[J-91-2016]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

W. LOWELL STARLING AND NANCY 

STARLING,

Appellees

v.

LAKE MEADE PROPERTY OWNERS 

ASSOCIATION, INC.,

Appellant

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No. 30 MAP 2016

Appeal from the Order of the Superior 

Court at No. 1779 MDA 2014 dated 

August 11, 2015, Reconsideration 

Denied October 14, 2015, Reversing 

and Remanding the Order of the Adams 

County Court of Common Pleas, Civil 

Division, at No. 2010-S-498 dated 

September 26, 2014.

ARGUED: September 14, 2016

OPINION

JUSTICE WECHT DECIDED: May 25, 2017

In Pennsylvania, planned communities are sufficiently common that twenty years 

ago our General Assembly adopted a uniform act regulating aspects of their inception, 

organization, and management.1 This case involves a dispute in one such community 

between property owners and their governing homeowners association. At issue is the 

ownership and use of certain undesignated property and the road that runs the length of 

a peninsula jutting into Lake Meade, the man-made lake at the heart of the community. 

We granted review in order to consider ownership and permissible uses of the road and 

the adjacent strip of undesignated, undeveloped property. 

 

1 See Uniform Planned Community Act, Act of Dec. 19, 1996, P.L. 1336, No. 180, 

68 Pa.C.S. §§ 5101, et seq.
[J-91-2016] - 2

I. Background

Because this case reaches us following the Superior Court’s reversal of the trial 

court’s order granting summary judgment in favor of the Lake Meade Property Owners 

Association, Inc. (“the Association”), the following account of the facts is as alleged by 

homeowners W. Lowell and Nancy Starling (“the Starlings”), the non-moving parties 

relative to that determination, with all inferences drawn in their favor.

2

 Thus, we begin 

with the facts as alleged in the Starlings’ operative Second Amended Complaint (“the 

Complaint”) and their answer and brief in opposition to the Association’s motion for 

partial summary judgment. 

The Lake Meade Subdivision (“the Subdivision”), originally purchased, 

subdivided, and developed by Lake Meade Incorporated (“LMI”), is a gated community 

comprised of more than 1,000 residential units surrounding Lake Meade in Adams 

County. The Association was incorporated on June 25, 1966. LMI recorded the 

Subdivision Plan (“the Plan”) in the Office of the Recorder of Deeds of Adams County 

on January 20, 1967.3 The Dedication describing the Plan provided that the “[p]rimary 

purpose of this plan is for the enjoyment of out of door recreation and will so provide for 

the owners of lots purchased a healthful atmosphere for themselves, their children and 

friends.” See Association’s Motion for Partial Summary Judgment, Exh. E 

(“Dedication”).

By deed dated May 16, 1967, LMI transferred title in separate deeds to Lots 725 

and 726 (collectively, “the Starling Tract”) to W.F.O. Rosenmiller, III, and Elinor T. 

 

2 We review the record in the light most favorable to the nonmoving party, and we 

resolve all doubts as to the existence of a genuine dispute regarding a material fact 

against the moving party. Gilbert v. Synagro Cent., LLC, 131 A.3d 1, 10 (Pa. 2015). 

3

For ease of reference, the relevant portion of the Subdivision Plan as recorded is 

appended hereto.
[J-91-2016] - 3

Rosenmiller.4 The Starling Tract lies at the end of the aforesaid peninsula, which is 

accessed via Custer Drive, a dead-end road that terminates in a cul-de-sac at the 

northern end of the peninsula, which is bordered to the east by the Starling Tract, to the 

north by a narrow strip of contested land that descends to rip-rap5along the lakeshore, 

and to the west by a narrow strip of contested land along the western shore of the 

peninsula (we refer to the contested property along both the northern and western 

shores of the peninsula, collectively, as “the Disputed Property”). On the Plan, the 

Disputed Property is neither identified nor enumerated as one or more discrete lots, is 

not clearly bounded by any lines resembling the boundary lines used to denote 

individual properties in the Plan, and is not designated as a “recreational area” or for 

“lake access.” However, since at least 2002, the Association has maintained a 

community bulletin board and garbage cans on the Disputed Property, encouraging the 

impression that the Disputed Property is intended for communal use, and during that 

span it has been used as such. 

On September 25, 1968, after it had sold most of the lots in the Plan, LMI deeded 

to the Association “ALL those roads, the dam, lake and basin, and [thirty-six specifically 

enumerated lots,] all more particularly shown on the plans of lots titled Lake Meade 

Subdivision, duly recorded in the office of the Recorder of Deeds of Adams County.” 

Complaint, Exh. D (Indenture, 9/25/1968, at 1) (“the 1968 Deed”). Notably, this 

conveyance made no direct reference to the Disputed Property. 

 

4 Each deed conveyed, by its terms, “ALL That certain lot of land situated in 

Reading Township, Adams County, Pennsylvania, being more particularly described as 

Lot No. [725/726] on a plan of lots of LAKE MEADE SUBDIVISION, duly entered and 

appearing of record in the Office of the Recorder of Deeds of Adams County . . . .”

5 Rip-rap is “[a] loose assemblage of broken stones erected in water or on soft 

ground as a foundation.” THE AMERICAN HERITAGE COLLEGE DICTIONARY 1177 (3d ed. 

1993).
[J-91-2016] - 4

The Rosenmillers sold the Starling Tract to Louise I. Cookson in 1974; Cookson 

conveyed the Starling Tract to A. Bailey and Doris A. Wood in 1977. The Starlings 

purchased the Starling Tract from the Woods on August 12, 2002.6 A few years later, 

the Starlings built a house and, in 2006, they moved into their new home. Beginning 

more or less immediately, the Starlings “regularly encountered problems with 

unidentified individuals and groups fishing, picnicking, sunbathing, lounging, socializing, 

parking and loitering on and around . . . Custer Drive and the [Disputed Property].” 

Complaint at 9 ¶51. These same individuals parked their cars on Custer Drive and the 

Disputed Property, littered the cul-de-sac, and damaged the Starlings’ lawn. 

The Starlings began to complain to the Association in 2006. At first, the 

Association took steps to address the Starlings’ concerns—for example, placing 

boulders and no trespassing signs around the cul-de-sac. However, the Association did 

not enforce the prohibition against trespassing and eventually removed the signs. 

Furthermore, it did not place such boulders along the western edge of Custer Drive. 

In 2007, following a meeting between the Starlings and officers of the 

Association, the Association’s attorney sent the Starlings a letter in which he contended 

that the Association held a fee simple interest in the Disputed Property that was 

conveyed by LMI in the 1968 Deed. See id. Exh. M (Letter of John W. Phillips, Esq., to 

the Starlings, 2/15/2007, at 1). The Starlings’ attorney responded that the Starlings had 

“a genuine claim to extend the eastern[

7

] property line of [their] Lot 725 completely 

 

6

Like all post-Rosenmiller deeds that preceded it, the deed conveying Lots 725 

and 726 to the Starlings conveyed “ALL THAT CERTAIN lot of land situate in Reading 

Township, Adams County, Pennsylvania, being more particularly described as Lot #725 

and Lot #726 on a plan of lots of Lake Meade Subdivision, duly entered and appearing 

of record in the Office of the Recorder of Deeds of Adams County.”

7

This appears to be a reference to the southern property line of Lot 725, which 

runs east to west.
[J-91-2016] - 5

across the right[-]of[-]way of Custer Drive to the water line of Lake Meade and that 

[their] lot essentially surrounds and encompasses the full end of the cul-de-sac of 

Custer Drive.” Id., Exh. N (Letter of Jeffrey Ernico, Esq., to John Phillips, Esq., 

4/26/2007, at 1).

