J-A12017-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

BLACKWOOD, INC., : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

v. :

:

READING BLUE MOUNTAIN & 

NORTHERN RAILROAD COMPANY,

:

:

:

Appellee : No. 1633 MDA 2014

Appeal from the Order entered August 29, 2014,

Court of Common Pleas, Schuylkill County,

Civil Division at No. S-3238-08

BEFORE: BOWES, DONOHUE and ALLEN, JJ.

CONCURRING AND DISSENTING MEMORANDUM BY DONOHUE, J.:

FILED AUGUST 28, 2015

The 1976 and 1990 Deeds together convey two tracts of land to Blue 

Mountain, specifically the tracts beneath the West End and Swatara Branch 

lines. These two deeds do not describe, or even mention, the Middle Creek 

Extension, however, and thus they cannot possibly convey the real property 

beneath this line to Blue Mountain. Accordingly, I respectfully dissent from 

this portion of the Majority’s decision. 

In determining that Blue Mountain owns the land beneath the West 

End Branch and the Swatara Branch, the Majority engages in a careful 

analysis of the language of the 1976 and 1990 Deeds, including in particular 

their descriptions of the conveyances in Exhibit A of both deeds as well as 

the maps in Exhibit B of the 1990 Deed. See Maj. Mem. at 23-26. The 
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Majority conducts no similar analysis with respect to the Middle Creek 

Extension, and instead diverges into a discussion of the “intentions” of the 

parties to the deeds. See id. at 26-30. Although the certified record 

apparently contains no representations from any representatives of Reading 

Company, Conrail, or Blue Mountain regarding what real property these 

parties intended to convey, the Majority nevertheless attempts to glean their 

intentions by referencing the purposes and requirements of the federal 

bankruptcy law that created Conrail in the 1970s. See id. 

The language of the two deeds is determinative of the real property 

conveyed in this case. In Ralston v. Ralston, 55 A.3d 736 (Pa. Super. 

2012), this Court set forth the following relevant principles regarding the 

proper interpretation of deeds:

 The nature and quantity of the interest conveyed 

must be ascertained from the deed itself;

 The focus is not what the parties may have intended 

by the language but what is the meaning of the 

words they used. Effect must be given to all the 

language of the instrument, and no part shall be 

rejected if it can be given a meaning; and

 To ascertain intention, the language of a deed should 

be interpreted in the light of the subject matter, the 

apparent object or purpose of the parties and the 

conditions existing when it was executed.

Id. at 742; see also Mackell v. Fleegle, 801 A.2d 577, 581 (Pa. Super. 

2002) (citing Brookbank v. Benedum-Trees Oil Co., 131 A.2d 103, 107 
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(Pa.1957)); Consolidation Coal Co. v. White, 875 A.2d 318, 326-27 (Pa. 

Super. 2005).

In my view, the Majority fails to apply any of these three basic 

principles in connection with the land beneath the Middle Creek Extension. 

With regard to the first principle, “the deed itself” cannot possibly convey the 

land beneath the Middle Creek Extension to Blue Mountain, as neither the 

1976 nor the 1990 Deed describes, references, or even mentions this tract 

of land. Instead, Exhibit A to both deeds contains descriptions of the West 

End Branch (Line Code 0350) and the Swatara Branch (Line Code 0383), and 

Exhibit B to the 1990 Deed includes four maps depicting the beginning and 

end of these two lines. Exhibit A to both deeds contains no description of 

the Middle Creek Extension and Exhibit B to the 1990 Deed contains no 

maps depicting the beginning and end of this third rail line. Although the 

Majority suggests that the Middle Creek Extension is just an “arm” of the 

Swatara Branch, see Maj. Mem. at 29, the certified record contains no 

support for any such assumption – including the absence of any description 

of this “arm” in Exhibit A of the two deeds. Blue Mountain’s own railroad 

industry expert, Richard Frey, testified that the Middle Creek Extension was 
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a separate rail line.1 Blue Mountain’s Motion for Cross Motion for Summary 

Judgment, 1/29/2014, Exhibit F ¶ 18. 

The second basic principle requires us to determine the legal effect of 

deeds, not by what the parties “may have intended” but instead based upon 

“the meaning of the words they used.” Ralston, 55 A.3d at 742. To 

ascertain the meaning of the words they used, we must give effect to “all 

the language of the instrument, and no part shall be rejected if it can be 

given a meaning.” Id. The Majority’s determination that the 1976 and 1990 

Deeds conveyed the land beneath the Middle Creek Extension to Blue 

Mountain runs afoul of this directive. The 1976 Deed unambiguously states 

that Reading is transferring “[a]ll of [Reading’s] right, title and interest, legal 

and equitable, in and to the real property located in the County of Schuylkill, 

Commonwealth of Pennsylvania as described in Exhibit A,” and Exhibit A 

includes no reference (explicit or implicit) to the Middle Creek Extension. 

