HomeMy WebLinkAbout08-1975THE MCNAUGHTON PROPERTIES, LP IN THE COURT OF COMMON PLEAS OF
and MIDPENN ESTATES CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V.
TERRY N. BARR and
QUINN K. BARR,
husband and wife
Defendants
CIVIL ACTION - EQUITY
No. 6 i?'' ) q 7 uM-
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to de
forth in the following pages, you must take action within twenty
Complaint and Notice are served, by entering a written appear
attorney and filing in writing with the Court your defenses or of
forth against you. You are warned that if you fail to do so the case may prviceeo witnout
you and a judgment may be entered against you by the court without further notice for any
money claimed in the Complaint or for any other claim or relief requested by the Plaintiff.
You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013
717-249-3166
800-990-9108
NOTICIA
Le han demandado a usted en la corte. Si usted quiere defenderse de estas
demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al
partir de la fecha de la demanda y la notification. Usted debe presentar una apariencia
escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o
sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se
defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso
notification y por cuaiquier queja o alivio que es pedido en la petition de demanda. Usted
puede perder dinero o sus propiedades o otros derechos importantes para usted.
LLEVE ESTA DEMANDA A UN ABOGAGO INMMEDIATAMENTE. SI NO TIENE
ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAY
EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE
ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR
ASISTENCIA LEGAL.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013
717-249-3166
800-990-9108
McNEES WALLACE & NURICK LLC
By ILL ( ?- -
Helen L. Gemmill (ID No. 60661)
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
Tel: (717) 232-8000
Fax: (717) 237-5300
Attorneys for Plaintiffs
The McNaughton Properties, LP and
MidPenn Estates
Dated: March 28, 2008
2
THE MCNAUGHTON PROPERTIES, LP
and MIDPENN ESTATES
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V.
TERRY N. BARR and
QUINN K. BARR,
husband and wife
CIVIL ACTION - EQUITY
NO. 6j?, _ I g 7 s- c ran ( -f-erM.
Defendants
COMPLAINT
The McNaughton Properties, LP and MidPenn Estates, by and through their counsel
McNees Wallace & Nurick LLC, for their Complaint against Defendants Terry N. Barr and
Quinn K. Barr, aver as follows:
The Parties
1. Plaintiff The McNaughton Properties, LP ("McNaughton Properties") is a
Pennsylvania limited partnership with a business address of 4400 Deer Path Road, Suite
201, Harrisburg, Pennsylvania 17110.
2. Plaintiff MidPenn Estates ("MidPenn") is a Pennsylvania general partnership
with a business address of 4400 Deer Path Road, Suite 201, Harrisburg, Pennsylvania
17110.
3. Defendants Terry N. Barr and Quinn K. Barr, husband and wife, (the "Barrs")
are adult individuals with an address of 829 East Winding Hill Road, Mechanicsburg,
Pennsylvania.
Factual Averments
A. Chain of Title For The Failor Farm
4. By deed dated January 31, 2007, recorded in Cumberland County,
Pennsylvania Deed Book 278, page 3090, McNaughton Properties and MidPenn acquired
V
ownership in a tract of land comprising 142.07 acres in Upper Allen Township known as the
"Failor Farm." A true and correct copy of the deed is attached hereto as Exhibit A.
5. As reflected in the January 31, 2007 deed, McNaughton Properties and
MidPenn purchased the Failor Farm from Patty Hertzler, as Executrix of the Estate of Dale
B. Failor.
6. Dale B. Failor, deceased, and his wife Catherine E. Failor, deceased, (the
"Failors") acquired the Failor Farm by deed dated April 1, 1954 recorded in Cumberland
County Record Book 15-R, Page 171. A true and correct copy of the deed is attached
hereto as Exhibit B.
7. As reflected in the April 1, 1954 deed, the Failors purchased the Failor Farm
from E. Allen Turnbaugh and Blanche E. Turnbaugh (the "Turnbaughs")
8. The April 1, 1954 deed from the Turnbaughs to the Failors excepted from the
sale a tract of land containing 1.83 acres of land (the 'Reserved Tract"), upon which was
located a residence.
9. The Reserved Tract was landlocked, in that it did not border any roadway and
was surrounded on all sides by the 142.07 acres sold to the Failors. Attached hereto as
Exhibit C is a plan dated June 23, 1953 that shows the Reserved Tract and the 142.07
acres tract acquired by the Failors.
10. To provide for ingress and egress from the Reserved Tract to Long Level
Road (now known as East Winding Hill Road), the April 1, 1954 deed reserved to the
Turnbaughs the right to use two private lanes, the first private lane running from the
Reserved Tract to the second private lane, and the second private lane running to Long
Level Road.
11. The April 1, 1954 deed did not delineate the boundaries or location of the two
private lanes.
2
B. Chain of Title of the Reserved Tract
12. By deed dated May 22, 1959, the Turnbaughs conveyed the Reserved Tract
to Marion de Coux Simpson (Cumberland County Record Book D 19, Page 138). A true
and correct copy of the May 22, 1959 deed is attached hereto as Exhibit D.
13. The May 22, 1959 deed granted and conveyed the right to use the two private
lanes running from the Reserved Tract to Long Level Road.
14. By deed dated July 16, 1965, Marion de Coux Simpson and her husband
Paul E. Simpson conveyed the Reserved Tract to George V. Gregory and Noreen M.
Gregory (Cumberland County Deed Book Q21, Page 1006). A true and correct copy of the
July 16, 1965 deed is attached hereto as Exhibit E.
15. The July 16, 1965 deed granted and conveyed the right to use the two private
lanes running from the Reserved Tract to Long Level Road.
16. By deed dated August 31, 1971, George V. Gregory and Noreen M. Gregory
conveyed the Reserved Tract to Harry J. Heiter and Eleanor A. Heiter (Cumberland County
Deed Book G24, Page 439). A true and correct copy of the August 31, 1971 deed is
attached hereto as Exhibit F.
17. The August 31, 1971 deed granted and conveyed the right to use the two
private lanes running from the Reserved Tract to Long Level Road.
18. By deed dated July 5, 1977, Harry J. Heiter and Eleanor A. Heiter conveyed
the Reserved Tract to Peter A. Willms and Mary G. Willms (Cumberland County Deed Book
H27, Page 117). A true and correct copy of the July 5, 1977 deed is attached hereto as
Exhibit G.
19. Unlike the prior deeds in the chain of title, the July 5, 1977 deed did not
expressly grant and convey the right to use the two private lanes running from the Reserved
Tract to Long Level Road.
3
t
20. By deed dated September 27, 1996 Peter A. Willms and Mary G. Willms
conveyed the Reserved Tract to Terry N. Barr and Quinn K. Barr (Cumberland County Deed
Book 147, Page 756). A true and correct copy of the September 27, 1996 deed is attached
hereto as Exhibit H.
21. The September 27, 1996 deed also did not expressly grant and convey the
right to use the two private lanes running from the Reserved Tract to Long Level Road.
C. Development of the Failor Farm and Relocation of the Access Way
22. McNaughton Properties and MidPenn Estates intend to develop the Failor
Farm for residential housing.
23. McNaughton Properties has filed a Subdivision and Land Development Plan
for the Failor Farm with Upper Allen Township. A true and correct copy of the relevant
pages of the Subdivision and Land Development Plan are attached hereto as Exhibit I.
24. The Subdivision and Land Development Plan complies with the Township
Ordinances and Pennsylvania regulations regarding width of streets, turning angles, and
sight distances.
25. As shown on the Plan, McNaughton Properties and MidPenn Estates desire
to relocate slightly the existing access to the Reserved Tract, such that the access will now
follow the public streets to be constructed and avoid building lots.
26. The proposed relocated access will result in a more direct route between the
Reserved Tract and East Winding Hill Road that traverses a roadway designed to
accommodate emergency vehicles in compliance with Township Ordinances.
27. The Barrs have objected to the proposed relocation of the access way to the
Reserved Tract.
4
Count I - Declaratory Judgment
28. The foregoing paragraphs of the Complaint are incorporated by reference as
though set forth in full herein.
