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MilnE TilE 16th d4V 01 November
01 Ollr Lord OliO 1I10lt.lRlld lIina IlUndrad nlnoty-Hva (1995)
BETWEEN fllAIIK E, IIACKEY and IlAlIClIItET C. IlACKEY, h18 IIUa, at Carroll TO\lJ1shlp,
l'(!rr)' County, l'onI1D)'lvonln,
in tho vaar
.'
alld KElTIl DP.M, of Naw11lo, Cumberlond County, Pannoylvanto,
GrCUltor. .
WITNESSETII, ,luIt in eOll.lideration 01 ONE ond 00/100 ($t.OO)
Grantoe :
ill "alld paid. the receipt whereol u herabv ae/mowledged. Iha ,aid grantor 0 do
alld eOIl..V to Iha .aid granl.a, h18 heirs and aOBisne,
Dollara,
herabv grant
ALL t.hnt cartaln tract at mounteln land oituate In LOller Frankford TOllnohip,
Cumberlond County, Pannaylvanla, bounded and daocrlbod ao follollOI
DECINIIINC at a cornar of lan~ nOli or formerly of Peter Slpe: thence alons sold land,
North 17-1 degrees lIeot 83.5 parcheo to a point: thence by land nOli or formerly of
Jacob Dear, North 76 desreeo East 21.5 perchea to a point; thence by land nOli or
formerly of J. lIarold lIaggonar, South 17-1 desrees Eaot 84 perchao to s point:
thence by lnnd nOli or formerly of Peter Sipe, South 17-1 desrees lIast 21.5 percheo
to the place of DECINNINC.
CONTAINING It neras, moro or loss.
DEINC the s:lmc premises convoyed by dead oC J. Unrold \lilGgoner and D. Viola
\I..csoner, hio \life, doted June 12. 1978 Bnd recorded 1n Cumberland County Deed
Dook II, Volume 27, Pose 168, to Frank E. Ilsckoy and lIarsaret C, lIackey, srantora
herain.
Ta. Parcel No.: t4-04-0383-0It
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PLAINTIFF'S
EXHIBIT
I
,llId 'ho .ald pranlor a herebv eo~....nt
will warrant apaclolly
alld apreo Ihat thay
tho praperlv herebv conu.v.d, '
IN WITNESS lYlIEREOF, .ald orantors luue hereunto..t their hands and..als
Ihe dav and vear /irll abouo written.
alnnlb. illaleb anb illlllbmb -VliiillR...f:-iiAc'KfY'...-.........-................-.-.....e
A Inl~~~Y'"Sl a[ . ~~..tc:.Za,.~~..._.._..................e
...t;.~;:it.:.(;r.;4~.::.i.~...._.... !.?7 !:!.:I.~..d!...:!!.?..~~~-~L::................e
./ - ,/ tlARGAilET G. HACKEY
...............................................................................-..............................................-.........................e
Slate of PENNSYLVA/lIA
Countv of PERny
On Ihu. 'he 16th
}".
November
dav of
. JII95 ,before mo.
Ih. und.reloned oUicer. pcreonallv appeared Frank E. Hockey and Harsaret G, Hsckey
....l:n<>w'1'19, ,me (or .alllfadori1v prou.n) to b. tho pcreons who.. nom.. are .ubombod to tho
~~~.!'a'Jf,~~j~r"mcnt. and ackllowlcdpcd IIld they c:cctllcd .ame for Ihe purp.~.. 11....10
{~lt!at, ~!J!!!ESS WlIEREOF. I hereunlo ..I mv hand and oUiclar1' f
...J),'J\.~~O.~....I'...rT',.. ~ J 1""'\ e
I,LJ" ~ 'fJ~"j ~-=:I J\ ~ v. ~ ..--..,
i(-",~, '/1' .J..!" ~,li';r,.l., . ,..,.. Ci::, .~...., ~.. ..... .......
~ . "'!:'.';;'} . .;;,:; .-: tu.rMOtd.
..,....":'"~.......-:J,~.I\: ~k,.,lI.;frJ" Clrd"lhr.C'jJ .u~:uyp..)Io {
;,:f,"".h':,..~ . ~.}:.... .. . 1n:,:n\,...w~ltil:JO~"'I.,CUl.n:v _.. __......._...._..._...._..__._._.._.._..._......
....::7j' ~\.:,. .:. ."'; .. M/(~fII~u:~p:r.::;M"'Y~.lm Title of O/Jicer.
'. ".1\. ...'l'flot... 1----.-
.'.... . ,.;;;.J...,...I.~~I.i1<l..aJ'~IoOlI~i.A:;;u:.JS
SIal. 01
}".
COUIlIV of
On lhu. III.
dav 01
, J9
, before rue,
Iho undeTlloncd oUieer. peTlonallv appcared
k'lown to "'. (or .alllfaclorilV proUdn) to bc tho pOTIon
within I,,'nllllcnl. and acknowledocd thaI
contained.
IN lVITNESS lVIIEREOF', IlIcreunto ..t "'v hand and oUiclal Ical.
who.. nom. ",b.eribed to tho
e:.c.lcd lame for Ih. purpo.u Ih.reln
......................................................................................~
.-....-.................-...-...................-....-...........-.............
Till. of OUicer.
I do hcrcbV e.,rlilv that the precl.to re.ld.ne. and complel. poll oUieo addr."
oflho willi In nom cd ornnt.. u 10 Villesa Lane, NallYille, PA 17241.
Iloyenlbar 16, J995
bOOK 131 Y.\&[ fJ ,')5
_............,e...q_......................_..................,......
iItlomov for ...(................,........................................
.
CHARLES E, SHIELDS, III
ATTORNEY.AT.LAW
6 CLOUSER ROAD
Co",., ofTrindk and CIo/Utf Roods
MECHANlCSBURO. PA 17055
GEORGE M, HOUCK
(\912.1991)
TELEPHONE (717) 766.0209
FAX (717) 795.7473
July 28, 1998
Mr, and Mrs. Arthur Keck
45 Bobcat Drive
Carlisle, PA 17013
Dear Mr. and Mrs, Keck:
Please find enclosed for your reference and convenience, a copy of my recent letter to
Attorney Wayne Shade, which was responding to his letter of July 22, 1998, I have also enclosed
for your reference and convenience, copies of Mr, Shade's letter of June 9. 1998, to Edward W.
Harker. and a copy of Edward W. Harker's letter of July 14. 1998. responding to Mr. Shade. I
think these items are probably fairly self-explanatory and you should regard this letter as notice that
if we do not hear anything from you within twenty (20) days from today's date. we will petition
the court to release us from any further duties or obligations in this case,
It is not my place to insinuate whether you should seek damages or whether you should let
this matter drop. If you do want to pursue the matter, I would suggest that you obtain legal
counsel and have them do it. Proceeding in this complex area of this case would be most likely
somewhat difficult for a lay person who would be trying to represent himself. You should do as
you please in this matter.
If you do not want to pursue anything, you would have the option of simply doing nothing
for twenty (20) days from today's date. or, in the alternative. if you simply want to drop me a
note. in writing, to go ahead and close out the case, that would be acceptable as well.
Thank you for your kind attention to this matter,
Very truly yours,
~~J1T
Charles E. Shields, III 1Jb,)
CES:ej
cc: Wayne Shade
Edward W. Harker
Ed Fanus
Gene Hockensmith
P.S. This was dictated on July 25, 1998. and neither proofread or signed by Mr. Shields. who
was away at school for a week:
. .
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KEITH E. BEAR, : IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
.
.
v. 97-2687 CIVIL TERM
.
.
ARTHUR S. KECK and .
.
PAULINE E. KECK, .
.
Defendants : PRIVATE CONDEMNATION
IN RE: APPOINTMENT OF BOARD
ORDER OF COURT
AND NOW, this 14th day of July, 1997, this
petition seeks the appointment of a Board of View provided by 36
P.S. 2731.
The Court appoints Charles E. shields, Esquire,
chairman of the Board; the Court appoints Eugene A. Hockensmith,
Registered surveyor, a member and Edwin T. Fanus, the third
member of the Board.
By tho c:~t~~~
Wayne F. Shade, Esquire
counsel for Plaintiff
:lkt
6. If the Plaintiff is granted access to his parcel by way
of Russell Road, the daily traffic on the road through the
Defendants' property will increase by twenty percent (20%). This
increase in traffic will be even greater during the construction
of a home on the Plaintiff's property.
Ponderosa Road
7. Two unpaved, private roads, ponderosa Road and Russell
Road, respectively reach and approach the Plaintiff's parcel.
8. The right fork of ponderosa Road (not travelled at the
First On-Site Meeting of the Board of View) currently provides
access to the Plaintiff's parcel.
9. Ponderosa Road is a township road, designated T-458,
running from Possum Lake Road northward to Enola Road (SR-944).
The private portion of ponderosa Road, extending northward from
Enola Road, over and past the Plaintiff's parcel, to the top of
the mountain, is not currently maintained by the township.
10. None of ponderosa Road crosses the Defendants' property.
11. None of the property owners along Ponderosa Road have
any objection to the Plaintiff utilizing their pri~ate road to
access his parcel.
Historical Access
12. Prior to Judge Bayley's Order of July 30, 1991, ths
historical access to the parcels above (or northward of) the
Defendants' lot was gained by way of an extension Russell Road
which branches off of the current private lane on lands now or
formerly of Edward L. Barrick, extending through lands now or
formerly of Thomas Russell, of Roger Mooney, and of Susan D.
Russell before rejoining the existing private lane.
13. The historical access (again, noted, but not travelled
at the First On-Site Meeting of the Board of View) remains
passable to vehicular traffic.
14. The historical access passes only over property owned by
persons who have joined in the Declaration of Easement proposed by
the Plaintiff and does not pass over land of the Defendants.
Bxtant Riaht of Wav by Basement by Necessity
15. From 1955 through 1978, the Plaintiff's parcel was owned
by J. Harrold & Ralph Waggoner, who at that time also owned the
lot immediately adjacent to the North (4-383-011A), and a six acre
portion of the next adjacent lot to the North (p/o 4-383-10).
16. These lots are accessed by a logging road near the top
of the mountain, which connects to the public Bobcat Road.
17. The division of the Plaintiff's parcel from the other
two lots in 1978 created an easement by necessity along that road.
18. From 1900 through 1926, the Plaintiff's parcel was owned
by George & Mary Waggoner, who at that time also owned a sixty-one
acre parcel with record access to a public road.
19. It is believed, and therefore averred, that the public
road referred to in the 1926 Deed from George & Mary Waggoner to
C.A. Shambaugh is, in fact, the same logging road referenced above
in paragraph 16.
REOUESTBD CONCLUSIONS OF LAW
1. The Plaintiff does have a legal right of access to a
public road from his property.
2. Because the Plaintiff has a right of access to a public
road, his land is not landlocked.
3. The Plaintiff is not entitled to condemn a perpetual
easement of ingress and egress over the lands of the Defendants
for any purpose.
4. Russell Road is not the most appropriate site for a
private road to the Plaintiff's property.
DISCUSSION
The Private Road Act, 36 P.S. 2731, is in the nature of
eminent domain~ therefore, it must be strictly construed. Graff
v. Scanlan, 673 A.2d 1028, 1031 (Pa.Cmwlth. 1996). A grant of a
private road over another's property will be granted only if it is
necessary. Id. Necessity, the key to the Act, must be given a
strict interpretation. Id. "The taking of property for private
use is an assumption that is prima facie unconstitutional, and can
only be justified by the strictest scrutiny." Id., citing In re
Road in Plum Creek Township, 110 Pa. 544, 548, 1 A. 431, 433
(1885). If the Plaintiff has an easement, Le. an easement by
necessity, over property other than that of the Defendants, then
there is no necessity to obtain one over the Defendants' land.
An easement by necessity may be implied when after severance
from an adjoining property a piece of land is without access to a
public road. Graff v. Scanlan, 673 A.2d at 1032. In comparison,
while the right to private condemnation of a way of access does
not require that a property be completely landlocked where an
existing road or eaeement is extremely difficult or burdensome in
its use, the difficulty or burden must be more than a mere
inconvenience. Graff v. Scanlan, 673 A.2d at 1033.
The existence of Russell Road, which does not quite reach the
Plaintiff's property does not mean that its extension is the best
solution to the Plaintiff's situation. The existence of a private
road does not prohibit the finding of a Board of view for another
private road. In re Petition of Gearv, 40 Northurnb. L.J. 50, 54
(1968) .
CONCLUSION
For all the foregoing reasons, the Plaintiff is not entitled
to private condemnation of the Defendants' land for use as a
private roadway. The Defendant requests a testimonial hearing
with respect to the issues of necessity and placement in which to
offer proof of the facts alleged in this informal brief.
Respectfull,r, S[itted' _
~~;_ \{b '
Matthew J. Eshelman, Esquire
Law Offices of Patrick F. Lauer, Jr.
2108 Market Street, Aztec Building
Camp Hill, Pennsylvania 17011-4706
ID' 72655 Tel. (717) 763-1800
Date:
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W A YNl! F. SHADE
AIIom(y at u.
n Wcll t'm1rrtt Sttm
Clftilk. 1'mru)'lnnia
170.3
6. The most convenient access to a public road would be
over the existing Russell Road, a private road extending more
than 3,000 feet to Bobcat Road (T-451).
7. On January 26, 1990, Arthur 5. Keck and Pauline E. Keck
filed suit against various owners of property along Russell Road,
seeking a decree that they had no right to use Russell Road and
that they be enjoined from using it.
8. By Opinion and Order of July 30, 1991, at No. 383 civil
1990, Judge Bayley held in favor of the adjoining landowners and
forever barred the Kecks from interfering with the use of Russell
Road to and including the property of Andy Russell and Susan D.
Russell.
9. The lands of Mr. Bear adjoin the lands of Andy Russell
and Susan D. Russell on the east.
10. Upper Frankford Township officials will require that
Mr. Bear have record legal access to his property before they
will permit him to construct a home on his property.
11. Russell Road to Bobcat Road crosses ten separately
owned parcels of land including the lands of the Kecks.
12. The owners of all nine of those parcels other than the
Kecks have voluntarily executed a Declaration of Easement, for
nominal consideration, perpetually granting Mr. Bear access to
Bobcat Road.
13. A copy of the Declaration of Easement, including a copy
of a draft of Russell Road and a legal description thereof, is
attached to the Petition and incorporated herein by reference as
though fully set forth.
-2-
WAYNE F. SHADE
Aaomcy II Law
53 Wut Pcmfrd Stlttl
Carli.Ie, Pnw)'lvania
1701]
14. The owners of five of the nine parcels which would be
burdened by said Declaration of Easement reside on their lands
and use the said private road for access to their homes on a
daily basis.
15. The length of Russell Road over the lands of the Kecks
is approximately 450 feet.
16. To access his lands over the extension of Ponderosa
Road, Mr. Bear would be required to pass over the driveway and
within twenty feet of the dwelling of at least one adjoining
owner.
17. To access his lands over the extension of ponderosa
Road, Mr. Bear would be required to cut dozens of mature trees
and excavate a road over steep terrain.
18. There are adjoining owners on the extension of
ponderosa Road who will refuse to permit Mr. Bear to have access
over that road.
19. The Kecks have refused to permit Mr. Bear to have
access over their lands for any price.
20. The lands of the Kecks are not burdened by any
mortgagees, judgment creditors or other lienholders who would be
prejudiced by condemnation of a right of access to Mr. Bear over
the lands of the Kecks.
REQUESTED CONCLUSIONS OF LAW
1. The lands of Mr. Bear have no legal right of access to a
public road.
2. The status of the lands of Mr. Bear as landlocked was
not created by Mr. Bear.
-3-
WAYNl! F. SHADE
^ ltomty II 1....
53 Writ Pomf'm SCttd
C.rli.le. PtM.)'lnlliia
170n
3. Mr. Bear is entitled, subject to the payment of
compensation therefor, to condemn a perpetual easement of ingress
and egress over the lands of the Kecks for the purposes of
pedestrian and vehicular traffic and for the installation,
maintenance, service, repair and replacement of utilities to and
from the said Bobcat Road to the lands of Mr. Bear.
4. The existing Russell Road is the most appropriate site
for the private road to the lands of Mr. Bear.
DISCUSSION
It is true that an easement by necessity would exist if the
Bear property had been retained by a former common owner who sold
other portions of a common tract by prior conveyances and if a
road extended from a public road to the Bear tract. If such a
road were in existence and were reasonably passable, we would not
have the right to private condemnation. However, that is not the
case here.
In this case, it is clear that there is no road of any kind
that extends to the Bear property. Moreover, even if there were
a road to the Bear property at this time, we would have the right
to condemn a private road if the existing road were extremely
difficult or burdensome. The right to private condemnation of a
way of access does not require that a property be completely
landlocked where an existing road is extremely difficult or
burdensome. Graff v. Scanlan, ___ Pa. Cmwlth.
, 673 A2d
1028, 1033 (1996).
We are also not precluded from proceeding with private
condemnation by the fact that we purchased a property which we
-4-
WAYNE F. SHAIlI!
AUomt)' .11.....
.U Wut Pantrd Strcd
('.dillc, rmn.)'....anu
1701l
knew to be landlocked where we did not create the situation. Id.
at 673 A2d at 1035, n. 12.
---'
The circumstances of this case are appropriately controlled
by the decision in Appeal of Zeafla, 405 Pa. Super. 298, 592 A2d
343 (1991). Therein, the plaintiffs had an irrevocable license
to access over the lands of defendants, and there was another
access road over other landowners which was in poor condition.
Nevertheless, the private condemnation of a third alternative
route was affirmed. The case was remanded only on the issue of
damages.
Judge Olszewski stated at 304, 592 A2d at 346: "A board of
viewers has broad authority under 36 P.S. 52731 to determine
whether a private road is necessary." He further stated at
footnote 4, as follows:
The Board must take into account four factors
when determining the site for a private road: the
shortest distance, best ground, least injury to
private parties, and desire of the petitioners.
36 P.S. 51785 (Purdon's supp. 1990). In this
case, three of those factors support the Board's
decision. The Board's findings indicate that the
route across the farm was chosen because of the
swampy condition of the route across the Double
Tree tract. The route chosen is the one requested
by Aldinger. Least injury to private parties is a
closer call, as I continue to believe that prime
farmland should not be sacrificed for a private
road. See, Driver, supra at 398-400, 543 A.2d at
139 (Olszewski, J., dissenting). In this case,
however, the road is already in existence; the
land at issue is not presently used for farming,
despite the Zeaflas' claims of future plans.
We submit that the necessity in Zeafla was far less
compelling than is obvious in this case. We have no road of any
kind. We already have the perpetual right to use all portions of
Russell Road other than the 450 feet over the lands of the Kecks.
-5-
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Attomcy at 1.a...
5) Well Poo1frct SIm1
Carli.It, Pmruylvania
17013
5.
Access has been informal and over old logging roads which
are no longer passable.
6.
The most convenient access to a public road would be over an
existing private road varying in width from 20 feet to 80 feet
and approximately 3,500 feet to Bobcat Road (T-451).
7.
Said private road to Bobcat Road crosses ten separately
owned parcels of land including the lands of Defendants.
8.
The owners of nine of those parcels have voluntarily
executed a Declaration of Easement granting Plaintiff access to
Bobcat Road. A copy of the Declaration of Easement inclUding a
copy of a draft of said existing private road and a legal
description thereof is attached hereto and incorporated herein by
reference as though fully set forth.
9.
The owners of five of the nine parcols which would be
burdened by said Declaration of Easoment reside on their lands
and use the said private road for access to their homes on a
daily basis.
10.
Plaintiff seeks a perpetual easemont of ingress and egress
upon the lands of Defendants for the purposes of pedestrian and
vehicular traffic and for the installation, maintenance, service,
-J-
DECLARATION OF EASEMENT
THIS DECLARATION OF EASEMENT, made this 18th day of April,
1997, by and among ANDY R. RUSSELL, single person, of 99 Russell
Road, Carlisle, Cumberland County, Pennsylvania 17013; MARLIN E.
RUSSELL and VIRGINIA L. RUSSELL, husband and wife, of 322 Bolton
Avenue, Carlisle, Cumberland-County, Pennsylvania 17013; TIMOTHY
,
D. LUSH and JANET LUSH, formerly JANET KUTCHMAN, husband and
wife, of 75 Russell Road, Carlisle, Cumberland County,
Pennsylvania 17013; ASPER H. RUSSELL, JR., single person, of 58
Russell Road, Carlisle, Cumberland county, Pennsylvania 17013;
SUSAN D. RUSSELL, single person, of 59 Russell Road, Carlisle,
Cumberland County, Pennsylvania 17013; ROGER L. MOONEY, single
person, of R.D. #1, Box 922, Landisburg, Perry county,
Pennsylvania 17040; ARTHUR S. KECK and PAULINE E. KECK, husband
and wife, of 45 Bobcat Road, Carlisle, Cumberland county,
Pennsylvania 17013; THOMAS L. RUSSELL and DIANE RUSSELL, husband
and wife, of 401 Old Mill Road, Carlisle, Cumberland County,
Pennsylvania 17013; EDWARD L. BARRICK and BARBARA K. BARRICK,
husband and wife, of 26 Russell Road, Carlisle, Cumberland
county, Pennsylvania 17013; RAYMOND H. HEISHMAN and DOROTHY E.