8

 

A few months later, the Association hosted an Independence Day celebration on 

the Disputed Property. Numerous vehicles, including fire trucks, parked along Custer 

Drive, and the party stretched late into the evening. On August 8, 2007, Attorney 

Phillips sent a letter to the Starlings on behalf of the Association reporting on the 

board’s “consensus . . . that the measures taken to date, which have included placing 

boulders in the right[-]of[-]way to discourage parking on the Starling[s’] property, moving 

the bulletin board further down the cul-de-sac, increasing monitoring of the area, and 

increasing safety patrols have had the desired effect” of ensuring that all activities on 

 

8

The Starlings here claimed ownership of the entire end of the peninsula north of 

Lot 725’s southern property line. This claim differs from the claim made in their 

Complaint that their parcel wrapped around the cul-de-sac and down the western shore 

of the peninsula. See Complaint at 7-8 ¶¶35-40 (asserting only ownership of that strip 

of land around the cul-de-sac). These competing accounts have remained a source of 

confusion throughout this litigation, not least because the Starlings at each judicial level 

have at times maintained one or the other position. Even in the trial court, their position 

appeared to shift between the filing of their Complaint and the filing of their brief in 

opposition to summary judgment. See Starlings’ Brief in Opposition to Motion for Partial 

Summary Judgment at 5 (“The Starlings contend that the entire tip of Custer Peninsula 

is part of their Lots 725 and 726, subject to the Association’s easement over the Custer 

Drive Right-of-Way.”). Thus, the Superior Court’s contention that the Starlings simply 

never laid claim to ownership of the entire end of the peninsula, including some portion 

of Custer Drive, is inaccurate. See, e.g., Starling v. Lake Meade Prop. Owners Ass’n, 

Inc., 121 A.3d 1021, 1032-33 (Pa. Super. 2015) (contending that the trial court 

misconstrued the Starlings as seeking ownership of the cul-de-sac itself when they 

claimed only ownership of the Disputed Property). Furthermore, before this Court, they 

again assert ownership over Custer Drive. See, e.g., Starlings’ Supreme Court Brief at 

18 (proposing that if, as they maintain, the Association does not own the fee to Custer 

Drive, then “the Starlings own the underlying fee subject to the [Association’s] 

ownership of an easement for ingress or egress”). For reasons set forth below, we 

consider both claims.
[J-91-2016] - 6

Custer Drive and the Disputed Property were “consistent with the uses allowed on other 

common areas.” Id., Exh. Q (Letter of John Phillips, Esq., to Jeffrey Enrico, Esq., 

8/8/2007, at 1). Acknowledging the ongoing disagreement, Attorney Phillips suggested 

that the Starlings initiate a quiet title action to settle the ownership question. 

The Starlings declined to file suit at that time, and discussions continued. The 

Association went on to host Independence Day parties on the Disputed Property in 

2008 and 2009. In a 2009 Association newsletter, the Association promoted “[f]ishing 

[a]long Custer Drive,” explaining that “the narrow strip of land facing toward the Marina 

is owned by [the Association]. Everything on the other side of the street is private 

property. Please respect the owners.” Id., Exh. U (Lake Meader, vol. 34 no. 4 (July 

2009), at 2). 

In December 2009, the Starlings and the board again met, but failed to reach an 

agreement. Adopting a new tack, the Starlings transmitted an email to the board

contending that a lawsuit commenced against the Association by Louise Cookson in 

1976 (“the Cookson Litigation”) had resulted in a binding 1977 decree establishing that 

the Disputed Property and Custer Drive north of the southern boundary of Lot 725 were

part of the Starling Tract. The Starlings noted that the common pleas court in Cookson

had described Lot 726 as being bounded by Lake Meade on three sides and Lot 725 as 

being bounded by Lake Meade to both the east and west. See id., Exh. L (Decree Nisi 

and Adjudication in Cookson v. Bd. of Dirs., Lake Meade Prop. Owners Ass’n, No. 5 

Feb. Term 1976, at 1 (CCP Adams March 2, 1977) (“[Lots 725 and 726] are located on 

a part of the development [that] extends out into [Lake Meade] with Lot No. 726 being 

surrounded on three sides by the lake and Lot No. 725 being bounded on the east and 

west by the lake.”)). The Association was unpersuaded. 
[J-91-2016] - 7

The Starlings then filed suit against the Association, alleging trespass (Count I), 

ejectment (Count II), and seeking a declaratory judgment (Count IV) to the effect that 

the Starlings own the Disputed Property—specifically, they asked that the court “enter 

an Order conclusively establishing the boundary line of [the] Starling Tract at [the] 

southern end of the Disputed Portion of the Starling Tract and further declaring that the 

entire Starling Tract belongs to the Starlings.” Id. at 26.9 The Starlings asserted that 

the Association had exercised wrongful possession of the Disputed Property, as 

evinced by the placement of Association’s garbage cans and bulletin board. 

Additionally, the Starlings claimed nuisance (Count III), alleging that the Association 

intentionally and unreasonably “permitted, encouraged and sponsored trespass and 

nuisance activity” infringing on their property rights. Id. at 25 ¶154. Finally, the 

Starlings sought declaratory and injunctive relief (Count V) to establish “the appropriate 

use of the [Disputed Property] and the Starling Tract and the appropriate use of Custer 

Drive.” Id. at 29 ¶177. 

After preliminary proceedings and discovery, the Association moved for partial 

summary judgment. It contended that the Starling Tract ended at Custer Drive’s 

eastern edge. Thus, the Starlings had no claim to Custer Drive or the Disputed 

Property. The Association further averred that the Subdivision’s Restrictions and 

Covenants did not preclude unit owners, their families, and their guests from “walking, 

biking, fishing, or socializing along [Custer Drive or the Disputed Property].” 

Association’s Brief in Support of Its Motion for Partial Summary Judgment at 21. 

 

9

The Starlings’ choice of terminology is somewhat confusing, but we read this as 

seeking a declaration that the Starlings own the entirety of what we refer to as the 

Disputed Property, ostensibly to some point near where the western shore of the 

peninsula turns west at the peninsula’s base. In light of our ruling, the Starlings’ 

intention as reflected in this wording is immaterial; its gist is clear.
[J-91-2016] - 8

Regarding ownership, the Association observed that the Plan depicts courses 

and distances for the Starling Tract that measure from the eastern waterline to the 

eastern edge of Custer Drive. No corresponding east-west boundary lines transect the 

road or appear on the Disputed Property west of Custer Drive. As to Lot 726, no course 

or distance denotes where the northern boundary lay, but the Plan depicts a point of 

tangency between the waterline and the northern edge of the Custer Drive cul-de-sac. 

As well, note 2 on the lower right-hand corner of the Plan (appended to this Opinion) 

provides: “Water-line (500 ft. elev.) is waterfront property line on all waterfront lots.” 

Thus, the Association contended, the boundary of Lot 726 is where the water-line 

becomes tangent to the cul-de-sac’s northern edge; nothing in the Plan’s depiction 

suggests that Lot 726 wraps around the northern edge of the peninsula to continue 

down the western side. Because the Plan is unambiguous, the Starlings’ attempt to 

introduce extrinsic evidence in the form of the Cookson decision and post-recordation 

surveys, tax maps, and behavior was impermissible. Thus, the Association was entitled 

to judgment as a matter of law on Counts I, II, and IV (trespass, ejectment, and the 

ownership claim), because each of those counts required the Starlings to establish a 

question of material fact regarding ownership or the right to possession of the Disputed 

Property, and the Starlings had failed to do either.

Regarding the Starlings’ claim for declaratory and injunctive relief as to the use of 

Custer Drive and the Disputed Property, the Association contended that the Starlings’ 

reliance upon the Plan’s Restrictions and Covenants was infirm. The Association 

asserted that the restriction providing that lots other than those designated as “business 

or commercial areas” “shall be used exclusively for residential purposes” did not 
[J-91-2016] - 9

encompass Custer Drive or the Disputed Property.10 Id. at 22. Instead, the 

undesignated Disputed Property was free to be utilized in service of the outdoor 

recreation that was the stated purpose of the Subdivision. Furthermore, applying the 

Starlings’ strict definition of “residential purposes” would effectively “exclude activities 

incidental to residential uses, such as walking, biking, fishing, and other forms of 

socialization.” Id. at 23. The Association maintained that the restriction relied upon by 

the Starlings was designed simply to ensure that lots designated for residential use 

were not converted to commercial purposes. The Starlings also failed to identify any 

restrictive covenant limiting Custer Drive to “vehicular travel.” Id. at 24. Furthermore, 

although it was enacted after the creation of the Subdivision, the Uniform Planned 

Community Act, see supra n.1, retroactively conferred upon the Association the power 

to “[r]egulate the use . . . of common elements” within the Subdivision. 68 Pa.C.S. 

§ 5302(a)(6); see 68 Pa.C.S. § 5102(b) (providing for retroactive application to preenactment planned communities). Thus, the Association was free to allow authorized 

individuals and their vehicles to utilize Custer Drive for more than just vehicular travel

and to use the Disputed Property for recreational purposes.