1976 Deed, 3/29/76, at 1 (emphasis added). Any construction of the 1976 

Deed that deems it to transfer the land beneath the Middle Creek Extension 

to Conrail must, of necessity, reject and ignore the “as described in Exhibit 

A” language, as well as the contents of Exhibit A itself. This we cannot do.

Even if the learned Majority is correct that the legal effect resulting 

from the purposes and requirements of the federal bankruptcy legislation 

 

1

“In 1851, another branch line was laid, coming off the Swatara Branch in a 

westerly direction, which became known as the ‘Middle Creek extension.’” 

Id. 
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was a transfer of the Middle Creek Extension to Conrail (despite the absence 

of any language of the 1976 Deed to effectuate the transfer), this conclusion 

still does not provide a basis for a claim of title by Blue Mountain. The 1990 

Deed merely reflects a freely negotiated transfer of private property between 

private entities. The language of the 1990 Deed is clear and unambiguous, 

namely that Conrail was transferring its real property “described in Exhibits 

‘A’ and generally indicated in Exhibit ‘B’ hereof.” 1990 Deed, 12/14/90, at 1. 

As discussed hereinabove, Exhibits A and B to the 1990 Deed together 

describe and depict just two rail lines (the West End and Swatara Branches), 

with no reference to the Middle Creek Extension. Even if the certified record 

contained evidence regarding the intention of the parties with respect to the 

1990 Deed (which it does not), no reasonable interpretation of the actual 

language of the 1990 Deed could construe it to effectuate a transfer of the 

land beneath the Middle Creek Extension from Conrail to Blue Mountain. We 

note that neither party to the 1990 Deed sought equitable reformation based 

upon unilateral or mutual mistake.

The third basic principle of deed construction requires us to interpret 

“the language of a deed ... in the light of the subject matter, the apparent 

object or purpose of the parties and the conditions existing when it was 

executed.” Ralston, 55 A.3d at 742. The Majority’s reasoning appears to 

be that since the parties to the two deeds intended to convey the land 

beneath all three rail lines, the deeds should be interpreted to do so (even 
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though the language the parties actually used expresses no such intent). I 

cannot agree. Our task is to interpret the language of the deeds, and the 

language of the two deeds at issue here simply does not convey the land 

beneath the Middle Creek Extension to Blue Mountain. Even if we were to 

conclude that the absence of any reference to the Middle Creek Extension in 

the 1976 and 1990 Deeds reflects mere drafting errors, this Court has no 

power to correct such mistakes.

Finally, the Majority’s repeated references to the continuous use of the 

Middle Creek Extension by the various railroad companies2suggests that, at 

bottom, Blue Mountain’s claim of title is based upon adverse possession, 

although the Majority conspicuously avoids discussion of this issue. It has 

long been the law of Pennsylvania, however, that a railroad corporation may 

not acquire title to real property by adverse possession. See, e.g., Sayre 

Land Co. v. Borough of Sayre, 121 A.2d 579, 582 (Pa. 1956). As this 

Court has explained, “[t]he reason that adverse possession cannot be set up 

in such a case is that the law presumes, when a railroad company takes land 

 

2

 The Majority also suggests that continuous use may be relevant to 

interpretation of the two deeds. In so doing, the Majority cites to this 

Court’s decision in Lupyan v. Lupyan, 397 A.2d 1220 (Pa. Super. 1979), 

for the proposition that when construing a deed, “the conduct of the parties 

subsequent to the execution of the deed is relevant.” Maj. Mem. at 30 

(quoting Lupyan, 397 A.2d at 1224). In Lupyan, however, this Court 

found that the deed at issue was ambiguous and thus utilized evidence 

relating to the conduct of the parties to resolve the ambiguity. Lupyan, 397 

A.2d at 1224. No ambiguity has been identified in the language of the 1976 

or 1990 Deeds, however, and thus Lupyan is inapplicable to this case. 
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for its corporate purposes, it does so under its high right of eminent domain, 

and not as a willful trespasser, whose trespass may grow into a title.” 

Ontelaunee Orchards v. Rothermel, 11 A.2d 543, 546 (Pa. Super. 1940). 

For these reasons, in my view Blue Mountain has not established its 

ownership of the land beneath the Middle Creek Extension as a matter of 

law, and thus summary judgment on this issue was error. I therefore 

respectfully dissent from this portion of the Majority’s memorandum 

decision. I join in its reasoning and disposition with respect to all other 

issues addressed therein.