by Harry Faber White, II, Esquire
“Get Off My Land” is the almost universal war cry of the indignant land owner. Few things ignite the passion of Pennsylvania landowners more than a confrontation with an apparent trespasser.
Unfortunately, there are numerous principles and rules to determine ownership between adjoining landowners. In certain situations, even qualified and licensed surveyors cannot agree where a boundary line is. This article will touch on some of the principles involved, but not all.
INCONSISTENT LEGAL DESCRIPTIONS
A common problem is where there are Inconsistent Legal Descriptions between adjoiners.
Pennsylvania law has standards to determine the actual location of the boundary line. The most important consideration is the partys’ intention, whether expressed or shown by surrounding circumstances. To decide intent, the courts look at all parts of the deed and not exclusively at any one term.
In order to determine the intention of the parties, the language of a deed is interpreted in the light of the subject matter, the object or purpose of the parties, and the conditions existing when the deed was executed.
Where the information in the deed (known as calls) is inconsistent and the court cannot determine the partys’ intent, the courts have prioritized which deed information carries the most weight. The most important priority is any natural monument referred to in the deed. This could be a stone, rock, tree, or other such monument. The second order of preference is an artificial monument which is a pin, post, stake or the like. The third thing to look at is the description of the adjacent boundaries. The fourth thing is the course or, more simply stated, the compass angle. The fifth thing is the enumerated distance in the deed, and the last and lowest priority issue is the quantity or stated acreage. Evidence of the acreage of the land, especially when followed by “more or less”, has almost no weight against specific boundaries and is of little help in determining where the actual boundaries are. This is an unpleasant surprise to many landowners who believe they own the stated amount of acreage, regardless of the rest of the information in the deed.
Other rules of construction dictate that the size of the parcel being conveyed must be learned from the document itself, and cannot be shown by verbal evidence in the absence of fraud, accident or mistake.
A Richmond Township boundary line issue involved a deed which followed the center line of Muddy Creek, along its various meanders to a certain point. During a flood in the early 1960s, the course of the creek changed by cutting off a new channel, and thus changed the center of the creek. In a situation like this, a judge would have to go back and look at the intent of the parties and the conditions existing when the deed was executed. In other words, the landowner did not lose a portion of his land because the creek cut a new channel.
Encroachment occurs when a driveway, septic system or building of a neighbor extends on to the property of another.
Normally, the landowner has an absolute right to force the encroacher to remove his encroachment, unless the court refrains, on the basis of equitable considerations. One of these equitable defenses is “laches”, which is an equitable principal that prevents a landowner from doing nothing about the encroachment for many years and then seeking to enforce removal of the same. Party walls are not considered encroachments, nor are boundary line trees.
The encroachment by non boundary line trees is a significant issue in Crawford County. A landowner may use self help to remove encroaching tree limbs so long as he does not trespass on the neighbor’s property.
As always, it would be best to talk to your neighbor before doing this because tempers often flare in this situation. Also, a landowner claiming an encroachment has the burden of proving the boundary line and the accompanying encroachment. Accordingly, know exactly where your boundary line is before you attempt to cut tree limbs or force a neighbor to remove a building, or other encroachment.
Adverse Possession is a concept in laymen’s terms where someone can “steal” your land, “fair and square”.
In order to secure title to land by Adverse Possession, a claimant must prove these elements: actual, exclusive, visible, notorious, distinct and hostile possession of the land continuously for twenty-one years (21) years. One of the leading cases on Adverse Possession decided by the Pennsylvania Supreme Court, involved Conneaut Lake Park in the 1940s.
When the elements of Adverse Possession have been proven in court, after notice to all parties, the record owner loses title and ownership transfers to the claimant.
A person cannot claim Adverse Possession against land owned by a government, a railroad, a minor, or a person who is simply a life-tenant.
The elements of Adverse Possession involve actual possession of the land, which is control over the property by conduct sufficient to put a reasonable person on notice that the claimant is claiming the land as his own. So, if you are on your neighbor’s property with his or her consent, you can’t claim it by Adverse Possession because your possession must, in fact, be adverse, not consensual. Pennsylvania courts have held that any entry onto a property for hunting, fishing and boating or by using the land sporadically for hunting and timbering is not sufficient to show actual possession. Pennsylvania courts have indicated that a claimant must show that his possession of the land is exclusive – – excluding the true owner and all others.
Additionally, the possession must be visible and notorious, which requires conduct that would place a reasonable person on notice that his land is being held by the claimant as his own. Finally, the possession must be hostile, which simply means that the claimant has asserted ownership rights against the true owner.
Finally, the Adverse Possession must exist for a period in excess of a total of twenty-one (21) years.
As indicated above, if the owner gives permission to the claimant to be on the property, the claimant cannot claim it by Adverse Possession.
As a practical matter, if you notice your neighbors mowing your property, cutting trees around the edge, or otherwise asserting dominion over it, you can either stop them or send them a letter indicating that you realize they are on your property, but you give permission for the same. That way, they won’t be able to “steal it” later.
EASEMENT BY PRESCRIPTION
A little sister to Adverse Possession is what’s called an Easement By Prescription. An Easement By Prescription is created by adverse, open, continuous, notorious, and uninterrupted use of land for twenty-one (21) years by using the land whenever the claimant sees fit without requesting permission, and without objection from the true owner. An example of this would be; a farmer drives his tractor across the land of a neighbor, without complaint, to get to a portion of his own property, in excess of twenty-one (21) years.
The Prescriptive Easement cannot be inconsistent with the property owners’ rights. Interestingly, one cannot acquire a Prescriptive Easement to light, air or view. This issue comes up frequently in the Conneaut Lake area where people claim that they have some sort of Prescriptive Easement to a view of the lake. That simply is not true.
There are two main types of boundary surveys in Pennsylvania; original and retracement. An original survey is the very first survey made for the original conveyance of a certain parcel. A retracement survey is a survey made for the purposes of reestablishing the original survey.
Many surveys in Crawford County are retracement surveys that attempt to follow some of the original tract lines. A surveyor must first locate all written records relative to the client’s property that deal with the location of the line. This sometimes includes reviewing adjoining property deeds. The surveyor then does field reconnaissance by searching for monuments, both natural and artificial, occupational lines such as fence lines, tree lines, old roads, old foundations and the like.
The surveyor must weigh all the evidence and apply legal principals to render an opinion on where the property boundary was. The surveyor then marks the property boundary.
Finally, as always, pay attention. If you plan to confront a neighboring landowner, know what you are doing and know where the boundary line is located. People can become extremely concerned and angry over boundary line situations. Be smart, and know what you are doing before you make your move.