HEISHMAN, husband and wife, of 2 Bobcat Road, Carlisle,
cumberland County, Pennsylvania 17013; and KEITH E. BEAR, single
person, of 10 Village Lane, Newville, Cumberland County,
Pennsylvania 17241 (hereinafter referenced collectively as
"Declarants"), provides, as follows:
WHEREAS, Declarants other than Keith E. Bear are the owners
in fee simple of certain parcels of real estate in Lower
Frankford Township, cumberland County, Pennsylvania (hereinafter
the "Township") which have access to Bobcat Road (T-451) over an
existing right-of-way of varying widths and an existing unpaved
roadway.
WHEREAS, the parcel owned by Declarant Keith E. Bear does
not have access to a public road.
WHEREAS, as a condition to the issuance of a building permit
to Declarant Keith E. Bear, the Township has required that
Declarants extend the use of the existing unpaved roadway from
Bobcat Road (T-451) to the lands of Declarant Keith E. Bear and
that Declarant Keith E. Bear join in the maintenance agreement
among the parties with respect to the lane.
NOW, THEREFORE, in consideration of the joinder of Declarant
Keith E. Bear in the maintenance agreement for the lane, the
avoidance of further legal proceedings for access from the lands
of Declarant Keith E. Bear to the public road and other good and
valuable considerations and intending to be legally bound,
Declarants hereby impose the following perpetual easement of
ingress and egress (hereinafter the "easement") upon their lands
in Lower Frankford Township, Cumberland county, Pennsylvania, for
their mutual benefit.
DECLARATION
1. The easement along the existing right-of-way of varying
widths and the existing unpaved roadway as extended to t~e lands
of Declarant Keith E. Bear is more particularly depicted in
Exhibit "A" hereto and described in Exhibit "B" hereto.
-2-
2. The purposes for said easement shall be for pedestrian
and vehicular traffic and for the installation, maintenance,
service, repair and replacement of utilities to and from the said
Bobcat Road to any part of the lands burdened or benefitted by
the aforesaid easement.
3. The initial extensipn of the existing lane over the
lands of Andy R. Russell to the lands of Declarant Keith E. Bear
shall be at the expense of Declarant Keith E. Bear. Thereafter,
the present and future owners of each of the Lots shall bear in
equal shares the reasonable cost of snow removal and other proper
maintenance of the easement in its present condition. The
obligations for maintenance of the right-of-way over the
extension to the lands of Declarant Keith E. Bear shall impose no
greater responsibility upon the parties to this Declaration than
the obligations for the remainder of the unpaved roadway. The
obligations for maintenance shall terminate at the southern
boundary of the lands of Declarant Keith E. Bear. All
responsibility for maintenance of said right-of-way on the lands
of Declarant Keith E. Bear shall be the sole responsibility of
Declarant Keith E. Bear. The owners of any of the parcels who
are subject to these maintenance provisions of this Declaration
may contract for such snow removal or other maintenance. Within
thirty (30) days of presentation of the invoices for such
expenses, the owners of each of the parcels who are subject to
these maintenance provisions of this Declaration shall pay one-
ninth of the expenses. These obligations for snow removal and
-3-
other maintenance shall not be applicable to Declarants Arthur S.
Reck, Pauline E. Keck, Raymond H. Heishman and Dorothy E.
Heishman. These provisions for snow removal and other
maintenance shall supersede and nullify the provisions of the
Maintenance Agreement of April 24, 1989, as recorded in the
Office of the Recorder of De~ds of Cumberland County,
Pennsylvania, at Miscellaneous Book 364, Page 626.
4. Any and all of the provisions herein contained shall be
enforceable by Declarants, their heirs, successors and assigns.
Lower Frankford Township, its successors and assigns may also
enforce the provisions of this Declaration. Neither Lower
Frankford Township nor any of the Declarants shall have a duty or
obligation to enforce the provisions of this Declaration of
Easement.
IN WITNESS WHEREOF, Declarants have caused this Declaration
of Easement to be executed as of the date and year first above
written.
WITNESSES:
~Cj' ~ ~j(I!l.~ (SEAL)
Andy . Russell
r~~9' (,J;a. ~~8~tp (SEAL)
Marl n E. Russell
~ .""" l> e-J. -1' ~ ~';-~-4 (SEAL)
,. Vlr nla. sell .
G._.- 0 I:). f~ ~ I).L.fL ( SEAL)
I T mothy . Lusl\
-4-
EXHIBIT "B"
ALL THAT CERTAIN existing and extended right-of-way of
varying widths situate in Lower Frankford Township, Cumberland
County, Pennsylvania, more particularly bounded and described in
accordance with the right-of-way survey of Eric L. Diffenbaugh
for Keith Bear, dated April 2, 1997, as follows:
BEGINNING at a point on the boundary line between lands now
or formerly of Marlin E. Russell, et ux, and now or formerly of
Timothy D. Lush, et ux, which point is North 73 degrees 10
minutes 40 seconds West, 133.73 feet from'an existing iron pin in
stones at lands now formerly of Marlin E. Russell, et ux, and now
or formerly of Thomas L. Russell, et ux; thence along said
boundary line between lands now or formerly of Marlin E. Russell,
et ux, and now or formerly of Timothy D. Lush, et ux, North 73
degrees 10 minutes 40 seconds West, 11.25 feet to a point; thence
through said lands now or formerly of Marlin E. Russell, et ux,
and lands now or formerly of Andy R. Russell, the following
courses and distances: North 44 degrees 06 minutes 34 seconds
East, 58.69 feet; North 29 degrees 28 minutes 45 seconds East,
75.09 feet; North 45 degrees 54 minutes 00 seconds East, 136.09
feet; North 53 degrees 51 minutes 52 seconds East, 138.07 feet;
North 40 degrees 35 minutes 48 seconds East, 43.45 feet; North 27
degrees 40 minutes 52 seconds East, 37.67 feet; North 16 degrees
32 minutes 11 seconds East, 28.07 feet; North 54 degrees 09
minutes 03 seconds East, 102.68 feet to a point on the boundary
line between lands now or formerly of Andy R. Russell and lands
now or formerly of Keith E. Bear; thence along said boundary
line, South 17 degrees 14 minutes 57 seconds East, 52.87 feet to
a point; thence continuing through said lands now or formerly of
Andy R. Russell and lands now or formerly of Marlin E. Russell,
et ux, the following courses and distances: South 53 degrees 47
minutes 52 seconds West, 131.03 feet; South 27 degrees 40 minutes
52 seconds West, 4.31 feet; South 40 degrees 35 minutes 48
seconds West, 48.04 feet; South 53 degrees 51 minutes 52 seconds
West, 139.01 feet; South 45 degrees 54 minutes 00 seconds West,
131.81 feet; South 29 degrees 28 minutes 45 seconds West, 74.77
feet; South 44 degrees 06 minutes 34 seconds West, 50.94 feet to
a point in said boundary line between the lands now or formerly
of Marlin E. Russell, et ux, and lands now or formerly of Timothy
D. Lush, et ux; thence along said boundary line, North 73 degrees
10 minutes 40 seconds West, 11.25 feet; thence over an area,
twenty (20) feet in width centered upon a line over the following
courses and distances: South 56 degrees 31 minutes 00 seconds
West, 231.88 feet; South 37 degrees 02 minutes 00 seconds West,
163.84 feet; South 04 degrees 32 minutes 00 seconds West, 609.00
feet; South 34 degrees 49 minutes 00 seconds East, 97.86 'feet;
South 66 degrees 51 minutes 00 seconds East, 244.50 feet; South
42 degrees 10 minutes 00 seconds East, 129.00 feet; South 04
degrees 24 minutes 00 seconds West, 270.14 feet to a point;
thence increasing to fifty (50) feet in width at the boundary
line between lands now or formerly of Thomas L. Russell, et ux,
WAYlIll F. SHADB
A_ II Law
53 Weal PcmI", SInd
CarIWc. l'aml)'lvlllla
170ll
5.
Access has been informal and over old logging roads which
are no longer passable.
6.
The most convenien~ access to a public road would be over an
existing private road varying in width from 20 feet to 80 feet
and approximately 3,500 feet to Bobcat Road (T-451).
7.
said private road to Bobcat Road crosses ten separately
owned parcels of land including the lands of Defendants.
8.
The owners of nine of those parcels have voluntarily
executed a Declaration of Easement granting ~laintiff access to
Bobcat Road. A copy of the Declaration of Easement including a
copy of a draft of said existing private road and a legal
description thereof is attached hereto and incorporated herein by
reference as though fully set forth.
9.
The owners of five of the nine parcels which would be
burdened by said Declaration of Easement reside on their lands
and use the said private road for access to their homes on a
daily basis.
10.
.
Plaintiff seeks a perpetual easement of ingress and egress
upon the lands of Defendants for the purposes of pedestrian and
,
vehicular traffic and for the installation, maintenance, service,
-3-
DECLARATION OF EASEMENT
THIS DECLARATION OF EASEMENT, made this 18th day of April,
"
1997, by and among ANDY R. RUSSELL, single person, of 99 Russell
Road, Carlisle, Cumberland County, Pennsylvania 17013; MARLIN E.
RUSSELL and VIRGINIA L. RUSSELL, husband and wife, of 322 Bolton
Avenue, Carlisle,
cumberland~county, Pennsylvania 17013;
"
LUSH, formerly JANET KUTCHMAN, husband
TIMO~HY
D. LUSH and JANET
and
wife, of 75 Russell Road, Carlisle, CUmberland County,
Pennsylvania 17013; ASPER H. RUSSELL, JR., single person, of 58
Russell Road, Carlisle, Cumberland County, Pennsylvania 17013;
SUSAN D. RUSSELL, single person, of 59 Russell Road, Carlisle,
cumberland county, Pennsylvania 17013; ROGER L. MOONEY, single
person, of R.D. #1, Box 922, Landisburg, Perry County,
Pennsylvania 17040; ARTHUR S. KECK and PAULINE E. ,KECK, husband
and wife, of 45 Bobcat Road, Carlisle, cumberland County,
Pennsylvania 17013; THOMAS L. RUSSELL and DIANE RUSSELL, husband
and wife, of 401 Old Mill Road, Carlisle, cumberland county,
Pennsylvania 17013; EDWARD L. BARRICK and BARBARA K. BARRICK,
husband and wife, of 26 Russell Road, Carlisle, CUmberland
county, Pennsylvania 17013; RAYMOND H. HEISHMAN and DOROTHY E.
HEISHMAN, husband and wife, of 2 Bobcat Road, Carlisle,
Cumberland county, Pennsylvania 17013; and KEITH E. BEAR, single
person, of 10 Village Lane, Newville, CUmberland county,
Pennsylvania 17241 (hereinafter referenced collectively as
"Declarants"), provides, as follows:
"
WHEREAS, Declarants other than Keith E. Bear are the owners
in fee simple of certain parcels of real estate in Lower
2. The purposes for said easement shall be for pedestrian
and vehicular traffic and for the installation, maintenance,
service, repair and replacement of utilities to and from the said
Bobcat Road to any part of the lands burdened or benefitted by
the aforesaid easement.
3. The initial extensi~n of the existing lane over the
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lands of Andy R. Russell to the lands of Declarant Keith E. Bear
shall be at the expense of Declarant Keith E. Bear. Th~reafter,
the present and future owners of each of the Lots shall bear in
equal shares the reasonable cost of snow removal and other proper
maintenance of the easement in its present condition. The
obligations for maintenance of the right-of-way over the
extension to the lands of Declarant Keith E. Bear shall impose no
greater ~esponsibility upon the parties to this Declaration than
the obligations for the remainder of the unpaved roadway. The
obligations for maintenance shall terminate at the southern
boundary of the lands of Declarant Keith E. Bear. All
responsibility for maintenance of said right-of-way on the lands
of Declarant Keith E. Bear shall be the sole responsibility of
Declarant Keith E. Bear. The owners of any of the parcels who
are subject to these maintenance provisions of this Declaration
may contract for such snow removal or other maintenance. within
thirty (30) days of presentation of the invoices for such
expenses, the owners of each of the parcels who are subject to
these maintenance provisions of this Declaration shall p~y one-
ninth of the expenses. These obligations for snow removal and
-3-
other maintenance shall not be applicable to Declarants Arthur S.
Reck, Pauline E. Keck, Raymond H. Heishman and Dorothy E.
"
Heishman. These provisions for snow removal and other
maintenance shall supersede and nullify the provisions of the
Maintenance Agreement of April 24, 1989, as recorded in the
Office of the Recorder of De~ds of Cumberland County,
, .
"
Pennsylvania, at Miscellaneous Book 364, Page 626.
4. Any and all of the provisions herein contained shall be
enforceable by Declarants, their heirs, successors and assigns.
Lower Frankford Township, its successors and assigns may also
enforce the provisions of this Declaration. Neither Lower
Frankford Township nor any of the Declarants shall have a duty or
obligation to enforce the provisions of this Declaration of
Easement.
IN WITNESS WHEREOF, Declarants have caused this Declaration
of Easement to be executed as of the date and year first above
written.
WITNESSES:
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Marl1n E. Russell~
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EXHIBIT "B"
ALL THAT CERTAIN existing and extended right-of-way of
varying widths situate in Lower Frankford Township, Cumberland
County, Pennsylvania, more particularly bounded and described in
accordance with the right-of-way survey of Eric L. Diffenbaugh
for Keith Bear, dated April 2, 1997, as follows:
BEGINNING at a point on the boundary line between lands now
or formerly of Marlin E. Russell, et ux, and now or formerly of
Timothy D. Lush, et ux, which point is North 73 degrees 10
minutes 40 seconds West, 133.73 feet from'an existing iron pin in
stones at lands now formerly of Marlin E. Russell, et ux, and now
or formerly of Thomas L. Russell, et ux; thence along s~id
boundary line between lands now or formerly of Marlin E. Russell,
et ux, and now or formerly of Timothy D. Lush, et ux, North 73
degrees 10 minutes 40 seconds West, 11.25 feet to a point; thence
through said lands now or formerly of Marlin E. Russell, et ux,
and lands now or formerly of Andy R. Russell, the following
courses and distances: North 44 degrees 06 minutes 34 seconds
East, 58.69 feet; North 29 degrees 28 minutes 45 seconds East,
75.09 feet; North 45 degrees 54 minutes 00 seconds East, 136.09
feet; North 53 degrees 51 minutes 52 seconds East, 138.07 feet;
North 40 degrees 35 minutes 48 seconds East, 43.45 feet; North 27
degrees 40 minutes 52 seconds East, 37.67 feet; North 16 degrees
32 minutes 11 seconds East, 28.07 feet; North 54 degrees 09
minutes 03 seconds East, 102.68 feet to a point on. the boundary
line between lands now or formerly of Andy R. Russell and lands
now or formerly of Keith E. Bear; thence along said boundary
line, South 17 degrees 14 minutes 57 seconds East, 52.87 feet to
a point; thence continuing through said lands now or formerly of
Andy R. Russell and lands now or formerly of Marlin E. Russell,
et ux, the following courses and distances: South 53 degrees 47
minutes 52 seconds West, 131.03 feet; south 27 degrees 40 minutes
52 seconds West, 4.31 feet; South 40 degrees 35 minutes 48
seconds West, 48.04 feet; South 53 degrees 51 minutes 52 seconds
West, 139.01 feet; South 45 degrees 54 minutes 00 seconds West,
131.81 feet; South 29 degrees 28 minutes 45 seconds West, 74.77
feet; South 44 degrees 06 minutes 34 seconds West, 50.94 feet to
a point in said boundary line between the lands now or formerly
of Marlin E. Russell, et ux, and lands now or formerly of Timothy
D. Lush, et ux; thence along said boundary line, North 73 degrees
10 minutes 40 seconds West, 11.25 feet; thence over an area,
twenty (20) feet in width centered upon a line over the following
courses and distances: South 56 degrees 31 minutes 00 seconds
West, 231.88 feet; South 37 degrees 02 minutes 00 seconds West,
163.84 feet; South 04 degrees 32 minutes 00 seconds West, 609.00
feet; South 34 degrees 49 minutes 00 seconds East, 97.86 'feet;
South 66 degrees 51 minutes 00 seconds East, 244.50 feet; south
42 degrees 10 minutes 00 seconds East, 129.00 feet; South 04
degrees 24 minutes 00 seconds West, 270.14 feet to a point;
thence increasing to fifty (50) feet in width at the boundary
line between lands now or formerly of Thomas L. Russell, et ux,
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January 26, 1998
carlisle, Pennsylvania
A Board Of View convened for the
purpose of hearing Keith E. Bear vs. Arthur S. Keck and
Pauline E. Keck. In the Court of Common Pleas Of
Cumberland Countv. Pennsvlvania. No. 97-2687 civil Term.
civil Action - Law. Private Condemnation.
(Convened at 9:35 a.m.)
THE CHAIRMAN: The way I would like to begin
this is that I have explained to the parties involved
pretty much what is involved in ter~s of our procedure and
then how it follows after the hearing.
In Private Eminent Domain or Private
Condemnation Cases--
MR. KECK: Pardon me a minute. I can hardly
hear you.
THE CHAIRMAN: Alright. Can you hear me at this
volume?
MR. KECK: That's right. I can. Yes.
THE CHAIRMAN: In Private Eminent Domain Cases
or Private Roadway Cases there's a certain procedure that
you're supposed to follow, which quite frankly has not
always been real clear according to the Court cases.
50, the latest understanding that I have, based
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on a number of other of these that have been handled and
one that came up that was argued about, we would do this
in two phases.
Now, the first phase is today, in terms of an
actual hearing with testimony. Today we would decide
whether there's a necessity for a private road, and then
we would decide as to where that road should go.
MR. KECK: Alright.
THE CHAIRMAN: 50, in laymen's terms, Mr. Shade
would have the first burden of proof, which would be to
prove to us that they need the road, and then you would
have more or less a burden of proof to argue that they
don't need a road, or that if they do need a road that
they don't need it where they want it. If you follow me.
50, in order to go through all that, we would
have typically exhibits, which each side would present.
And there's a thing called stipulations, and they would
mean that the two attorneys on your behalf and on Mr.
Bear's behalf got together and agreed that rather than
waste your time paying them to spend a lot of expensive
time and money to prove what was already agreed to, they
are allowed to agree on certain issues and present them
together and say we both agree this is okay, and we agree
this is how it is. Then they call that a stipulation, and
we can put that right in the record without taking the
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time to have somebody testify to it.
Then after we have all the hearing today, the
three of us have to sit down and discuss it. We would not
only discuss the hearing today, we would discuss what we
saw when we went out on site. Then we would determine
whether, number one, there's a need for a road and, number
two, where we would put it.
Then I would write that up. I'll write it up in
a manner that would allow either side to appeal it, either
in whole or in part, if they're not satisfied with it.
And hopefully I'll write it up in enough detail that it
will be clear to anybody that it would be appealed to.
And I'm not insinuating there's going to be an
appeal, but just in case somebody wants to do that for any
reason, I'll try to make it detailed enough that it's
clear what the story was and why we decided the way that
we did.
Then after the first phase of this is done, if
that's determined or agreed. It's possible for the
parties to get together and agree at any time they want.
After the first part is done, the second part
has to do with how much money you have to get paid if we
come across your property. If we don't come across your
property then you don't have to be worried with that part.
If it's determined that there's another roadway
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that you have rights to use, you know, by deed or
whatever, then the odds are that you don't have to pay
anybody for that use, but that will depend on what's
produced.
Now, are there any of you folks that have any
questions as to what all that means or how we're going to
proceed?
MR. KECK: No, I understand that.
THE CHAIRMAN: Are both counsel in agreement
with what I've laid out procedurally?
MS. BAIRD: Yes.
MR. SHADE: You're saying we're going to deal
with the necessity and location today?
THE CHAIRMAN: Yes.
MR. SHADE: Necessity and location?
THE CHAIRMAN: Right.
MR. SHADE: And you're also saying that you're
contemplating that if either side wants review of today's
proceedings that that would take place before we would
have the hearing on damages?
THE CHAIRMAN: Typically that's the way we've
done it before. I'm not saying that's necessarily correct
because that came up for a lot of argument.
MR. SHADE: Right. Okay. I think we
understand.
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THE CHAIRMAN: I mean it appears to be correct,
but about 10 or 12 years ago there was a big flurry of
cases. There was even an argument, as to whether these
were supposed to go to the Commonwealth Court or Superior
Court.
The latest that I'm aware of and the way we've
been doing it in Cumberland County is we do it in a
bifurcated setting, which is why we're here, and then we
come back to prove the damages later, because otherwise
you'd have to spend all the money to get an expert to come
in and you might not even be getting a road.