The trial court granted the Association’s motion. Regarding the ownership 

questions, the court noted that it must seek to “ascertain and effectuate the intentions of 

the parties at the time of the original subdivision.” Trial Court Opinion (“T.C.O.”), 

1/15/2013, at 5 (citing Pa. Elec. Co. v. Waltman, 670 A.2d 1165, 1169 

(Pa. Super. 1995)). Where, as in this case, a deed describes the land to be conveyed 

 

10 Interestingly, the Association does not argue that the last clause of the 

Restrictions and Covenants, which grants the Association discretion to “redesignate 

certain areas . . . to assure adequate facilities for its members” effectively authorized the 

Association to treat the undesignated Disputed Property as land to be used for 

recreation and lake access. In any event, this omission is immaterial to our disposition.
[J-91-2016] - 10

only by lot number in a subdivision plan, the plan is “an essential part of the deed, giving 

[it] the same force and effect as if the plan had been copied into the conveyance.” Id.

at 5-6 (citing Richardson v. McKeesport, 18 Pa. Super. 199, 204 (1901)); see 

Birmingham v. Anderson, 48 Pa. 253, 260 (1864) (“Where a map or plan is thus referred 

to [in a deed] it becomes a material and essential part of the conveyance, and is to have 

the same force and effect as if it was incorporated into or copied into the deed.”). 

Turning to the Plan, the court recited the distances specified thereupon for the 

southern boundaries of Lots 721, 722, 723, 724, and 725, and underscored that those 

boundary lines extend from the eastern waterline only to the eastern edge of Custer 

Drive and no farther. Addressing Lot 726’s lack of a measured northern boundary, the 

court recited the Plan’s notation establishing that the waterline, at 500 feet elevation, “is 

[the] waterfront property line on all waterfront lots.” Id. at 6; see Plan, Appendix note 2. 

Furthermore, “the northwest boundary of Lot 726 becomes tangent with [the Custer 

Drive cul-de-sac] at the 500[-]foot elevation water[-]line,” establishing an unambiguous 

boundary at the depicted point of tangency. T.C.O. at 6-7. Accordingly, the Plan could 

sustain neither the Starlings’ theory that Lot 725’s southern boundary traversed Custer 

Drive to the western shore nor their contention that Lot 726 wrapped around the 

northern edge of the cul-de-sac and incorporated any portion of the Disputed Property. 

Regarding the wrap-around theory, the trial court observed that the Starlings’ contention

would lead to the absurd result that the owner of Lot 1020, located at the southwestern 

corner of the peninsula, also would have a competing claim to the Disputed Property. 

That is to say, if a point of tangency combined with the absence of clear dimensions 

could not bound Lot 726, the same logic would suggest that the northeastern boundary

of Lot 1020, unaffected by its own depicted point of tangency with Custer Drive, extends

northward along the peninsula’s westward shore to include the Disputed Property. 
[J-91-2016] - 11

Because the wrap-around theory would provide the owners of Lots 726 and 1020 with 

equally viable claims to the Disputed Property, such a theory could not reflect LMI’s 

intent in designing the Plan.

Although the trial court evidently believed that the Plan was unambiguous,

11 it 

nonetheless reviewed the parol evidence submitted by the Starlings in opposition to 

summary judgment. The trial court first rejected the Starlings’ reliance upon an Adams 

County tax map that purportedly showed the boundary of Lot 726 reaching around the 

northern edge of Custer Drive, observing that the Starlings’ payment of taxes on the 

Disputed Property, if any,12 would not be competent evidence of ownership. T.C.O. at 8 

(citing James v. Bream, 106 A. 722, 723 (Pa. 1919)13). Next, the trial court rejected the 

Starlings’ reliance upon the April 1974 survey that was attached to the 1974 deed from 

the Rosenmillers to Cookson. Although the survey was attached to that conveyance, 

neither that deed nor any other in the succeeding chain of title referred to that survey in 

describing the Starling Tract. Rather, each deed in the chain of title described the 

Starling Tract solely by reference to the Plan. Regarding the Starlings’ reliance upon 

the Cookson Litigation, the court carefully delineated the issues that were decided in 

that case, explaining that the only boundary in dispute was that between the eastern 

 

11 See T.C.O. at 7 (discussing the parol evidence introduced by the Starlings, 

“[d]espite the unambiguous Subdivision Plan which does not show boundary lines that 

extend over Custer Drive and through the land west of Custer Drive”).

12 Based upon the information before it, the trial court disputed that the Starlings 

actually had done so.

13 Specifically, in James this Court held that “[a]ssessment and payment of taxes do 

not prove title, but are circumstances tending to support a claim of possession.” 106 A. 

at 723. As discussed herein, possession and the right thereto may bear on trespass 

and/or ejectment, but in this case, as a practical matter, the Starlings seek to support 

their right to relief on these claims by virtue of ownership only, not some non-ownershipbased possessory right.
[J-91-2016] - 12

part of the cul-de-sac and the Starling Tract, which had no bearing on the Disputed 

Property. Thus, the passing description of the boundaries of the Starling Tract in 

Cookson were dicta of no binding effect.14 

Of particular relevance to our analysis, not least because it appears to have been 

the view adopted by the Superior Court, the trial court next considered the Starlings’ 

argument that they must own the Disputed Property (and, ostensibly, Custer Drive)

because the Association possesses only a right-of-way or easement15 over Custer 

Drive, but no fee interest in the land beneath it. The Starlings argued that, by 1968,

when LMI purported to convey to the Association, inter alia, all Subdivision roads, LMI

no longer held a fee in those roads. Rather, upon its sale of many of the Subdivision’s 

residential parcels, and in retaining the lots enumerated in the 1968 Deed, LMI

effectively granted access easements to those purchasers as a matter of law and 

retained only such easements itself to the extent they attached to the properties it had 

retained until the 1968 Deed, somehow simultaneously converting its own fee interest in 

the Subdivision roads to no more than the same easement enjoyed by all holders of 

Subdivision parcels.

16

 In rejecting this argument, the trial court found that, at the time of 

the 1968 Deed, LMI retained its fee interests in the Subdivision roads, and that the deed 

from LMI to the Association unambiguously reflected LMI’s intention to convey the roads 

 

14 See Cinram Mfg., Inc., v. W.C.A.B. (Hill), 975 A.2d 577, 581-82 (Pa. 2009) 

(holding that statements that are inessential to the reasoning in a judicial opinion are not 

binding in future cases).

15 These terms may be, and are herein, used interchangeably. See Lease v. Doll, 

403 A.2d 558, 561 (Pa. 1979) (“A right[-]of[-]way is an easement.”).

16 See Kao v. Haldeman, 728 A.2d 345 (Pa. 1999) (“When . . . lots are sold 

according to a subdivision plan on which a street has been plotted by the grantor, the 

purchasers acquire property rights in the use of the street. Such a right is sometimes 

called an easement of access[,] which means the right of ingress and egress to and 

from the premises of the lot owners.” (internal quotation marks omitted)).
[J-91-2016] - 13

in fee to the Association.

17 Thus, the Association took fee simple ownership of the 

Subdivision roads subject only to the access easements of all Subdivision owners

(including those who would come to own the residential lots that LMI conveyed to the 

Association in fee in the 1968 Deed). 

For the foregoing reasons, the trial court granted the Association’s motion for 

partial summary judgment as to the Starlings’ claims for trespass, ejectment, and 

declaratory judgment regarding ownership of Custer Drive and/or the Disputed Property. 

