J-A18012-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOHN J. BOWSER, DAVID B. BOWSER, 

CARL E. BOWSER AND AMY B. WHERLEY,

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellants

v.

GEORGE L. BEBOUT AND PEGGY A. 

BEBOUT, HIS WIFE,

Appellees No. 2191 MDA 2015

Appeal from the Judgment Entered December 8, 2015

In the Court of Common Pleas of Tioga County

Civil Division at No(s): 789 CV 2013

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 16, 2016

Appellants, John J. Bowser, David B. Bowser, Carl E. Bowser, and Amy 

B. Wherley (hereinafter the “Bowsers”), appeal from the judgment entered 

in favor of Appellees, George L. Bebout and Peggy A. Bebout (hereinafter the 

“Bebouts”), on December 8, 2015, following a non-jury trial. We affirm. 

The trial court set forth the facts and procedural history of this case as 

follows:

The Bowsers are the owners of a 392.04 acre piece of 

property located in Brookfield Township, Tioga County, 

Pennsylvania. They acquired the property in 2012 from their 

father, Edward J. Bowser, Jr. and his wife, Hazel B. Bowser. 

Edward J. Bowser, Jr. and his then wife, Constance A. Bowser, 

acquired the property in 1978. [Appellees, the Bebouts,] are the 

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*

Former Justice specially assigned to the Superior Court.
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owners of a 264.13 acre piece of property also located in 

Brookfield Township, Tioga County, Pennsylvania. The Bebouts 

acquired the property in 2006 from Homer Bebout, George 

Bebout’s brother. Homer Bebout acquired the property from his 

siblings and their spouses in 1978 after their father, Roger 

Bebout, passed away. Roger Bebout and his wife, Nina Bebout, 

originally acquired the property in 1955. The parties dispute 

ownership of approximately 32.13 acres of land (hereinafter 

“Disputed Parcel”) that is described in each party’s chain of title. 

As the Disputed Parcel was conveyed to the Bebouts’ 

predecessors in title first and then [later] conveyed to the 

Bowsers’ predecessors in title, the Bebouts have senior or better 

record title to the Disputed Parcel. The Disputed Parcel was 

included in the Bowsers’ chain of title due to a mistake in the 

survey done in 1951 by E.O. Mudge, R.S. The Bowsers claim 

ownership of the Disputed Parcel through the equitable doctrines 

of adverse possession and/or consentable boundary line. The 

Bowsers base their claim on their use of the Disputed Parcel 

through the years. This use includes putting up postings, 

updating blazes, consistently hunting on the Disputed Parcel, 

constructing a four-wheeler [trail], hiking, along with other 

recreational activities. The Bebouts used the Disputed Parcel for 

similar activities. The Bowsers were assessed and paid property 

taxes on the Disputed Parcel and enrolled it in the Clean and 

Green Program. The Bowsers believed they owned the Disputed 

Parcel. Neither party made any attempts to exclude the other 

party from the Disputed Parcel. 

The Disputed Parcel is heavily wooded except for a 

rectangular square in the southern portion of the parcel [, which] 

the Bebouts have continuously cultivated by cutting hay, 

planting crops, and storing fire wood. The Disputed Parcel has 

never been surrounded by a fence or any other physical barrier. 

Neither party has erected any structures on the Disputed Parcel 

except for possibly a hunting stand. 

The Bebouts first became aware that the Bowsers claimed 

an ownership interest in the Disputed Parcel when they had a 

survey performed in 2005 by Duane Wetmore. They did not 

pursue the matter at that time because they were involved in an 

unrelated adverse possession case and were advised to resolve 

that matter first. 
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The Bowsers initiated this action against the Bebouts on 

September 24, 2013[,] when they filed a complaint entitled 

Action to Quiet Title/Declaratory Action Judgment. The action 

included four counts: (1) declaratory judgment, (2) adverse 

possession, (3) consentable boundary line, and (4) quiet title. 

On October 29, 2013[,] the Bebouts filed an Answer, New 

Matter, and Counterclaim for their own declaratory judgment. 

The Bowsers then filed a reply to the Bebouts’ [N]ew Matter and 

Counterclaim. 

After the parties completed discovery, the [c]ourt held a 

non-jury trial on June 10, 2015. The parties then filed their 

respective post-trial briefs setting out proposed findings of fact 

and legal arguments. On September 11, 2015[,] the [c]ourt 

issued Findings of Fact and Discussion of the [L]aw and entered 

judgment in favor of the Bebouts and against the Bowsers. The 

Bowsers then filed a Post-Trial motion requesting the [c]ourt to 

enter an[] order in their favor. The Bebouts filed a reply brief 

opposing the request. On November [16], 2015[,] the [c]ourt 

issued an [o]rder denying the post-trial motions and further 

discussing the issue of consentable boundary lines.[1] 

Trial Court Opinion (TCO), 1/22/16, at 1-3 (headings omitted). 

The Bowsers filed a timely notice of appeal on December 14, 2015, 

contesting the judgment entered in favor of the Bebouts. The trial court 

directed the Bowsers to file a concise statement of matters complained of on 

appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), and 

they timely complied. 

