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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
Guy Kunkleman and Charlotte
Kunkleman, his wife,
Plaintiffs
No.
vs.
Civil Action - Law
Roy L. Myers and Sarah J.
Myers,
Defendant
COMPLAINT TO ESTABLISH EASEMENT
AND NOW COMES the Plaintiff, Guy Kunkleman and Charlotte
Kunkleman, husband and wife, by and through their attorney, H.
Anthony Adams, Esquire and does hereby state the following:
COUNT I - EASEMIj:N'I' BY PRESJ:RIPTION
1. Plaintiffs are GUY Kunkleman and Charlotte Kunkleman,
husband and wife, adult individuals, residing at 42 Kunkleman
Lane, Shippensburg, Southampton Township, Cumberland County,
Pennsylvania.
2. Defendant is Roy Myers and Sarah J. Myers, adult
individuals, residing at 46 Gilbert Road, Shippensburg,
Southampton Township, Cumberland County, Pennsylvania.
3. Plaintiff is the lawful owner of land located in
Southamp'ton Township, Cumberland County, as a result of a deed
dated October 25, 1979, said deed recorded on December 10, 1979
in the Office of the Recorder of Deeds of Cumberland County,
Pennsylvania, in Deed Book "V", Volume 28, at Page 560, a copy of
which is marked Exhibit "A" and attached hereto.
4. Plaintiffs land is more fully described as follows:
ALL that certain lot of ground located in the Township of
Southampton, County of Cumberland, Commonwealth of Pennsylvania,
more fully bounded and described as follows, to wit:
BEGINNING at an iron pin at other lands now or formerly of
Grantor herein, thence along the said other lands of Grantor,
North 0 degrees 17 minutes 53 seconds East, 534.71 feet to a
point at line of land now or formerly of William C. Neil; thence
along lands now or formerly of William C. Neil, South 88 degrees
East, 312.77 feet to an iron pin at corner of lands now or
formerly of John A. Smith; thence by the land now or formerly of
John A. Smith, South 15 degrees 30 minutes West, 346.00 feet to
an iron pin; thence continuing along the same, South 49 degrees
30 minutes West, 293.12 feet to an iron pin, the place of
BEGINNING.
BEING that same real estate that Susan Kunkleman, single
woman, by her deed dated October 25, 1979 and recorded in the
Office of the Recorder of Deeds In and for Cumberland County,
Pennsylvania, in Deed Book "un, Volume 28 at Page 560, conveyed
to Guy E. Kunkleman and Charlotte Kunkleman, husband and wife,
Grantors herein.
SUBJECT to the set-back lines and restrictions which appear
on that draft of survey of Carl Bert R.S., dated September 28,
1979 and a copy of which is filed in the Office of the Recorder
of Deeds. The above said lot is an area of 2.4557 acres more or
less according to the above said draft of survey.
THIS LOT is served by an easement a copy of the conveyance
of which is Intended to be recorded in the Office of the Recorder
of Deeds in and for Cumberland County, Pennsylvania, prior to the
recordatIon of this deed and the exact locatIon of which appears
on the above said draft of survey.
5. Said Plaintiffs land described in Paragraph 4 above is
not open or unenclosed woodland.
6. Defendant is the present owne~ of land located between
the lands of Plaintiff
7. Defendant acquired title to Defendants' land by deed
dated May 18, 1962 recorded on September 4, 1984, in the Office
of the Recorder of Deeds in Cumberland county, Pennsylvania, in
Deed Book uP", Volume 20, at Page 496, a copy of which is marked
Exhibit "B", and attached hereto.
8. Plaintiffs land is presently occupied by Plaintiffs.
9. Plaintiffs have enjoyed free access and uninterrupted
use and right of way over Defendant's land on a dirt road
approximately fifteen (15) feet in width.
10. Plaintiffs, Guy Kunkleman and Charlotte Kunkleman, have
enjoyed free access and uninterrupted use and right of way over
Defendant's land on the aforementioned dirt road since his birth
in 1936.