Because each count required a showing of ownership or the right to possession of the 

contested property, and because the Starlings had failed to establish a genuine issue of 

material fact as to either, those claims failed as a matter of law. See T.C.O. at 13 &

nn.2 & 3 (citing Hartley v. Spencer, 75 Pa. Super. 449 (1920), for the proposition that 

one may recover for trespass only upon proof of ownership and possession or the right 

thereto of the land at the time of the trespass, and Wells Fargo Bank, N.A. v. Long, 934 

A.2d 76, 79 (Pa. Super. 2007), for the proposition that ejectment may only be had by 

one with the right to possess the property in question); see Soffer v. Beech, 409 A.2d 

337, 340-41 (Pa. 1979) (“[T]he right to possession is the central element of [an action in 

ejectment],” which “has long been the general method for obtaining possession of real 

property. . . . [O]ur cases involving fee claimants speak only of the right to possession 

by one not presently in possession.” (citations omitted)). In so ruling, the court 

determined that the Association retained a fee to Custer Drive and that the Starlings 

 

17 Absent contrary indications on the face of the deed, the use of the word “grant” in 

a conveyance of land connotes the grantors’ intent to pass fee simple title of the land so 

conveyed. See 21 P.S. § 2 (“[I]n any deed or instrument in writing for conveying or 

releasing land hereafter executed, unless expressly limited to a lesser estate, the words 

“grant and convey,” or either one of said words, shall be effective to pass to the grantee 

or grantees named therein a fee simple title to the premises conveyed . . . .”).
[J-91-2016] - 14

had no ownership or possessory interest in the Disputed Property outside the depicted 

point of tangency of the water-line and the northern edge of the cul-de-sac.

With regard to the Starlings’ claim for an injunction restricting the use of Custer 

Drive to “vehicular travel,”18 the court noted that no Subdivision covenant so limited the 

use of that road. The trial court observed that, were it to limit use of Custer Drive to 

“vehicular purposes” in the sense ventured, “activities such as walking, running and 

biking would not be permitted.” T.C.O. at 16. Indeed, were the Starlings to host a party, 

their own guests would not be allowed to park on Custer Drive, because parking is not 

“vehicular travel.” Id. This would contravene what the court deemed the “main purpose 

of the Subdivision, . . . the enjoyment of outdoor activities.” Id. at 16-17.

With regard to the Starlings’ claim for declaratory and injunctive relief precluding 

non-residential use of the Disputed Property,

19 the trial court found that the lack of 

designation of the Disputed Property for recreation or lake access was not conclusive in 

favor of the Starlings’ claim. Rather, the Plan’s stated “primary purpose” was to serve 

“the enjoyment of out of door recreation.” Association’s Motion for Partial Summary 

Judgment, Exh. E. Furthermore, the “Dedication” section of the Plan specified that all 

lots not designated “water supply” or “commercial” would be “either recreational areas, 

lake access areas, or residential lots.” Id. The Disputed Property not having been 

designated water supply, commercial, recreational, lake access, or residential, the trial 

court found that “any lawful use is permitted” on the Disputed Property. T.C.O. at 15. 

 

18 See Complaint at 28 ¶175 (alleging that “[t]he Association is using and permitting 

its membership to use Custer Drive for purposes other than vehicular travel”), 29 

¶177(a) (seeking “[a] decree enjoining permanently the Association from using Custer 

Drive and its cul-de-sac for purposes other than vehicular travel”). 

19 See Complaint at 29 ¶177(b) (seeking “[a] decree enjoining the Association from 

using the [Disputed Property] for non-residential purposes of any kind”).
[J-91-2016] - 15

Finding no further controversy with respect to Count V, the court granted the 

Association summary judgment on Count V.

Following the trial court’s entry of partial summary judgment for the Association, 

the parties entered a consent order dismissing the Starlings’ remaining nuisance count

(Count III), and the Starlings agreed not to seek damages. This rendered the trial 

court’s judgment final, and the Starlings appealed to the Superior Court.

In a unanimous precedential opinion that largely adopted the Starlings’ 

arguments, a three-judge panel of the Superior Court rejected the trial court’s 

determination that the Association held a fee simple interest in Custer Drive. The 

Superior Court found it of “vast importance” that the Plan was recorded in 1967, the 

year before LMI deeded, inter alia, its interests in the Plan’s roads to the Association. 

Starling v. Lake Meade Prop. Owners Ass’n, Inc., 121 A.3d 1021, 1028 (Pa. 

Super. 2015). It also was in 1967 that the Rosenmillers acquired the lots comprising the 

Starling Tract. The court correctly noted that, “when lots are sold as part of a recorded 

subdivision plan on which ‘a street has been plotted by the grantor, the purchasers 

acquire property rights in the use of the street.’” Id. at 1028 (quoting Kao v. Haldeman, 

728 A.2d 345, 347 (Pa. 1999)). This “easement of access” “is a property right 

appurtenant to the land [that] cannot be impaired or taken away without compensation.” 

Id. (internal quotation marks omitted); see id. (quoting RESTATEMENT (3d) OF 

PROPERTY—SERVITUDES § 2.13(1)) (“A description of the land conveyed that refers to a 

plat or map showing streets . . . implies creation of a servitude restricting use of the land 

shown on the map to the indicated areas.” (Superior Court’s emphasis omitted)). 

From this uncontroversial proposition, though, the Superior Court proceeded to 

an inference that is unprecedented in Pennsylvania law:

As of [the date of the 1968 Deed, LMI] did not own any road in fee interest 

absolute because it had . . . sold lots in the [S]ubdivision. As owner of 
[J-91-2016] - 16

certain unsold lots in 1968, [LMI] owned an easement in the platted roads 

shown on the [Plan] when it conveyed the roads to the Association. The 

grantor in a deed cannot convey title to property greater than that owned 

by the grantor. See Ecenbarger v. Lesoine, 438 A.2d 969 

(Pa. Super. 1981) (where grantor did not own property in fee but was coowner, grantor could not convey easement over section of property owned 

in common with other grantors without joinder of other property owners). 

[LMI] simply did not own a fee simple interest in the platted roads in the 

[Subdivision] in 1968, when it purported to grant such an interest to the 

Association. The trial court therefore erred, as a matter of law, in ruling 

that the 1968 [D]eed created a fee simple absolute interest to the 

Association to Custer Drive in the [Subdivision] and that, as fee simple 

owners, the Association could continue to use Custer Drive as it wished.

Indeed, the logical implications of a finding that the Association owns, in 

fee simple absolute, the platted roads in the subdivision are far-reaching 

and counter-intuitive. If the Association owned the roads in fee simple 

absolute, it could sell those roads and permit houses to be built on them. 

It could allow them to be used as parking lots. The Association could 

thereby prevent access by [Subdivision] property owners to their lots.

Id. at 1029 (citation modified; emphasis added). 

Thus, the Superior Court held that the trial court not only erred in entering 

summary judgment with regard to trespass, ejectment, and ownership of Custer Drive, 

but it also erred in denying declaratory and injunctive relief regarding the Association’s 

usage of Custer Drive. It held that, because the Association has no greater right to the 

use of Custer Drive than is enjoyed by any holder of a Subdivision lot, the Association 

was entitled only to use Custer Drive for “vehicular and pedestrian ingress and 

egress.”20 Starling, 121 A.3d 1031. Thus, the Superior Court reversed the trial court’s 

entry of judgment on Counts I, II, and on Count IV to the extent that it established the 

Association’s ownership of Custer Drive, and it directed the trial court to enter judgment 

 

20 The Superior Court characterized this remedy as “the relief requested in Count V 

of the Complaint,” but, as noted supra, the Starlings actually sought an injunction 

precluding all use but “vehicular travel,” without any allowance for pedestrians.
[J-91-2016] - 17

in the Starlings’ favor on their prayer for injunctive relief regarding the use of Custer 

Drive. 

That left only the question of ownership and use of the Disputed Property. In this 

connection, the Superior Court found that the Plan was ambiguous. The court then 

reviewed the Starlings’ parol evidence, every item of which post-dated the recordation 

of the Plan, and found that genuine issues of material fact remained regarding whether 

Lot 726 wrapped around the cul-de-sac to encompass some portion of the strip of land 

west of Custer Drive. Thus, the court specifically remanded for further fact-finding on 

the ownership question. With regard to use, the court was less clear, but its opinion at 

least suggested that the absence of an express Plan designation of the Disputed 

Property for common use precluded non-residential use such as that alleged by the 

Starlings. See id. at 1031 (“The fact that the Starlings do not own the triangular shaped 

piece of land, however, does not mean that the Association does own it and can allow 

people to use it for recreational purposes.”), 1033 (“In sum, we remand for the grant of 

partial relief to the Starlings as to [C]ount [V] . . . and for entry of an injunction 

permanently enjoining use of the entirety of the platted Custer Drive and the entirety of 

its platted cul[-]de[-]sac to any use other than for ingress and egress.”).