29. The Barrs are not entitled to access their property over the precise
boundaries of the existing private lanes.
30. Under Pennsylvania law, a court can compel relocation of an access way if
that relocation would not substantially interfere with the holder's use and enjoyment of the
right of way and the relocation advances the interests of justice.
31. Here the relocation will not substantially impair the Barrs' access to the
Reserved Tract.
32. The relocated access is safer than the existing private lanes because of the
shorter distance and the improved emergency vehicle access.
33. The relocated access is only a minor change from the existing access.
34. Plaintiffs have a substantial need for the relocation of the access way as it
allows the safe and beneficial development of the Failor Farm in compliance with Township
ordinances and Pennsylvania regulations.
35. McNaughton Properties and MidPenn will grant and convey to the Barrs an
express easement over the relocated access across the Failor Farm for consideration of
One Dollar.
5
WHEREFORE, Plaintiffs request that the Court declare that Plaintiffs are legally
entitled to relocate the access to and from East Winding Hill Road to the Reserved Tract as
reflected on the Subdivision and Land Development Plans filed with Upper Allen Township
McNEES WALLACE & NURICK LLC
By UU,
Helen L. Gemmill (ID No. 60661)
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
Tel: (717) 232-8000
Fax: (717) 237-5300
Attorneys for Plaintiffs
The McNaughton Properties, LP and
MidPenn Estates
Dated: March 28, 2008
6
VERIFICATION
Subject to the penalties of 18 Pa. G.S. §4904, relating to unsworn falsification to
authorities, 1 hereby certify that I am authorized to make this verification on behalf of The
McNaughton Properties, LP and MidPenn Estates, that I have reviewed the foregoing and
that the facts set forth therein are true and correct to the best of my knowledge, information
and belief.
Francis C. McNatu ?h
Dated: March, 2008
C 't 4
'2, (4 4q)YI :z;e a".
a?i . ?'sr
=?EC ??11EED?
INS AN 31 PM 12 `II
Tax Parcel Number:
MADE THE - U day of , in the year of our
Lord two thousand and seven (2007). L17 -
BETWEEN
Patsy Hertzler, as Executrix of the Estate of DALE B. FAILOR, deceased, late of the
Lower Allen Township, Cumberland County, Pennsylvania, Grantor,
and
The McNanghton Properties, LP, A Pennsylvania Limited Partnership [70%] and KdPenn
Estates, a Pennsylvania General Partnership [30•/], both entities with a business address of 4400
Deer Path Road, Suite 201, Harrisburg, Dauphin County, Pennsylvania, Grantees.
WHEREAS, the said Dale B. Failor, was vested in his lifetime with title to the premises
hereinafter described, partly in the Township of Upper Allen and partly in the Township of
Lower Allen, County of Cumberland and Commonwealth of Pennsylvania; and
WHEREAS, the said Dale B. Failor, departed this earthily life, testate, on the 7th day of
May, 1996, and Letters Testamentary were duly issued to the said Patsy A- Hertzler, by the
Register of Wills of said Cumberland County, docketed to No. 21-96-0413; and
WHEREAS, the lands herein-mentioned were not specifically devised:
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that the said Patsy A.
Hertzler, Execirtrix, as aforesaid, for and in consideration of the sum of FOUR hULLION ONE
HUNDRED FORTY THOUSAND and N*n00 hs ($4,140,000.00) DOLLARS, and other
good and valuable considerations, to her in hand paid by the said Grantees, at and before the
ensealing and delivery hereof, the receipt whereof is hereby acknowledged, has granted,
bargained, sold, aliened, released, and confirmed, and by these presents, by virtue of the power
and authority in her vested by the Fiduciaries Act of the Commonwealth of Pennsylvania, does
grant, bargain, sell, alien, release, and confirm unto the said Grantees, its successors and assigns:
TRACT !
ALL that certain tract of land, with the improvements thereon erected, situate in the
Township of Upper Allen, County of Cumberland and State of Pennsylvania, bounded and
described as follows, to wit:
BEGINNING at a point in a public road, known as Long Level Road, st corner of lands
now or formerly of David Bowman Estate; thence along said road North 44 degrees West two
thousand four hundred eighty-five and fifty-six one-hundredths (2,485.56) feet to an oak tree on,
the east side of said road at corner of lands now or formerly of 1. W. Miller; thence along lands
of same North 67 degrees East one thousand four hundred sixty-three and twenty-two one
hundredths (1,463.22) feet to a lime stone monument at corner of lands of the said I. W. Miller
and Daniel H. Ritter; thence along lands formerly of D. R. Miller, now or late of Daniel H. Ritter
North 73 degrees East one thousand thirty-five and fifty-four one-hundredths (1,035.54) feet to a
cherry tree; thence by shme North 25 degrees West one hundred and sixty-five (165) feet to an
iron pin; thence by same North 63 degrees East eighty-seven and forty-five one-hundredths
(87.45) feet to an iron pin at corner of lands formerly of Mrs. J. O. Saxton, now or late of Ray
p00x 27s I'
Detweiler; thence by lands now or late of said Roy Detweiler South 44 degrees East two
thousand four hundred fifty-two and fifty-six one-hundredths (2,452.56) feet to a stone at corner
of lands formerly of Levi Musselman, now or We of Arthur Coover, thence by lends now or late
of Arthur Coover South 46 degrees 45 minutes West one thousand six hundred eighty and thirty-
six one-hundredths (1,680.36) feet to a stone at comer of land nor or late of David Bowman
Estate; thence by lands of same North 42 degrees 30 minutes West seven hundred eighty-four
and seventy-four one-hundredths (784.74) feet to an iron pin; thence by same South 49 degrees
30 minutes West seven hundred ninety-nine and fifty-nine one-hundredths (799.59) feet to a
point in the aforesaid public road, the place of BEGINNING. Containing 143 Acres 144
Perches of land.
EXCEPTING AND RESERVING from the above described tract of land and from this
conveyance, the following described tract of land situate in the aforesaid Township, County and
State: ALL that certain tract of land and the improvements thereon erected, bounded and
described as follows, to wit:
BEGINNING at a rock oak tree, which tree is North 86 degrees 30 minutes East two
hundred ninety-eight (298) feet from the lime stone monument at corner of lands of I. W. Miler
and Daniel H. Ritter, thence by lands hereinbefore described, of which this was a part, North 79
degrees 30 minutes East two hundred seventy-eight (278) feet to an iron pin; thence by same
South 10 degrees 30 minutes East two hundred and ninety-four (294) feet to a post; thence by
same North 88 degrees 45 minutes West three hundred and thirty-nine (339) feet to an iron pin;
thence by some North 2 degrees 30 minutes East two hundred and thirty-three (233) feet to the
aforesaid rock oak tree, the place of BEGINNING. Containing 1.83 acres of land.
The tract of land herein conveyed contains 142.07 Acres of land.
This conveyance is made subject to the following express conditions and reservations:
SUBJECT, NEVERTHELESS, to the right of E. Allen Tumbaugh, his heirs and
assigns, to the free and wdnwmq tad use, liberty and privilege of and passage in and along a
certain private lane loading from the tract of land herein excepted and reserved to the lane
leading from Long Level Road to the buildings situate on the tract of land herein conveyed. The
Grantees, its successors and assigns, to have the right and privilege of crossing said private lane
with its farm machinery and equipment for the purpose of gaining access to the tract of land
herein conveyed.
SUBJECT, FURTHER, to the right of E. Allen Turbaugh, his heirs and assigns, to the
free and uninterrupted use, liberty, and privilege of, and passage in and along, in common with
the said Grantees, its successors and assigns, that certain private lane leading from the said Long
Level Road to the lane hereinbefore mentioned.
SUBJECT, ALSO, to the right and privilege of E. Allen Tumbaugh, his heirs and
assigns, to use the lands herein conveyed and adjacent to the above described talus for the
purpose of gaining access to the public road above mentioned in the event the said lane or lanes
become impassable for travel by reason of snow, ice or sleet.
AND SUBJECT FURTHER, to any and all easements, rights-of--way now existing
upon, over or through said tract of land.