In their appellate brief, the Bowsers raise two issues for our review:

1. Did the [t]rial [c]ourt err in failing to find that a 

consentable boundary line existed when the evidence 

demonstrated that [the Bowsers] had established a 

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1 On December 7, 2015, the Bebouts filed a praecipe for the entry of 

judgment in favor of themselves and against the Bowsers in accordance with 

the trial court’s order docketed on November 16, 2015. 
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boundary line made up of regularly maintained blazes and 

pins which was recognized and acquiesced to by [the 

Bebouts] for a period in excess of twenty-one years? 

2. Did the [t]rial [c]ourt err in finding that the evidence of 

adverse possession was insufficient to confer quiet title to 

the disputed parcel in favor of [the Bowsers]? 

Bowsers’ Brief at 4 (suggested answers omitted). 

Initially, we set forth our standard of review:

Our review in a non-jury case is limited to whether the 

findings of the trial court are supported by competent evidence 

and whether the trial court committed error in the application of 

law. We must grant the court's findings of fact the same weight 

and effect as the verdict of a jury and, accordingly, may disturb 

the non-jury verdict only if the court's findings are unsupported 

by competent evidence or the court committed legal error that 

affected the outcome of the trial. It is not the role of an 

appellate court to pass on the credibility of witnesses; hence we 

will not substitute our judgment for that of the factfinder. Thus, 

the test we apply is not whether we would have reached the 

same result on the evidence presented, but rather, after due 

consideration of the evidence which the trial court found 

credible, whether the trial court could have reasonably reached 

its conclusion.

Lynn v. Pleasant Valley Country Club, 54 A.3d 915, 919 (Pa. Super. 

2012) (internal citations omitted). 

On appeal, the Bowsers first challenge whether the trial court abused 

its discretion in determining that no consentable boundary line existed. See 

Bowsers’ Brief at 14. Our Court has previously discussed the legal 

considerations underlying consentable boundaries:

The doctrine of consentable line is a rule of repose for the 

purpose of quieting title and discouraging confusing and 

vexatious litigation. There are two ways in which a boundary 

may be established through consentable line: (1) by dispute and 

compromise, or (2) by recognition and acquiescence. As the en 

banc court explained in Niles [v. Fall Creek Hunting Club, 
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Inc., 545 A.2d 926, 930 (Pa. Super. 1988) (en banc)], the 

doctrine of consentable line is a separate and distinct theory 

from that of traditional adverse possession, although both 

involve a twenty-one year statute of limitation. Under the 

doctrine of consentable line,

if adjoining landowners occupy their respective premises 

up to a certain line which they mutually recognize and 

acquiesce in for the period of time prescribed by the 

statute of limitations, they are precluded from claiming 

that the boundary line thus recognized and acquiesced in is 

not the true one. 

...

The requirements for establishing a binding consentable line 

by recognition and acquiescence are: (1) a finding that each 

party has claimed the land on his side of the line as his own; and 

(2) a finding that this occupation has occurred for the statutory 

period of twenty-one years. In such a situation, the parties need 

not have specifically consented to the location of the line. It 

must nevertheless appear that for the requisite twenty-one years 

a line was recognized and acquiesced in as a boundary by 

adjoining landowners.

Plauchak v. Boiling, 653 A.2d 671, 675-76 (Pa. Super. 1995) (internal 

citations and quotations omitted). 

Here, the Bowsers claim that a consentable boundary line was 

established through recognition and acquiescence. Specifically, they 

contend that “it is clear that [the Bowsers’] posted and blazed line was an 

effective ‘fence’ in that it established a clear line between the properties that 

was recognized by all parties and acquiesced to by [the Bebouts’] for over 

thirty six years during which [the Bowsers] occupied, used, claimed, and 
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paid for the land up to the posted and blazed line.”2 Bowsers’ Brief at 18. 

We disagree.

Our sister court, the Commonwealth Court, has observed that “[a] 

consentable line by recognition and acquiescence is typically established by a 

fence, hedgerow, tree line, or some other physical boundary by which each 

party abides.” Long Run Timber Co., Limited Partnership v. 

Department of Conservation and Natural Resources, --A.3d--, No. 

2313 C.D. 2015, 2016 WL 4533467 (Pa. Commw. filed Aug. 30, 2016) 

(emphasis added). Furthermore, by definition, “[a] consentable boundary 

constitutes a clear[-]cut instance of adverse possession. It is a judicial 

recognition of a boundary ... that the parties have consensually accepted for 

a period of at least twenty-one years.” Lilly v. Markvan, 763 A.2d 370, 

371 n.1 (Pa. 2000) (internal citations omitted) (emphasis added). 

Following the nonjury trial in the case sub judice, the trial judge found 

that “[t]he Disputed Parcel is a largely wooded area that each party used for 

hunting and recreation purposes. Each party essentially used the area 

without interference from the other.” TCO at 7 (emphasis added). 