MR. SHADE: Right. But, you're contemplating
that we will file exceptions if we have a problem with
what is the decision on today's proceedings?
THE CHAIRMAN: I would write the opinion up or
the decision in such a way that if you wanted to appeal it
for any reason you could. I'm not necessarily
contemplating anybody will do that.
The last two that we had, once the necessity and
location was determined, then the people agreed on the
damages, because they were more concerned about the
necessity and location than they were about the damages.
They worked that out. That's not to say that would be the
case here. You're entitled to do whatever you might want.
MR. SHADE: As far as any stipulations may be
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concerned, I think that both of us more or less tacitly
agreed that it would probably be less time consuming to
just put our testimony in because it's not complicated.
THE CHAIRMAN: Alright.
MR. SHADE: And although we may very well
stipulate during the proceedings to various things, we're
certainly open to that. But, I think what we're going to
do is put our testimony in and I think it will move pretty
quickly.
THE CHAIRMAN: okay. because my object to the
point that I can would be to do this as effectively and
quickly as possibly, so that nobody is spending an arm and
a leg on something that they don't have to.
Now, all the people who think they may want to
testify should stand up and raise your righthands.
(Whereupon, Keith E. Bear and Arthur S. Keck
were sworn in by the court reporter.)
Whereupon,
KEITH E. BEAR
having been first duly sworn, according to law, testified
as follows:
DIRECT EXAMINATION
BY MR. SHADE:
Q State your name, please.
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A Keith Bear.
Q Where do you live?
A 10 Village Lane, Newville.
Q Please speak a little louder, if you can.
MR. HOCKENSMITH: I didn't hear that.
BY MR. SHADE:
A 10 Village Lane, Newville. It's actually in
Bloserville.
Q On November 16, 1995, did you purchase a parcel
of unimproved real estate containing 11 acres more or less
in Lower Frankford Township, Cumberland County,
Pennsylvania?
MR. KECK: I can't hear.
THE CHAIRMAN: They're having difficulty
hearing. Can you all talk a little bit louder, please?
BY MR. SHADE:
Q On November 16, 1995, did you purchase a parcel
of unimproved real estate containing 11 acres more or less
in Lower Frankford Township, Cumberland County,
Pennsylvania?
A Yes, I did.
THE CHAIRMAN: Can you hear now?
MR. KECK: Yes, I heard that.
BY MR. SHADE:
Q Is that described in Cumberland county Deed Book
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131 Page 554?
A Yes.
(Whereupon, Plaintiff's Exhibit 1 was identified
for the record.)
BY MR. SHADE:
Q Is Plaintiff's Exhibit 1 an accurate copy of
that deed?
A Yes, it is.
Q To your knowledge has that parcel been a
separate tract with the same description through at least
five different transfers dating back to at least the Year
1926?
A Yes.
Q To your knowledge has that parcel ever had a
record legal access to a public road?
A No.
Q Has it had informal access over various old
logging roads over the years?
A Yes.
Q Are those logging roads passable today?
A By tractor maybe.
THE CHAIRMAN: Can you speak a little louder?
BY MR. SHADE:
A They would be passible by tractor.
THE CHAIRMAN: Can you hear that?
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MR. KECK: Yes. He's got to talk up.
THE CHAIRMAN: 50 you have a chance to
understand what's going on and can refute things or say
that's not right when it's your chance, why don't you move
your chair over there closer, if you want to do that.
Would that help?
MR. KECK: No, this is good enough. This is
alright.
BY MR. SHADE:
Q Is there currently any road either public or
private which actually reaches your land?
MR. KECK: I can hear.
BY MR. SHADE:
A No.
Q Are you planning to be married?
A Yes.
Q Do you want to build a home on your property?
A Yes.
Q Are you able to obtain a building permit without
record legal access to the property?
A No, I'm not.
Q Since you began these proceedings have you
purchased an existing home on Russell Road between the
property in this case and Bobcat Road?
A Yes.
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A Yes.
Q Is Bobcat Road Township Road 451?
A Yes.
Q That's a public road?
A Yes.
Q Does Russell Road cross 10 separately owned
parcels of land between your land and Bobcat Road?
A Yes.
Q Do those 10 parcels include the lands of the
defendants in this case?
A Yes.
Q Have the owners of nine of those parcels
voluntarily executed a declaration of easement granting
you access to Bobcat Road?
A Yes.
(Whereupon, Plaintiff's Exhibit 2 was
identified for the record.)
BY MR. SHADE:
Q I'm showing you a document marked for
identification as Plaintiff's Exhibit 2 and ask you if
that is an accurate copy of the declaration of easement
reflecting those grants?
A Yes, it is.
Q Does that document include a copy of a draft of
Russell Road?
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A Yes, it does.
(Whereupon, Plaintiff's Exhibit 3 was identified
for the record.)
BY MR. SHADE:
Q I'm showing you a document marked for
identification as Plaintiff's Exhibit 3 and ask you if
that is an accurate copy of Exhibit A to Plaintiff's
Exhibit 2?
A Yes.
Q Does Plaintiff's Exhibit 2 also include a verbal
legal description of Russell Road from Andy Russell's
property to Bobcat Road?
A Yes.
Q Is that Exhibit B to Plaintiff's Exhibit 2?
A Yes.
Q Do owners of five of the nine parcels, which
would be burdened by the declaration of easement,
Plaintiff's Exhibit 2, reside on their lands and use
Russell Road for access to their homes on a daily basis?
A Yes, they do.
Q Are you related by blood or marriage to any of
the persons who have given you legal access to your land
over Russell Road in Plaintiff's Exhibit 2?
A No.
Q Is one of the persons who has given you access a
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township official?
A Yes, he is.
Q Who is that?
A Tim Lush.
Q What is his position with the township?
A He's a township supervisor and he's also the
roadmaster.
Q Are you seeking a perpetual easement of ingress
and egress upon the lands of the defendants for the
purposes of pedestrian and vehicular traffic and for the
installation, maintenance, service, repair and replacement
of utilities to and from Bobcat Road to your land?
A Yes.
Q And are you asking that your easement be over
the existing Russell Road as shown in Plaintiff's Exhibit
3?
A Yes.
Q Are you asking it be 20 feet in width?
A Yes.
Q Would that be the most convenient access to your
land?
A Yes, it would.
Q What would you need to do to open your land to
Russell Road?
A Just excavate it, level it out, slate it.
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Q For what distance?
A Exactly 102 feet, approximately 30 yards.
Q And is that the slash marked area shown on
Plaintiff's Exhibit 3 as a 50 feet wide right-of-way?
A Yes.
Q Are there any trees in the way of that area
that's depicted there?
A No.
Q Are there any other obstacles that you have to
be concerned about?
A Nothing more than an old tree stump.
(Whereupon, Plaintiff's Exhibit 4 was identified
for the record.)
BY MR. SHADE:
Q I'm showing you a document marked for
identification as Plaintiff's Exhibit 4 and ask you, with
the exception of the words that are lined out on that
document, if that describes the area of the easement over
the lands of the defendants that you are seeking?
A Yes, it does.
THE CHAIRMAN: If I could interrupt for a
minute. You mentioned something about words crossed out?
MR. SHADE: Yes. On the original exhibit I
crossed them out for you. I inadvertently showed the
call, about the fourth line from the bottom, South 4
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degrees 24 minutes 00 seconds, West 270.14 feet as being
part of it. That runs adjacent to the defendants' land,
but it does not actually burden their land. It goes off
their land at that point, and that should not be in there.
It should just be the three calls that precede it.
MR. HOCKENSMITH: You say one call should be
struck out?
MR. SHADE: Exactly.
MR. HOCKENSMITH: The South 4, 24, 00, West 270?
MR. SHADE: That's exactly right. That runs
adjacent to the property. It's not actually on the
property.
BY MR. SHADE:
Q 50, you're offering Plaintiff's Exhibit 4 with
the modification of the lines that are the language that's
stricken out?
A Yes.
Q While Plaintiff's Exhibit 3 will speak for
itself, do you calculate the length of Russell Road over
the lands of the defendants as approximately 450 of the
more than 3,000 foot length of Russell Road?
A Yes.
Q To your knowledge is the parcel of the
defendants' land that's crossed by Russell Road separate
from the parcel where their residence is located?
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defendants in this case burdened by any mortgages,
judgement, creditors or other lienholders who would be
prejudiced by condemnation of a right of access to you
over the lands of the defendants?
A No.
Q Have the Kecks refused to permit you to have
access over their lands for any price?
A Yes.
MR. SHADE: Cross examine.
CROSS EXAMINATION
BY MS. BAIRD:
Q Mr. Bear, you were aware that when you purchased
this land that it had no access. That's correct, is it
not?
A Right.
Q And how did you anticipate you were going to
have ingress and egress to the property?
A I really didn't know at that time.
Q Did you ever examine the use of the extension of
Ponderosa Road?
A Yes, I did.
Q Did you speak with the owners along there?
A A few of them, yes.
Q And did it seem as if those owners would be
amenable to your having access across their land?
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A A couple owners said it would be fine. There
were more than over half that said that it wouldn't be.
Over half the people wouldn't allow me to use the road.
Q Did you ever survey that?
A No.
Q Are you familiar where that road comes out by
your property?
A lies.
Q I have a map to refresh your memory.
(Whereupon, Township Map 4383 was placed in the
view of all parties concerned.)
MS. BAIRD: This is Mr. Bear's tract right here,
No. 11.
MR. SHADE: We'll stipulate to that.
MS. BAIRD: This is the Ponderosa Road which
joins up with Enola Road. This is Township Road T-458.
THE CHAIRMAN: Can you, just in case this does
get appealed for any reason, if these went up to the
Court, can you sort of explain that, when you mention such
and such road, that you're pointing to an area
approximately four inches from the bottom and
approximately in the middle?
MR. SHADE: I think even better than that, you
might be able to indicate the parcel numbers that you're
pointing to.
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THE CHAIRMAN: I can't read them from here. If
you can that's a good idea.
MS. BAIRD: Alright. This is Township Map 4383
and ponderosa Road is approximately halfway across the
bottom, comes up vertically and touches on Lots 78, 73 and
84 as adjoins Enola Road. From there proceeds in a north,
northwest direction.
We're now going alongside Lots 49, 51, 49B and
C, 52, 49A. At that point it no longer goes adjacent to
properties but goes across property which is owned by a
Mr. Fegley right now. It's Lot No. 30 on this map and it
basically goes right across the center of his land and
then takes a righthand northeast detour across Lot 31 and
joins up to Mr. Bear's Lot No. 11.
MR. SHADE: Now, that's where we have a problem,
I think. I haven't objected to what--and I'm not being
sarcastic--what in effect has been testimony by counsel
here up to this point.
THE CHAIRMAN: Right.
MS. BAIRD: I'm simply trying to show the
direction of the road for the record.
MR. SHADE: They can show their contentions, but
we're not stipulating, number one, that it touches our
property; and, number two, a statement was made at the
outset that that's a township road.
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It may very well be a township road up to a
certain point, but I don't think we have any evidence here
today, I mean yet, indicating how far that the township
accepts dedication of that. For example, I'm sure they're
not plowing snow up along Tract No. 30 and so forth.
MS. BAIRD: We will concede to that.
MR. SHADE: 50, I think it's clear. Well, I
guess I would ask counsel if you know how far up it is a
township road?
MS. BAIRD: Not exactly. No.
MR. SHADE: But, in any event, I don't think
there's any dispute that for hundreds of yards south of
our tract it is not a public road, and we do not stipulate
that it actually reaches our tract.
THE CHAIRMAN: Alright.
BY MS. BAIRD:
Q Have you used that ponderosa Road extension that
we were discussing to get in and out of your property at
all to look at it or?
A I walked up it twice.
Q Have you ever taken a car up there?
A I have a four-wheel drive truck I took up
partway, but it's just too rough. And they timbered it
out and you can't drive up it anymore.
Q Were you present at the view that took place
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last year?
A Yes.
Q And did everyone present at the view not drive
all the way up to the corner of your land and then you
request them to go to the other corner, the Russell Road,
where you're hoping to come in?
A We started at Russell Road and then Mr. Keck was
going to show us how to get to my property from Ponderosa
Road.
THE CHAIRMAN: 50 that the record is a little
bit more clear, you sort of answered a yes or no question
with an explanation. Can you put in the yes or the no
also, in case somebody who wasn't familiar with this has
to read it later?
MR. BEAR: Could you ask the question again?
BY MS. BAIRD:
Q Sure. At the view which took place, did you not
take ponderosa Road up to the corner of your land by
vehicle?
A No, we didn't.
Q You suggested that Mr. and Mrs. Keck's home is
approximately--and correct me if I'm misquoting you--300
yards or feet from the Russell Road?
A Yards approximately.
Q Yards approximately. 50 did you enter the
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property and measure that?
A No. It's just a guess.
Q Thank you.
MS. BAIRD: That's all I have for now.
THE CHAIRMAN: Alright. Do you have anything
you'd like to touch up on before we start to ask
questions?
MR. SHADE: Yes.
REDIRECT EXAMINATION
BY MR. SHADE:
Q To access your land over the extension of
ponderosa Road, would you be required to pass over the
driveway and within 20 feet of the dwelling of at least
one adjoining owner?
A Yes.
Q Are there electric poles in the center of
Ponderosa Road between Bobcat Road and your land?
A Yes.
Q To access your land over the extension
of Ponderosa Road, would you be required to cut dozens
of mature trees and excavate a road over steep
terrain?
A Yes.
Q How would you compare the degree of difficulty
in getting access to your lands over Ponderosa Road as
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compared to Russell Road?
A It would be a hundred percent in difference as
far as the time and the money and as far as the
excavation.
Q Which would be more difficult, ponderosa Road or
Russell Road?
A Ponderosa Road.
MR. SHADE: You may recross.
RECROSS EXAMINATION
BY MS. BAIRD:
Q The necessity of needing a road clearly exists.
The necessity does not describe that it mayor may not be
expensive. Is that correct?
A That's correct.
Q There's nothing in that law, to your knowledge,
that says that you're limited on how much money you can
spend. Is that correct?
A That's correct.
MR. SHADE: Wait, wait. I object to her asking
him legal questions. He's not a lawyer. He has no basis
for answering that question.
THE CHAIRMAN: Well. that's true, but there's no
jury here. We know what the answer is. If you don't want
him to answer it. I don't care. We know what it is.
MS. BAIRD: I have no further questions.
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MR. SHADE: Does the Board have questions?
THE CHAIRMAN: Probably. Can you hear me now at
the volume I'm speaking at?
MR. KECK: Yes, I can, Mr. Shields.
THE CHAIRMAN: Alright. Mr. Hockensmith, do you
have any questions?
MR. HOCKENSMITH: One comes to mind. At one
point I think Mr. Shade brought up the point that there is
electric accessible coming up the road that you proposed
to use. Does that go all the way up to the last property,
which is Andy Russell?
MR. BEAR: The electric?
MR. HOCKENSMITH: Yes.
MR. BEAR: Yes, it does.
MR. HOCKENSMITH: And it follows along the road
that's there?
MR. BEAR: Yes.
MR. HOCKENSMITH: Okay. Do they also have
telephone on the same poles running up through there?
MR. BEAR: I would imagine they do. I can't say
for sure.
MR. HOCKENSMITH: Are there any other utilities
you would anticipate needing besides electric and
telephone?
MR. BEAR: No.
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MR. HOCKENSMITH: I just have another question.
I'm not sure this is the appropriate time to bring it up,
but on the drawing that's Plaintiff's Exhibit No.3, from
Bobcat Road up to Mr. Keck's property it shows a 50 foot
existing right-of-way, which I presume was created by
subdivisions on those lower properties. Is that correct?
MR. SHADE: I don't know the answer to that,
sir. I just don't know.
MR. HOCKENSMITH: Okay. And then it's turned
into a 20 foot right-of-way from there. the rest of the
way up into Andy Russell's property. Is there a
particular reason that you're aware of why that was
changed from 50 back down to 20?
MR. SHADE: I really don't know the history of
that. I could only surmise that those houses were already
up there before sUbdivision requirements came in or
something.
MS. BAIRD: Your Honor, I'm going to object to
surmising.
MR. SHADE: It's pure speculation.
THE CHAIRMAN: Alright.
MR. HOCKENSMITH: I really don't have anything
else.
THE CHAIRMAN: Mr. Fanus, do you have any
questions?
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MR. FANUS: No. He asked the question I was
going to ask about the utilities, and it's been answered,
so I have none.
THE CHAIRMAN: I reserve my questions until Mr.
Keck has had a chance because he may, in fact, present the
answers to a couple of them anyhow.
Are you ready to proceed or do you want a minute
to talk to Mr. Keck?
MS. BAIRD: We're ready.
THE CHAIRMAN: Alright.
Whereupon,
ARTHUR S. KECK
having been first duly sworn, according to law, testified
as follows:
DIRECT EXAMINATION
BY MS. BAIRD:
Q Mr. Keck. would you please state your full name
for the record?
A Arthur Samuel Keck.
Q And your address, please?
A 45 Bobcat Road.
Q Mr. Keck, why did you buy the land that you have
that is in question here?
A Well, we had three small kids, or two, because
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we had a third one coming along, so I wanted a place with
water on it. And there's a stream of water comes down
through there and I wanted quiet. We had nobody up around
there. There was a farmhouse down on the corner at the
time. That was the only house up there close by until you
got on top of the hill. There was a little red house up
there, but they only used it for a summer place. 50 we
thought we'd get this.
Then the Russells come along and bought that
tract up above me there. I thought one more man won't
hurt anything, just one man. But, when he got up there
then everybody, his brothers. cousins, uncles, and
everybody got up there and bought up. All the hunters in
Cumberland county was going up and down that road.
Q And so when you first purchased the property you
did get the quiet and the relaxation that you wanted?
A Yes.
Q Do you have that now, Mr. Keck?
A No, I do not. No, sir.
Q And what has changed? The Russells, you said,
came in and there's more traffic? I'm just repeating what
he said.
A Yes.
Q Do you have any ill feelings toward Mr. Bear?
A I don't know Mr. Bear. The first time I saw him
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was up there. outside of that I don't know him. I know
him now when I see him.
Q so, it's not Mr. Bear you object to, it's
anybody?
A Yes, it is not. That's right.
Q Anybody else in the world who wanted to come
onto your land to access their house, you would say what?
A No.
Q No. To your knowledge are there electrical
poles on the ponderosa Road?
A Yes, there's electricity. Paul Fegley lives
right up there close me.
Q Is it right in the middle of the road, as Mr.
Bear testified?
A No. It's not in the middle of the road. You
can drive up to that.
Q Excuse me?
A You can drive up with a car, truck or whatever
you want to. There's no poles. Trees is all around
there, but there's none in the middle of the road.
Q Obviously there's an electrical easement going
up Ponderosa Road?
A Right.
Q To which he could have access?
A Yes, there is. They wanted to put it in when
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Russells built there, the light company, up through my
ground. I said, "No, you are not." And they come down
the road somewhere and come up on Ponderosa. Down in
there somewhere is where they come up there.
Q What is your concern about this, Mr. Keck?
We've stated that you have no illwill toward Mr. Bear.
What is your concern about his driving over your property?
A Well, it's just too much traffic and all that.
Anybody at all wants to go up there. These Russells have
all kinds of hunters come up there during hunting season.
I won't let nobody hunt on mine, even my grandchildren I
won't let hunt. That's what's the matter there.
Q Have you taken a vehicle up ponderosa Road?
A Yes, I have.
Q And with that vehicle were you able to go all
the way up to Mr. Bear's property?
A Yes. Yes, ma'am, I did.
Q Now, was this a four-wheel drive vehicle?
A No. That old Chevrolet truck.
Q Chevy truck?
A It wasn't mine. The attorney did. He had a
four-wheel drive.
Q Once upon a time Russell Road, that was not
always improved to the extent that it is now. Is that
correct?
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A It wasn't what?
Q Was it similar to the ponderosa Road in how it
was made?
A It surely was. Yes.
Q And at one time somebody put some slate or shale
down on that. Is that correct?
A Yes.
Q Knowing that you're not in the business of
making roads, do you feel if you put shale on the
ponderosa Road, it would be very similar to the Russell
Road?
A Yes, definitely. It won't take much grade on it
either. As far as I heard him say about the telephone,
telephone line goes right through our property too, clear
up to Russells, to Andy Russell's.
Q Thank you.
MS. BAIRD: Mr. Shade, cross examine.
MR. SHADE: Thank you.
CROSS EXAMINATION
BY MR. SHADE:
Q Isn't it true that the electric lines that go up
Ponderosa Road do not go all the way to Mr. Bear's land?
A Yes, it goes up to Andy Russell's.
Q But you're saying you agree?
A That's the end of his road there too.
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Q Right. But you agree that it does not go all
the way up ponderosa Road to Mr. Bear's land?