Interestingly, in analyzing this consideration, the court appeared to understand

the Starlings as seeking only the northwestern bulge opposite Lot 726, which the court

referred to as “the triangular-shaped piece of land.” Id. at 1024. However, based upon 

our review, the Starlings never restricted their claim in that fashion before the trial court, 

nor did they do so in their briefing to the Superior Court. Indeed, contrary to the 

Superior Court’s claim, before that court the Starlings were less than clear about 

whether they sought ownership of the entire peninsula north of the southern boundary 

of Lot 725 or merely some indeterminate portion of the land to the north and west of 
[J-91-2016] - 18

Custer Drive, and in any event, nowhere did the Starlings so much as refer to any land 

as triangular. Thus, while the Superior Court correctly observed that the Starlings’ 

Complaint never appeared to assert ownership of Custer Drive, the court was simply 

wrong to suggest that the Starlings never raised that argument in the trial court at all, 

see supra n.8, or that their arguments on appeal were so focused.

21

 

II. Analysis

We granted allowance of appeal to consider three issues. Although the two 

issues we reach were stated in terms of the Superior Court’s apparent determination 

that the fee to Custer Drive was surrendered by LMI (or effectively extinguished entirely) 

as soon as LMI sold the first Subdivision lot and the Superior Court’s alleged conclusion 

that “extrinsic evidence can vary property boundaries on a recorded subdivision plan,”22

 

21 Cf. Starlings’ Superior Court Brief at 10 (“The Starlings contend that the entire tip 

of Custer Peninsula is part of their Lots 725 and 726, subject to the Association’s 

easement over Custer Drive.”), 22 (quoting the affidavit of an agent for the developer 

that was submitted in the Cookson Litigation: “[T]hrough inadvertence of [LMI], the 

Plans of Lots 725 and 726 prior to the recording were not corrected to show the actual 

intent of the parties but rather to show the [sic] Custer Drive to extend through Lot 725 

to the shoreline of Lake Meade” (emphasis in original)), 26 (“Accordingly, the trial 

court’s holding that the area between Custer Drive and Lake Meade on the western side 

is owned by the Association is without support in the existing record.”).

22 Adopting the Association’s formulation of the issues verbatim, our order granted 

review of the following issues:

1. Whether the Superior Court erred as a matter of law in holding that 

a fee simple owner of a private road who grants an easement over that 

road extinguishes its fee simple ownership of the road?

2. Whether the Superior Court’s decision conflicts with 

Pa.R.C.P. 1035 when the court reversed the trial court’s grant of summary 

judgment and directed the entry of injunctive relief in favor of the 

[Starlings] and did so without considering the facts of record found by the 

trial court, without considering the record in the light most favorable to [the 

(continued...)
[J-91-2016] - 19

the lower courts, and now we, find that the most sensible way to resolve these issues is 

to address ownership and use of Custer Drive and the Disputed Property as such, 

which implicate and are encompassed by the issues as stated. For clarity of analysis, 

we address both ownership questions first, then take up the question of use. 

A. Standard of Review

Appellate review of summary judgment entails a question of law. Accordingly,

we review the Superior Court’s reversal of the trial court’s order de novo, and we need 

not defer to either lower tribunal’s determinations. See Summers v. Certainteed Corp., 

997 A.2d 1152, 1159 (Pa. 2010). In reviewing the lower courts’ rulings, we apply the 

same legal standard as the trial court. Albright v. Abington Mem. Hosp., 696 A.2d 1159, 

1165 (Pa. 1997).

Summary judgment is appropriate only in those cases where the record 

clearly demonstrates that there is no genuine issue of material fact and 

that the moving party is entitled to judgment as a matter of law. . . . The 

reviewing court must view the record in the light most favorable to the 

nonmoving party, resolving all doubts as to the existence of a genuine 

issue of material fact against the moving party. When the facts are so 

clear that reasonable minds cannot differ, a trial court may properly enter 

summary judgment.

 

(...continued)

Association], and where there are general issues of material fact 

precluding the entry of judgment in the [Starlings’] favor?

3. Whether the Superior Court erred as a matter of law in concluding 

that extrinsic evidence can vary property boundaries on a recorded 

subdivision plan?

Starling v. Lake Meade Prop. Owners Ass’n, Inc., 133 A.3d 733 (Pa. 2016) (per curiam). 

As explained below, our disposition of the ownership and use-related issues provides 

the answers to issues one and three and renders issue two moot.
[J-91-2016] - 20

Gilbert v. Synagro Cent., LLC, 131 A.3d 1, 10 (Pa. 2015) (quoting Atcovitz v. Gulph 

Mills Tennis Club, 812 A.2d 1218, 1221-22 (Pa. 2002) (citations omitted)). In the 

specific context of boundary disputes, we have drawn the following distinction, which is 

critical to understanding what we can—and cannot—decide in the summary judgment 

phase:

The meaning of a deed—that is, what it covers—is a question of law for 

the court; what the boundaries of a given piece of land are is a question of 

construction for the court also; where they are is a question of fact for the 

jury. Where the boundary lines of a grant are fixed by the grant itself, the 

question as to what these lines are is purely one of law.”

Miles Land Co. v. Hudson Coal Co., 91 A. 1061, 1064 (Pa. 1914) ((citations and internal 

quotation marks omitted))

B. The Ownership Issues

We first must address the above-mentioned confusion regarding whether the 

Starlings asserted ownership of the entire northern section of the peninsula

encompassing some portion of Custer Drive, with the southern boundary of their claim 

presumably delineated as the extension of Lot 725’s southern boundary across Custer 

Drive to the western water-line—what we have referred to as the cross-cutting theory—

or asserted only ownership of the Disputed Property itself, i.e., some contiguous portion 

of the Plan extending Lot 726 around the northern edge of the cul-de-sac and down the 

western shore, west of Custer Drive, to some southern boundary the location of which 

cannot conclusively be gleaned from the Starlings’ pleadings, i.e., the wrap-around 

theory. For the reasons set forth supra, we conclude that the Starlings gave both the 

trial court and the Superior Court ample reason to believe that they pursued both 

theories in the alternative. See, e.g., supra nn.8, 21, and accompanying text. The trial 
[J-91-2016] - 21

court appeared to approach the case upon this basis, but the Superior Court nominally 

rejected it, although its opinion nonetheless seemed to address aspects of both 

theories. In any event, there is no question that the Starlings now maintain that their

tract actually extends across the peninsula entirely and encompasses Custer Drive. In 

their view, the Association enjoys only the same access easement enjoyed by the other 

owners in the Subdivision. Nonetheless, in the analysis that follows, we give them the 

benefit of, and address at length, both theories, not least because the Starlings’ 

underlying complaint clearly is more consistent with the wrap-around theory. See

Complaint at 26 (seeking a declaration “establishing the boundary line of [the] Starling 

Tract at [the] southern end of the Disputed Portion of the Starling Tract,” i.e., the 

Disputed Property).

The same principles that apply to the interpretation of a contract apply to the 

interpretation of a deed. See New Charter Coal Co. v. McKee, 191 A.2d 830, 834 

(Pa. 1963). The nature and quantity of the interest conveyed by a deed “must be 

ascertained from the instrument itself.” In re Property of W.R. Covert, 186 A.2d 20, 23 

(Pa. 1962) (quoting Yuscavage v. Hamlin, 137 A.2d 242, 244 (Pa. 1958)). When a 

deed incorporates by reference a subdivision plan, the plan becomes “a material and 

essential part of the conveyance, and is to have the same force and effect as if it was 

incorporated into or copied into a deed.” Birmingham, 48 Pa. at 260. “[W]e seek to 

ascertain not what the parties may have intended by the language but what is the 

meaning of the words,” or, in this case, the words as informed by the Plan’s depiction. 

Property of W.R. Covert, 186 A.2d at 23 (emphasis omitted). Thus, “the language of the 

deed shall be interpreted in the light of the subject matter, the apparent object or 
[J-91-2016] - 22

purpose of the parties and the conditions existing when it was executed.” Highland v. 

Commonwealth, 161 A.2d 390, 402 (Pa. 1960). “If the deed is ambiguous, then all of 

the attending circumstances existing at the time of the execution of the instrument

should be considered to aid in determining the apparent object of the parties.” Stewart 

v. Chernicky, 266 A.2d 259, 263 (Pa. 1970) (emphasis added); accord Clancy v. 