BEING PART OF those same premises which E. Allen Tumbaugh (also known as
Edward A. Tumbaugh) and Blame W. Tumbaugh, his wife, by their deed dated April 1, 1954
and recorded in the Recorder's Office aforesaid in Dad Book "R", Volume 15, Page 171,
granted and conveyed to Date B. Failor and Catherine E. Failor, his wife. The said Catherine E.
Failor departed this earthly life on November 30, 1992, whereupon full and absolute title to the
said premises vested in the said bale B. Failor by the laws of the Commonwealth of
Pennsylvania incident to tenancies by the entireties. His said Estate is the Grantor herein.
bon 278 PACE3091
TO HAVE AND TO HOLD the said messuage or tenement and tract of land,
hereditaments and premises hereby granted and released, or mentioned and intended so to be,
with the appurtenances, unto the said Grantees, its successors and assigns, to and for the only
proper use and behoof of the said Grantees, its successors and assigns, forever.
AND THE SAID GRANTOR, Executrix, as aforesaid, her successors and assigns does
covenant, promise and agree to and with the said Grantees, its successors and assigns, by these
presents, that the Grantor has not done, committed any act, matter or thing whatsoever whereby
the premises hereby granted, or any part thereot is, are, shall or may be impeached, charged or
encumbered in title, or otherwise howsoever.
IN WITNESS WHEREOF, the said Executrix of the Estate of Dale B. Failor, deceased,
Grantor herein, has hereunto set her hand and seal the day and year first above written.
Signed, Sealed and Delivered
in the Presence of. Atz-4"(' Ii (SEAL)
PATSY HER eeutriz of the
Estate of DALE B. FAILOR, Deceased
y ? ?
1 OC
?
f?l
• .
?3 M ?r y
e ON+. '? .F
. 806K 278 PAGE3093
$ A
g _
--i
.w
??'. p N N .a
?
O J
(m
py
yQ r
,1 .
? f+
r
0
4?N O
lO !??? N
t
pp
?
/?
O S S S u S O S C. C.
.wi
COMMONWEALTH OF PENNSYLVANIA )
` SS:
COUNTY OF v )
On this, the ?Ofl- day of L Al AD , A.D. 2007, before me a notary blic, in and for the Commonwealth of Pent ia, personally appeared PATSY A.
) to be the person whose name is subscribed
p1bILM
HERTZLER, known to me (or satisfactorily
Executrix of the Last Will and Testament of Dale B. Failor, and acknowledged that she
ecuted the same in such capacity.
IN WITNESS WHEREOF, I hereunto set my hand an official seal.
Ja,:o- Lim=
N Public
COMMONWEAL" ofParrasYiv t
,?,? taw. v taw My commission expires:
???ry Pubic
aNQannl?on•.1.n too (SEAL)
MMw?r. n4 AaotlNlen d Nqu1y
pu
as
ex
Grantee is:
I Certify this to be recorded
In Cumberland County PA
Wrnc 278 ncE$0 . ??
Recorder of Deeds
CERTIFIU77, OF RESIDENCE
IA K PAGE 1 11
201.C] a.n •?.ry 1?... .a. r,rhn ?.•? . • .vr
II-Y Hell. I.e.. (. a -e. P.,
Tbt"5
;Drebt
3j*111b ' file / 49 ttrtll of a.*--e in IIf0. f/Ptt
rif 4trr l.nrd firer thnttxitit,I pil/r htt/trlro- d and fifty-four (1954).
BrllDern E. ALLEN TURNBAUGH (Also known as EDWARD A. TURNBAUGH) an
BLANCHE E. TURNBAUGH, his wife, of the Township of Upper Allen,
County of Cumberland and State of Pennsylvania, hereinafter called
the --°_-?------ ---------°__._,-----__°---- ------ I:rrtulr.rg
tttt,l DALE B. FAILOE and CATHERINE E. PAILCR, his wife, of the
Township of Lower Allen, County of Cumberland and State of Pennsyl•
aniap hereinafter called the --------------
- rrh? tlitr!-ila
t;r,n.?ir>!rru.tinn a y Thousand (=30,000.00) --
Thirt
--- -------_- 11ri1111
lr
in htr./t4 paint, thr' r'PrCipt rrlirreor'is hereby tateknult'lPtltrod. lhr suit/;irrtntor s
rl!> hrrrbrt ,+rrrut rand runnel/ In the xrtieY orrtntre a ALL th$t certain
tract of land, with the improvements thereon erected, situate in
the Township of Upper Allen, County of Cumberland and State of
Pennsylvania, bounded and described as follows, to wit;-'
BEGINNING at a point in a public road, known as Lang Level
Road, at corner of lands now or formerly of David Bowman Estate;
thence along said road North forty-four (44) degrees West two
thousand four hundred eighty-five and fifty-six one-hundredths
(2485.56) feet to an oak tree on the east side of said road at
corner of lands now or formerly of 1. We Miller; thence along
lands of same North sixty-seven (67) degrees East one thousand
four handre4 sixty-three and twenty-two one-hundredths (1463.22)
feet to a lime stone monument at corner of lands of the said I
We Miller and Daniel H. Bitter; thence along lands formerly of
D. R. Miller, now or late of Daniel H. Bitter North seventy-three
(73) degrees East one thousand, thirty-five and fifty-four one-
hundredths (1035.54). feet to a cherry tree; thence by same North
twenty-five (25) degrees West one hundred and sixty-five (165)
feat to an Iron pin; thence.by same North sixty-three (63) degrees
East eixthty-seven and forty-five one,hundredthe (87. 5) feet to
an iron pin at corner of lands formerly of Mrs. J. 0. Saxton, now
or late of Roy Detweiler; thence by lands now or late of said Roy
Detweiler South forty-four (44) degrees East two thousand four
hundred fifty-two and fifty-six one-hundredths (2452.56) feet to a
stone at corner of lands formerly of Levi Musselman, now or late o
Arthur Coover; thence by lands now or late of Arthur Coover South
forty-six (46) degrees forty-five (45) minutes West one thousand
six hundred eighty and thirty-six one-hundredths(1680e36) feet to
stone at corner of land now or late of David Bowman Estate; thence
by lands of same North forty-two (42) degrees thirty (30) minutes
West seven hundred eighty-four and seventy-roux one-hundredths
(784.74) feet to an iron pin; thence by same South forty-nine (49)
degrees(30) thirty minutes West seven hundred ninety-nine and fift
nine one-hundredths (799.59) feet to a point in the aforesaid publ
road, the place of BEGINNING. Containing 143.acres 144 perches.
EXCEPTING AND RESERVING from the above described tract of la
and from this conveyance, the following described tract of land
situate in the aforesaid Township, County and State: ALL that
certain tract of land and the improvements thereon erected, bounds
and described as follows, to wit: BEGINNING at a rock oak tree,
a??n15 R ???1i?
which tree is North eighty-six (86) degrees thirty (30) minutes
East two hundred ninety-eight (298) feet from the lime stone
monument at corner of lands of I. W. Miller and Daniel H. Ritter;
thence by lands hereinbefore described, of which this was a part,
North seventy-nine (79) degrees thirty (30) minutes hest two
hundred seventy-eit (278) feet to an iron pin; thence by
same South ten (10) degrees thirty (30) minutes East two hundred
and ninety-four (294) feet to a post; thence by same North eighty-
eight (88) degrees forty-five (us) minutes west three hundred4iA
thirty-nine (339) feet to an iron pin; thence by same North trig (2)
degrees thirty (30) minutes East two hundred and thirty-three (233)
feet to the aforesaid rock oak tree, the place of BEGINNING. Con-
taining 1.83 acres of land.
The tract of land herein conveyed contains one hundred forty-.two
and seven hundredths (142.01h acres of land.
BEING part of the same premises which Lemoyne Trust Company,
Executor of the Last Will and Testament of John I. Miller, by its
Deed dated March 130 19)9, and recorded in the Recorder's Office in
and for said CumberlAnd County in Deed Book "Y", Vol. 11, Page 276,
granted and conveyed unto E. Allen Tirnbaugh, one of the Grantors
herein.