A Yes. I say, no, it don't. Wait a minute. I
just told you there it did go up to Andy Russell's and
he's going to be right at the end of Mr. Russell's. It
goes up to his ground.
Q Isn't it true that the electric lines that go up
Ponderosa Road don't come any closer than about 300 to 400
yards to Mr. Bear's land? Isn't that true?
A No, that is not true.
Q Now, do you say that on the day of the view in
this case that we drove up ponderosa Road and drove right
up to Mr. Bear's land, we drove to his lot?
A No. We drove up to Fegley's.
Q Right. And how far is Fegley's south of Mr.
Bear's land?
A I don't know.
Q It's several hundred yards, isn't it, at least?
A 700?
Q Several hundred?
A Oh, yes, I would say. Yes.
Q When you say you drove up to Mr. Bear's land on
Ponderosa Road, you don't mean you drove clear to his
property line, do you?
A No. We did not because it was slippery. Leaves
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were on the ground and you couldn't get up through.
Q Well, how close did you get to his land when you
were driving up?
A How close?
Q Yes.
A I don't know, from Fegley over. I don't know
how far.
Q Do you mean you just drove as far as Fegley's
and didn't drive any further?
A Yes, I did.
Q You drove further than Fegley's?
A On up this way. I didn't go out the way they
went when the viewing was. We didn't go out that way. He
took us out there and showed them where Andy Russell's
was. That was his point of the ground over there. But he
didn't get on this corner over there. He didn't want that
corner closer to Ponderosa Road.
We went up to the west corner of his. On the
east corner is where we should have stopped.
Q The separate tract of your land that is crossed
by Russell Road, do you know which one we're talking
about?
A Yes, I do.
Q Not the one that your house is on?
A No. no, no.
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Q Have you ever tried to sell that?
A No. I could have sold it.
Q When?
A Oh, five, six years ago a fellow wanted to offer
me a price for it and I wouldn't sell it.
Q Who was that that offered you?
A No, I won't tell you. Mr. Bear wanted to buy
it. I wouldn't sell it to him. Another attorney wanted
to buy. He said, .Sell it to me." I said, "I will not.
It's not for sale. It's in the estate."
Q Did a person make a specific offer of a specific
amount of money for it?
A Yes.
Q How much?
A $16,000. That was five years ago.
Q Do you ever have any intention of selling it?
A Any who?
Q Do you ever have any intention of selling that
tract?
A No, sir, I do not. The guy up above there
wanted to buy the whole thing. He offered me $300,000 for
the whole business. I wouldn't even sell it to him.
Q Do you know exactly where the boundaries of Mr.
Bear's land are?
A No. I do know where the top part is because
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I've got 53 acres up there and it goes up there and runs
against mine up there at the top.
Q By the top you mean the northern boundary? You
know where that is?
A Yes, I do know where that is.
Q But you don't know where the southern boundary
is?
A No, I don't. He says it runs up against Andy's.
I know where Andy's is, so I know where his boundary is.
MR. SHADE: Nothing further.
THE CHAIRMAN: Do you want to do any redirect?
MS. BAIRD: A couple questions, please.
THE CHAIRMAN: Alright.
REDIRECT EXAMINATION
BY MS. BAIRD:
Q You built that home there, didn't you?
A Every bit of it, my wife and I. We didn't have
no help at all, run the electric lights and everything.
Q And it's built from mountain stone. Is that
correct?
A Right.
Q How did you get that stone to your property?
A Up through where Russells are right now and a
lot of it off of Ponderosa Road. That's how I usually get
up to my ground up there, Ponderosa.
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Q Before the road that is Russell Road crossed
your property, before the Russells put shale down or
slate, whatever it is.
Yes.
A
Q
A
Oh, yes.
Q
A
Yes.
Q
How did they access their property?
I don't know how they did. Oh, how they access?
They went up that road.
They went across your land?
That's right, over that there four acres there.
Alright.
THE CHAIRMAN: What four acres are you referring
to? You said, "That four acres there."
MR. KECK: That's where they went, right through
the middle of it.
THE CHAIRMAN: 50 I'm sure, that's the one when
we were on the view where it branches off a little bit?
MR. SHADE: I infer he's talking about the
Russell Road that we're dealing with now. That's the four
acre piece we've been talking about.
MR. FANUS: The four acre piece you're talking
about, that's to the right of the Russell Road. Are you
talking where that neck comes out in there?
MR. KECK: No. I showed you where them trees
are marked.
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MR. FANUS: Yes.
MR. KECK: That starts right there, goes up
across the middle on up to Russells.
THE CHAIRMAN: That's the tract you're talking
about right now?
MR. KECK: Yes.
MR. FANUS: I know where that is.
MR. KECK: Yes. Right through the middle of it,
from one corner to the other.
MS. BAIRD: Thank you. Do you have any recross?
RECROSS EXAMINATION
BY MR. SHADE:
Q When did you get stone over Ponderosa Road?
A When did I go over it?
Q When did you do that?
A Back when I was getting stone out of there to
build the house.
Q What year was that?
A I'd say '70, '72, back in the '70s.
Q Over 25 years ago?
A Yes.
Q And would you agree that that whole area has
become much more grown up now than it was then in certain
areas?
A Would I agree?
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Q Yes.
A Certainly. If they put slate and stuff on it
and all, sure.
Q Trees have gotten bigger up along Ponderosa Road
in the last 25 years, haven't they?
A They got bigger?
Q Yes.
A Yes.
Q And that was logged out up there at one time.
Wasn't it?
A More houses up there now.
Q Right. That was logged out up there at one time
too. Wasn't it?
A Yes.
Q There has been about 25 years of tree growth
between the time you went up and got stone and now.
Right?
A That was Moffitt's that was logged out. Mine
wasn't logged out.
Q Where did you get this stone?
A Up on top, on my piece of ground up there. We
built a house and a garage out of it.
MR. SHADE: We have nothing further.
THE CHAIRMAN: Do you want to do any re-
redirect?
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MS. BAIRD: Just to clarify.
RE-REDIRECT EXAMINATION
BY MS. BAIRD:
Q You physically are capable, in your car, of
driving up the ponderosa Road to the Bear's property. Is
that correct?
A Yes, they are.
Q Thank you.
A Because I had a fellow drive up there in a
Mercedes Benz, a hundred thousand dollar car. He said,
"If I scratch this car you're going to pay for it." I
said, "I didn't tell you to come up." He went up on his
own. I ain't kidding you. He went up with it, so why
couldn't anybody else go up with another car?
MS. BAIRD: Thank you. We have nothing further.
THE CHAIRMAN: Do you have anything additional?
MR. SHADE: I have nothing further of this
witness. I will have a very brief rebuttal when they
rest.
THE CHAIRMAN: What I would like to do, and we
obviously can't all jump in and point at the same time,
but to put this on the record I'd like to go over where
the tax map is and sort of trace where these two different
roads are for anybody that may need to look at this
without the benefit of having everybody present.
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MR. SHADE: I don't mind if we draw on the thing
as long as everybody knows--
MS. BAIRD: What we're drawing.
MR. SHADE: Exactly.
THE CHAIRMAN: What I would like to do, so you
know where I'm headed with this. When we had the view we
actually got lost when we were going over these places,
because there were evidently some different logging trails
that looked like they might be well traveled but then
they're not.
What I'd like to do, for anyone in the future
that would have to look at this for any purpose, would be
to designate where the Ponderosa Road would go. And, I
realize you may not agree on that completely.
I'd like to designate where we went on the Board
of view and sort of mark what we have referred to in the
testimony as to the four acre lot, or if it's not on a
separate parcel number, just sort of circle and put a 4 in
it. That way people would be able to follow this in terms
of general direction.
MR. SHADE: I would suggest that we go off the
record for a few minutes for the court reporter's benefit.
THE CHAIRMAN: Alright.
MR. SHADE: And see if maybe we can derive some
stipulations on this basis.
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MS. BAIRD: I have here--
MR. SHADE: She wasn't there. And, frankly, I
couldn't tell you how we got to what they call Fegley's,
or whatever it is, up ponderosa Road. Like you say, we
went around in circles there for a little while, so I
wouldn't be much help on that subject myself.
THE CHAIRMAN: Yes. This is off the record.
(Discussion off the record at 10:24 a.m. and
reconvened at 10:40 a.m.)
THE CHAIRMAN: For the convenience of anybody
that may have to look at this, I've taken a black ink pen
on a tax map that is marked with names of owners in red
ink and have drawn an arrow to approximately where we
think Russell Road would continue to run, in the general
direction where it would continue to run. And I've taken
an orange shaded magic marker and have drawn over what we
believe is probably Ponderosa Road into approximately
where we believe we were when we went on view. There is
evidently another road nearby which would go farther north
than where we have marked.
This is not to be taken to be accurate, it's
just for the benefit and convenience of anyone that might
have to look at it in the future while they're trying to
decipher the testimony.
Do you have anything else you want to say about
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my description so far?
MR. SHADE: No.
MS. BAIRD: No.
THE CHAIRMAN: We'll allow the parties to make
an argument and a summary of their testimony as to why or
why not we should make any particular decision and as to
what we should give the most weight to. At that point
we'll probably close up for today.
MR. SHADE: I think that I have one or two brief
rebuttal questions. Then I would suggest we could move
the admission of our exhibits, and then make our
statements. If that's alright?
THE CHAIRMAN: Alright. Do you want to go ahead
with your rebuttal testimony? You'll have the same
opportunity.
Whereupon,
KEITH E. BEAR
having been oreviouslv sworn, according to law, testified
as follows:
DIRECT EXAMINATION
BY MR. SHADE:
Q Mr. Bear, you remain under oath. Do the
electric lines that go up Ponderosa Road go to your
property?
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be glad to hear that once you've both laid your situation
out.
MR. SHADE: If the Board please, Mr. Bear, I
think it's undisputed in this case that there is no legal
right of access of record from Mr. Bear's land to a public
road. I think it's also undisputed, it hasn't been
denied, that Mr. Bear did not create this landlocked
status. He may very well have known of it when he
purchased the land, but he did not create it.
The testimony is that it's had this status for
more than 70 years through multiple ownership, and we
believe the cases are clear that purchasing landlocked
land with knowledge it's landlocked is not an impediment
to a private condemnation.
I think it's also obvious to anybody who has
been out there that the existing Russell Road is the most
appropriate site for private access to the lands of Mr.
Bear.
In the first place we already have the consent,
documented recordable consent of all of the other owners
along Russell Road besides the defendants in this case.
We would simply rely on the cases that we have
cited in our earlier memorandum to the Board for the
authority that we would be entitled as a matter of right
to a private condemnation in this case, even if there were
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evidence that a difficult logging road actually touched
our property, to have this private condemnation. That
case is the appeal of the Zeafla Case, which is in your
memorandum.
We have nothing further.
THE CHAIRMAN: Alright.
MS. BAIRD: Mr. Keck is not denying that Mr.
Bear clearly needs access to his property. Mr. Bear is
requesting an easement of necessity. I think we have
shown that the necessity is there, but over that road it
is not necessarily there. There is another access. It
would require more effort on Mr. Bear's part, but that
does not mean that it is inaccessible.
Mr. Keck has property rights that he is trying
to preserve. Whether or not he chooses to sell his
property is his decision. The fact is that there is more
traffic on his property. His property is going to
diminish in value markedly.
There is evidence that there is going to be
continued expansion up there on this mountain land. There
are lots still available up there to be built on.
There is a possibility here of more and more and
more traffic going across that road, and Mr. Keck's
decision not to want that is a fair one.
We would respectfully request that you deny Mr.
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Bear's petition and find in favor of the defendants.
THE CHAIRMAN: Alright. Did you have anything
further?
MR. SHADE: We would want to remain silent on
the statement that there's evidence of other lots up there
that can be built on and further expansion. I'm not
agreeing or denying that. I just don't think there's any
evidence of that in this case one way or the other.
THE CHAIRMAN: Do either of you have any
questions about the legal argument that was made?
MR. FANUS: I have none.
MR. HOCKENSMITH: No.
THE CHAIRMAN: Alright. Do you have anything
further you'd like to say?
MS. BAIRD: No.
THE CHAIRMAN: What we'll do is, the three of us
will get together and study this, and we'll give you a
written opinion. Then after you get the written opinion
you can compare notes and let me know what you intend to
do within some reasonable period of time, whether anybody
wants to appeal it, or whether you want to try to work
something out.
Depending on what we rule you may have no reason
to get back together at all. That's a possibility. I
don't know until we sit down and sift through some of
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the form of a Decree Nisi and give us 10 days to file
exceptions and so forth. At least then both of us would
know. We would at least have a basis, both of us would
have, for saying that we didn't do anything wrong by
trying to take it to Common Pleas and missed an appeal
deadline for the Superior Court or something.
THE CHAIRMAN: Alright. I can do that. I put
right in here that by stipulation of counsel that you
specifically requested a decree.
MR. SHADE: I'm not so sure I want you to do
that because if counsel were wrong, we're wrong, you know.
THE CHAIRMAN: If you both agree to it.
MS. BAIRD: If we agree to it.
MR. SHADE: I don't think you can agree to
jurisdiction. I don't think you can agree to waive. I
don't think you can agree to waive an appeal deadline. I
don't think Ms. Baird and I could agree that we can appeal
a case to the superior Court in 60 days. I don't think we
have the power to do that.
MS. BAIRD: Isn't a Decree Nisi a 10 day
deadline? We'd be well inside of it.
THE CHAIRMAN: That's assuming you can take it.
MR. SHADE: In other words, I think if you just
make it in the form of a Decree Nisi, then we can say we
had no choice but to follow this procedure. But, I think
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if you say we did it by stipulation of counsel, I think
you open up the door to where it could be said down the
road, to the disadvantage of either of us, that we could
not agree to extend the Superior Court's appeal deadline.
We can't modify the Rules Of Appellate Procedure by
stipulation.
That's the problem I have with what you just
suggested there. I think you could put us in a comfort
zone by simply saying that this Order becomes a Final
Order unless exceptions are filed within 10 days. But, as
soon as you start putting that stipulation of counsel in
there, then I think you put us on shaky ground.
THE CHAIRMAN: The other ones that I've had
access to and have looked at, and the other ones that I've
written, they don't have anything like that in them. They
just gave the Opinion.
MR. SHADE: I know. But, then it's like you've
indicated all that does is raise procedural questions. It
would make it easier. You can do what you want to do
obviously, you're the Board. But, my opinion is that you
would make it easier for both of us if you simply put it
in the form of a Decree Nisi. It would be final unless
exceptions are filed in 10 days. That's my view on it.
Then at least we'd have an excuse. We'd have something to
hang our hat on if we followed that procedure.
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CERTIFICATION
I hereby certify that the foregoing proceedings
were taken stenographically by me, and thereafter reduced
to typewriting by me or under my direction and that this
transcript is a true and accurate record to the best of my
ability.
{! . t7 ~ -:JJ
IICA,t'" ' \.''It.C.-<-~ ~JL~,-r:(..IJ
cheryl F~ ner Donovan
Registered Professional Reporter
Notary Public
Notary Public, Cumberland County
My Commission Expires July 23, 1999
(The foregoing certification of this transcript
does not apply to any reproduction of the same by any
means unless under the direct control and/or supervision
of the certifying reporter.)
53
'-
KEITH E. BEAR.
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
vs.
NO. 97-2687 CIVIL TERM
CIVIL AcrION - LAW
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ARTHUR S. KECK and
PAULINE E. KECK,
Defendants
P~ATECONDEMNATION
REPORT OF BOARD OF VIEW
TO THE HONORABLE JUDGES OF THE SAID COURT:
The Board of View, consisting of Eugene Hockensmith, surveyor, Charles E. Shields,
III, lawyer, and Edwin T. Fanus, layman, respectfully submit their report as follows:
COMBINED CHRONOLOGICAL FINDINGS OF FAcr
AND PROCEDURAL HISTORY
I. The Petitioner is Keith E. Bear, adult individual, currently residing at 10 Village Lane,
Newville (Bloserville), Cumberland County, Pennsylvania.
2. The Respondents are Arthur S. Keck and Pauline E. Keck, his wife, adult individuals,
currently residing at 45 Bobcat Road, Carlisle, (Lower Frankford Township), Cumberland
County, Pennsylvania.
3. Petitioner is an owner of a parcel of land in Lower Frankford Township, Cumberland
County, Pennsylvania, more particularly described in a deed of grant and conveyance into him
from Frank E. Mackey and Margaret G. Mackey, his wife, dated November 18, 1995, and
recorded in the office of the Recorder of Deeds in and for Cumberland County, Pennsylvania on
November 20, 1995 in Deed Book No. 131, page 554. (See Pet. Exh. I).
4. Said parcel of land owned by Petitioner contains approximately eleven (II) acres, more
or less. and does not abut any public road. It has not had any record legal access to a public road
for at least seventy (70) years and there was no indication that ha.~ ever had one. There is currently
no road, either public or private, which actually reaches the parcel. It apparcntly had informal
access to it via old logging trails at one time and it is possible that one could reach the parcel with
use of a tractor or other type of similar vehicle. Petitioner plans to marry and build a home on the
parcel but cannot obtain a building permit to do so unless he has clear recordable unobstructed legal
access to the parcel. (N. T. 9, 10, 11; See Pet. Exh. 3, Right of Way Survey by Eric L.
Diffenbaugh. Professional Land Surveyor).
5. Respondents are owners of three (3) parcels of land in Lower Frankford Township
which arc more particularly described in that certain deed recorded in the said Recorder's Office in
Deed Book "W," volume 17, page 52. (*N. B.: where no reference is made to Notes of Testimony
or to Exhibits. it should be presumed that the source of the statement is from public records of
which the Board of View is authorized to take judicial notice or that the source is the on site view
by the Board.)
6. One of the three (3) parcels of Respondents, of approximately four (4) acres, which is
separate from the parcel on which the Respondents' residence is built and which does not contain
any buildings or improvements. is traversed by a right of way, known as Russell Road. This road
as it crosses the parcel in question is approximately four hundred fifty (450) feet in length.
Respondents' residence is approximately three hundred (300) yards. through a wooded area, from
the roadway in question. This parcel is not burdened by any record mortgage, judgment or other
lien. (N. T. 17, 18,20,24.25; Pet. Exh. 4; Resp. Exh. I)
7. Russell Road is an existing private right of way which varies in width from twenty (20)
feet to fifty (SO) feet and is approximately three thousand five hundred (3.500) feet in length from
from Bobcat Road to the lands of Andy Russell which serve as its northerly terminus. Bobcat
Road is a public road designated as Township Road 45 I. Russell Road passes through ten (10)
separately owned private parcels of land between Bobcat Road and the Petitioner's property.
Respondents' lands are included within the ten (10) said owners. That part which passes through
2
Respondents' said purcel is approxill1utley nine Ihousnllll (lJ,()(XI) feel sllunre which would be
approxill1ulely rive (5%) of lhe square nren of lhe purcel in qneslion. IN. T. 12, 13, 18: Pel. Exh.
3).
8. The olher nine (9) owners volunlnrily cxeculed n ()cclnrtllion of Ell~ell1ent grunting
Pelitioner access to Bobcat Rond. Five (5) of those nine (9) owners reside on their Innds through
which the said Russell Roud runs nnd use the mnd for ingress nnd egress to lhelr homes on a duily
basis. (N. T. 13, 14, 15).
9. The puree I in queslion is nlrcndy fonlllllly nnd of rccord hurdcncd with the right of way
in favor of lhe olher nine (9) owncrs of grounds nlong I{ussell Rond. This Is so because in
January of 1990, Respondents sued the othcr owners nnd soughln decree lhatlhose other owners
had no righls to use Russell Road, The 1I0nortlhle Judgc Bnyley, hy nn opinion and order dated
July 30, 1991, found in fllvor of lhe olhcr nine (9) owners nnd forever hnrrcd Respondents from
interfering with lhe use of Russcll Rond 10 llnd including the propcny of Andy Russell and Susan
Russell, his wife. (N. T. Ill, 19: Pel. Exh. 5, Civil CllIlIplninl, 3113 Civil 1990: Pel. Exh. 6.
Opinion and Order of Judge Bnyley).
10. Pctitioner seeks 10 hllve n pcrpcllllll cnscmcnt for ingrcss and egress over lhe said
Russell Roud us it pusses through Ihe suid purcclof I{cspondents' for the purpose of pedestrian
und vehiculur truflic nnd for the instnllntion, mnintcnllncc, servicc nnd repnir and replacement of
utili lies to and from Bohcnt Roud. PClitioncr is rcquesting n width of twenly (20) feet as is
currently being rccognized lII11UOr uscd on Russcll Rond where it pll~ses lhrough lhe parcel in
question. Utilily nccess for c1cclricity nnd telcphone nlreudy follows Russell Road. Peititoner
anticipules no nced for uny olhcr ulililies, (N. T. 15,27: PCI. Exh. 3).