Recker, 316 A.2d 898, 902 (Pa. 1974). When parol evidence is admissible, “it must 

generally have a foundation in pre-existing evidence of fraud, accident or mistake,” 

except when it is introduced “not to contradict or vary, but to explain the contract, as 

when something is omitted . . . so as to qualify the tribunal passing upon the writing to 

interpret it truly according to the intent of the parties.” Baltimore & Phila. Steamboat Co. 

v. Brown, 54 Pa. 77, 81-82 (1867). Because no one maintains that any relevant deed or 

the Plan itself is the product of fraud, accident, or mistake, it is necessary to focus upon 

the Plan. If we conclude that the Plan’s depiction is ambiguous, we may consider only 

such parol evidence as bears upon LMI’s contemporaneous intention in preparing and 

recording the Plan. See Highland, 161 A.2d at 402; Wilkes-Barre Twp. Sch. Dist. v. 

Corgan, 170 A.2d 97, 98 (Pa. 1961).

23

 

23 Before the Superior Court, the Starlings acknowledged that LMI’s intention 

governs the interpretation of the Plan. See Starlings’ Superior Court Brief at 23 (“[T]he 

trial court correctly recognizes that the intent of [LMI] is what controls the interpretation 

of the [Plan].”). Thus, even if we find the Plan ambiguous, no parol evidence unrelated 

to LMI’s intent at the time of the Plan’s recordation would be pertinent. While one might 

colorably argue that LMI’s conduct in the time between their recordation of the Plan and 

the 1968 Deed is relevant, insofar as their conduct immediately in the wake of devising 

and recording the Plan might imply something about their contemporaneous 

understanding of the Plan, certainly no extrinsic evidence after the 1968 Deed has any 

bearing upon LMI’s “apparent object or purpose . . . when [the Plan was recorded].” 

Highland, 161 A.2d at 402. Thus, the learned Dissent’s reliance upon the Starlings’ 

evidence that they pay taxes on some portion of the disputed property and its citation of 

(continued...)
[J-91-2016] - 23

Custer Drive

Given the indisputable fact that LMI owned the fee to the property under Custer 

Drive at some point during the design and development of the Subdivision, the Superior 

Court’s determination that the Association had no fee interest in Custer Drive when it 

purported to convey the fee to the Subdivision’s roads to the Association in the 1968 

Deed24 necessarily derived from one of two conclusions: Either LMI surrendered its fee 

 

(...continued)

the Association’s putative 2007 “admission” that Lot 726’s boundary line “is 

undeterminable,” see Conc. & Diss. Op. at 8, to establish a disputed issue of material 

fact are misplaced. See City of Pittsburgh v. Weinman, 134 A. 382 (Pa. 1926) 

(“[A]ssessment and payment of taxes on property is not proof of title . . . .”); James, 106 

A. at 723 (same); Grace Bldg. Co. v. Parchinski, 467 A.2d 94 (Pa. Cmwlth. 1983) 

(rejecting proffered tax deed and county tax map because the documents were 

insufficient both to identify the boundaries of the parcel in dispute and to locate them on 

the ground); cf. T.C.O. at 8 (noting that the most recent tax documents of record in fact 

disfavor the Starlings’ claim of ownership). The same can be said about the Starlings’ 

invocation of the 1974 Survey, which cannot, by itself, inform LMI’s intention at the time 

of Recordation. The Dissent’s suggestion that these matters are cited “only to 

demonstrate the record contains genuine issues of material fact regarding ownership” 

does not alleviate the problem. Conc. & Diss. Op. at 8 n.1. The evidence is (and by 

definition, must be) legally irrelevant to the resolution of any factual dispute regarding 

the contemporaneous intention reflected in a conveyance that preceded the evidence 

by years. It logically follows that the same incompetent evidence cannot establish that 

such a dispute existed in the first place. That the current parties dispute ownership 

does not, by itself, establish a factual dispute regarding the question of what the 

boundary was intended to be at the time of the recordation of the Plan and the 

conveyances by LMI of Lots 725 and 726 to those lots’ first owner. 

Regarding the Dissent’s suggestion that an ambiguous deed must be interpreted 

in favor of the non-drafting party, id. at 4, we note that the Association did not draft the 

Plan or the deeds in question; rather, LMI did. Hence, this particular interpretive 

principle has no bearing upon this case. The remaining interpretive principles cited by 

the Dissent as “more properly applicable to interpreting a deed or subdivision plan,” id.

at 3, are not only consistent with the familiar array of tools at our disposal for the 

interpretation of ambiguous contracts of any sort, they also are reflected in our own 

recitation of the governing principles.

24

“As of [the date of the 1968 Deed, LMI] did not own any road in fee interest 

absolute because it had . . . sold lots in the [S]ubdivision. As owner of certain unsold 

(continued...)
[J-91-2016] - 24

upon its first sale of a residential lot, presumably in sections corresponding to each lot 

as those lots were purchased, or the fee to all roads entirely ceased to exist upon that 

first residential sale. This, in turn, would appear to require the utterly unintuitive result 

that all Subdivision owners and the Association itself own an access easement over 

land that, by virtue of being owned by no one, presumably need not be servient to such 

an easement to ensure its availability for use to all authorized entrants to the 

Subdivision itself. Thus, in just a few sentences, and without reference to supporting 

authority, the Superior Court cast a shadow over the title to the roads, and for that 

matter all common areas, of every planned community in the Commonwealth of 

Pennsylvania. 

As well, the court’s sweeping account of the Association’s prerogatives if it held a 

fee to the roads25 is patently at odds with hornbook law regarding a property owner’s 

rights when the property in question is servient to an easement. It is beyond cavil in 

Pennsylvania that a property owner may use his property only in ways that do not 

interfere with the rights of the easement holder. See Minard Run Oil Co. v. Pennzoil 

Co., 214 A.2d 234, 235 (Pa. 1965) (“The owner of the servient tenement may make any 

use thereof which is consistent with or not calculated to interfere with the exercise of the 

easement.” (citation omitted)); Mercantile Library Co. of Phila. v. Fid. Trust Co., 83 A. 

 

(...continued)

lots in 1968, [LMI] owned an easement in the platted roads shown on the [Plan] when it 

conveyed the roads to the Association.” Starling, 121 A.3d at 1029 (emphasis added).

25

“If the Association owned the roads in fee simple absolute, it could sell those 

roads and permit houses to be built on them. It could allow them to be used as parking 

lots. The Association could thereby prevent access by [Subdivision] property owners to 

their lots.” Starling, 121 A.3d at 1029.
[J-91-2016] - 25

592, 595 (Pa. 1912) (“The grant of a fee, subject to an easement, carries with it the right 

to make any use of the servient soil that does not interfere with the easement . . . .” 

(citation omitted)). Thus, insofar as the Superior Court correctly noted that all owners in 

the Subdivision held an access easement to the roads, it necessarily followed that no 

fee owner of Custer Drive could permit houses to be built upon it, designate it as a 

parking lot, or otherwise “prevent access by . . . property owners to their lots,” Starling, 

121 A.3d at 1029, and the Starlings never have suggested that the Association has 

sought in any way to do so.

In arguing in favor of affirmance of the Superior Court’s rejection of the 

Association’s ownership of Custer Drive, the Starlings direct our attention to two 

authorities, Allen v. Scheib, 101 A. 102 (Pa. 1917), and Sides v. Cleland, 648 A.2d 793 

(Pa. Super. 1994), the latter of which the Superior Court deemed “dispositive,” albeit 

perhaps of the use issue rather than the ownership issue (on this point, the intermediate 

court was not entirely clear). See Starling, 121 A.3d at 1029. In any event, we address 

these cases in turn.

In Allen, a testator devised forty acres of his 142-acre property to four family 

members in various acreages, but without specifying the portion of the larger estate 

from which to take those forty acres. Later, the family arranged for the forty acres to be 

taken from a corner of the farm inaccessible from the public highway adjacent to the 

larger estate. By the same arrangement, a private road from the public road along the 

border of the full property to the captive property was set aside by agreement, and that 

private road was used without conflict for approximately twenty years by the occupants 

of the devised properties. Later, the title to the entire forty-acre tract, along with 
[J-91-2016] - 26

“whatever interest the owners thereof had in the lane,” became vested in John Scott 

Harbison, who conveyed the full tract to Eleanor Allen in 1911. Id. at 102-03. 

