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 

____________________________________________

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,5exclusive, 

____________________________________________

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

____________________________________________

7 Having disposed of the appeal on the bases of issues 2 and 3, we need not 

address the Wellses’ remaining issues.