II. Pelitioner uvers Ihntlhe use of Russcll Roud would be the most convenient access to
his Innd. To open nn entry to his Innd from Russcll Roud would merely require some excavation
und lhc slating of thc ground for npprnximutely one hundred two (102) feet. There arc no trees or
olher suhstuntinl ohslncles inlhe wuy exccpt for one old tree stump. (N. T. 15. 16).
3
12. Respondents bought their lands some years ago when they had three (3) small children
and wanted a quiet plaee with a stream so as to beller raise their family and sellle down with a new
home. When they purchased the property there were very few other residences around them.
Respondents built their own home and used mountain stone from another tract which they own
north of Russell Road. They transported this mountain stone by going over the mountain trails and
by using another road in the vicinity known as Ponderosa Road. However, since Respondents
transported the mountain stone and built their home, there has been considerable growth of trees
and the like in the area they traversed and logging operations in the area have since ceased. (N. T.
29,30).
13. Since the said Russells built their home at the northern tenninus of Russell Road, there
has been a considerable increase in traffic in the area and this is especially so during hunting
season. Respondents no longer have the quiet and relaxing abode which they used to. It is
through their desire to try to maintain what is left of their peace and quiet that they oppose
Petitioner's proposed use of the right of way via Russell Road and not because they are iII-
disposed to Petitioner in any personal way. Respondents have no intention of selling any of their
parcels now or in the future. They aver that Petitioner should be given rights to use Ponderosa
Road and should use it instead. I (N. T. 30, 31. 32, 36, 39, 40).
14. The Board of View had an on site inspection of Ponderosa Road at the view. It
appears to be a Township Road for at least part of its distance but it is not clear where that status
ends on the ground. When going into the upper reaches of the road the Board had to walk a fair
distance on foot and so far as they could tell could only reach the boundary line of Petitioner's
parcel by walking through very rough, steep, and uneven terrain which would have required
1 It should be here noted that no one joined in any of the other interested parties along
Ponderosa Road so as to give them notice and opportunity to be heard as to whether their rights
were being infringed or as to their opinion as to where any proposed right of way should be
placed. It is therefore questionable whether the Board would have any power to grant a private
condemnation of part of Ponderosa Road under such circumstances in any event.
4
considerable moving of eanh und excuvuling. It would ulsll require Ihe removal of a fair number of
trees of some maturity. Pondernsu Roud us, shown 10 the Bourd, traverses utleast one family's
private driveway and comes within uhouttwenty (20) feet of their dwelling house. (*N. B.: The
Board uses Ihe ternl "IL~ shown" hecuuse Ihere WIL~ some confusion at the on site view as to which
roads were which in thut Respondent's former counsel was leading the way for the Board in a
separate vehicle with Respondent und becumc confused and lost). Utility lines run through and/or
ulong Ponderosu Roud us shown to the Board, ultimes upparently along the center of the cleared
ureas und ulolher limes off.center. It didnotllppear that the Ponderosa Road ran as a road all the
way 10 Petiloner's propeny. If it once did, it hilS been overgrown considerably since then so far as
the Board could sec. The Bourd docs not believe Ponderosa Road as pointed out to them on site
would ullow for IIny Iype of slundurd fumily vehicle, even with four wheel drive, to go the whole
way lol'etitillner's property without some excavation and tree removal. (N. T. 22, 23, 24, 25,
31,32,34).
15. Petitioner, when purchusing his propeny, spoke to several of the owners of propenies
along Ponderosu Roud. Several suid they would have no objection to Petitioner's using of
Ponderosu Roud for u right of wuy. However, more than one-half (1/2) of the owners said that
Ihey would ohject. (N. T. 20, 21).
16, On Muy 21, 1997, Petitioner petitioned for the Appointment of a Board of Viewers
pursuul1lto the Act of June 13, 1836, P. L. 551. Sections 11,1ll~. (36 P. S. s. 2731) as
amended.
17. In consideration of the Petition, Judge Harold E. Sheely appointed Eugene
lIockensmith, surveyor, Charles E. Shields, III, lawyer, and Edwin T. Fanus, layman, to serve
as viewers.
18. The said viewers were duly sworn to perfonn their duties.
19. Pursuant to due and proper notice, the three (3) viewers, Petitioner and his wife to be,
I'etilioner's counsel. Respondent. Anhur Keck. and Respondent's then counsel, Matthew
5
Eshelman. viewed the premises on Monday. September 22. 1997 at 1:30 P. M.
20. After due and proper notice to the panies. a hearing was held on the issues related to
whether a private road was a necessity on Monday. January 26. 1998, beginning at 9:30 A. M. in
the Cumberland County Court House, Jury Assembly Room. Fourth Floor, 1 Court House
Square. Carlisle, Pennsylvania. Both parties and their respective counsels were present.. as well as
the court stenographer.
21. At the hearing testimony and exhibits were presented.
22. Petitioner's land is landlocked and Petitioner has no legal means of ingress and egress
to his property from any existing public road.
23. A private road condemnation is therefore necessary for Petitioner to use and enjoy his
property and such award should also include the rights to the use of the utility easements which
would accompany such a road under the current case law.
DISCUSSION.
The Board of View wishes to thank both counsel for their well-organized, well-ordered and
concise presentation of the pertinent evidence and points of law. Both counsel presented their
respective client's cases about as well as it could be done.Their jobs were so well performed that
we find it unfortunate that we cannot rule in favor of both panies herein.
The positions of the various panies can be easily summarized as follows:
Petitioner bought landlocked land knowing it was landlocked and takes the position that
this should not mailer as to whether he is entitled to a private road condemnation. He asserts that
since there is no legal record access to his parcel and since he did not create the landlocked status of
the parcel through any act of his own, he is entitled to a private roadway by condemnation. As to
where the road should be located. he asserts that the previously existing Russell Road is the most
convenient and common sense access available and that to force him to use Ponderosa Road would
entail great inconvenience and expense. He additionally points out that nine (9) of the ten ( 10)
owners along Russell Road, excepting only Respondents, have freely given him permission to use
6
Russell Road. He also argues that Ponderosa Road does not in fact run all the way to his parcel,
but even if it did, its use would be so inconvenient and expensive that it would not eliminate the
Board's authority to award a right of usage in Russell Road.
Respondent's main argument is not that Petitoner does not need some sort of legal access
but that he should not be permilled to go over Russell Road but should have to use Ponderosa
Road instead. Respondents' contentions are not based upon any animosity toward Petitioner but
upon their desire to retain what privacy and quiet they can in their home and its environs. They
argue that increased traffic also decreases the value of their property and further are afraid that
increased use of Russell Road will eventually lead to greater development in the immediate area.
We think it is obvious that Petitioner is entitled to a private road access by condemnation
according to all of the case law which we have seen on this subject. This is so even though he was
aware when he bought the parcel that it was landlocked. See, e. g., Graff v. Scanlan, 673 A.2d
1028, 1035 (Pa. Cmwlth. 1996).
Also, our view of the proposed altemative route, Ponderosa Road, did not show us that it
actually traverses or eontacts Petitioner's property. Even if it did, that, in and of itself, would not
be a sufficient reason to deny the use of Russell Road to Petitioner. See, e. g., Appeal of Zeafla,
592 A.2d 343 (Pa. Super., 1991). Rather, the Board must take into account, inter alia, when
determining where to place the road/access route: the shortest distance, the best ground, least injury
to private property, and the desire of the Petitoner. When properly considering and weighing all of
the above factors, the Board feels compelled to award a route over the already existing and being
used Russell Road.
The Board is composed of individuals of sufficient age to readily commiserate with
Respondents as to their desires for peace and quiet. It would be fair to say thut other than
technological advances of great magnitude, there has been some considerable debate about quite a
few examples of "progress" during our lifetimes and those of Respondents. The Board feels it
should point out that William Penn's policy was to encourage the selllement and development of
7
his Province and the carliest road laws were designed with this in mind. This has been a consistent
policy of the Commonwealth as well since the era of Independence from Great Britain. See, e. g.,
IN RE: PRIVATE ROAD IN LOWER MIFFLIN TOWNSHIP, CUMBERLAND COUNTY,
PENNSYLVANIA, REPORT OF THE BOARD OF VIEW, IN THE COURT OF COMMON
PLEAS, CUMBERLAND COUNTY, NO. 1802 CIVIL 1987, CIVIL ACTION - LAW, pp. 10-
37, esp. p. 25. Therefore, there is Iillle that can be done to stem the tide of "progress" and
development even when a property is landlocked. The Board must therefore carry out its duty as
best it can and can consider only those factors which the law allows.
CONCLUSIONS OF LAW
I. Petitioner has met his burden of proving that he needs a right of way for ingress and
egress.
2. The Board has tried to choose a right of way location by duly considering: the shortest
distance, best ground, least injury to private panies, and desire of the Petitioner. 36 P. S. s. 1785
(Purdon's). The description and location of the proposed right of way follows:
DESCRIPTION AND LOCATION OF RIGHT OF W A Y
The description and location of the right of way is as follows:
From a point on the boundary line between lands now or formerly of Asper
Russell, Jr. and lands now or formerly of Arthur Keck as shown on the right-of-way
survey of Eric L. Diffenbaugh for Keith Bear, dated April 2, 1997; thence through the
lands now or formerly of Arthur Keck over an area twenty (20) feet in width centered upon
a line over the following courses and distances: South 34 degrees 49 minutes 00 seconds
East, 97.86 feet; South 66 degrees 51 minutes 00 seconds East, 244.50 feet; South 42
degrees 10 minutes 00 seconds East, 119.00 feet; more or less. to a point in the boundary
line between lands now or formerly of Thomas Russell and now or formerly of Arthur
Keck.
A reduced size copy of Diffenbaugh's Survey for Bear (Plaintiff Exh. 3) is allached hereto.
8
DECLARATION OF EASEMENT
THIS DECLARATION OF EASEMENT, made this 18th day of April,
1997, by and among ANDY R. RUSSELL, single person, of 99 Russell
Road, Carlisle, Cumberland County, Pennsylvania 17013; MARLIN E.
RUSSELL and VIRGINIA L. RUSSELL, husband and wife, of 322 Bolton
Avenue, Carlisle, Cumberland County, Penn~ylvania 17013; TIMOTHY
D. LUSH and JANET LUSH, formerly JANET KUTCHMAN, husband and
wife, of 75 Russell Road, Carlisle, Cumberland County,
Pennsylvania 17013; ASPER H. RUSSELL, JR., single person, of 58
Russell Road, Carlisle, Cumberland County, Pennsylvania 17013;
SUSAN D. RUSSELL, single person, of 59 Russell Road, Carlisle,
Cumberland County, Pennsylvania 17013; ROGER L. MOONEY, single
person, of R.D. #1, Box 922, Landisburg, Perry County,
Pennsylvania 17040; ARTHUR S. KECK and PAULINE E. KECK, husband
and wife, of 45 Bobcat Road, Carlisle, Cumberland county,
Pennsylvania 17013; THOMAS L. RUSSELL and DIANE RUSSELL, husband
and wife, of 401 Old Mill Road, Carlisle, Cumberland County,
Pennsylvania 17013; EDWARD L. BARRICK and BARBARA K. BARRICK,
husband and wife, of 26 Russell Road, carlisle, Cumberland
county, Pennsylvania 17013; RAYMOND H. HEISHMAN and DOROTHY E.
HEISHMAN, husband and wife, of 2 Bobcat Road, Carlisle,
Cumberland county, Pennsylvania 17013; and KEITH E. BEAR, single
person, of 10 Village Lane, Newville, cumberland County,
Pennsylvania 17241 (hereinafter referenced collectively as
"Declarants'), provides, as follows:
WHEREAS, Declarants other than Keith E. Bear are the owners
in fee simple of certain parcels of real estate in Lower
I
PLAINTIFF'S
EXHIBIT
1l..
Frankford Township, Cumberland County, Pennsylvania (hereinafter
the "Township") which have access to Bobcat Road (T-451) over an
existing right-of-way of varying widths and an existing unpaved
roadway.
WHEREAS, the parcel owned by Declarant Keith E. Bear does
not have access to a public road.
WHEREAS, as a condition to the issuance of a building permit
to Declarant Keith E. Bear, the Township has required that
Declarants extend the use of the existing unpaved roadway from
Bobcat Road (T-451) to the lands of Declarant Keith E. Bear and
that Declarant Keith E. Bear join in the maintenance agreement
among the parties with respect to the lane.
NOW, THEREFORE, in consideration of the joinder of Declarant
Keith E. Bear in the maintenance agreement for the lane, the
avoidance of further legal proceedings for access from the lands
of Declarant Keith E. Bear to the public road and other good and
valuable considerations and intending to be legally bound,
Declarants hereby impose the following perpetual easement of
ingress and egress (hereinafter the "easement") upon their lands
in Lower Frankford Township, Cumberland County, Pennsylvania, for
their mutual benefit.
DECLARATION
1. The easement along the existing right-of-way of varying
widths and the existing unpaved roadway as extended to the lands
of Declarant Keith E. Bear is more particularly depicted in
Exhibit "A" hereto and described in Exhibit "B" hereto.
-2-
2. The purposes for said easement shall be for pedestrian
and vehicular traffic and for the installation, maintenance,
service, repair and replacement of utilities to and from the said
Bobcat Road to any part of the lands burdened or benefitted by
the aforesaid easement.
3. The initial extension of the existing lane over the
lands of Andy R. Russell to the lands of Declarant Keith E. Bear
shall be at the expense of Declarant Keith E. Bear. Thereafter,
the present and future owners of each of the Lots shall bear in
equal shares the reasonable cost of snow removal and other proper
maintenance of the easement in its present condition. The
obligations for maintenance of the right-of-way over the
extension to the lands of Declarant Keith E. Bear shall impose no
greater responsibility upon the parties to this Declaration than
the obligations for the remainder of the unpaved roadway. The
obligations for maintenance shall terminate at the southern
boundary of the lands of Declarant Keith E. Bear. All
responsibility for maintenance of said right-of-way on the lands
of Declarant Keith E. Bear shall be the sole responsibility of
Declarant Keith E. Bear. The owners of any of the parcels who
are subject to these maintenance provisions of this Declaration
may contract for such snow removal or other maintenance. Within
thirty (30) days of presentation of the invoices for such
expenses, the owners of each of the parcels who are subject to
these maintenance provisions of this Declaration shall pay one-
ninth of the expenses. These obligations for snow removal and
-3-
other maintenance shall not be applicable to Declarants Arthur S.
Keck, Pauline E. Keck, Raymond H. Heishman and Dorothy E.
Heishman. These provisions for snow removal and other
maintenance shall supersede and nullify the provisions of the
Maintenance Agreement of April 24, 1989, as recorded in the
Office of the Recorder of Deeds of Cumberland County,
Pennsylvania, at Miscellaneous Book 364, Page 626.
4. Any and all of the provisions herein contained shall be
enforceable by Declarants, their heirs, successors and assigns.
Lower Frankford Township, its successors and assigns may also
enforce the provisions of this Declaration. Neither Lower
Frankford Township nor any of the Declarants shall have a duty or
obligation to enforce the provisions of this Declaration of
Easement.
IN WITNESS WHEREOF, Declarants have caused this Declaration
of Easement to be executed as of the date and year first above
written.
WITNESSES:
G...
4 ~). f~
I
~1!~~ (SEAL)
~~8~~ (SEAL)
Marlln E. Russell
~~__...: / rLJ '/1- ".f'(' (SEAL)
V1r9'1n1a t.' ~ll
-r::_~d.. () .L. JL (SEAL)
;r;;t~or Lusl\
C--, '7' ~
G.'~^'-'9' Ida.
;"'\">,-,(><-1. 4~
-4-
EXHIBIT "B"
ALL THAT CERTAIN existing and extended right-of-way of
varying widths situate in Lower Frankford Township, Cumberland
County, Pennsylvania, more particularly bounded and described in
accordance with the right-of-way survey of Eric L. Diffenbaugh
for Keith Bear, dated April 2, 1997, as follows:
BEGINNING at a point on the boundary line between lands now
or formerly of Marlin E. Russell, et ux, and now or formerly of
Timothy D. Lush, et ux, which point is North 73 degrees 10
minutes 40 seconds West, 133.73 feet from an existing iron pin in
stones at lands now formerly of Marlin E. Russell, et ux, and now
or formerly of Thomas L. Russell, et ux; thence along said
boundary line between lands now or formerly of Marlin E. Russell,
et ux, and now or formerly of Timothy D. Lush, et ux, North 73
degrees 10 minutes 40 seconds West, 11.25 feet to a point; thence
through said lands now or formerly of Marlin E. Russell, et ux,
and lands now or formerly of Andy R. Russell, the following
courses and distances: North 44 degrees 06 minutes 34 seconds
East, 58.69 feet; North 29 degrees 28 minutes 45 seconds East,
75.09 feet; North 45 degrees 54 minutes 00 seconds East, 136.09
feet; North 53 degrees 51 minutes 52 seconds East, 138.07 feet;
North 40 degrees 35 minutes 48 seconds East, 43.45 feet; North 27
degrees 40 minutes 52 seconds East, 37.67 feet; North 16 degrees
32 minutes 11 seconds East, 28.07 feet; North 54 degrees 09
minutes 03 seconds East, 102.68 feet to a point on the boundary
line between lands now or formerly of Andy R. Russell and lands
now or formerly of Keith E. Bear; thence along said boundary
line, South 17 degrees 14 minutes 57 seconds East, 52.87 feet to
a point; thence continuing through said lands now or formerly of
Andy R. Russell and lands now or formerly of Marlin E. Russell,
et ux, the following courses and distances: South 53 degrees 47
minutes 52 seconds West, 131.03 feet; South 27 degrees 40 minutes
52 seconds West, 4.31 feet; South 40 degrees 35 minutes 48
seconds West, 48.04 feet; South 53 degrees 51 minutes 52 seconds
West, 139.01 feet; South 45 degrees 54 minutes 00 seconds West,
131.81 feet; South 29 degrees 28 minutes 45 seconds West, 74.77
feet; South 44 degrees 06 minutes 34 seconds West, 50.94 feet to
a point in said boundary line between the lands now or formerly
of Marlin E. Russell, et ux, and lands now or formerly of Timothy
D. Lush, et ux; thence along said boundary line, North 73 degrees
10 minutes 40 seconds West, 11.25 feet; thence over an area,
twenty (20) feet in width centered upon a line over the following
courses and distances: South 56 degrees 31 minutes 00 seconds
west, 231.88 feet; South 37 degrees 02 minutes 00 seconds West,
163.84 feet; South 04 degrees 32 minutes 00 seconds West, 609.00
feet; South 34 degrees 49 minutes 00 seconds East, 97.86 feet;
South 66 degrees 51 minutes 00 seconds East, 244.50 feet; South
42 degrees 10 minutes 00 seconds East, 129.00 feet; South 04
degrees 24 minutes 00 seconds West, 270.14 feet to a point;
thence increasing to fifty (50) feet in width at the boundary
line between lands now or formerly of Thomas L. Russell, et ux,
.'
UI.C.T_wlfIlntt OI.d-I".t1 Iolnt-Act SIOt-Doubl. Ihul
tl,n" 11.1. In,., lndl,nl. ",
~~~~. ~
~b i.s
llttbt
MADE TilE t6th davof Novombur
of our Lord ani lI,o,..alld nine hllndrad nlnuty-Clvu (1995)
IJETWEEN FRANK E, t1ACKEY and t1ARGARET G. t1ACKEY, hi. vllu, of Cor roll Tovnshlp,
I'urry County, Pennsylvania,
in the v.ar
Grantors. ,
alld KElTII DEAIl, of Newille, Cumbsrland County, Pennsylvania,
WITNESSETII, IIuJI ill cOll8iderallon alONE and OOflOO ($1,00)
Gnllll"
in halld paid, Ihe receipl whereof;' h.r.bv acknowledDrd, Ihe .aid Drantor s do
alld con.ev 10 Ihe .aid Dront" , his heirs und assigns,
Dollara,
h.rabv Dronl
ALL t.hnt curtaln tract a! mountain land situata In Lavar Frankfard Tovnship,
Cumbarland County, Pannsylvanls, bounded snd describsd as !ollavs.
DEGINNlNG at a corner a! land novo or formarly of Petar Slpa; thenea along seld land,
North 17-1 dasraes West 83.5 porchas to a point; thance by land nov or !ormerly of
Jacob Dear, North 76 degreea East 21,5 parches to a point; thencs by land now or
formerly of J. lIarold Waggoner, South 17-1 degrees Eaet 84 perches to a point;
thenca by lnnd now Dr formerly of Patar Slpa, South 17-1 dagreas West 2t,5 perchss
to tho placa of DEGINNlNG,
CONTAINING II DereA, more or lC8S.
DIUNG the same premises conveyed by deed of J. Unrold Waggoner and B. Viola
WagGoner, his \life, dated Juno 12, 1978 and recorded in Cumberland County Cled
Book W. Volume 27. Page 168. to Fronk E. Mackey and Margaret G. Hockey, grantors
harein.