Over time, the balance of the original farmstead was further subdivided such that, 

ultimately, two distinct owners, the defendants in the Allen action, held the land on 

either side of the access road. Setting aside those owners’ apparent disputes regarding 

ownership of the road, Allen eventually contended that ownership in fee of the lane, 

rather than a mere easement, was included with her ownership of the forty-acre tract. 

Allen retained a contractor to install and maintain a gas line to run along the private 

road. However, the defendants managed “by opposition and threats” to prevent 

construction. Id. at 103. The Allen litigation followed.

This Court held first that if Allen owned only an easement, then she was entitled 

to use it only for the use for which it was dedicated. Id. Conversely, if Allen owned the 

fee to the road, then she was entitled to construct her gas line. Although no deed 

showed conveyance of the road in fee by the original devisees to Allen’s predecessor, 

reference was made in the conveyance corresponding to one of the other tracts, which 

described a boundary of that tract as running “[t]hence along a certain road or lane 

between the land herein conveyed and the land of John Stirling.” Id. Generally 

speaking, we explained, “[t]he term ‘road,’ and especially ‘private road,’ is indicative of 

an easement rather than a fee.” Id. Thus, “[t]he mere reference in a conveyance to a 

private road does not tend to show ownership in fee thereof in the party for whose use it 

may have been established.” Id. at 104. In such a situation, such a road “may, prima 

facie, be used by all abutting owners, and defendants as such would have standing to 

object to an additional use being made thereof by the construction therein of a gas line.” 
[J-91-2016] - 27

Id. The Court concluded that Allen, as owner of the captive forty-acre plot for the 

benefit of which the road had been created, had “a right to the free and uninterrupted 

use thereof as a way for purposes of passage over and upon the same; and, so far as 

appears, defendants may lawfully make such use thereof as will not interfere with the 

rights of plaintiff.” Id. However, being the claimant, Allen bore the burden of 

establishing ownership and failed to do so. Accordingly, her interest was in the nature 

of an easement, and she was not entitled to run a gas line to her captive property.

This case actually undermines the Starlings’ argument in two regards. First, 

nothing in Allen suggested that no party owned a fee to the road, or that the 

conveyance of a road easement extinguished such a fee. Even given the Starlings’ 

decontextualized reading of our holding that, absent a contrary indication, the use of the 

word “road” in a deed suggests the conveyance only of an easement, nothing about 

Allen suggests that LMI, once having held the fee, conveyed, abandoned, or 

extinguished that fee simply by selling off Subdivision lots, and, in so doing, retained 

only access easements to the Subdivision roads. Second, in Allen we clearly imposed 

the burden of establishing the necessary fee upon Allen as plaintiff rather than merely 

negating the fee of others, which we never endeavored to ascertain. As set forth above, 

the Starlings have failed to establish their own fee to Custer Drive, which undermines 

their attempt to enjoin Association uses of Custer Drive that do not interfere with the 

Starlings’ use and enjoyment of their own easement over that road. 

Sides has even less bearing in this case. In Allen, at least, there was an 

embedded fee issue. In Sides, however, at issue was not ownership of the trail; the 

defendant in that case undisputedly held the fee to the trail, subject to a right-of-way 
[J-91-2016] - 28

explicitly reserved in the subdivision plan. Rather, the dispute in Sides concerned the 

use of that right-of-way. The Starlings’ discussion of Sides, although it appears in 

connection with their argument regarding ownership of Custer Drive, basically assumes

that the Association does not own Custer Drive, and then attempts to use Sides to 

support the Superior Court’s entry of injunctive relief against the Association concerning 

Custer Drive. We take up the question of use, infra, but Sides is useful in neither 

connection. Furthermore, as a Superior Court decision, Sides would not bind us even if 

it was on-point.

In light of the foregoing, we are left with the conclusion as a matter of law that the 

Association retains the fee to Custer Drive. The trial court correctly so held, and the 

Superior Court erred in overturning that determination. 

The Disputed Property

This leaves the Starlings’ wrap-around theory.26 The Association argues that we 

must reject the Superior Court’s determination that the Starlings’ pleadings and proofs 

established a triable factual dispute regarding the Starlings’ alleged ownership and/or 

possessory rights in the Disputed Property and restore the trial court’s determination 

that the Starlings, in failing to establish such a factual dispute, did not state prima facie

claims for trespass and ejectment. See Soffer, 409 A.2d at 340-41.

Two competing accounts of the Plan arise due to the lack of metes and bounds 

defining the northern boundary of Lot 726 and the concomitant lack of unequivocal 

 

26 We are left to consider the wrap-around theory, because in determining that the 

Starlings have no ownership interest in Custer Drive, their cross-cutting theory 

necessarily is infirm for that reason, if no other. Thus, any tenable ownership and use 

claims concerning the Disputed Property that remain can be sustained only pursuant to 

the wrap-around theory, which also is consistent with the wording of their Complaint. 
[J-91-2016] - 29

denominations establishing the northern and southern ends of the Disputed Property. 

However, the prohibition on any interpretation that leads to an absurd result enables us 

to bring the Plan into sharper focus. See Pocono Manor Ass’n v. Allen, 12 A.2d 32, 35 

(Pa. 1940) (“Before a court will interpret a provision in a . . .contract in such a way as to 

lead to an absurdity or make the . . . contract ineffective to accomplish its purpose, it will 

endeavor to find an interpretation which will effect the reasonable result intended.”).27 

In order for the Starlings’ wrap-around theory to succeed, it must be the case that 

LMI did not intend for the depicted tangency between the cul-de-sac and the waterline 

to constitute a boundary. However, if the tangency is immaterial to the determination of 

Lot 726’s boundary, then that necessarily entails that we treat no similar point of 

tangency on the peninsula as a boundary. As the trial court noted, such a conclusion 

would lead to the patently absurd result that, just as there is no clearly intended 

boundary to Lot 726 to the north or west, there also can be no clear northeastern 

boundary to Lot 1020. See T.C.O. at 6-7. If those points of tangency bound neither Lot 

726 nor Lot 1020, then the owners of those lots both have a viable claim to the entirety 

of the Disputed Property, because there is no notation or boundary other than the 

tangencies to suggest where one lot ends and the other begins. Taken to its logical 

 

27 The Dissent distinguishes Pocono Manor from the facts of this case at length, 

see Conc. & Diss. Op. at 6-7, but appears not to appreciate that our “claim[ed] reliance” 

on that case extends no further than the uncontroversial principle of contract and deed 

interpretation stated, not as binding or analogous authority on the particular issues now 

before us. Just as the Dissent relies upon the inapposite case, Toy v. Metro. Life Ins. 

Co., 928 A.2d 186 (Pa. 2007), to establish the standard governing review of a motion for 

summary judgment, see Conc. & Diss. Op. at 2, we cite Pocono Manor merely for a 

legal principle that applies in myriad circumstances, including the interpretation of a 

facially ambiguous deed. 
[J-91-2016] - 30

extreme, the Starlings’ argument could result in the Starlings and the owners of Lot 

1020 having opposing claims to each other’s entire lot. 

In a case such as this, where the only metes and bounds available to us are 

illustrated but not described, we confront an arguable ambiguity where the boundaries 

are depicted with less information than is necessary to define with certainty the property 

in question. However, we must interpret the Plan as a whole, and we need no parol 

evidence to infer that LMI did not intend to invite a property dispute between the owners 

of Lot 726 and Lot 1020. Thus, we must seek to construe the Plan in any reasonable 

way that avoids that absurd result. Here, the interpretation this principle requires is 

clear: LMI must have intended both properties to be bounded by their boundaries’ 

respective points of tangency with Custer Drive,

28 because that is the only principled 

interpretation that creates ascertainable boundaries to both 726 and 1020. 