11. Plaintiffs land was formerly owned by Plaintiff, Guy
Kunkleman's parents. His parents enjoyed free access and
uninterrupted use and right of way over Defendant's land on the
aforesaid dirt road for a period well in excess of 100 years.
The aforesaid dirt road has been in hostile, open, visible and
notorious and continuous use by Plaintiff and her predecessors in
title for a period in excess of twenty-one (21) years.
12. Said road was in open and visible use by Plaintiffs or
their parents at the time Defendant purchased the property.
13. On or about September, 1997, Defendant blocked the
aforesaid dirt road with various motor vehicles, thereby
preventing Plaintiffs from obtaining access to the land by use of
said road.
14. Defendant, after removing said obstructions, have
reasserted their right to obstruct and close the road and
threatened to obstruct and close the road on various occasions to
date and presently obstructing the road.
15. Plaintiffs have been operating a motor vehicle from the
house located on Plaintiffs land enroute to various appointments
over the aforesaid road, Defendant attempted to block Plaintiff
from using the dirt road by obstructing the road with a pickup
truck.
16. If Defendant carries out his threat to obstruct and
close the road again, Plaintiffs will suffer irreparable damage,
injury and harm in that they will be unable to leave Plaintiffs
land and will be denied ingress and egress to Plaintiffs property
and will be deprived of the right to occupy and enjoy her
property to her great damage and loss.
17. Defendant obstructed and closed the road by parking a
truck across the dirt road between Plaintiffs property and
Township Route.
18. Plaintiffs allege that the dirt road is a connecting
road between Township Route known as Neil Road to the Gilbert
Road, which provides the sole method of ingress and egress to and
from the Plaintiffs property, use of the dirt road is necessary
for the beneficial use and enj~yment of Plaintiffs property.
Plaintiffs further allege that said right of way has been used on
a regular basis by previous owners of Plaintiffs land, present
and previous owners of lands appurtenant thereto, and by members
of the public in general, for a period in excess of 100 years.
19. Plaintiffs further allege that the hostile, open,
visible, notorious and continuous use of the dirt road
established an easement by prescription in favor of the
Plaintiff.
COUNT II - EASEMENT IMPLIED BY NECESSITY
20. Paragraphs 1 through 19 of this complaint are
incorporated herein by reference as though set forth in full.
21.
the lands
existence
Plaintiffs allege that Defendant,
through which the dirt road runs,
of the and its permanent nature.
upon his purchase of
were aware of the
22. The dirt road is an open and visible roadbed, which has
been used continuously by Plaintiff since their purchase of
appurtenant lands on or about 1980 and prior to that by his
parents.
23. There exists no public road access from Township Route
known as Neil and Township Route Gilbert, except across the dirt
road, thereby making use of the dirt road right of way an actual
necessity.
24. Plaintiffs land is completely land-locked with no
public road frontage or access road for ingress and egress, other
than the aforementioned dirt road. Plaintiffs allege that an
easement by necessity has arisen, thereby affording Plaintiffs an
easement across Defendant's lands for ingress, egress and regress
for the beneficial use and enjoyment of Plaintiffs property.
COUNT In - PUBLIC ROAD RIGH'I' OF' WAY
25. Paragraph 1 through 24 of this complaint are
incorporated herein by reference as though set forth in full.
26. Plaintiffs and their predecessors in title have not
used the dirt road with any permission or willing consent of the
Defendant.
27. Plaintiff and their predecessors in title used the dirt
road right of way openly and with knowledge of such use
communicated to Defendant and their predecessors i.n title.
28. The dirt road right of way has been continuously and
openly used by members of the general public without let or
hindrance for a period in excess of 100 years.
29. The public dirt road which is indicated as a private
dirt road
COUNT IV. - EXPRESS EASEMENT
30. Defendants accepted their land as set forth on Exhibit
B subject to Plaintiffs' easement.