This conveyance is made subjeet•to the followiag express
conditions and reservations:
SUBJECT NEVERTHELESS, to the right of the Grantors, their heirs
and assigns, to the free and uninterrupted use, liberty and privilege
of, and passage in and along a certain private lane leading from the
tract of land herein excepted and resorved to the lane leading from
Long Level Road to the buildings situate on the tract of land herein
conveyed. The. Grantees, their heirs and assigns, to have the right
and privilege of crossing said private lane with their farm machinery
and equipment for the purpose of gaining access to the tract of land
herein conveyed.
SUBJECT FURTHER, to the right of the Grantors, their heirs and
assigns, to the free and uninterrupted use, liberty, and privilege
of, and passage in and along, in common with the said Grantees,
their heirs and assigns, that certain private lane leading from the
said Long Level Road to the lane hereinbefore mentioned.
SUBJECT ALSO, to the right and privilege of the Grantors, their
heirs and assigns, to use the lands herein conveyed and adjacent to
the above described lanes for the purpose of g,:ining access to the
public road above mentioned in the event the said lane or lames
become impassable for travel by reason of snow, ice or sleet.
AND SUBJECT FURTHER to any and all easements, rights-of-way
now existing upon, over or through said tract of land.
I
ell
)5 x ? I by-? C-
EXHIBIT "A"
U 4 M
E L
Sr\?17 y' CFo`^feacr? -. D. R. M N. R
L E R' r r E R
ILI
t
t G ?
?w
Iw?M.r
yA,CO?A?is Aa. ?? ?
? Q ctw?wr?Cna ? ` <
CSR
osom
q RCA s /?Lpp AttGS ?rWigc
t ?, 3
0 N M
0 3b
y a _
V• ?. RECHEL x
31t?! rOR . • ,'
/ r-
?'"-a s ?
17
3how,n9 P rf e?w
Pro t r 190red From s
EdWq?D A 8- BCANC ?,, 2
HE L rURAl",,, y 6 --??
044z B.
b/y GATHE,P/NE FFq/GOR R
r
o
Ac t e,v rryP
Cum a. co, PA -- M e N 1
R
.300
00
Ju.??-23rd,/yS3 A R
Confoin/n ? -9 1 \ L c ,
9 14& CPES ?FoRm LR LYI
1
i?. , b f ?
?x
i
OF TW
MCOR ! OF EEW l
09
9 ?
emnLAN'D
Ma
I atAD&' THE .$?
at the day of
our lord one ..rwand nine hundred fifty-nine (,f 959 )
in the year
REt WEF.N E. ALLEN TU9NBAUC,H (also known as Edward
and ALANCHB E. TURMAUGH
I Upper Allen, his wife A. 1ltrnbaugh)
. of the Township of
?nla, harelnafteryoaf Cumberland and State of Penneyl_
d the
MARION de COtM SINPSQN of the City l:ra„r,.re,
Of Dauphin and State of( P r'"Ylvaniar herviall, Count]' i
Tter called
I
I w1r,"' SSTN, - 17-111'.. _ - _ w `----- i,_rmt?rleMa. of _2ho°aty_flue Tt'ou[+anl1 ($25,000.00)_ that a,wf Paid, t ree«pt wAe"Of u streby aaAeewl -_- -- --- -Dalian
Hogue„ M th r +a"t M ."x . ALL the °??' !A------------------
t Qaid p,vator a 'j. A
;improvements thereon erected s ??1n tract of land and yhc grant
:County of Cumberland end Stage of Pte lr the Township of Upper Allen,
ibounded gad d9ecribed as follows, Pennsylvania, more particularly
zBolliNI1.0 at a rock oak tree, which tray thirty is North eighty
six
from thellmeat_ minutes asst two hundr,ad nynsty-aighL (-,
iDaniel H. $ittar?e monument at corner of lan 8) feet
of I. W- Miller and
which the tracer; hence by lends of pale ds
S, of '
rgre herein ds( d was forme and rly . Catherine North Iller, a seventy- !
1°S? ffee de4rass thirt3" f30) minutes Salt tw
.aoe? 'thirty tm an Arco pin: o thence by hundred same So o a uth ton hand,art (10) degreesiBht
3) inutes ea Fa st tw
thence by same North e and ninety-four (294) feet to a
aanuLes crest three hundred a hthirt t (88 de)grave fortY-Ilve (43)
1-11103 andath North two tharty M degreeeythirty 1(j0) feetto iron pin.
-three (233) feet to the aforesaid r° AOak st tree,
the place of BEGINNING. contalnSng 1.83 doers of lend.
BETNO part of the same
a t of the last dil Premla°v which Lemoyne Trust Company, i
Me dated and Testament of John
nd for eaidaCu Berl
and 1939, and recorded in the $ecordar' a ,Ofyiits
ya
o
?hereina and conveyed uatoE tAllen 4urabaugh,Yorievof?the'Cran?o276?
asstE =reGrante gh conveying unto the ea3d G
!privilege of antee, her
, the riplrt to the free and luunterrurentc heirft arm Pted , and psses in arul along a Qer use
, libarty and
Leval load to rein
from the tract of land he conveyed to the lsnerlead?ingsfnaa ?nngl
the b'uldings situate leads
oftOeyad to Dale a . and Catherine E, g tho troet of land heretoforee
?Catherine Uthering .' to the rights and egeor. UNDER AND
fi Railor, his privilege of the said Dglcj3. , I
lPrlvate lane with the hie f wir°, their hairs and ass A P,n6,yp DrosndeaSdeclul ?
of gaininh thetractaOeland and tof Pment for the purpose
C--tore er.jn u to heroofore conveyed by the
in unto the said D.I. a. F41.1or and Catherine E. pallor
i r1t1so granting unto the said Grantee
+r+idhto the free and uninterrupted UL, + her heirs and sssS n3, the
1 Paeeage In and along, icommon with tllbrty, heeseid Failore?Algae of.
their
pox AJA r'r139
heirs aad assigns, that certain private lane leading from the said
Long Level Road to the lane hereinbefore mentioned.
Also granting unto the said Grantee, her helre and assign, the
right and privilege to use the lands heretofore conveyed to said
Failors and adjacent to the above described lanes for the purpose of
gaining eeoees to the public load above-mentioned in the event the
said lane or lanes become impassable for travel by reason of anow,
ice or sleet.
AND STMECT PUHTM to alyr and all easamente and rights-of-ways
Ian may now exist upon, over and through said traot of land. i
The Bald rights-of-way herein conveyed to the Grantee are the
same an those reserved to the Grantors E. Allen Turnbaugh, In hie
deed dated the first day of April 1954 and recorded 1n the aPflee
of the Recorder of Deeds In and for Cumberland County, Pennsylvania
In Deed book 'R•, Volume. 15, Page 171 to Dale B. Pallor and Catherine
E. Pallor, his wife.
The location of the said rights-of-ray herein conveyed are more
exactly Shorn In the sketch of a oertaie survey made by w. C. Rechel,
Registered surveyor, dated June 2?, 1953, attaohod-hareto and Grade
Ia part hereof. f
j i -
11 1 M.
I
r
f `.
?Xl??bit
21 PALE 100ii ?U'?,?G?l,•r
_mwO If 4DE THE day of in the yew
of ow lard one thousand nine hun" sixty-five (1196?)'
BETWEEN MARION de COUX SIMPSON, in her right, and PAUL F. SIMPSON,
her husband, of the Township of Upper Allen, County of
Cumberland and State of Pennsylvania, hereinafter called
the
Grantors,
and GEORGE V. GREGORY and NOREEN M. GREGORY, his wife, of
the Township of Lower Allen, County of Cumberland and
State of Pennsylvania, hereinafter called the
Grantee s:
]9lTNESSSETH, that in eonsidcmNon of Twenty Thousand ($20,000.00) --------
---------- --- --------------- --------------------------- DoUltril,
in luind paid, the receipt whereof is hereby acknowledged, the said gouxtor s do hereby grant
and convey to the said gmnteas, ALL that certain tract of land and the
improvements thereon erected, situate in the Township of Upper Alli
County of Cumberland and State of Pennsylvania, more particularly
bounded and described as follows, to wit:
BEGINNING at a rock oak tree, which tree is North eighty-&IN
(86) degrees thirty (30) minutes East two hundred ninety-eight (298)
feet from the lime stone monument at corner of lands of I.W. Miller
and Daniel H. 'Ritter; thence by lands of Dale B. and Catherine Failc
of which the tract herein described was formerly a part, North
seventy-nine (79) degrees thirty (30) minutes East two hundred
seventy-eight (278) feet to an iron pin; thence by same South ten
(10) degrees thirty (30) minutes East two hundred ninety-four (294)
feet to a post; thence by same North eighty-eight (88) degrees
forty-five (45) minutes West three hundred thirty-nine (339) feet
to an iron pin;thence by same North two (2) degrees thirty (30)
minutes East two hundred thirty-three (233) feet to the aforesaid
rock oak tree, the place of BEGINNING. Containing 1.83 acres of
land.