Tax Parcal No.: 14-04-0383-011
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And Ihe ItIid g,anlo,. he,ebv eOll.....nl
will warranl .pa.ially
and ag,,. lhal they
Ihe properlv he,ebv convev,d, "
IN WITNESS WHEREOF, laid granlor. MI. h.,.unlo.., thair hand. and 'eal.
Ihe daV and vear /i,,' above wrillen.
itllllUb, itralrb anb ~tl{timb "ytWlln:-HiiC.KEY'--.".".........-.".....--....e
t! In Ib.~Y~t or . ~"'..fC'~fa..~~...._.."".................e
'''60-.<i:It.:-I~:;(f~i.~.._.." iJ7 '!!JI.~..dL"!!?.~-:::f.L................ e
./ - ,/ tlARGA'ilET G, HACKEY
-............................................................'-""" .--....-..--.............-.....-.......-......................'0' e
Slale of PENNSYLVANIA
Counlv of PERIlY
On Ihil, Ihe t6th
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dav of November
. J~S ,befo,e me,
Ihe unde"ignld oDle.r, p."oll4l1v aw.ared Frank E, Ha.key and Hargaret G. H.ckey
.......&>n<>wl\.l9, .me (or ,alilfaclori/V proven) 10 be Ihe p."ane whollll4m.. are eub.mbed 10 lIle
<::::....J4f.~}]J;in'm.nl, and acknowledg.dlhal they e:.etlled .ame for Ihe purpo~ce Ihereln
~.:~.:l...._" ~!!!.ESS WHEREOF, I hereunlo .eI mv hand and Ol/lclt2. r
""""l~~JO'~'" 'ft..,.,.. ,." " l 1""\
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. .7;, or''',. ,'" ~.. .. ...i'(....tlll(to.~ltJ(V.... .1.;, ...103 Title 0/ Officer.
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Slale o{
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Counlv of
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Ih. unde"ign.d ol/le.r, pe"oll411v appea,ed
known 10 me (0' .alilfaclorilv proven) 10 b. Ih,plr.on
wilhin i..l",menl, and acknowledged Ihal
.0nl4in.rL
IN WITNESS IVIIEREOF, I IIc,cunl<> .el mv hand and oDlcial .eal.
who.. nom. .ub.erib.d 10 Ill.
.:eeul.d .am. fo, lh. purpo... Ih.reln
......................................................................................~
.............................-.....................................-.............
Till. of ODle.r,
t do hcrebv c.,lifv lhal th. p"elI. residcnce and comp/ele poll ol/lee add,e..
oflhe wilhin I14m.dgranlee.. 10 Villaga Lona. Nawville, PA 17241.
Novambar 16, J995
bOoK 131 p.\tr :),">5
................t..q:"...."............................................
All4mev for ...~............................."....."..."...."......"
.
FAX
V~I(' d
( II. ....., k:.. )
La Off' f ";,v:+i
w Ices 0
Charles E. Shields, III
6 Clouser Road
Mechanicsburg, PA 17055
Phone: 717/766-0209
FAX: 717/795-7473
DATE: I - 1& (/ g
TO: lJV .'\-J 1\ [ E SJ,AOE.. rye(
,
FROM: C\.,,) ~ SI\ll~&S I1J
I
NUMBER OF PAGES
(including this cover sheet): d-
CHARLES E. SHIELDS, III
A 7TORNEY.AT-LA W
6 CU:>USER ROAD
Co,"" olTriNIk twI C/o...r RtNlds
MECHANlCSBURO. PA 1705S
GEORGE M. HOUCK TELEPHONE (717) 766,0209
(I912-t99l) 15 eJ'Ui. ~S FAX (717) 79S.7473
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C!heryl.l)oI/~I'AIi, ~~~
KEITH E. BEAR,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v. 97-2687 CIVIL TERM
ARTHUR S. KECK and
PAULINE E. KECK,
Defendants PRIVATE CONDEMNATION
IN RE: APPOINTMENT OF BOARD
ORDER OF COURT
AND NOW, this 14th day of July, 1997, this
petition seeks the appointment of a Board of View provided by 36
P.S. 2731.
The Court appoints Charles E. Shields, Esquire,
Chairman of the Board; the Court appoints Eugene A. Hockensmith,
Registered Surveyor, a member and Edwin T. Fanus, the third
member of the Board.
By the Court,
~~
{}// : -
Ha old E. Sheely, P.J.
Wayne F. Shade, Esquire _ ('~ ,..,w.~l'j.. '1/15'/9'1.
Counsel for Plaintiff --u 1 .~.f.
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for at least seventy (70) years and there wa~ no indicmion that has ever had one. There is currently
no road, either public or private, which actually reaches the parcel. It apparently had infonnal
access to it via old logging trails at one time and it is possible that one could reach the pareel with
use of a tractor or other type of similar vehicle, Petitioner plans to marry and build a home on t~e
parcel but cannot obtain a building permit to do so unless he has clear recordable unobstructed legal
access to the parcel. (N, T, 9,10, II; See Pet. Exh. 3. Right of Way Survey by Eric L.
Diffenbaugh, Professional Land Surveyor).
5. Respondents are owners of three (3) parcels of land in Lower Frankford Township
which are more panicularly described in that certain deed recorded in the said Recorder's Office in
Deed Book "W," volume 17. page 52. (*N. B,: where no reference is made to Notes of Testimony
or to Exhibits, it should be presumed that the source of the statement is from public records of
which the Board of View is authorized to take judicial notice or that the source is the on site view
by the Board.)
6. One of the three (3) parcels of Respondents. of approximately four (4) acres, which is
separate from the parcel on which the Respondents' residence is built and which does not contain
any buildings or improvements, is traversed by a right of way, known as Russell Road. This road
as it crosses the parcel in question is approximately four hundred fifty (450) feet in length.
Respondents' residence is approximately three hundred (300) yards, through a wooded area, from
the roadway in question. This parcel is not burdened by any record mortgage, judgment or other
lien. (N, T. 17, 18,20,24,25; Pet. Exh. 4; Resp. Exh. I)
7, Russell Road is an existing private right of way which varies in width from twenty (20)
feet to fifty (50) feet and is approximately three thousand five hundred (3,500) feet in length from
from Bobcat Road to the lands of Andy Russell which serve as its northerly terminus. Bobcat
Road is a public road designated as Township Road 451, Russell Road passes through ten (10)
separately owned private parcels of land between Bobcat Road and the Petitioner's property,
Respondents' lands are included within the ten (10) said owners. That part which passes through
2
Respondents' said parcel is approximatley nine thousand (9.000) feet square which would be
approximately five (5%) of the square area of the parcel in question. (N. T, 12, 13, 18; Pet, Exh.
3),
8. The other nine (9) owners volunlarily executed n Declaration of Easement granting
Petitioner access to Bobcat Road. Five (5) of those nine (9) owners reside on their lands through
which the said Russell Road runs and use the road for ingress and egress to their homes on a daily
basis, (N. T. 13, 14, 15).
9. The parcel in question is already formally and of record burdened with the right of way
in favor of the other nine (9) owners of grounds along Russell Road. This is so because in
January of 1990, Respondents sued the other owners and sought a decree that those other owners
had no rights to use Russell Road, The Honorable Judge Bayley, by an opinion and order dated
July 30, 1991, found in favor of the other nine (9) owners and forever barred Respondents from
interfering with the use of Russell Road to and including the property of Andy Russell and Susan
Russell, his wife, (N. T, 18, 19; Pet, Exh, 5, Civil Complaint, 383 Civil 1990; Pet, Exh, 6,
Opinion and Order of Judge Bayley),
10. Petitioner seeks to have a perpetual easement for ingress and egress over the said
Russell Road as it passes through the said parcel of Respondents' for the purpose of pedestrian
and vehicular traffic and for the installation. maintenance, service and repair and replacement of
utilities to and from Bobcat Road. Petitioner is requesting a width of twenty (20) feet as is
currently being recognized and/or used on Russell Road where it passes through the pareel in
question. Utility access for electricity and telephone already follows Russell Road, Peititoner
anticipates no need for any other utilities. (N, T. 15, 27; Pet. Exh, 3).
II. Petitioner avers that the use of Russell Road would be the most convenient access to
his land. To open an entry to his land from Russell Road would merely require some excavation
and the slating of the ground for approximately one hundred two (102) feet. There are no trees or
other substantial obstacles in the way except for one old tree stump, (N, T. 15, 16),
3
12. Respondents bought their lands some years ago when they had three (3) small children
and wanted a quiet place with a stream so as to better raise their family and sellle down with a new
home. When they purchased the properly there were very few other residences around them.
Respondents built their own home and used mountain stone from another tract which they own
north of Russell Road. They transported this mountain stone by going over the mountain trails and
by using another road in the vicinity known as Ponderosa Road, However, since Respondents
transported the mountain stone and built their home, there has been considerable growth of trees
and the like in the area they traversed and logging operations in the area have since ceased. (N, T.
29,30).
13, Since the said Russells built their home at the northern terminus of Russell Road, there
has been a considerable increase in traffic in the area and this is especially so during hunting
season. Respondents no longer have the quiet and relaxing abode which they used to. It is
through their desire to try to maintain what is left of their peace and quiet that they oppose
Petitioner's proposed use of the right of way via Russell Road and not because they are ill.
disposed to Petitioner in any personal way. Respondents have no intention of selling any of their
parcels now or in the future. They aver that Petitioner should be given rights to use Ponderosa
Road and should use it instead,l (N. T, 30, 31, 32,36,39,40),
14. The Board of View had an on site inspection of Ponderosa Road at the view, It
appears to be a Township Road for at least pan of its distance but it is not clear where that status
ends on the ground. When going into the upper reaches of the road the Board had to walk a fair
distance on foot and so far as they could tell could only reach the boundary line of Petitioner's
parcel by walking through very rough, steep, and uneven terrain which would have required
1 It should be here noted that no one joined in any of the other interested parties along
Ponderosa Road so as to give them notice and opportunity to be heard a~ to whether their rights
were being infringed or as to their opinion as to where any proposed right of way should be
placed. It is therefore questionable whether the Board would have any power to grant a private
condemnation of part of Ponderosa Road under such circumstances in any event.
4
considerable moving of eanh and excavating. It would also require the removal of a fair number of
trees of some maturity. Ponderosa Road as, shown to the Board, traverses at least one family's
private driveway and comes within about twenty (20) feet of their dwelling house. (*N, B.: The
Board uses the term "as shown" because there was some confusion at the on site view as to which
roads were which in that Respondent's former counsel was leading the way for the Board in a
separate vehicle with Respondent and became confused and lost). Utility lines run through and/or
along Ponderosa Road as shown to the Board, at times apparently along the center of the cleared
areas and at other times off-center, It did not appear that the Ponderosa Road ran as a road all the
way to Petitoner's property. If it once did, it has been overgrown considerably since then so far as
the Board could see. The Board docs not believe Ponderosa Road as pointed out to them on site
would allow for any type of standard family vehicle, even with four wheel drive, to go the whole
way to Petitioner's property without some excavation and tree removal. (N, T, 22, 23, 24. 25,
31,32,34).
15. Petitioner, when purchasing his property, spoke to several of the owners of properties
along Ponderosa Road, Several said they would have no objection to Petitioner's using of
Ponderosa Road for a right of way. However, more than one-half (1/2) of the owners said that
they would object, (N. T, 20, 21).
16, On May 21, 1997, Petitioner petitioned for the Appointment of a Board of Viewers
pursuant to the Act of June 13, 1836, P. L, 551, Sections II, !.tl~, (36 P. S, s, 2731) as
amended,
17, In consideration of the Petition, Judge Harold E, Sheely appointed Eugene
Hockensmith, surveyor, Charles E. Shields, III, lawyer, and Edwin T. Fanus, layman, to serve
as viewers,
18, The said viewers were duly swom to perform their duties,
19, Pursuant to due and proper notice, the three (3) viewers, Petitioner and his wife to be.
Petitioner's counsel, Respondent, Arthur Keck, and Respondent's then counsel, Mallhew
5
Eshelman, viewed the premises on Monday, September 22. 1997 lit 1:30 P. M.
20. After due and proper notice to the panies. a hearing was held on the issues related to
whether a private road was a necessity on Monday, January 26, 1998, beginning at 9:30 A. M. in
the Cumberland County Court House, Jury Assembly Room. Fourth Floor, I Court House
Square, Carlisle, Pennsylvania. Both parties and their respective counsels were present.. as well as
the court stenographer.
21. At the hearing testimony and exhibits were presented.
22. Petitioner's land is landlocked and Petitioner has no legal means of ingress and egress
to his property from any existing publie road.
23, A private road condemnation is therefore necessary for Petitioner to use and enjoy his
property and such award should also include the rights to the use of the utility easements which
would accompany such a road under the current case law.
DISCUSSION,
The Board of View wishes to thank both counsel for their well-organized, well-ordered and
concise presentation of the pertinent evidence and points of law, Both counsel presented their
respective client's cases about as well as it could be done.Their jobs were so well performed that
we find it unfortunate that we cannot rule in favor of both parties herein.
The positions of the various parties can be easily summarized as follows:
Petitioner bought landlocked land knowing it was landlocked and takes the position that
this should not mailer as to whether he is entitled to a private road condemnation. He asserts that
since there is no legal record access to his parcel and since he did not create the landlocked status of
the parcel through any act of his own, he is entitled to a private roadway by condemnation, As to
where the road should be located, he asserts that the previously existing Russell Road is the most
convenient and common sense access available and that to force him to use Ponderosa Road would
entail great inconvenience and expense, He additionally points out that nine (9) of the ten (10)
owners along Russell Road, excepting only Respondents, have freely given him permission to use
6
Russell Road. He also argues that Ponderosa Road does not in fael run all the way to his parcel,
but even if it did, ilS use would be so inconvenient and expensive that it would not eliminate the
Board's authority to award a right of usage in Russell Road.
Respondent's main argument is not that Petitoner does not need some sort of legal access
but that he should not be permilled to go over Russell Road but should have to use Ponderosa
Road instead. Respondents' contentions are not based upon any animosity toward Petitioner but
upon their desire to retain what privacy and quiet they can in their home and its environs. They
argue that increased traffic also decreases the value of their property and further are afraid that
increased use of Russell Road will eventually lead to greater development in the immediate area,
We think it is obvious that Petitioner is entitled to a private road access by condemnation
according to all of the case law which we have seen on this subject. This is so even though he was
aware when he bought the parcel that it was landlocked, See, e, g., Graff v, Scanlan, 673 A.2d
1028, 1035 (Pa. Cmwlth, 1996).
Also, our view of the proposed alternative route, Ponderosa Road, did I)ot show us that it
actually traverses or contacts Petitioner's property. Even if it did, that, in and of itself, would not
be a sufficient reason to deny the use of Russell Road to Petitioner. See, e. g" Appeal of Zeafla,
592 A,2d 343 (Pa. Super., 1991). Rather, the Board must take into account, inter alia, when
determining where to place the road/access route: the shortest distance, the best ground, least injury
to private property, and the desire of the Petitoner, When properly considering and weighing all of
the above factors, the Board feels compelled to award a route over the already existing and being
used Russell Road.
The Board is composed of individuals of sufficient age to readily commiserate with
Respondents as to their desires for peace and quiet. It would be fair to say that other than
technological advances of great magnitude, there has been some considerable debate about quite a
few examples of "progress" during our lifetimes and those of Respondents, The Board feels it
should point out that William Penn's policy was to encourage the selllement and development of
7
his Province and the earliest road laws were designed with this in mind. This has been a consistent
policy of the Commonwealth as well since the era of Independence from Great Britain. See, e. g.,
IN RE: PRIV ATE ROAD IN LOWER MIFFLIN TOWNSHIP, CUMBERLAND COUNTY,
PENNSYLVANIA, REPORT OF THE BOARD OF VIEW, IN THE COURT OF COMMON
PLEAS, CUMBERLAND COUNTY, NO. 1802 CIVIL 1987, CIVIL ACTION - LAW, pp. 10-
37, esp. p, 25. Therefore, there is little that can be done to stem the tide of "progress" and
development even when a property is landlocked. The Board must therefore carry out its duty as
best it can and can consider only those factors which the law allows.
CONCLUSIONS OF LAW
I. Petitioner has met his burden of proving that he needs a right of way for ingress and
egress.
2. The Board has tried to choose a right of way location by duly considering: the shortest
distance, best ground, least injury to private parties, and desire of the Petitioner. 36 p, S, s. 1785
(Purdon's), The description and location of the proposed right of way follows:
DESCRIPTION AND LOCATION OF RIGHT OF W A Y
The description and location of the right of way is as follows:
From a point on the boundary line between lands now or formerly of Asper
Russell, Jr. and lands now or formerly of Arthur Keck as shown on the right-of-way
survey of Eric L. Diffenbaugh for Keith Bear, dated April 2, 1997; thence through the
lands now or formerly of Arthur Keck over an area twenty (20) feet in width centered upon
a line over the following courses and distances; South 34 degrees 49 minutes 00 seconds
East, 97,86 feet; South 66 degrees 51 minutes 00 seconds East, 244.50 feet; South 42
degrees 10 minutes 00 seconds East, 119.00 feet; more or less, to a point in the boundary
line between lands now or formerly of Thomas Russell and now or formerly of Arthur
Keck.
A reduced size copy of Diffenbaugh's Survey for Bear (Plaintiff Exh. 3) is attached hereto.
8
..
'.
b. Susan D. Russell, Executrix under the Last Will and Testament of Asper H, Russell,
Sr., Deceased, Late of the Township of Lower Frankford, County of Cumbcrland,
Commonwealth of Pennsylvania, The said Susan D, Russsell has a mailing address of R. D. #3,
Box 355-G, Carlisle, Pennsylvania 17013.
c, Robert Mooney resides in the Township of Lowet Frankford, County of Cumberland,
Commonwealth of Pennsylvania, and has a mailing address of R. D. #3, Box 455-C, Carlisle,
Pennsylvania 17013.
d. Asper H. Russell Jr. and Velma R. Russell reside in the Township of Lower
Frankford, County of Cumberland, Commonwealth of Pennsylvania, and has a mailing address of
R. D. #3, Box 455-F, Carlisle, Pennsylvania 17013.
e, Marlin E. Russell and Virginia L. Russell reside in the Township of Lower Frankford,
County of Cumberland, Commonwealth of Pennsylvania, and has a mailing address of 322 Bolton
Avenue, Carlisle, Pennsylvania 17013.
f. Timothy D. Lush and Janet Kutchman, a, k. a. Janet Lush, reside in the Township of
Lower Frankford, County of Cumberland, Commonwealth of Pennsylvania, and has a mailing
address of R. D, #3, Box 455-H, Carlisle, Pennsylvania 17013,
g. Carrie E. Knisley resides in the Township of Lower Frankford, County of Cumberland,
Commonwealth of Pennsylvania, and has a mailing address of R. D. #3, Box 455-E, Carlisle,
Pennsylvania 17013.
3. Plaintiff owns in fee simple and possesses all the real property known as R. D. #3, Box
456, Carlisle, Pennsylvania 17013, situated in the Township of Lower Frankford, County of
Cumberland, Commonwealth of Pennsylvania, (the Kcck Property) and more fully described in
Exhibit "A" allaehed hereto and incorporated herein. TIle abstract of Plaintiffs fee simple title is
set forth in Exhibit "B", allached hereto and incorporated herein,
4. By deed dated May 23, 1975 and recorded May 27, 1975 in the Offiee of the Recorder of
Deeds in and for Cumberland County at Carlisle, Pennsylvania in Deed Book "B", Volume 26,
Page 609, Asper II. Russell, Sr. and Edna M. Russell, husband and wife, and Paul L. Sheriff
.
and Ruth L. Sheriff, husband and wife, acquired title to approximately eight (8) acres of land
adjoining the Keck property to the North (the Russell/Sheriff Properly), A copy of said deed is
allached as Exhibit "C".
5. At the time of purchase by the Russells and the Sheriffs, no road for automobile travel,
paved or unpaved, crossed the Keck Property leading to the Russell/Sheriff property. In fact, a
dirt road existed which started at Township Road T-45I, known as Bobcat Road, ~rossing land of
Catherine Jumper and other land owned by Asper H, Russel1 and Edna M. Russel1, husband and
wife, and then entered the Russell/Sheriff property. This dirt road was used for access to the
Russel1/Sheriff Property.
6, On March I, 1977, Asper H. Russell, Sr. and Paul Sheriff recorded a plan purporting to
subdivide the Russell/Sheriff property, which plan is recorded in the Office of the Recorder of
Deeds in and for Cumberland County at Carlisle, Pennsylvania in Plan Book 29, Page 127. A
reduced copy of said plan is allached hereto as Exhibit "D".
7. The above-mentioned plan was not approved by the Township Supervisors or Township
Planning Commission as required by Township ordinance .and was, therefore, improperly
recorded.
8. The above-mentioned plan shows a twenty (20) foot right of way beginning at Township
Road T-451, crossing land of Catherine Jumper and Thomas L. Russel1, entering the Keck
Property and fmally entering the Russell/Sheriff property. At the time of recording this plan no
twenty (20) foot right of way existed over the Keck Property.