31. Defendants refused to open the lane is so egregious
that attorney's fees expended or expected by Plaintiffs in the
amount of $3,000.00 should be awarded to Plaintiffs.
WHEREFORE, Plaintiffs pray this Honorable Court enter
judgment in favor of Plaintiffs and against Defendant and enter
an Order of Court on Count I of thi.s complaint, awarding
Plaintiffs an easement by prescription across Defendant's
property; or, in the alternative, enter an Order of Court in
.
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MADB T1!f: 18t:l dav 01 May
"I Ollr I,ord Ollr th"""alld nill" h""d,,d and sixty- two
in the vear
m:TWEEN
RUSSEL S. NEGLEY and ETHEL F. NEGLEY, his wife. of the
TowT1shi p 0 f Southampton, Coul1ty 0 f CUmberland and Grantor I,
State of Pennsylvania
nnd
ROY L. MYERS and SARAIl 1, HYERS, his wife" of
Township of Southampton, County of CUmberland
of Pennsylvanla
the
and State
Grantee 8,
IVI7'NF:SSf!,'TII, thnt in e,,",ideratio" 01 Two lIundred Fifty ($Z50,OO)
Dollar"
in halld pn/d, the receipt whereof is hcrebv aeknow/edoed, tile Raid ""antor S d" herebv granl
and rant'ell to thl! Raid oratlleell , ALL that certain tract: of land situate in
the Township of Southampton. County of CUmberland Ilnd State of
Pennsylvania. bounded and dellcribed as follows, to-wit:
BEGINNING at a locullt tree at corner of land no\o.' owned by
Rob~,rt Frontz on the Northerly edge of a private land leading
to the Benjamin Kunk1eman land; thence In an Eastwardly
direction along the Frontz property One Hundred ~'orty-t~'ree
(143) feet to a point; thence in a Southwardly direction
along tile Frontz land and the center of a State Road One
Hundred Thirty-eight (138) feet; thence in n Westwardly
direction by other land of the Grantors One Hundred Forty-
three (143) feet; thence by Same in a Notthwardly direction
One Hundred Twelve (112) feet to the Place of neginning.
BEING a part of Tract lil in the deed of Margaret M. Polites, widow,
to Rullllel S. Negley and Ethel F. Negley, his wife, dated January
6, 1944 and recorded in the office for the recording of deed. in\,
and for the County of Cumberland in Deed Book "T", Volume 12, ",
Page 122. '
'"
TillS CONVEYANCE IS SUBJECT' to the right-of-way along the
Northarn edge of the above tract and the Ib'Jthllrn edge of the Robert
Frontz tract w"ich leads from the Public Road to the Benja.lll1n
Kunkleman property.
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Seheol 0111. Com~, e.. 'I. ' ..llli~;r:,; '.) I: j"o" Yt,;"'''1 ~ J\(~' 'i\ ''''li.l
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o.t '~ 'I ~~, a.l. ~~, 1,!1 J "I "~<~~i? II~:~I'(;:," 'J. ~.'~'t.l,:: ,itt~..~,. 'j" ',~..d,:
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CMICEL1.~,
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ANtJ, the ,nit/llllanto" ,du herebv eouenan/alld aOrr.e to and with the ,aid urantee ., that
they , the f/-''Qlltor., their heirR, UtelltOr! and admini8tmlorl, Rhall and t~m war.
ront generally and forever defell'! the herein abov~ dem,bod
prr.miRM, with Ih~ hert.ditamcn/. and appur/enaneeR, unto thc .aid uran/e~, their he!" and
ouiun., auai'~1 th, ,aid grantor S ,and auainll eve", other per.o" lawlullV r./oiminu or wllo .hall
hn'.oft.r e/oim Ih. 10m. or o"V pori lhlr.ol.
r'th,.I)I-I "13'1
"., "...."..""