BEING the same premises which E. Allen Turnbuagh (also
known as Edward A. Turnbaugh) and Blanche E. Turnbaugh, his wife,
by their deed dated May 22, 1959, and recorded in the Recorder's
Office in and for said Cumberland County in Deed Book "D", Vol. 19,
Page 138, granted and conveyed unto Marion de Cou:c Simpson, one of
the grantors herein.
Granting and conve?ing unto the said grantees, their heirs
and assigns, the right to the free and uninterrupted use, liberty
and privilege of, and passage in and along a certain private lane
leading from Long Level Road to the buildings situate on the tract
of land heretofore conveyed to Dale B. and Catherine E. Failor.
UNDER AND SUBJECT, NEVERTHELESS, to the rights and privilege of
the said Dale B. and Catherine.E. Failor, his wife, their heirs and
assigns, to cross said private lane with their farm machinery and
equipment for the purpose of gaining access to the tract of land
heretofore conveyed by the said E. Allen Turnbaugh (also known as
Bdward A. Turnbaugh) rnA.Alanche E. Turnbaugh, his wife, unto the
said Dale B. Failor and Catherine E. Failor.
Also granting unto the said grantees, their heirs and
assigns, the right to the free and uninterrupted use, liberty, and
JJ I? .•/JI'ie ?i7C s. I' School Dill. Cumb. Co. PaL
.
1% reeltetele4netler flr _ ' .
i
privilege of, and passage in and along, in Common with the said
PailOts, their heirs and assigns,the that certain private lane leading
from the said Long Level Road to lane hereinbefore mentioned.
Also granting unto the said grantees, their heirs and
assigns, the right and privilege :o use the lands heretofore
i conveyed to said Failors and adjacent to the above described
lanes for the purpose of gaining access to the public road above-
mentioned in the event the said lane or,lanes become impassable
for travel by reason of snow, ice or sleet.
AND SUBJECT FURTHER to any and all easements and rights-
of-ways as may now exist upon, over and through said tract of
land,
The said rights-of-way, herein convoyed to the grantees
are the same as those reserved to the grantor, E. Allen Turnn the
baugh,
in his dead dated the first day of April 1954 andCumberlandrecordedCounty
Office of the Recorder of Deeds in and for ,
in the
Pennsylvania in Deed Book "2t% volume 15, Page 171 to Dale a, , his AllenrTurnbaugheandeBlan helE. Turnbaufh, his wifeh bye said E.
? their
deed dated May 22, 1959, and recorded in,the Recorder's office
aforesaid in Deed Book "D", vol.. 19, Page 1381 granted and con-
veyed unto Marion de Coux Simpson, one of the grantors herein.
The location of the said rights-of-way herein conveyed are
more exactly shown in the sketch of a certain survey made by
W.G. Rechel, Registered surveyor, dated June 2y
to and made a part of deed from E.. 3, 1953, attached
Allen Turnbaugh and Blanche
i
E. Turnbaugh, his wife, to Marion de Cen Simpson.
r
BDDX Q 21 rxE1007
r
1
r
Fx?'sb}+ ?
n..., 4 of floe.
sra Rau, far, Iatf.sr Pa.
?r
MADE THE -? ? day of J6? ?r"a' fill is the yaw
of our Lord one thouscad sins h:afdrs¢ and Seventy-One (1971) .
BI:TWEAW .GEORGE V. GREGORY -and NOREEN M. GREGORY, his wife, of
the'Township of Upper Allen, County of Cumberland and State of
Pennsylvania,
Gra
eme s,
and. HARRY J. REITER and ELEANOR A. BEITER, his wife, of th
Borough of Mechanicsburg, County of Cumberland and State of Pennsyl-
vania,
• Grantee s:
WIMRSSETH, that in wnsidcmNdn of Thirty-five Thousand Nina Hundred----
---------- Do
°-'-°°°° °-°° ($35,900.00) --------------- Dollars,
in hand paid, the receipt'whefroof is hereby adonowkdpsd, the said graaftors do hereby grant.
and convey to tlis said mantes s, ALL that certain tract of land and the
improvements'thereon'erected, situate in the Townahip of Upper Allen,
_ County of Cumberland and State of Pennsylvania, more paxticularly
bounded and described as follows, to wit:
BEGINNING at a rock oak treer which tree is North'Eighty-six
(86) degrees Thirty (30) minutes East Two Hundred Ninety-eight (298)
feet from the lime stone monument at corner of lands of I. W. Miller
and Daniel H. Ritter; thence by lands of.Dale B. and Catherine. Failor,
of which the tract herein described was formerly a part, North
Seventy-nine (79) degrees'Thirty (30) minutes East Two Hundred
Seventy-eight (278) feet to an iron pin; thence by same South Ten (10)
degrees Thirty (30) minutes Bait Two Hundred pinety-four (294) feet to
a posts thence by same North Eighty-eight (8$) degrees Forty-five (45)
minutes west Three Hundred Thirty-nine '(339) feet to an iron pin;
thence by same North'Two (2) degrees Thirty (30) minutes East Two
Hundred Thirty-three. (233) feet to the aforesaid rock oak tree, the
place of BEGINNING. CONTAINING 1.83 acres of land.
BEING the same premises which Marion de Coux Simpson and Paul
E. Simpson, her husband, by their'Deed dated July 16, 1965 and re-
corded in the Recorder's Office in and for said Cumbexland.County in
Deed Book "Q", Volume 21, Page 1006, granted and conveyed unto George.
V. Gregory and Noreen M. Gregory, his wife, the Grantors herein.
GRANTING AND CONVEYING-unto the said Grantees, their heirs
a
and nd assigns, the right to the free and uninterrupted use, liberty
leading from Long LevelaRoadetonthedbdalong a ilddngs certain
situate private an the tract
of land heretofore conveyed to Dale B. and Catherine E. Failor. R AND of theUsaid DaleS8.Ja doCaNEVERTHELESS to therine E. i ilor,?ehis rights their heirs
and assigns, to cross said private-lane with their farm machinery
and equipment for the purpose of gaining access to the tract of land
heretofore conveyed by the said E. Allen Turnbaugh (also known as
Edward A. Turnbaugh) and Blanche E. Turnbaugh, his wife, unto the
said Dale B. Failor and Catherine E. Failor.
ALSO granting unto the said grantees, their heirs and assigns,.
the right to the free and uninterrupted use,- liberty, and privilege of,
BCC XA4?iGE 439
and passage in and Along,
heirs and assigns, in common WitI% the said Failors, their
Lon Le at certain private lane leading from the said
4 vel Road to the 'lane hexeinbefore mentioned.
right and pving unto the said grantees,
th? their heirs and assigns,
said Failors andivadlace to use the lands heretofore conveyed to
purpose of eat to the the gaining acces above described lanes for the
s to the public road above mentioned in the
event the said lane or lanes became impassable for
of snow, ice or sleet.
travel by reason
AND subject further to any and all easements and rights-of-
ways as may now exist upon, ever and through said tract of land.