9, At no time did Plaintiffs agree to grant, sel1, or convey to anyone a right of way over any
portion of the Keck Property.
10. At some time after 1981, an unpaved road was put in over the Keck property by CUlling
down of trees, laying down slate, and CUlling into the side of the hill. At no time did Plaintiffs
give permission for the cutting of any trees, the laying down of slate. or the CUlling into the hill.
.
11. Defendants are owners and/or occupiers of land which fonnerly had aceess to the public
road by means of the private road described in paragraph 5 above, The land owned by Defendants
is as follows:
a. Defendant Andy R. Russell is the owner of a tract of land containing 11,403 acres,
more or less, by virtue of a deed from Dorothy E. Heishman anq Raymond H. Heishman, her
husband, recorded in the Office of the Recorder of Deeds in and for Cumberland County at
Carlisle, Pennsylvania in Deed Book "M", Volume 25, Page 1053.
b. Defendant Robert Mooney is the owner of a mobile home with a mailing address of
R. D, #3, Box 455-C, Carlisle, which is located on land having access to the public road as
described in paragraph 5 above.
c. Defendant Susan D, Russell, Executrix under the Last Will and Testament of Asper H.
Russell, Sr. is the fiduciary responsible for the Estate of Asper H. Russell, Sr, which Estate
includes a tract of land containing approximately 2.008 acres, more or less, by virtue of a deed
from Paul L. Sheriff and Ruth L. Sheriff recorded in the Officc of the Recorder of Deeds in and for
Cumberland County at Carlisle, Pennsylvania in Deed Book "KI', Volume 27, Page 814 to Asper
H. Russell and Edna M. Russell, his wife. Being so thereof seized, the said Edna M. Russell
died, thereby vesting the entire property in her husband, Asper H. Russell, Sr., by operation of
law. And the said Asper H. Russell, Sr. died September 5, 1989.
d. Defendants Asper H, Russell, Jr. and Velma R. Russell are the owners of a traet of
land containing approximately 9 acres, 124 perches, more or less, by virtue of a deed from Nathan
A, Russell, single man, recorded in the Office of the Recorder of Deeds in and for Cumberland
County at Carlisle, Pennsylvania in Deed Book "Q" , Volume 24, Page 121.
e. Defendants Marlin E. Russell and Virginia L. Russell are the owners of a tract of land
containing approximately 11.403 acres, more or less, by virtue of a deed from Dorothy E,
Heishman and Raymond H, Heishman, her husband, recorded in the Office of the Recorder of
Deeds in and for Cumberland County at Carlisle, Pennsylvania in Deed Book "M", Volume 25,
Page 1 056.
.
..
.,'
f. Defendant Carrie E, Knisely is the owner of a tract of land containing approximately
2,003 acres, more or less, by virtue of a deed from Earl L. Knisely and Margaret D, Knisely, his
wife, and Gloria Mooney, recorded in the Office of the Recorder of Deeds in and for Cumberland
County at Carlisle, Pennsylvania in Deed Book "N", Volume 28, Page 444, to Wayne 0, Knisely
and Carrie E. Knisely, his wife. Being so thereof seized, Wayne O. Knisely died September 18,
1981, thus vesting the entire property in Defendant Carrie E. Knisely by operation oflaw,
g. Defendants Timothy D. Lush and Janet Kutchman, a. k. a. Janet Lush, are the
owners of a tract of land containing approximately 4.204 acres, more or less, by virtue of a deed
from Asper H. Russell and Edna M. Russell, his wife, and Paul L, Sheriff and Ruth L. Sheriff,
his wife, recorded in the Office of the Recorder of Deeds in and for Cumberland County at
Carlisle, Pennsylvania in Deed Book "1", Volume 27, Page 557.
12. Defendants, and each of them, claim an interest and estate in said property of Plaintiffs
adverse to Plaintiffs, Specifically, Defendants claim a right to ingress, egress, and regress over a
portion of Plaintiffs land for the purpose of accessing land they own or occupy north of Plaintiffs
property as set forth above, Defendants' claims are without any right whatever, and Defendants
have no right, estate, title, lien, or interest in or to the property, or any pan thereof, and have no
right to use Plaintiffs said property for a means of ingress, egress, and regress or for any reason
whatsoever.
13. Defendants, and each of them, claim some eSUlte, right, title,lien, or interest in or to said
property adverse to Plaintiffs title, and said claim or claims constitute a cloud on Plaintiffs title to
said property,
WHEREFORE, Plaintiffs pray:
1. That Defendants, and each of them, and all persons claiming under them, be required to
set forth tile nature of their claims to said real property;
2. That all adverse claims to said real property be determined by a Decree of your Honorable
Court;
.
ALL those three certain tracts of land situate in Frankford
Township, Cumbel'land County, Pennsylvania, bounded and described
as follows, to wit:
TRACT NO.1. BEGINNING at a black oak, a comer of land of W. H.
Riggleman and Wm.H. Thumma and others, thence bv said lands North
five and one-half (5~) .degrees r.ast eighty-five' (85) perches to a
stone heap on or near the line between the counties of Cumberland
and Perry; thence by said county line, estimate course North ei~hty-
five (851 degrees East one hundred (100) perches more or less to
stone ~eap at or near county line; thence by other land of the .~rant-
or South' fourteen (14) degrees iast sixtv-five (05) perches to a
stone heap at the ~oot of the "steep" of the North Mountain; thence
bv lands of Jno. Bear, Geo. Keiser and others South seventy-six (76)
degrees West one hundred thirty (130) perches to the black oak, the
place of beginning, .containing fifty-four (54) acres more or less.
IT B~ING the same tract of land which Samuel A.
Maud M. Shambau~h, his wife, by their deed dated the
Au~ust, 1944, and duly recorded in the Office of the
Deeds in and for Cumberland County, Pennsylvania, in
Vol. , Page , granted and conveyed to ::.dward
Shambau~h and
20th dav of
Recorder of
Deed Book "
Anthony.
"
,
TRACT NO. 2. B~GINNING at a stone at the public road; thence by
land of the widow Barrick North 4 3/4 de~rees East, 50 perches to a
hickory; thence North 11 1/2 de~rees ~ast, 19.2 perches to a post;
thence by land of John Doner, South 87 de~rees ~st, 44 perches to a
post; thence by land of Richard Walker, South 4 de~rees West, 20
perches to a chestnutj thence by land of Daniel Green, South 24 3/4
de~r~a5-We5t, 54 perches to a white oak; thence by the public road,
'North84 1/4,. de~rees, West 27 perches to the place of beginning.
Co~tairi1~~ seven~een aerea and six perc~es. . "
TRACT NO. 3. BEGINNING at a stone pile corner of Jacob Nickey's
land; thence by same South 87 de~reea 6ast, 43 1/2 perches to a post;
thence by land of Richard Walker, South 4 1/2 d'Rrees West, 15 perch-
es to a stone; thence by land formerly of Lydia g. Walker, deceasU\
~orth 87 d.gre~e West, 44 perches to a poet; thence by land of
North 12 degrees East, 15 1/2 perches to
the place of beginning. Containing four acre~.and seventeen perches.
. . . "
. .
EXHIBIT "1\"
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383 CIVIL 1990
Plaintiffs instituted this suit to quiet title over an
approximate 450 foot portion of a road running through a stand of
trees on their property. The road starts at Bobcat Road south of
plaintiffs' propcrty, thcn continues through the properties of
Heishman and Barrick to a point at plaintiffs' property and the
property of Thomas Russell.3 It cont~nues through the Russell
property for 280 feet where it enters plaintiffs' property and
continues to a point at the southwest corner of the property of
defendants, Asper H. and Velma R. Russell, Jr. The road then'
continues northeast through the Asper Russell property next to
properties to the south of defendants Carrie E. Knisely, Susan D.
Russell, and Timothy and Janet Lush.4 It then continues through
the Lush property to the property of defendant Marlin Russell to
the east. From Bobcat road through the Lush property, the road
is approximately three-fourths of a mile. The road also provides
access to the property of defendant Andy Russell that is further
to the east of Marlin Russell. This road is the sole existing
access from Bobcat Road to the properties of all defendants as
well as to the property of John Gayman that is northeast of the
Asper and Velma Russell property and north of the property of
3 See Plaintiffs' Exhibit 1 attached for reierence to the
location of all properties described herein. Directional
markings have been placed on the copy attached to this opinion.
4 Susan D. Russell is named as a
as executrix of Asper H. Russell, Sr.
property individually.
defendant in her capacity
She now owns decedent's
-2-
. .
.
383 CIVIL 1990
Marlin RUSGell.5
Defendants filed an answer, new matter and counterclaim to
plaintiffs' cUlRplalnt. They Illdllltdlll i;ill~Y iaavt: ClII t:aserllt:llt by
implication and an easement by prescription over the road through
plaintiffs' property. They further maintain plaintiffs may not
.
bar their use of the road under the doctrine of laches. In the
alternative, they seek an order to establish a private road over
the contested right-of-way on plaintiffs' property. After the
pleadings were closed, discovery completed, and the case was
listed for trial, plaintiffs discontinued the action without
leave of court. Defendants then obtained a rule to sbow cause
why the discontinuance should not be stricken with an allowance
for them to proceed. The issue was briefed and argued, after
which the rule was made absolute. A bench trial was held on July
3, 1991, and the case is ready for decision.6
The nine acre tract now owned by Asper and Velma Russell,
Jr., east of plaintiffs' property, was purchased in 1972. A
hunting cabin was constructed on the property and it was
converted into a home in 1976. The Russells have always used the
subject road as access to their property even though, in 1972,
5 John Gayman was not named as a defendant. Robert Mooney
was named as a defendant; however, he owns no property subject to
this quiet title action and did not appear. No evidence was
presented by any party regarding this defendant. The order
entered herein does not apply to him and we have removed his name
from the caption of the case.
6 Pursuant to Pennsylvania Rule of Civil Procedure
106l(b) (2), defendants (counterclaim-plaintiffs), seek to
establish an "interest in land" in this case. See Gentile v.
Bander, No.2, 13 Ches. Co. Rep. 432 (1965). -
-3-
. ,
383 CIVIL 1990
plaintiffs told them they could not use the road. At that time,
plaintiffs instituted suit against the Russells before a District
Justice. At the scheduled hearing, the case was dismissed. The
Russells,have, with the knowledge of plaintiffs, maintained and
improved the road since 1972.
The tracts of Knisely, Susan Russell, and Lush to the south
of the nine acre tract of Asper Russell, Jr., were all part of an
eight acre tract previously owned by Asper Russell; Sr., and Paul
L. Sheriff. That eight acre tract was subdivided into three
tracts in a plan approved by the Cumberland County Planning
Commission on December 21, 1976, and recorded in the Office of
the Recorder of Deeds on March 1, 1977. These tracts are
accessed by the right-of-way from Bobcat Road as depicted on the
plan. The in-laws of defendant, Carrie Knisely, purchased two
acres in the subdivision in 1976, that was transferred to Carrie
and her husband in 1979; two acres were conveyed to Asper H.
Russell, Sr., individually, in 1977, (the tract now owned by
Susan D. Russell); and four acres were conveyed to Timothy and
Janet Lush in 1977. Residences were built on all of these
properties. The eight acre tract that was subdivided was owned
by Charles Sipe between 1949 and 1963. That tract had previously
been owned by Charles Sipe's father, Elmer Sipe, since 1918. The
nine acre tract now owned by Asper Russell, to the north of the
eight acre tract, was also owned by Elmer Sipe along with a
twenty-three acre tract to the east of the eight acre tract. The
twenty~three acre tract was divided into two tracts, one
purchased by Marlin Russell in 1974, on which there is a hunting
-4-
383 CIVIL 1990
cabin, and the other purchased by Andy Russell in 1974, on which
there is a home. All defendants have participated in repairing
and maintaining the sUbject road since they purchased their
properties.
Charles Sipe testified that he and his father before him
used the subject road, the location of. which has never changed,
as access to their lands to or from Bobcat Road. The Sipe's used
the road with a horse and wagon to obtain firewood. Charles Sipe
later improved it in the early 1940's when he began hauling wood
with a truck. The Sipes never obtained permission from anyone to
use the road. When Charles Sipe hauled wood, which he also cut
on the land of John Gayman, plaintiffs were aware he used the
road. Charles Sipe testified the road was the only access to the
land owned by his father and the eight acre tract he later owned.
He stated there was a house located on the land now owned by
Thomas Russell, formerly Nathan Russell, that borders on the
south of the property of plaintiffs and the eight acre tract he
used to own. A separate road branches off the subject road and
runs to that house, however, that road never extended past the
house to Sipe's eight acre tract.
Between 1902 and 1915, what is now the seventeen acre and
four acre tracts of plaintiffs, the nine acre tract now owned by
Asper and Velma Russell, Jr., and the three tracts now owned by
Lush, Susan Russell, and Knisely making up the eight acres
previously owned by the Sipes, were all in the common ownership
of Mary Mentzer. She obtained title to the eight acre tract in
1895; the nine acre tract in 1900; and the two tracts now owned
-5-
383 CIVIL 1990
by plaintiffs in 1902. In 1915, Mary Mentzcr convcycd thc
seventcen and four acrc tracts now owncd by plaintiffs, lcaving
the subject road as thc only acccss from Bobcat Road to the other
properties she retained.
Contrary to the testimony of Charles Sipe, plaintiffs
maintain the road that branches off the subject road and runs to
the house of Thomas Russell, formerly Nathan Russell, used to
continue beyond that house to the eight acre tract formerly owned
by Charles Sipe and his father. There is no such road now in .
existence beyond Thomas Russell's house. There is no evidence
that such a road in any form ever existed between 1902 and 1915.
Clearly, there is no riqht of access to the properties of
defendants nor was there such a right in their predecessors in
title over the separate section of road that runs from the
.subject road to what is now the house of Thomas Russell, much
less beyond the house where there is no road today.
In 1987, plaintiffs wrote to the Lushes objecting to their
using the sUbject road to access the residence they built in
1977. In '1989, plaintiffs blocked the road with logs, thus
denying all defendants access to their properties. They removed
the logs upon being informed by the Pennsylvania State police
that access to reach the residences of defendants had to remain
open for emergency vehicles. Plaintiffs then instituted this
quiet title action on January 26, 1990.
-6-
383 CIVIL 1990
EASEMENT BY IMPLICATION
1i~~l:."'.d~Dctld'ririts except Harlln ItU""IlJ..,1_nd.,.AoO!l'--
.1l!'....eJ' have oo;tal>' i "hl>n-t.he.k-c-iyhL Lo-use...t.he...sllh:;jp"~..road - on'-
t-he-pr.oper-ty-of-pl'aini:'i~y-an-\Qasemen t -b.:i..JlIlp14a a t.ion . Wher e
a servient estate (plaintiffs' tract conveyed by Mary Mentzer t~
their predecessors in title in 1915), abutts a public roadway
(Township Route 451-Bobcat ~oad), and the only access to the
dominent estate (the remaining nine acre and eight acre tracts
owned by Mary Mentzer), is by an easement 9ver the servient
estate (now plaintiffs' property), and where the properties were
originally held jointly (all of these properties were owned by
Mary Mentzer from 1902 until 19l5 when she conveyed what is now
plaintiffs' tracts), an easement to the remaining tracts owned by
Mary Mentzer arose by necessity. Tomlinson v. Jones, 384 Pa.
Superior Ct. 176 (1989); Owens v. Holzheid, 335 Pa. Superior Ct.
231 (l984); Ladner On Conveyencinq, Section 11.02(e) (Fourth
Edition 1979). All defendants, except Marlin Russell and Andy
Russell, own land Mary Mentzer retained after she sold the tracts
in 1915, with frontage on Bobcat Road, to plaintiffs'
predecessors in title. At the time of that sale, the only access
to the remaining servient estate of Mary Mentzer from Bobcat Road
was over the subject road that ran for approximately 450 feet
through the land Mentzer sold to plaintiffs' predecessors in
title.
Plaintiffs' reliance on Fekete v. Burns, 98 P.L.J. 443
(l950), and Hassler v. Mummert, 85 York L.J. 16 (1971), to
support the position set forth in their brief that "when one has
-7-
383 CIVIL 1990
the use of a roadway running around the property which was part
of the chain, the casement by necessity docs not exist," is
misplaced. In pekte, there was no casement by implication
because plaintiffs had access to their property by means of a
road other than a road upon which a claim of necessity rested.
Although the other road was inconvenient, it was well-used and
led to plaintiffs' property. A right-of-way by, necessity never
exists as a mere matter of convenience. Stein v. Bell Telephone
Company, 301 Pa. 107 (l930). In Hassler, plaintiffs also failed
to show necessity to establish a right-of-way by implication
because there was another means of access to their property. In
the case sub jUdice, the fact that the subject road runs from
Bobcat Road through the land of Heishman, Barrick, and Thomas
Russell before it continues through the land of plaintiffs, does
not defeat defendants easement by implication because, when Mary
Mentzer sold the tract to plaintiffs' predecessor in title, the
only access to her remaining land from Bobcat Road was over the
subject road. The necessity of the access over the subject road
to the remaining lands of Mary Mentzer, that otherwise would have
been landlocked, would be no different if the road over
plaintiffs' land ran directly to Bobcat Road rather than through
their land to the land of others through which it continues to
Bobcat Road.7
7 Neither Thomas Russell, Barrick, nor Heishman contest the
right of access by defendants over the subject road.
-8-
.
.
.
383 CIVIL 1990
PRESCRIPTIVE P~SEHENT
Next, we hold all dcfcndants havc a prcscriptive cascmcnt
ovcr thc portion of the subjcct road on plaintiffs' land. To
establish a prescriptivc easement requircs that a use be open,
notorious, continuous, uninterrupted, adversc, and hostile for
twenty-one years. Keefer v. Jones, 467 Pa. 544, (1976);
Waltimver v. Smith, 383 Pa. Superior Ct. 291 (1989). As to the
continuous nature of such a use, in Keefer the Supreme Court
stated: "[Tlhe evidence need not show a constant use in order to
establish continuity; rather, continuity is established if the
evidence shows a subtle course of conduct indicating an attitude
of mind on the part of the user or users that the use is the
exercise of a property right."
Clearly, defendants have established all of the elements for
a prescriptive easement. Nevertheless, plaintiffs maintain a
prescriptive easement is barred over the 450 feet of the road
that runs through woodland on their property by virtue of the Act
of l8s0, 68 P.S. S 411 (Purdon Supp. 1991).8 The Act provides:
No right of way shall be hereafter acquired by user, where
such way passes through unenclosed woodland; but on clearing
such woodland, the owner or owners thereof shall be at
liberty to enclose the same, as if no such way had been used
through the same before such clearing or enclosure.
8 The Act was amended in 1981. It does not bar an easement
by implication. In Tomlinson v. Jones, 384 Pa. Superior Ct. 176
(1989), the superior Court stated:
Given the statute's apparent purpose to protect woodland
property owners against unknown and undesired encroachment
upon their property rights, we find that this statute has no
applicability for an easement that has ariscn by implicaton
or necessity.
-9-
383 CIVIL 1990
Wc find as a fact, that sincc 1962, plaintiffs' propcrty has
not rctaincd thc charactcr of uncncloscd woodland. In 1962,
plaintiffs moved into a rcsidcnce they constructed on their
property and thereafter, operated a shoe repair business out of
the residence. Plaintiffs acknowledged the approximatc 450 foot
portion of the road that runs through a stand of trees on their
residential and business property can bc seen from their house
when leaves are off the trees. In Humberston v. Humbert, 267 Pa.
Superior Ct. 5lB (1979), the Superior Court stated: "the
character of the land itself, is determinative of the application
of the Act of lB50." As noted in Humberston, the character of
land can change. The character of plaintiffs' land changed in
1962 in a manner that cannot be construed as constituting
unenclosed woodland. Defendants use of the road has been well
known to plaintiffs. Plaintiffs' reliance on Kurtz v. Hoke, 172
Pa. 165 (lB96), and Trexler v. Lutz, IBO Pa. Superior Ct. 24
(1955), is misplaced. In those cases, the issue regarding the
Act of 1850, that the courts held barred a prescriptive easement,
involved access through woodland on properties, a portion of
which had been improved only to the extent of clearing fields for
the planting of crops.
