “[T]he quarry, this is surface stone, it’s not a mined operation.” From these statements we conclude the plaintiff has merely been removing surface stone from a particular locale on occasion, not conducting a full-fledged quarrying operation.
. But see Spangler v. Trogler, 228 Pa. 217, 77 A. 495 (1910), where actual possession of an unenclosed and unimproved woodland tract was found. The Court held that where the party seeking to show possession had cleared and cultivated a part of the disputed tract, and used the remainder “as woodland is ordinarily used [,] this is not a constructive, but an actual possession of the woodland. . . .” Id. at 227, 77 A. at 499. In Ament’s Executor v. Wolf, 33 Pa. 334, 336-37 (1859), the Court defined actual possession as it is required to establish adverse possession: “when the courts define what kind of actual possession is necessary to oust the constructive possession of the owner, they are defining, not a fiction, but a fact — an actual, visible, and tangible possession. Nothing short of such a possession shall oust the imaginary possession which the law imputes to the absent owner.” It is our opinion that the same degree of actual possession is required to bring an action under the Act of March 8, 1889.
In the present case, of course, Seven Springs has not shown sufficient evidence of actual possession, such as clearing and cultivation of any portion of the contested tract. Thus the use of the woodland is not consistent with actual possession, and cannot be cited as the grounds on which to bring an action under the Act of March 8, 1889.
. In Miller v. Lutheran Conference & Camp Ass’n, 331 Pa. 241, 200 A. 646 (1938), possession of a lake was shown by the granting of bathing privileges to individuals and groups, the erecting of boat and bathhouses which extended into- the water, the fencing off of portions of the lake, and the continuation of a successful business operation involving these uses.