That ruling alone does not eliminate the explanatory limitations of the Plan and 

the actual location on the ground of that point of tangency with the northern edge of the 

Custer Drive cul-de-sac as depicted on the Plan. It also is not clear that the Plan’s 

shoreline as depicted in 1967 corresponds to the 500-foot elevation line described in 

note 2 to the Plan. But it is LMI’s intent at the time of the Plan’s design and recordation 

that must govern the identification of the intended boundary, and we find that LMI 

intended Lot 726 to terminate where the depicted northern boundary becomes tangent 

with the cul-de-sac. Thus, the Superior Court erred insofar as it determined that a fact 

 

28 It seems appropriate to note one last time the undisputed proposition that Custer 

Drive, as depicted on the Plan, encompasses significantly more land than the paved 

portion of Custer Drive. Indeed, the non-cul-de-sac portion of Custer Drive is measured 

sixty feet wide on the Plan. 
[J-91-2016] - 31

question remained regarding whether Lot 726 wraps around the northern end of the 

peninsula to encompass some portion of the Disputed Property along the western 

shore. Contract interpretation is a question of law for the court; ambiguities are to be 

resolved in favor of a reasonable rather than an absurd or unreasonable interpretation; 

and here it was unreasonable to imagine that LMI intended to leave the owners of Lots 

726 and 1020 squabbling in perpetuity over who owns how much of the Disputed 

Property. Interpreting the points of tangency as boundaries of the properties to which 

they correspond is the reasonable of two alternative interpretations, and, as such, it is

the correct one.

We emphasize, though, that we are not here called upon to determine where 

precisely that point lies on the ground. Nor do we purport to do so. We declare here 

only what the boundary is according to the Plan. See Miles Land Co., 91 A. at 1064. 

The Starlings asked the trial court to “enter an Order conclusively establishing the 

boundary line of [the] Starling Tract at [the] southern end of the Disputed Portion of the 

Starling Tract and further declaring that the entire Starling Tract belongs to the 

Starlings.” Complaint at 26. Thus, the question of where precisely the boundary lies is 

not at issue; at issue is whether their tract includes the Disputed Property. It does not. 

For the foregoing reasons, the trial court correctly granted the Association’s motion for 

summary judgment on this claim, in effect determining that no fact question remained 

the resolution of which would entitle the Starlings to the relief requested.29 

 

29 Much of the Dissent relies upon the premise that the boundary dispute regarding 

Lot 726 cannot be decided as a matter of law, but rather must be submitted to a factfinder. See Conc. & Diss. Op. at 7 (“The identification of the boundary line in this matter 

cannot be determined as a matter of law for purposes of summary judgment.”). This 

(continued...)
[J-91-2016] - 32

C. The Use of Custer Drive and the Disputed Property

In light of our above ruling, it is clear that the Starlings are not entitled to the 

injunctive relief they seek with respect to Custer Drive and its cul-de-sac. We have 

determined as a matter of law that the Association holds the fee to Custer Drive as 

depicted on the Plan. Like every other Subdivision owner, the Starlings have an access 

easement to Custer Drive and nothing more. The Association, as owner of Custer 

Drive, can utilize that road however it sees fit, provided it does not interfere with the 

Starlings’ (and any other Subdivision owner’s) access easement. See Minard Run Oil 

Co., 214 A.2d at 235 (“The owner of the servient tenement may make any use thereof 

which is consistent with or not calculated to interfere with the exercise of the easement.” 

(citation omitted)); Mercantile Library Co. of Phila., 83 A. at 595 (“The grant of a fee, 

subject to an easement, carries with it the right to make any use of the servient soil that 

does not interfere with the easement . . . .” (citation omitted)). Thus, the Starlings have 

no entitlement to injunctive relief restricting the Association’s non-interfering uses of 

Custer Drive, and they have not claimed any such interference in the instant matter. 

 

(...continued)

misunderstands the narrow scope of our ruling, which hinges upon a distinction—one

that the Dissent’s own citations reinforce—between identifying a boundary (a question 

of law) and locating a boundary (a question of fact). See Miles Land Co., supra; cf. 

Grace Bldg. Co., Inc., v. Parchinski, 467 A.2d 94, 96-97 (Pa. Cmwlth. 1983) 

(recognizing the distinction between identifying boundaries and locating them). It also 

disregards that, fairly construed, the Starlings’ complaint asserts ownership of the 

Disputed Property generally, not by reference to a specific line or a clearly-defined 

location. For present purposes, we decide only that the depicted point of tangency on 

the Plan where Lot 726’s boundary touches the cul-de-sac bounds the Starlings’ 

property, which plainly is a ruling regarding what the boundary is. To the extent the 

parties seek further clarification, our ruling is not intended to prejudice future efforts to 

seek it, but that issue is not squarely presented in the case as we find it.
[J-91-2016] - 33

For this reason, the Superior Court erred in directing the trial court to grant injunctive 

relief to the Starlings vis-à-vis Custer Drive.

With respect to the Disputed Property, having identified as a matter of law that 

the point of tangency between the northern boundary line of Lot 726 and the cul-de-sac 

as depicted in the Plan bounds the Starling Tract, we must conclude that the Starlings 

have no ownership or possessory interest to any of the property that lies north, west, 

and south of the point of tangency. However, in connection with the use of the Disputed 

Property, the Starlings originally argued that even if they did not prevail on their claim 

for ownership of that property, they nonetheless were entitled to injunctive relief 

regarding its use for “non-residential purposes.” Complaint at 27-29 ¶164-177. Thus, 

resolving the ownership question does not conclude the matter.

The trial court granted the Association’s motion for summary judgment on this 

issue, as well. It noted that the General Notes to the Subdivision Plan specify that the 

primary purpose of the plan is “for the enjoyment of out of door recreation.” T.C.O. at 

14. Reviewing the Dedication section of the Subdivision Plan, the court noted that, 

“unless designated as a water supply lot or commercial area, all other lots are 

recreational areas, lake access areas or residential lots.” Id. The Disputed Property, 

being none of the above, but rather “a small strip of undesignated shoreline property” 

“without a specific designation,” the trial court concluded that “any lawful use is 

permitted” on the Disputed Property. Id. at 15. Thus, no relief was due.

On appeal to the Superior Court, the Starlings challenged this ruling in tandem 

with their challenge to the trial court’s entry of summary judgment in the Association’s 

favor concerning the use of Custer Drive. However, while the Superior Court ruled in 
[J-91-2016] - 34

the Starlings’ favor with regard to Custer Drive, its determination that a question of fact 

remained regarding ownership of the Disputed Property precluded deciding any 

subsidiary questions regarding use of that property. Although the Superior Court 

seemed skeptical about the complained-of uses of the Disputed Property, it evidently 

recognized that it would be premature to venture a legal opinion on that subject. If 

further proceedings in the trial court resulted in a determination that the Starlings owned 

the Disputed Property, any questions regarding Association use thereof would be moot. 

Thus, when the court “remand[ed] for the grant of partial relief to the Starlings as to 

count five” of their complaint, Starling, 121 A.3d at 1033, it referred to its entry of 

injunctive relief as to “the entirety of the platted Custer Drive and the entirety of its 

platted cul[-]de[-]sac,” id., i.e., the road and its right of way as designated on the Plan, 

but did not dictate such relief with respect to the Disputed Property, the ownership of 

which remained unresolved in the wake of the Superior Court’s ruling.

With today’s decision, we effectively reinstate the trial court’s entry of partial 

summary judgment. We do not purport to rule upon the question of the Disputed 

Property’s use, an issue as to which the Superior Court demurred as a consequence of 

its divergent ruling. Thus, on remand, the Superior Court is free to consider the 

question whether the trial court erred in determining that the covenants and restrictions 

did not preclude the Association’s recreational use of the Disputed Property. 

D. Conclusion

For the foregoing reasons, we reverse the Superior Court’s order insofar as it 

reversed the trial court’s entry of partial summary judgment in the Association’s favor 

with respect to counts I, II, and IV of the Starlings’ Complaint. We further reverse the 
[J-91-2016] - 35

Superior Court’s order directing the entry of judgment in the Starlings’ favor on their 

claim for injunctive relief regarding the use of Custer Drive, as well as its reversal of the 

trial court’s determination that the Association did not own Custer Drive in fee simple

subject to Subdivision owners’ access easements and any other established rights-ofway.

30

 We remand this case for further proceedings consistent with this Opinion.

Chief Justice Saylor and Justices Todd and Mundy join the Opinion.

Chief Justice Saylor files a concurring opinion.

Justice Baer concurs in the result.

Justice Dougherty files a concurring and dissenting opinion.

Justice Donohue did not participate in the consideration or decision of this case.

 

30 These rulings effectively dispose of the first and third issue as to which we 

granted review, and obviate any need to consider the second issue. Because we find 

that the Superior Court erred in granting relief to the Starlings for substantive reasons, 

whether it overstepped its contextual authority in doing so is moot.