6, The allegations of Paragraph 6 are partially admitted and partially denied, After
reasonable investigation, the Defendants are without sufficient knowledge and information to
form a belief regarding the truth of the allegations of Paragraph 6 of the Complaint that
Defendants' land is located !Jetween lands of Plaintiff and, therefore, said allegation!! are
denied. Proof thereof is demanded at trial.
7, The allegations of Paragraph 7 are partially admitted and partially denied. It Is
denied that the deed was recorded on September 4, 1984, To the contrary, the deed was
recorded on August 11, 1962.
8, The allegations of Paragraph 8 are admitted.
9. After reasonable Investigation, the Defendants are without sufficient knowledge
or Information to form a belief regarding the truth of the allegations of Paragraph 9 of the
Complaint and, therefore, said allegations are denied, Proof thereof is demanded at trial. It Is
further averred that the dirt road is to be no wider than a hay wagon,
10. After reasonable investigation, the Defendants are without sufficient knowledge
or Information to form a bllllef regarding the truth of the allegations of Paragraph 10 of the
Complaint and, therefore, said allegations are denied, Proof thereof is demanded at trial.
11. After reasonable Investigation, the Defendants are without sufficient knowledge
or Information to form a belief regarding the truth of the allegations of Paragraph 11 of the
Complaint and, therefore, said allegations are denied. Proof thereof is demanded at trial.
12. The allegations of Paragraph 12 are partially admitted and partially denied. It Is
admitted that the road was In open and visible use by Plaintiffs, After reasonable Investigation,
Defendants are without sufficient knowledge or Information to form a belief regarding open and
visible use by parents of the Plaintiffs at the time Def6ndants purchased the property and,
therefore, said allegations are denied. Proof thereof demanded at trial.
2
13, The allegations of Paragraph 13 are admitted, Defendants blocked said dirt road
for the reason that Plaintiffs were abusing their use of the dirt road,
14, The allegations of Paragraph 14 are partially admitted and partially denied, It is
admitted that Defendants, after removing said obstruction, have reasserted their rights to
obstruct and close the road and threaten to obstruct and close the road on various occasions for
abuse In its use, It is specifically denied that Defendants are presently obstructing the road. To
the contrary, the road is open for use by the Plaintiffs so long as it is not abused,
15, The allegations of Paragraph 15 are partially admitted and partially denied, It is
admitted that Plaintiffs have been operating a motor vehicle from the house located on Plaintiffs'
land on the road, After reasonable Investigation, Defendants are wilhout sufficient knowledge or
information to form a belief regarding the allegations that the road was used by Plaintiffs enroute
to various appointments and, therefore, said allegations are denied, Proof thereof is demanded
at trial, The allegations that the Defendants are obstructing the road with a pick-up truck are
specifically denied. To the contrary, It is averred that the road is open so long as the use is not
Ilbused"
16, After reasonable investigation, Defendants are without sufficient knOWledge or
Information to a form a belief regarding the truth of the allegations of Paragraph 16, and,
therefore said allegations are denied. Proof thereof is demanded at trial. Further, it is denied
that Plaintiffs do not have ingress and egress to their property from Legislative Route 21050.
17. The allegations of Paragraph 17 that the Defendants are obstructing the road
with a pick-up truck are specifically denied, To the contrary, it is averred that the road Is open
so long as its use is not abused.
18, After reasonable Investigation, Defendants are without sufficient knowledge or
information to form a belief regarding the truth of the allegations of Paragraph 17, and therefore
3
said allegations are denied. Proof thereof Is demanded at trial. The allegations of Paragraph
18 are conclusions of law to which no answer Is required and are therefore denied,
19, The allegations of Paragraph 19 are conclusions of law to which no answer Is
required and are therefore denied. Further, after reasonable Investigation, Defendants are
without sufficient knowledge or Information to form a belief as to the allegations of Paragraph
19, and therefore, said allegRtlons are denied, Proof thereof Is demanded at trial.