THE said rights-of-waY herein conveyed to the grantees are
the same as those reserved to the grantor, E. Allen Turnbaugh, in
his Deed dated the first day of April, 1954, and recorded in the
Office of the Recorder of Deeds in and 195 said Cumberland County,
Failorl and Catharine E?oFail or, V his Q 1.5, Page 171, to Dale B. Wife, Turnbaugh and Blanche E, Turnbaugh, his wife,; byitheireDeedddated
Ma 22 Allen
Deed Book95p" and recorded in the Recorder's office aforesaid in
de COUx gimps' Volumeo19, Page 138, granted and conveyed unto Marion
One grantors in the preceding Deed.
THE location of the said rights-°f-way herein conveyyed are
more exactly shown in the sketch of a certain survey made b
Rechel, Registered Surveyor, dated June 23, 1953, attached to and
made a part of died from E: Y W. G.
Allen wife, to Marion de Coux ees Turnbaugh and Blanche Z, T
p on. urnbaugh,
BQ K
,,?(24Pid 440
i
c
r
I
1
E
?xh,b+ E
f
2ur-Warranly Deed, Tti•.o 'ckno'Mcdgmerts
H"'y Hall, Int., Indiana, Pa.
19 ? Sio
3fADE THE dr,I? of MW _
of our Lord one thousand nine hundred SEVENTY SEVEN
(14 ) 1 / in the year
BETIVEELV HARRY J. HEITER and ELEANOR A. HEITER, his wife of Upper
Allen Township, Cumberland County, Pennsylvania hereinafter
called GRANTORS and PARTIES OF THE FIRST PART
e- A N D
_ c-
PETER A. WILr24S and MARY G. WILLMS, his wife of Meehan-
DC icsburg, Cumberland County Pennsylvania., called GRANTEES and PARTIES OF THE SECOND PARTinafter
L
Of the second part, WITVESSETH, that the said part j es of the first part, for and in consider.
ation of the suet of - r1 TY NINE THOUSAND NINE HUNDRED AND NO1100
-----------------($59,900.00)------
lafvful money of the United States of Amcrica unto them
------ Dollars, well paid by the said part ies of the second part, al and before the scaling and delivery of these
presents, the receipt whereof is hereby acknowledged, have
bargained, sold, alielted, enfeoffed, released, conveyed and confirmed, and granted
grant, bargain, sell, alien, enfcoff, release, convey and conjnn unto the said
by these part i eresents s o f the
second part. their heirs, and assigns,
ALL that certain, tract of land and the improvements thereon erf-cted,
situate in the Township of Upper Allen, County of Cumberland and State
of Pennsylvania, more particularly bounded and described as follows,
to wit:
BEGINNING at a rock oak tree, which tree is North 86 degrees 30 minutes
East 298 feet from the lime stone monument at corner of lands of I. W.
Miller and Daniel H. Ritter; thence by lands of Dale B. and Catherine
Failor, of which the tract herein described was formerly a part, North
79 degrees 30 minutes East 278 feet to an iron pin; thence by same South
degrees 30 minutes East 294 feet to a post; thence by same North 88
degrees 45 minutes West 339 feet to an iron pin; thence by same North
2 degrees 30 minutes East 233 feet to the aforesaid rock oak tree, the
place of BEGINNING. CONTAINING 1.83 acres of land.
BEING the same premises which Marion de Coux Simpson and Paul E.
Simpson, her husband, by their Deed dated July 16, 1965 and recorded
in the Recorder's Office in and for said Cumberland County in Deed Book
"Q", Volume 21, Page 1006, granted and conveyed unto George V. Gregory
and Noreen M. Gregory, his wife, the Grantors herein.
Under and subject nevertheless to easements and rights-ofway, as
contained in prior instructions afore-recorded,
BEING THE SAME PREMISES which George V. Gregory and Noreen M. Gregory,
his wife, by deed dated August 31, 1971 and recorded in Deed Book G,
Volume 24, Page '440, granted and conveyed unto Harry J. Heiter and
Eleanor A. Heiter, his wife, the Grantors herein.
/I
To-aship .f <<"1 . ....: l i ??--
Curab. Co., Pa.
17 Gat E,f.f. T-1 fu 7.:
Comb. Cs. Dist. C.J. School Dist. Cumb. Co., Pa.
oat.
I » Re.1 E.n.l. T,-f., T..
q - i
! /r
C.mb. C., 04t. C.I. Aqf.
' COMMONWEALTH OF PENNSYLVANIA =
DEPARTMENT OF REVENUE
PEALTY (1
TRANSFER JUL-1'77 5 9 :7. Q
o P.B.111E2
BOOK A/"7 FACE ?,?7.
TOGETHEti tcith all aped singular, the said property, ineprrovcme+cts, ways, uutcrs, cagier
?
courses, rights, liberties, privileges, hereditamenls and aplrurtenarues whatsoever thereunto be-
lunUrno, or in anywise appertaining , amt the reversions and re t enances, ghats, issues erand
thereof, and all the estate, right, tiEk, interest, property, claim and
e
part ies of the first demand whatsoever, of the said
eve in law, equity or otherwise howsoever, of, in and to the same and
'Y Part thereof,
TO HAVE AND TO HOLD the said aforementioned
heredstaments and premises hereby granted or mentioned, and intended so to be, with the appurte-
unto the said part ies of the second part, of he
e it
and for the only their
Y proper use and behoof of the said part ies t heirs and assigns, to
heirs and assigns forever. second part, their
the said part ies Of the and administrators, do o first part, for their
by these presents covenant, grant and agree to and heirs, exeors
part ies said
of the second
with thes
the said part ies
f the fir-it part, and their h-zr.1, part, their heirs and assigns that
ments and premises hcreinuab v described an granted or Inentioned and and tended the heredit with
the appurtenances, unto the said part ies of the second part, their h so to be, with
against. them the said art ies lairs and instals
and every other person or p of the fast part and their heirs, and against all
part thereof persons whmnsoevar lawfully claiming, or to Clain: the smme or any
generally
set
fill W'TNESS V?HEREOF, the said part ies
their hands and seal s• Dated the day of the first part ha ve
and Year first above written.
to these presents
-r+`igurD, *rafral unl -7r[iurrr? ', t
Fiarrl- iT.' Heiter sorer:
in :fir lJrrarr:rr of - --------- _
L
nor -r
•---... .. tiLAL
.............. -.... »..... --
Received the day of the date of the above Indenture of the above named
the surn of
Dollar,; lawful money of the United States, being the consideration money above mentioned in full,
Witness-
shall and will warrant and forever defend.
B00I(4/ "7 PAGE 118
f_
State of Pennsylvania
County of Cumberland as.
On this, the v 11 day o = (; .
the undersigned o veer, f before me,
ll , PersoyucUy appeared ?? .
Harry J. Heiter and Eleanor A. Heiter, his wife
knourn to yne (or satisfactorily proven) to be the person s whose names
within instncynent, and acknowledged that e are subscribed to the
y
contained. 1 executed same for the ;purposes therein
In u-fitness 2ohereof, r hereyc sto set y
ha
./ 1
nd,a4d official seal.
_
ff?? `y., :! ?C,,, •TWV., CltlAtCBlAND L. ---------------------
JULY ' l f' ... - - ?1
` w= _ 5EA7,
p:.'.',y.. iJh ?,?.DA7N1:,$lOh 'XrIBfS ._.•......•..•..•._._..__.
23.19n
Notar• Pub I
Err .,r: Title
f = of Officer.
On this, the day of ))
the undersigned opicer, personally appeared 19 , before ire,
knoyon. to me (or satisfactort7y proven) to be theperson whosemtme
witlcin instrument, and acknowledged that subscribed the
contained executed same for the purposes t;carein
In'witnesa whereof, r hereunto set my hand and official seal.
?? do hereby certify that the le of Ofjucr.
of the within named graycle
o is revise residence and coin
lete
, Post o}ftce address
)?
-•i ?,
Attorney y ..
for
" , ? ! •
c''
sa
N
.,? •.I rtf
x y
w ra
sa
0 b, .
W
H H 4
.
. ?
o
0.0 C)
?' 1
w Q
to 0
1 r
z o .
y
i oc U ali r
N
17 W
RC. W N N t17
I 07v of a wL
T-_k.
, >?.
