## Facts

- The Higbee Corporation owned approximately nine acres of land in Bethel Park, Allegheny County, Pennsylvania.
- A narrow strip of land ran through Higbee’s tract, and both Higbee and James J. Kennedy claimed an interest in that strip under color of title.
- Kennedy’s claim traced to an earlier deed that granted the strip to a predecessor “forever provided that the same be used as a road.”
- The deed also required the grantee to keep a “good and lawful fence” and stated that if the grantee failed to do so, he would “forfeit his claim,” and the property would “revert” to the grantor, “his heirs and assigns.”
- Seeking clear title, Higbee filed an action to quiet title and also pursued related equitable relief against Kennedy.
- Kennedy responded with an answer and new matter asserting his continued interest in the strip.
- Higbee filed preliminary objections in the nature of a demurrer (seeking judgment on the pleadings).
- The trial court sustained Higbee’s demurrer and, treating the deed as creating a fee simple determinable, concluded Kennedy’s interest had automatically ended, resulting in judgment for Higbee.
- Kennedy appealed to the Superior Court of Pennsylvania.

## Issues

1. Whether the trial court properly determined, on preliminary objections/judgment on the pleadings, that the deed language created a fee simple determinable (rather than, for example, a fee simple subject to a condition subsequent or a conveyance burdened by covenants).
2. Whether, applying the demurrer standard, Higbee’s entitlement to prevail was so certain that the case could be resolved without further proceedings.

## Decision

- The Superior Court reversed the order sustaining the demurrer and remanded for further proceedings.
- The court agreed with Kennedy that the trial court erred in characterizing his interest as a fee simple determinable on the pleadings.
- Because the deed language and the effect of the alleged conditions were not so clear as to make a trial pointless, judgment on the pleadings was improper.

## Legal Principles

- On preliminary objections in the nature of a demurrer (and on judgment on the pleadings), the court must accept as true all well-pleaded facts of the nonmoving party and may consider against that party only facts specifically admitted.
- Judgment on the pleadings may be entered only where the moving party’s right to relief is so certain that a trial would be a useless exercise.
- In construing a deed, the nature of the estate created depends on the intent shown by the deed’s language read as a whole, rather than on a single phrase viewed in isolation.
- Language suggesting a loss of title is strictly construed; courts do not treat conveyances as automatically terminating unless the instrument clearly establishes a durational limitation requiring that result.
- Where deed language can reasonably be read as creating a condition subsequent (requiring action to enforce a forfeiture) or otherwise does not plainly impose automatic termination, it is error to treat the interest as a fee simple determinable as a matter of law at the pleadings stage.
- If the deed’s terms and their legal effect are not free from doubt on the face of the pleadings, the dispute should proceed beyond preliminary objections so the parties may develop the record.

## Conclusion

The Superior Court held that the trial court wrongly granted judgment on the pleadings by declaring Kennedy’s strip-of-land interest a fee simple determinable that had automatically ended based on the deed’s road-use and fence provisions; because Higbee’s right to prevail was not certain under the strict demurrer standard, the order was reversed and the matter remanded for further proceedings.


Higbee Corporation v. Kennedy, 286 Pa.Supr. 101 (1981)