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Every now and again, a party in a property dispute in Pennsylvania cites the somewhat obscure legal theory known as the doctrine of consentable line. Though relied upon much less frequently than the related concept of adverse possession, this theory, like adverse possession, allows courts to redraw the boundaries between adjoining landowners. In cases of consentable line, the revision is based generally upon the finding of an “agreement” between the parties, either real or constructive. In Moore v. Moore, decided earlier this year, the Superior Court reiterated some of the basic principals of the doctrine of consentable line, confirming its continuing vitality as an accepted principal of Pennsylvania law. The doctrine of consentable line has been described as a theory of “repose,” intended to quiet title and “reduce confusing and vexatious litigation” in property line cases. The doctrine originally dates back to the early 1800s when, in response to increasing numbers of boundary disputes, Pennsylvania courts took to liberally recognizing boundary line adjustments that had been agreed upon by neighboring parties, even though not reduced to writing. These adjustments generally relied upon recognized landmarks or markers placed at the time of the agreement. Even if deeds were never changed, facts evidencing agreement between the parties would be held to bind both the parties and their successors. In the early cases, the courts held that if there was no original dispute – if, for example, the parties both merely misidentified the boundary – there would be no change in the legal boundary. However, if the parties had a dispute, which was then amicably resolved, the boundary would be deemed relocated. Over time, the doctrine was extended to situations where boundaries had been respected for many years but where, with the passage of years, evidence of the original intentions of the parties (or their predecessors) had been lost. Assertions of adverse possession were typically dismissed in such cases because the behavior of the parties was not deemed to satisfy the requirements that such possession be “open, hostile and notorious.” Courts were nonetheless inclined to confirm these boundaries, and did so by developing a theory that borrowed heavily from adverse possession law. Thus, the concept of consentable line was expanded to permit revision of boundaries by reason of the fact that a given line had simply been accepted and respected for an extended period of time. Under this latter approach, if a tree line, fence, hedge or other identifiable marker is treated as the actual boundary line by parties on both sides of the line for a period of more than 21 years, a presumption exists that the parties (or their predecessors) agreed to the establishment of this consentable line. This is deemed to occur even if there is no evidence concerning the intentions of the original landowners, whether they ever disputed the line or entered into an agreement to adjust it. Through this development, it came to be accepted that a consentable line can be established by one of two ways: either through “dispute and compromise” or by means of “recognition and acquiescence.” The determination that there is a consentable line requires a finding that both parties have acted in a fashion that is consistent with the idea that the properties have been divided along the consentable line. But this does not require a great deal, and the acquiescence of the party whose property is thereby diminished can be evidenced by as little as letting its neighbor maintain the disputed portion. In Plauchak v. Boling, one party planted a hedge in a location that it perceived was the boundary, even though it actually served to divide its own property 40 feet from the property line. Thereafter, for nearly 35 years, the two neighbors each maintained the land on their respective sides of the hedge. The court found that this pattern sufficed to relocate the boundary line to the location of the hedge. In Wittig v. Carlacci, a property owner erected a fence splitting her property. She then sold a portion, including lands on both sides of the fence. She later sold the balance of her property and the two buyers apparently each maintained their side of the fence for a number of years. When, 18 years after the second sale, the first buyer removed the fence, the second buyer attempted to claim all lands up to the old fence line. The court ruled that, because the “consensual line” line had not been in place for 21 years, it would not be recognized. The court was clear, however, that had three more years passed, it would have relocated the legal boundary to match the fence line, even though the original landowner specifically testified that she had not had any intention to mark the property line when she erected the fence. As with adverse possession, tacking of ownership periods is permitted. In Schimp v Allaman, the defendant in a quiet title action prevailed after establishing the existence of a consentable line. The 21-year possession requirement was satisfied by the fact that the defendant had been sole owner for 13 years, had owned the property jointly for several years before that, and had owned the parcel with both his parents before that. In Zeglin v. Gahagen, decided in 2002, the Superior Court dispelled lingering doubts about the validity of tacking, holding that tacking can be based upon delivery of possession of the disputed property with or without delivery of estate, meaning