,
?4 rij
(a -4 4J Ell
x -- a i a z
0
0
COMMONWRALT17 OF PLNNSYLVANIA
County of ss.
i
PNCORDI;D on this _-? ?-
-Z-1 day of
A. D. 1o/?in the Recorder's OfTce n e l
% slid Cnurty, in Deed Look
/7/"Vol. . C_- Page j-
Given under my rtand and the seal of the said once, the date above ycrittcm..
-? I --? z
Perorder.
P-rr
r
:Q
P
o.
0
a
h
h
0
h
Pi
s?
v r w ? e
a o E 2 78.0 °? 41 ? Q ?
e ? NA 79, 90-
.0-
V) o Q ?? y
)
? 1 p rr) v` o *g', O W x
lrz?
?? 3?q
? WV
p Z
ooN W
' W z
CIV
O 3 c 4 h 0. ?? Q lV 0 __N R Ri .
14
W J
` V
?' 3 \
Q, n °ct \
vz?
44
' W tiA
••, E "?P WoJ J
pQ
Qa' 7711Y +ON/c/N//y
5
4,1 -
102-35
62'3
rb>. o
P
r?
C, ?, ?, + p
THIS DEED,
MADE THE Q__P h day of in the year
of our Lord one thousand nine hundred ninety-six (1996)
BETWEEN PETER A. WILLMS and MARY G. WILLMS, his wife, of Upper Allen
Township, Cumberland County, Pennsylvania,
Grantors,
and TERRY N. BARR and QUINN K. BARR, his wife, of New Cumberland,
Cumberland County, Pennsylvania,
Grantees,
WITNESSETH, that in consideration of
---ONE HUNDRED TWENTY-EIGHT THOUSAND ($128,000.0or----_---- Dollars,
in hand paid, the receipt whereof is hereby acknowledged, the said grantors
do hereby grant and convey to the said grantees,
ALL THAT CERTAIN tract of land and the improvements thereon erected, situate
in the Township of Upper Allen, County of Cumberland and State of.
Pennsylvania, more particularly bounded and described as follows, to wit:
BEGINNING at a rock oak tree, which tree is North 86 degrees 30 minutes East
298 feet from the line stone monument at corner of lands now or late of I. W.
Miller and Daniel H. Ritter; thence by lands now or late of Dale B. and
Catherine Failor, of which the tract herein described was formerly a part,
North 79 degrees 30 minutes East 278 feet to an iron pin; thence by same
South 10 degrees (erroneously omitted in prior deed) 30 minutes East 294 feet
to a post; thence by same North 88 degrees 45 minutes West 339 feet to an
iron pin; thence by same North 2 degrees 30 minutes East 233 feet to the
aforesaid rock oak tree, the place of BEGINNING.
CONTAINING 1.83 acres of land.
BEING the same premises which Harry J. Reiter and Eleanor A. Hefter, his
wife, by their deed dated July 5, 1977 and recorded in the Cumberland County
Recorder of Deeds Office in Book H-27, Page 117, granted and conveyed unto
Peter A. Willms and Mary G. Willms, his wife, Grantors herein.
BOOK J.47 PACE 7,56
OWNERI=BARB, TERRY N & QUINN K
SUFFIX 1=
PARCELS l I=71164
LANDDESC=LAND APPROX 2 ACRES
OWNER2=
APPENDPI_1=42-10-0256-015
DEEDACRE=1.83
ADD 1=829 EAST WINDING HILL ROAD
PIN _1=42-10-0256-015
NHOOD=42
YEARBLT=1939
LVALUE=41640
ADD2=
LUC=101
DEEDBOOK=00147-00756
LOCATION=829 E WINDING HILL ROAD
OID_=80510
Featureld=57242
APPENDPIN=42-10-0256-015
ZIP==17055
NOTES=
TYPE=R
CITY=MECHAIVICSBURG
SQFT=1801
TVALUE=138630
STATE PA
AREA=66754.74609
PARCELS 1 =57243
BVALUE=96990
PIN=42-10-0256-015
PERI114ETER=1067.55889
wmsa,wo svalecx. MgMTHSLUr.. ao examments pad Fights+of-vay, as Cppsatnad
to prl o?C inotal'YRiaad a are-recosdw.
.
mu m 91
.
O "I".
1? » M
k ? .l
Cs ? it
l..
N =1 i?
-14 Lim AP
ca
log, r
• ?
RE
a :r w
w
G7GF??i ?' .?i 7
And the asiA granwra hereby pavenpnc and agrov that shay
Nall warradc specially T2- pzvpeTty howeby oonvwad.
eoou 147 FAR 757
XX WZTXM CAF, *Old grar?tora bWM hsrbw= tot thair hand and anal
she day and ye" €lrar. abow wrl==.
Sued, 56010$ and Vallvered
is Prssell? o?
BTdR A. ?yl}1e
ate.
w?xv(a. xizr?5
5sasa of P8r=W7SYarlia
County of 4. V•h as.
On brie, the a IN day of SPc6w . 1995, "foram.
MiM
1IN UpAel?signed own ?ta?aa OnQ4.Y aPYess?ad W.tCr A. Wilber ewd NesY a.
Whose sro auhecrib?,d to ?e Mst?a ? Proms) TO be the parge"
safle !or the purposes ftereln ooeseba ifigt
, , „_ ~ . 'i+$ WFYB)tEQS? x hwounM 4019 my hand anp gt94Wal seal.
k! -j lop eotlwser Title of Otliaes.
'S4 -
ftera of
Opunty or 943,
Dn thie, the day of 19 , belarq o?q,
gee undersigned oartain, V4rAMMUy app46re4
hrw to .e (oar aati.afa?borily proven) to be CM pardoA whose nave
iubeori = to the m&VA ? SWtrument, and ao1awledged that
aaeentad awn for Wo purposes thersiA eanvalmW.
XX VITXMM WHZW F, I harsuaw aoC My hand and offtc4al soul.
Tit?b A o lacer.
W-W "? IM 759
o h0em6y c4pr"Ey tbaa the pkv*Lba meeideSwe mnd QGW otm
pals oslioe aAdresa at the within na.ed pr-mmee Is 1019
wssornny for n? rl?
G- . MX= OF P$N11MV=7A
3. D.19 &, in the Rveosdar' 9 oi'lita of the d"d CO-SY, to Deed Opm // j
l.;
Vol. Papa T
6itiren under mar bond wW sbc seal of tba eeid vtfioa, she dAtIM
Bb+PVm vi3sT.an.
5
t 3 F R?-S.
ai47 PAC ns
THE MCNAUGHTON PROPERTIES, LP
and MIDPENN ESTATES
Plaintiff
V.
TERRY N. BARR and
QUINN K. BARR,
husband and wife
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
NO. 08-1975
ACCEPTANCE OF SERVICE
I accept service of the Complaint on behalf of Defendants, Terry N. Barr and Quinn K.
Barr, and certify that I am authorized to do so.
Date: r i•' '.!?---2008
J rr yDuffie
Jo son ffie
301 arket Street
P.O. Box 109
Lemoyne, PA 17043-0109
Counsel for Defendants
Terry N. Barr and
Quinn K. Barr
Johnson, Duffle, S
By: John R. Ninosky,
I.D. No. 78000
301 Market Street
P. O. Box 109
Lemoyne, Pennsylvai
(717) 761-4540
& Weidner
Attorneys for Defendants
17043-0109
THE MCNAUGHTON PROPERTIES, LP
and MIDPENN ESTATES,
Plaintiffs
V.
TERRY N. BARR
husband and wife,
TO THE
PLEASE e
Barr and Quinn K.
QUINN K. BARR,
Defendants
ARY:
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 08-1975
CIVIL ACTION - EQUITY
JURY TRIAL DEMANDED
PRAECIPE
the appearance of the undersigned on behalf of the Defendants, Terry N.
husband and wife, in the above-captioned matter.
JOHNSON, DUFFIE, STEWART & WEIDNER
By: 4W'4;1A2'u(?