LACHES
Lastly, on the unique facts of this case, we hold plaintiffs
are barred by laches from denying all defendants access to their
properties over the subject road. In Zimnisky v. Zimnisky, 210
Pa. superior Ct. 266 (1967), the Superior Court stated: "[w]e
hold that the defense of laches is applicable to actions to quiet
-10-
~
383 CIVIL 1990
title." From 1972, when Asper Russell built a residence on his
property, and thereafter in the late 1970's, when the other
detendants built residences on their properties, (there is a
hunting cabin on the property of Marlin Russell) plaintiffs have
known defendants utilize the road as the only access to those
residences. After initially trying to prevent Asper Russell,
Jr., access to the road by filing a complaint before a District
Justice in 1972, which was dismissed, plaintiffs did nothing
until 1987, when they told the Lushes they could not use the
road. When the Lushes continued using the road, plaintiffs did
nothing until 1989, when they placed logs across the road. After
they removed those logs at the behest of the State POlice,
plaintiffs. instituted this suit on January 26, 1990.9
The application of laches depends on whether, under the
circumstances of a particular case, the complaining party is
guilty of want of due diligence in failing to act to another's
prejudice. Estate of Marushak, 488 Pa. 607 (1980). If
plaintiffs were successful in this suit, the hunting cabin of
Marlin Russell and the residences of the other defendants
constructed in the 1970's with the knowledge of plaintiffs that
the subject road was the sole access, would be landlocked. It is
clear on the face of this record, that the position and rights of
defendants have been prejudiced by the length of time and
inexcusable delay in plaintiffs instituting this suit, and it
would be unjust to permit the relief sought by plaintiffs. See
9 Ironically, they then discontinued the case without leave
of court on April ll, 1991.
-11-
'.
-,
KEITH E. BEAR,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYL VANIA
.
vs.
NO. 97-2687 CIVIL TERM
CIVIL ACTION - LAW
ARTHUR S, KECK and
PAULINE E. KECK,
Defendants
PRIVATE CONDEMNATION
REPORT OF BOARD OF VIEW
TO THE HONORABLE JUDGES OF THE SAID COURT:
The Board of View, consisting of Eugene Hockensmith, surveyor, Charles E. Shields,
III, lawyer, and Edwin T, Fanus, layman, respectfully submit their report as follows:
COMBINED CHRONOLOGICAL FINDINGS OF FACT
AND PROCEDURAL HISTORY
I. The Petitioner is Keith E. Bear, adult individual, currently residing at 10 Village Lane,
Newville (Bloserville), Cumberland County, Pennsylvania.
2. The Respondents are Arthur S, Keck and Pauline E. Keek, his wife, adult individuals,
currently residing at45 Bobcat Road, Carlisle, (Lower Frankford Township), Cumberland
County, Pennsylvania.
3, Petitioner is an owner of a parcel of land in Lower Frankford Township, Cumberland
County, Pennsylvania, more particularly described in a deed of grant and conveyance into him
from Frank E, Mackey and Margaret G. Mackey, his wife, dated November 18, 1995, and
recorded in the office of the Recorder of Deeds in and for Cumberland County, Pennsylvania on
November 20, 1995 in Deed Book No. 131, page 554, (See Pet. Exh, I).
4, Said parcel of land owned by Petitioner contains approximately eleven (II) acres. more
or less, and does not abut any public road, It has not had any record legal access to a public road
for at least seventy (70) years and there Wll~ no indication that has ever had one. There is currently
no road, either public or private, which actually reaches the parcel. It apparently had infomlal
access to it via old logging trails at one time and it is possible that one could reach the pareel with
use of a tractor or other type of similar vehicle, Petitioner plans to marry and build a home on the
parcel but cannot obtain a building permit to do so unless he has clear recordable unobstructed legal
access to the parcel. (N. T, 9, 10, II; See Pet. Exh, 3. Right of Way Survey by Eric L,
Diffenbaugh, Professional Land Surveyor).
5, Respondents are owners of three (3) parcels of land in Lower Frankford Township
which are more panicularly described in that certain deed recorded in the said Recorder's Office in
Deed Book "W," volume 17, page 52, (*N. B,: where no reference is made to Notes of Testimony
or to Exhibits, it should be presumed that the source of the statement is from public records of
which the Board of View is authorized to take judicial notice or that the source is the on site view
by the Board,)
6, One of the three (3) parcels of Respondents, of approximately four (4) acres, which is
separate from the parcel on which the Respondents' residence is built and which does not contain
any buildings or improvements, is traversed by a right of way, known as Russell Road, This road
as it crosses the parcel in question is approximately four hundred fifty (450) feet in length.
Respondents' residence is approximately three hundred (300) yards, through a wooded area, from
the roadway in question. This parcel is not burdened by any record mortgage, judgment or other
lien. (N. T. 17, 18,20,24,25; Pet. Exh. 4; Resp, Exh. I)
7. Russell Road is an existing private right of way which varies in width from twenty (20)
feet to fifty (50) feet and is approximately three thousand five hundred (3,500) feet in length from
from Bobeat Road to the lands of Andy Russell which serve as its northerly terminus. Bobcat
Road is a public road designated as Township Road 451. Russell Road passes through ten (10)
separately owned private parcels of land between Bobeat Road and the Petitioner's property.
Respondents' lands are included within the ten ( 10) said owners. That part which pa~ses through
2
Respondents' said parcel is approximatlcy nine thousand (9,000) feet square which would be
approximately five (5%) of the square area of the parcel in question. (N, T, 12, 13, 18: Pet. Exh,
3),
8. The other nine (9) owners voluntarily executed a Declaration of E;L~ement granting
Petitioner access to Bobcat Road. Five (5) of those nine (9) owners reside on their lands through
which the said Russell Road runs and use the road for ingress and egress to their homes on a daily
basis, (N. T. 13, 14, 15).
9. The parcel in question is already formally and of record burdened with the right of way
in favor of the other nine (9) owners of grounds along Russell Road, This is so because in
January of 1990, Respondents sued the other owners and sought a decree that those other owners
had no rights to use Russell Road, The Honorable Judge Bayley, by an opinion and order dated
July 30, 1991, found in favor of the other nine (9) owners and forever barred Respondents from
interfering with the use of Russell Road to and including the property of Andy Russell and Susan
Russell, his wife. (N. T, 18, 19: Pet. Exh. 5, Civil Complaint, 383 Civil 1990; Pet. Exh. 6,
Opinion and Order of Judge Bayley),
10, Petitioner seeks to have a perpetual easement for ingress and egress over the said
Russell Road as it passes through the said parcel of Respondents' for the purpose of pedestrian
and vehicular traffic and for the installation, maintenance, service and repair and replacement of
utilities to and from Bobcat Road, Petitioner is requesting a width of twenty (20) feet as is
currently being recognized and/or used on Russell Road where it passes through the parcel in
question. Utility access for electricity and telephone already follows Russell Road, Peititoner
anticipates no need for any other utilities, (N. T, 15,27: Pet. Exh, 3),
11, Petitioner avers that the use of Russell Road would be the most convenient access to
his land. To open an entry to his land from Russell Road would merely require some excavation
and the slating of the ground for approximately one hundred two (102) feet. There are no trees or
other substantial obstacles in the way except for one old tree stump. (N, T. 15, 16),
3
12. Respondents bought their hmds some years ago when they had three (3) small children
and wanted a quiet place with a stream so as to beller raise their family and settle down with a new
home. When they purcha~ed the property there were very few other residences around them.
Respondents built their own home and used mountain stone from another traet which they own
north of Russell Road, They tmnsported this mountain stone by going over the mountain trails and
by using another road in the vieinity known us Ponderosa Road. However, since Respondents
tmnsported the mountain stone and built their home, there ha~ been considerable growth of trees
and the like in the area they traversed and logging operations in the area have since ceased, (N, T.
29,30),
13. Since the said Russells built their home at the northern terminus of Russell Road, there
has been a considerable increase in traffie in the area and this is especially so during hunting
season, Respondents no longer have the quiet and relaxing abode which they used to. It is
through their desire to try to maintain what is left of their peace and quiet that they oppose
Petitioner's proposed use of the right of way via Russell Road and not because they are ill-
disposed to Petitioner in any personal way, Respondents have no intention of selling any of their
parcels now or in the future. They aver that Petitioner should be given rights to use Ponderosa
Road and should use it instead,l (N. T. 30, 31, 32, 36, 39, 40).
14. The Board of View had an on site inspection of Ponderosa Road at the view. It
appears to be a Township Road for at least part of its distance but it is not clear where that status
ends on the ground. When going into the upper reaches of the road the Board had to walk a fair
distance on foot and so far a~ they could tell could only reaeh the boundary line of Petitioner's
pareel by walking through very rough, steep, and uneven terrain which would have required
1 It should be here noted that no one joined in any of the other interested parties along
Ponderosa Road so as to give them notice and opportunity to be heard a~ to whether their rights
were being infringed or as to their opinion as to where any proposed right of way should be
placed. It is therefore questionable whether the Board would have any power to grant a private
condemnation of part of Ponderosa Road under such circumstances in any event.
4
considerable moving of earth and excavating. It would also require the removal of a fair number of
trees of some maturity. Ponderosa Road as, shown to the Board, traverses at least one family's
private driveway and comes within about twenty (20) feet of their dwelling house. (*N. B.: The
Board uses the ternl "as shown" because there Wll~ some confusion at the on site view ll~ to which
roads were which in that Respondent's former counsel was leading the way forthe Board in a
separate vehicle with Respondent and became confused and lost). Utility lines run through and/or
along Ponderosa Road as shown to the Board, at times apparently along the center of the eleared
areas and at other times off-center, It did not appear that the Ponderosa Road ran as a road all the
way to Petitoner's property, If it once did, it has been overgrown considerably since then so far as
the Board could see. The Board docs not believe Ponderosa Road as pointed out to them on site
would allow for any type of standard family vehiele, even with four wheel drive, to go the whole
way to Petitioner's property without some excavation and tree removal. (N, T, 22, 23, 24, 25,
31,32, 34),
15. Petitioner, when purchasing his property, spoke to several of the owners of properties
along Ponderosa Road, Several said they would have no objection to Petitioner's using of
Ponderosa Road for a right of way, However, more than one-half (1/2) of the owners said that
they would object. (N. T. 20, 21),
16. On May 21,1997, Petitioner petitioned for the Appointment ofa Board of Viewers
pursuant to the Act of June 13, IS36, P. L. 551, Sections II, ltlllil, (36 p, S, s, 2731) as
amended.
17, In consideration of the Petition, Judge Harold E, Sheely appointed Eugene
Hockensmith, surveyor, Charles E. Shields, III, lawyer, and Edwin T, Fanus, layman, to serve
as viewers.
IS. The said viewers were duly sIVorn to perform their duties.
19, Pursuant to due and proper notice, the three (3) viewers, Petitioner and his wife to be,
Petitioner's counsel, Respondent, Arthur Keck, and Respondent's then counsel, Mallhew
5
Eshelman, viewed the premises on Monday, September 22, 1997 at 1:30 P. M.
20. After due and proper notice to the parties, a hearing wa~ held on the issues related to
whether a private road was a necessity on Monday, January 26, 1998, beginning at 9:30 A. M, in
the Cumberland County Court House, Jury Assembly Room, Fourth Floor, I Court House
Square. Carlisle, Pennsylvania, Both parties and their respective counsels were present., a~ well as
the court stenographer.
21. At the hearing testimony and exhibits were presented.
22. Petitioner's land is landlocked and Petitioner has no legal means of ingress and egress
to his property from any existing public road.
23, A private road condemnation is therefore necessary for Petitioner to use and enjoy his
property and such award should also include the rights to the use of the utility ea~ements which
would accompany such a road under the current case law,
DISCUSSION.
The Board of View wishes to thank both counsel for their well-organized, well-ordered and
concise presentation of the pertinent evidence and points of law, Both counsel presented their
respective client's ca~es about a~ well a~ it could be done.Their jobs were so well performed that
we find it unfortunate that we cannot rule in favor of both parties herein,
The positions of the various parties can be easily summarized a~ follows:
Petitioner bought landlocked land knowing it was landlocked and takes the position that
this should not matter as to whether he is entitled to a private road condemnation, He asserts that
since there is no legal record access to his parcel and since he did not create the landlocked status of
the parcel through any act of his own, he is entitled to a private roadway by condemnation, As to
where the road should be located, he a~serts that the previously existing Russell Road is the most
convenient and common sense access available and that to force him to use Ponderosa Road would
entail great inconvenience and expense, He additionally points out that nine (9) of the ten (10)
owners along Russell Road, excepting only Respondents. have freely given him pennission to use
6
Russell Road. He also argues that Ponderosa Road does not in fact run all the way to his parcel,
but even if it did, its use would be so inconvenient and expensive that it would not eliminate the
Board's authority to award a right of usage in Russell Road,
Respondent's main argument is not that Petitoner does not need some sort of legal access
but that he should not be permilled to go over Russell Road but should have to use Ponderosa
Road instead, Respondents' contentions arc not based upon any animosity toward Petitioner but
upon their desire to retain what privaey and quiet they can in their home and its environs, They
argue that increased traffic also decreases the value of their property and further are afraid that
increased use of Russell Road will eventually lead to greater development in the immediate area,
We think it is obvious that Petitioner is entitled to a private road access by condemnation
according to all of the case law which we have seen on this subject. This is so even though he was
aware when he bought the parcel that it was landlocked. See, e. g., Graff v, Scanlan, 673 A.2d
1028,1035 (Pa, Cmwllh, 1996).
Also, our view of the proposed altemative route, Ponderosa Road, did not show us that it
actually traverses or contacts Petitioner's property, Even if it did, that, in and of itself, would not
be a sufficient reason to deny the use of Russell Road to Petitioner, See, e. g., Appeal of Zeafla,
592 A.2d 343 (Pa, Super" 1991), Rather. the Board must take into account, inter alia, when
determining where to place the road/access route: the shortest distance, the best ground, least injury
to private property, and the desire of the Petitoner. When properly considering and weighing all of
the above factors, the Board feels compelled to award a route over the already existing and being
used Russell Road.
The Board is composed of individuals of sufficient age to readily commiserate with
Respondents as to their desires for peace and quiet. It would be fair to say that other than
technological advances of great magnitude, there has been some considerable debate about quite a
few examples of "progress" during our lifetimes and those of Respondents. The Board feels it
should point out that William Penn's policy was to encourage the selllement and development of
7
his Province and the earliest roud laws were designed with this in mind. This has been a consistent
policy of the Commonwealth as well since the era of Independenee from Great Britain. See, e, g"
IN RE: PRIVATE ROAD IN LOWER MIFFLIN TOWNSHIP, CUMBERLAND COUNTY,
PENNSYLVANIA, REPORT OF THE BOARD OF VIEW, IN THE COURT OF COMMON
PLEAS, CUMBERLAND COUNTY, NO, 1802 CIVIL 1987, CIVIL ACTION - LAW, pp, 10-
37, esp, p, 25. Therefore, there is Iillle that can be done to stem the tide of "progress" and
development even when a property is landlocked. The Board must therefore carry out its duty as
best it can and can consider only those factors which the law allows.
CONCLUSIONS OF LA W
I, Petitioner has met his burden of proving that he needs a right of way for ingress and
egress.
2. The Board has tried to choose a right of way location by duly considering: the shortest
distance, best ground, least injury to private parties, and desire of the Petitioner. 36 P. S, s. 1785
(Purdon's), The description and location of the proposed right of way follows:
DESCRIPTION AND LOCATION OF RIGHT OF W A Y
The description and location of the right of way is as follows:
From a point on the boundary line between lands now or formerly of Asper
Russell, Jr. and lands now or formerly of Arthur Keck as shown on the right-of-way
survey of Eric L. Diffenbaugh for Keith Bear, dated April 2, 1997; thence through the
lands now or formerly of Arthur Keck over an area twenty (20) feet in width centered upon
a line over the following courses and distances: South 34 degrees 49 minutes 00 seconds
East, 97,86 feet; South 66 degrees 51 minutes 00 seconds East, 244.50 feet; South 42
degrees IO minutes 00 seconds East, 119.00 feet: more or less, to a point in the boundary
line between lands now or formerly of Thomas Russell and now or formerly of Arthur
Keck,
A reduced size copy of Diffenbaugh's Survey for Bear (Plaintiff Exh, 3) is allached hereto.
8
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CHARLES E. SHIELDS, III
ATTORNEY-AT.LAW
-;;z'-f
"1 -/ .<1l"
6 CLOUSER ROAD
COrMr olTriNI~ tWI Clouser Rtxlds
MECHANlCSBURO. PA t705S
GEDRGEM. HOUCK
(t912.t99t)
TELEPHONE (717) 766.0209
FAX (7t7) 79S.7473
September I, 1998
Honorable George E. Hoffer, P.l.
Cumberland County Coun se
Carlisle, PA 17013
,
RE: Aoard of View
Bear v, Keck
No, 97-2687 Civil Term
"
,
g(.e
~
~
Mr. Bear. the movl/ . r y in this case, was represented by Wayne Shade, Esq. Mr.
Keck, the responding party, was represented by at least three different allomeys during this action,
the last of whom was Lindsay Baird. Of late, Mr, Keck has been representing himself. Unlike
most roadway cases, this one was neither sellled nor finally completed with a hearing on damages.
Although the Eminent Domain Act as it relates to private roads requires a payment of
damages before a road can be opened, we have a peculiar situation in this ca~e in that there is
already a recognized right of way :md it has been in use already by numerous neighbors and
abullers. The right of way is evidcnccd by a wrinen agreement that was long ago signed by all the
parties except the Bears, who are newcomers. When the Bears bought a lot, all others except Mr.
Keck consented to Ictthe Bears use the right of wuy. However, Mr. Keck would not give
permission to the Bear's to join in on it. It is my understanding that the Township is in the process
of issuing a building permit on the busis that Keck's have made no claim for damages, All other
parties accepted one dollar fort he use of the right of way.
In any event, Mr, Keck has been unresponsivc to my requests to have him notify me as to
whether he wants a heuring on damuges :md/or whether he wunts to sellle for a payment directly
from Mr, Bear. In my opinion, it might be easiest to simply pull the curtain of charity over this sad
scene for the time being.
If this is acceptable, the Boards' duties ure at an end for all practical purposes. I have kept
both daily records and time records. The number of days where I actually worked on this in some
manner will total 31 days. However, the hours actually spent only add up to about 18 1/2.
Therefore I am only pUlling down 18 1/2 payment units ntther than the actual amount of days
worked, This should insure that I atlc.L~t get somewhere around by overhead out of it and that the
County does not have to pay to much for providing a forum for this somewhat strange ca~e,
The Bourd thercfore requcsts paymcnt us follows:
Charles E. Shields III
Eugene Hockcnsmith (Surveyor)
Edwin T. Fanus (Luymanl
18,5 duys =
5 duys =
3 duys =
SI.480.00
$ 400.00
S 240.00
If you will sign the encloscd ordcr to this effcct, we will close out the tile.
, .
1
CHARLES E. SHIELDS, III
ATTORNEY-AT-LAW
6 CLOUSER ROAD
Comtr c>/Trindl6 ond C/ouur ROtJds
MECHANtCSBURO, PA 1705S
OEOROE M. HOUCK
(t9t2,t991)
TELEPHONE (717) 766,0209
FAX (717) 79S.7473
September I, 1998
Honorable George E. Hoffer. PJ.
Cumberland County Courthouse
Carlisle. PA 17013
RE: Board of View
Bearv. Keck
No. 97-2687 Civil Term
Dear Judge Hoffer:
Mr. Bear. the moving party in this case. was represented by Wayne Shade, Esq. Mr.
Keck, the responding pal1y, was represented by at least three different allomeys during this action,
the last of whom was Lindsay Baird, Of late, Mr. Keck has been representing himself. Unlike
most roadway cases, this one was neither sellled nor finally completed with a hearing on damages.
Although the Eminent Domain Act as it relates to private roads requires a payment of
damages before a road can be opened. we have a peculiar situation in this case in that there is
already a recognized right of way and it has been in use already by numerous neighbors and
abullers, The right of way is evidenced by a wrillen agreement that was long ago signed by all the
parties except the Bears. who are newcomers. When the Bears bought a lot, all others except Mr.
Keck consented to let the Bears use the right of way, However, Mr. Keck would not give
permission to the Bear's to join in on it, It is my understanding that the Township is in the process
of issuing a building permit on the basis that Keck's have made no claim for damages. All other
parties accepted one dollar for the use of the right of way,
In any event, Mr, Keck has been unresponsive to my requests to have him notify me as to
whether he wants a hearing on damages and/or whether he wants to sellle for a payment directly
from Mr. Bear, In my opinion, ilmight be easiest to simply pulllhe curtain of charity over this sad
scene for the time being,
If this is acceptable, the Boards' duties are at an end for all practical purposes. I have kept
both daily records and time records, The number of days where I actually worked on this in some
manner will total 31 days. However. the hours actually spent only add up to about 18 1/2,
Therefore I am only pUlling down 18 1/2 payment units rather than the actual amount of days
worked. This should insure that I alle,L~t.get somewhere around by overhead out of it and that the
County does not have to pay to much for providing a fOnlm for this somewhat strange case,
The Board thereforc rcquests p"ymcnt as follows:
Charles E, Shields III
Eugene Hockcnsmith (Survcyor)
Edwin T, Fanus (Layman)
Il!.5 days =
5 days =
3 days =
S 1.480.00
S 400,00
S 240,00
If you will sign the cnclosed order 10 this effect, wc will close out the file.