COUNT II - EASEMENT IMPLIED BY NECESSITY
20. No answer Is required to the allegations of Paragraph 20 of the Complaint. To
the extent and answer Is required, the allegations of Paragraphs 1 to and including 19 of the
Answer are incorporated herein by reference as though fully set forth herein,
21. The allegations of Paragraph 21 are partially admitted and partially denied. It Is
admitted that Defendants, upon purchase of the land through which the dirt road runs, were
aware of the existence of the road. The allegRtion that the road was permanent In nature Is a
conclusion of law to which no answer is required,
22. The allegations of Paragraph 22 are partially admitted and partially denied. It Is
admitted that the dirt road Is an open and visible roadbed. After reasonable investigation,
Defendants are without sufficient knowledge or Information to form a belief as to the allegations
that the road has been used continuously by Plaintiffs since their purchase of appurtenant lands
on or about 1980 and prior to that by his parents and, therefore said allegations are denied.
Proof thereof is demanded at trial.
23. The allegations of Paragraph 23 EIre specifically denied, To the contrary, It is
averred that Plaintiffs have ingress and egress access to Legislative Route 21050.
4
24. The allegations of Paragraph 24 are specifically denied, To the contrary, it Is
averred that Plaintiffs have ingress and egress to their property from Legislative Route 21050.
The remaining allegations are conclusions of law to which no answer Is required and are
therefore denied.
COUNT III PUBLIC ROAD RIGHT OF WAY
25, No answer is required to the allegations of Paragraph 25, To the extent an
answer Is required, the allegations of Paragraphs 1 to and including 24 of the Answer are
Incorporated herein by reference as though fully set forth herein,
26, The allegations of Paragraph 26 are specifically denied, To the contrary, It Is
averred that any use of the dirt road by Plaintiffs and their predecessors in title has been with
the permission or willing consent of the Defendants,
27, The allegations of Paragraph 27 are partially admitted and partially denied, It is
admitted that Plaintiffs used the dirt road openly and with knowledge of such use communicated
to Defendants. After rear.onable investigation, Defendants are without sufficient knowledge or
information to form a belief regarding the truth of the allegations that Plaintiffs' predecessors in
title have used the dirt road openly or that Defendants' predecessors in titled had such
knowledge and, therefore, said allegations are denied, Proof thereof is demanded at trial.
28. After reasonable investigation, Defendants are without sufficient knowledge or
Information to form a belief regarding the truth of the allegations of Paragraph 28 of the
Complaint and, therefore, said allegations are denied. Proof thereof is demanded at trial,
29. The allegations of Paragraph 29 are conclusions of law to which no answer is
required and are therefore denied, To the extent an answer is required, after reasonable
investigation, Defendants are without sufficient knowledge or information to form a belief
5
regarding the allegations of "public dirt road" and, therefore, said allegations are denied, Proof
thereof is demanded at trial.
COUNT IV - EXPRESS EASEMENT
30. The allegations of Paragraph 30 are specifically denied. Paragraph 30 of the
Complaint attempts to characterize the terms and conditions of the deed, To the contrary, said
deed speaks for Itself,
31, The allegations of Paragraph 31 are specifically denied, To the contrary, It is
averred that the lane is open, that the Plaintiffs have ingress and egress to their property from
Legislative Route 21050, and that Plaintiffs are attempting to increase the size of the right-of-
way contrary to the Intended purpose of the right-of-way and that Plaintiffs have abused use of
said rlght-of"way, Therefore, there is no legal or equitable justification for awarding attorney's
fees in any amount to the Plaintiffs,
WHEREFORE, Defendants respectfully request your Honorable Court to dismiss
Plaintiffs' Complaint.
NEW MATTER
32. Except for the statements in the deed of Russel S, Negley and Ethel F. Negley,
his wife, to Roy L. Myers and Sarah I. Myers, his wife, dated May 16, 1962 and recorded August
11, 1962 in Cumberland County DEled Book P, Volume 20, Page 496, et. seq" there Is no
recorded easement, right-of-way, subdivision or land development setting forth the exact
location and width of the right-of-way,
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