that the lack of a writing directly between the current landowners would not be the basis for dismissal of a consentable line claim. Schimp also stands for the proposition that, as in cases of with adverse possession, the question of whether a specific activity is sufficient to support a claim of consentable line will be resolved by reference to the nature of the property in question. In Schimp, the land was best suited for use as pasture or grazing land. It was not necessary for the defendant to utilize the property every day of the year, just that its use be appropriately exclusive. The facts of Moore read like a law school exam. The properties in question all derived from lands originally owned by a Leora Moore. In 1974, Moore conveyed Parcel A to her daughter, Donna Baldinger, pursuant to a deed that stated Parcel A was 58 acres. Baldinger later determined the property was only 27 acres, but never made an issue of this, instead using this information to obtain a reduction of her tax assessment. When Baldinger transferred Parcel A to T.S. Moore in 2001, she informed him that the property was only 27 acres; the deed description, however, continued to indicate 58 acres. In 1984, Leora transferred Parcel B, being nearly all of the rest of her property, to Greg Moore, pursuant to a deed that recited an area of 45 acres. In point of fact, both Greg and, during her period of ownership, Baldinger relied on Route 410 as the boundary between the properties – with Baldinger to the west and Greg to the east. Based upon this, the actual acreage of Parcel A would be 27 acres (as Baldinger had reported to T.S.) and Parcel B, 77 acres. When T.S. acquired Parcel A in 2001, he attempted to grant a third-party rights to enter upon the “disputed” portion of lands (east of Route 410) for purposes of working the land. Greg filed suit, asserting that the indefinitiveness of the legal descriptions in the deeds created a cloud on title, and that Baldinger had affirmatively acquiesced to recognition of Route 410 as a consentable line. The lower court, based upon testimony and documentary evidence, found in favor of T.S., and recognized the creation of a consentable line at a tree line some distance east of Route 410. The Superior Court reviewed the basis for locating a boundary under the doctrine of consentable line. Since there was no evidence of a compromise, the Superior Court concluded that the trial court had based its decision on recognition and acquiescence. Acquiescence, the Superior Court continued, consists of passive behavior in the face of a competing claim of an adverse user. Essentially, to find the creation of a consentable line, the court said, it must find that each party had claimed the land on its side of the line as its own, and that he or she must have “occupied” the land on its side for 21 continuous years. The court reiterated that since a finding of consentable line is based upon possession rather than proof of ownership, tacking is permitted. Based upon the facts before it, the Superior Court firmly rejected the trial court’s holding that a consentable line had been created at the “tree line.” Despite T.S.’ claim, which was apparently based simply upon the deed description, the court found no indication that either T.S. or his predecessor, Baldinger, had occupied the disputed lands to the east of Route 410. T.S. himself had only asserted ownership for very few years, well short of the required 21. Moreover, the court noted that T.S. was never able to produce any evidence specifically identifying his “missing 31 acres” as the disputed area; the deed description was inconclusive, and the tree line seems never to have been a relevant marker to any of the parties. In testimony, Baldinger acknowledged that she never believed that she owned property to the east of Route 410. She conceded that she had been disappointed to learn, early on, that her parcel was only 27 acres, but admitted that she had never felt that the deed granted her lands to the east of Route 410. Consequently, Baldinger gave T.S. no claim upon which to tack. Moreover, Greg produced evidence that, when Leora transferred Parcel B, she reserved a small lot therefrom, adjacent to Route 410. This, the court recognized, evidenced that Leora believed that Parcel B (excepting this carveout) extended to Route 410, and that Parcel A did not include lands east of Route 410. Barring countervailing considerations, the court’s primary function in a boundary dispute is to determine the intentions of the parties at the time of an original subdivision. The court concluded that Leora intended Route 410 to be the dividing line between the properties. Moreover, even if this were not clear, Greg’s and Leora’s dominion over the lands to the east of Route 410 (paying taxes, maintaining and planting it) after the sale of Parcel A were deemed sufficient to establish a boundary by consentable line at the roadway. To the Pennsylvania real estate lawyer, consentable line can represent another arrow in the quiver or an extra shield for your client. MARTIN DOYLE and DAVID FELDER are members of Saul Ewing’s real estate department in the firm’s Philadelphia office. Both have worked on a number of major real estate transactions and have been involved in all aspects of real estate development, sales, finance and leasing. Doyle received a law degree, cum laude, from the University of Pennsylvania Law School. Felder received his J.D. degree, cum laude, from Harvard Law School.

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