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2 We note that the trial court determined that “[t]he Bebouts’ initial 

awareness of an actual boundary dispute did not occur until at or after the 

time of the survey ... in 2005, nowhere near twenty-one years before this 

action.” TCO at 7. This finding contradicts the Bowers’ assertion that the 

boundary line was recognized and acquiesced to by the Bebouts for nearly 

thirty-six years. Notwithstanding, we must accept the trial court’s findings, 

as they are supported by competent evidence. See N.T., 6/10/15, at 119-

21; see also Lynn, 54 A.3d at 919. 
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Significantly, the trial court determined that both the Bowsers and the 

Bebouts used the Disputed Parcel. It found, based on testimony at trial, 

that “[t]he Bebout family has continuously used the Disputed Parcel for 

hunting, hiking, and riding four wheelers, as well as maintaining the semirectangular parcel along the southern portion as a field since they acquired 

title. The Bebouts’ use of the Disputed [Parcel] has never been restricted, 

interrupted, infringed upon or limited in any manner by [the Bowsers] or 

anyone else.”3 See Findings of Fact, 9/11/15, ¶ 50. Given that the Bebouts 

continued to use the Disputed Parcel without limitation, the trial court 

correctly determined, based on competent evidence, that they did not 

recognize or abide by a boundary line. Thus, we conclude that no 

consentable boundary line exists. 

Second, the Bowsers contend that the court erred in determining that 

they did not meet the burden of proving title by adverse possession. See 

Bowsers’ Brief at 18. They argue that the trial court “erred in failing to find 

that the significant, permanent enclosure of signs, blazes, and pins 

combined with the regular use of the property, the construction of at least 

one tree stand and trails thereon, and open claiming of the property for tax 

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3 We note, however, that the Bebouts did not harvest timber on the 

Disputed Parcel because “they were aware ownership of the Parcel was in 

dispute[.]” See Findings of Fact, 9/11/15, ¶ 48. 
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purposes, did not rise to the level of possession required for adverse 

possession of woodland.” Bowsers’ Brief at 22. The trial court did not err.

This Court has explained that “[o]ne who claims title by adverse 

possession must prove actual, continuous, exclusive, visible, notorious, 

distinct and hostile possession of the land for twenty-one years. Each of 

these elements must exist; otherwise, the possession will not confer title.” 

Recreation Land Corp. v. Hartzfeld, 947 A.2d 771, 774 (Pa. Super. 2008) 

(quoting Flannery v. Stump, 786 A.2d 255, 258 (Pa. Super. 2001)). 

Generally, “actual possession of land means dominion over the property.” 

Bride v. Robwood Lodge, 713 A.2d 109, 112 (Pa. Super. 1998). However, 

“[w]hat constitutes adverse possession depends, to a large extent, on the 

character of the premises.” Id. When “the disputed parcel is undeveloped 

woodland, actual possession is established by either erecting a residence or 

by enclosing and cultivating the property.” Id. at 112 (citing Niles, 545 at 

930). 

In Flickinger v. Huston, 435 A.2d 190 (Pa. Super. 1981), this Court 

concluded that evidence of adverse possession was insufficient where the 

person seeking title through adverse possession paid taxes on the property, 

cleared portions of the land, erected a flagpole and outhouse, and built a 

fence around the property, among other acts and investments. Id. at 192-

93. In that case, in considering what constitutes enclosure, we explained 

that “one who relies on enclosure as proof of adverse possession must show 

that (the land) was so substantially and visibly fenced in and the fence was 
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so continuously and substantially maintained for at least twenty-one years

as to amount to an assertion against the world of his exclusive private 

ownership of that area of the earth's surface.” Id. at 193 (internal 

quotations and citations omitted). Moreover, we noted that the person 

seeking title through adverse possession “never lived on the tract, and there 

is no evidence that he cultivated the land continuously for twenty-one 

years.” Id. 

Here, the Bowsers agree that the Disputed Parcel is woodland. See 

Bowsers’ Brief at 20. The trial court found, based on competent evidence, 

that the Bowsers did not erect a residence on the Disputed Parcel, did not 

enclose the Disputed Parcel with a fence or enclosure of any kind, and did 

not cultivate the land. TCO at 5-6. Accordingly, we agree with the trial 

court that the elements of adverse possession are not met in this case. 

Nevertheless, the Bowsers assert that it would be “grossly inequitable” to 

deprive them of the Disputed Parcel in light of their acts and purported 

investment in it. Bowsers’ Brief at 13. However, as pointed out by the 

Bebouts, courts have determined that more extensive acts and investments, 

such as those discussed in Flickinger, did not legally suffice to establish 

possession for purposes of gaining title through adverse possession. See 

Bebouts’ Brief at 16-17. Thus, we do not agree that a gross inequity would 

result. Finally, even if the Bowsers could satisfy the actual possession 
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element, they clearly would not satisfy all of the other requirements of 

adverse possession.4 

Judgment affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/16/2016

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4

For instance, we would not characterize their use of the Disputed Parcel as 

exclusive, given that the Bebouts continued to use it without virtually any 

restriction, as discussed supra.