Jjohfi R. Ninosky, Esquire
Attorney I.D. No. 78000
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
Telephone (717) 761-4540
Email: jrn@jdsw.com
Attorneys for Defendants
Date: y/7 j l
CERTIFICATE OF SERVICE
I hereby certi
following, by d
Lemoyne, Penn
Helen Gemmill, Esc
McNees, Wallace 8
P.O. Box 1166
Harrisburg, PA 17'
Attorneys for Plaint
that a copy of the foregoing has been duly served upon the
the same in the United States Mail, postage prepaid, in
a, on '/ dd ?
uire
Nurick
08-1166
JOHNSON, DUFFIE, STEWART & WEIDNER
By-f!!YA lYdlljj
J An R. Ninosky, Esquir
I . D. #: 78000
301 Market Street
Lemoyne, PA 17043-0109
e-mail: jrn@jdsw.com
Attorneys for Defendants
330384
r,,,,
?... _ c-?
r-.,
:_;+
cz: 'r7
. -?
??
_ ;...T
...
?
? .
i,..?
_ ..T7
'... ;
?
u? cA?
- '
?
°o
d;
,
Johnson, Duffle, Stewart & Weidner
By: John R. Ninosky
I.D. No. 78000
Elizabeth D. Snover Attorneys for Defendants
I.D. No. 200997
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
e-mail: jrn@jdsw.com
(717) 761-4550
THE MCNAUGHTON PROPERTIES, IN THE COURT OF COMMON PLEAS
LP and MIDPENN ESTATES, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs : NO: 08-1975 Civil Term
V.
CIVIL ACTION - EQUITY
TERRY N. BARR and
QUINN BARR, husband and wife, :
Defendants
NOTICE TO PLEAD
To: The McNaughton Properties, LP and
Mid Penn Estates
c/o Helen L. Gemmil, Esquire
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
AND NOW, this 5th day of May, 2008, you are hereby notified to file a written
response to the enclosed Preliminary Objections within twenty (20) days of the date of
service hereof or judgment may be entered against you.
JOHNSON, DUFFIE, STEWART & WEIDNER
By L??Ia L44?JA
Jo n R. Ninosky
Elizabeth D. Snover
Attorneys for Defendants Barr
51s10e
Johnson, Duffle, Stewart & Weidner
By: John R. Ninosky
I.D. No. 78000
Elizabeth D. Snover
I.D. No. 200997
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
e-mail: jrn@jdsw.com
(717) 7614550
Attorney for Defendants
THE MCNAUGHTON PROPERTIES, --.IN THE COURT OF COMMON PLEAS
LP and MIDPENN ESTATES, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs NO: 08-1975 Civil Term
V.
TERRY N. BARR and
QUINN BARR, husband and wife,
CIVIL ACTION - EQUITY
Defendants
DEFENDANTS' PRELIMINARY OBJECTIONS TO
THE PLAINTIFF'S COMPLAINT
AND NOW, come the Defendants, Terry N. Barr and Quinn K. Barr, by and
through their counsel, Johnson, Duffie, Stewart & Weidner, P.C., and file these
Preliminary Objections to the Plaintiffs' Complaint by respectfully stating the following:
1. This matter is an action in equity asking the Court to hold that the Plaintiffs
can modify the course of an express easement without the consent of the owners of the
dominant estate, the Defendants Terry N. Barr and Quinn K. Barr (hereinafter "Barrs")
2
2. The Barrs obtained title to their residence municipally known and
numbered as 829 East Winding Hill Road, Mechanicsburg, Cumberland County,
Pennsylvania (hereinafter "Barr residence") by deed dated September 27, 1996 and
recorded on October 18, 1996. A true and correct copy of the Barr deed was attached
as Exhibit H to Plaintiffs' Complaint.
3. The Plaintiffs, The McNaughton Properties, LP and MidPenn Estates,
obtained title to some 142.07 acres of land adjacent to the Barr residence by deed
dated January 30, 2007 and recorded on January 31, 2007. A true and correct copy of
that deed was attached to Plaintiffs' Complaint as Exhibit A.
4. As alleged in Plaintiffs' Complaint, the Barr residence is a tract containing
1.83 acres of land.
5. This 1.83 acre tract was created by E. Allen and Blanche Turnbaugh by
reservation in a deed dated April 1, 1954 (hereinafter "1954 deed") that sold out the
142.07 acres to the Failors (now the Plaintiffs' property). A true and correct copy of the
1954 deed was attached as Exhibit B to Plaintiffs' Complaint.
6. The 1.83 acre reserve tract (now the Barr residence) is landlocked,
therefore, also in the 1954 deed to the Failors, the Turnbaughs reserved an easement
3
in their favor as a means of ingress and egress to their parcel over the 142.07 acres,
now owned by Plaintiffs herein. See, Exhibit B to Plaintiff's Complaint.
7. The 1954 deed expressly reserves the easement as follows:
SUBJECT NEVERTHELESS, to the right of the Grantors, their heirs and
assigns, to the free and uninterrupted use, liberty and privilege of, and
passage in and along a certain private lane leading from the tract of land
herein excepted and reserved to the land leading from Long Level Road to
the buildings situate on the tract of land herein conveyed. The Grantees,
their heirs and assigns, to have the right and privilege of crossing said
private lane with their farm machinery and equipment for the purpose of
gaining access to the tract of land herein conveyed.
SUBJECT FURTHER, to the right of the Grantors, their heirs and assigns,
to the free and uninterrupted use, liberty, and privilege of, and passage in
and along, in common with the said Grantees, their heirs and assigns, that
certain private lane leading from the said Long Level Road to the land
hereinbefore mentioned.
SUBJECT ALSO, to the right and privilege of the Grantors, their heirs and
assigns, to use the lands herein conveyed and adjacent to the above
described lanes for the purpose of gaining access to the public road above
mentioned in the event the said lane or lanes become impassable for
travel by reasons of snow, ice, or sleet.
AND SUBJECT FURTHER to any and all easements, rights-of-way now
existing upon, over or through said tract of land.
?...
rrAr'Y
wryw.?rr. ?
4
8. The above small-scale of a survey performed by W.G. Rechel showing the
property was affixed to and recorded in the 1954 deed as shown in Exhibit B to
Plaintiffs' Complaint and shows the "certain private lane" or lanes mentioned in the
grant.
9. A large scale of this survey showing the lanes was attached as Exhibit C
to Plaintiffs' Complaint.
10. This express easement is the only means of access used by the Barrs and
their successors in interest since the 1.83 acre parcel was created by the 1954 deed,
has remained substantially unchanged, and was clarified by a Right of Way
Maintenance Agreement dated November 21, 1996 and recorded in the Recorder of
Deeds for Cumberland County on February 3, 1997 and is attached hereto as Exhibit 1.
PRELIMINARY OBJECTIONS PURSUANT TO
Pa.R.C.P. 1028(a)(4) - DEMURRER -
LEGAL INSUFFICIENCY OF PLAINTIFFS' CLAIM
11. Plaintiffs' request for relief in equity, which is more in the fashion of a
judicial condemnation, asks the Court to make a declaratory judgment that the express
easement of the private lane now used and held by the Barrs should be modified and
relocated over the objection of the Barrs.
12. The Plaintiffs desire this modification, as the current easement course
conflicts with the design of a residential housing complex which has been filed with
Upper Allen Township. Complaint $ 23 and Exhibit I to Plaintiffs' Complaint.
5
13. Plaintiffs assert that the Court should relocate the express easement
because the Barrs are not entitled to access their property through the precise private
lanes shown on the survey of W.G. Rechel and affixed to the grant of easement in the
1954 deed as recorded. Complaint 129.
14. Plaintiffs further assert that a Court can compel relocation of an access
way if the relocation would not substantially interfere with the holder's use and
enjoyment of the right of way and the relocation advances the interests of justice.
Complaint 130.
15. Plaintiffs rely on the common law power of the Courts sitting in equity to
modify easements as discussed in the case of Soderberq v. Wiesel, 687 A.2d 839 (Pa.
Super. 1997).
16. However, this line of cases deals only with the Courts powers to modify
prescriptive easements.
17. After a good faith search, Defendants have not been able to locate
Pennsylvania case law supporting that a Court has the power to modify an existing
express easement over the objection of the dominant tenement easement holder.
18. Rather, Pennsylvania Courts have consistently held that, when
determining the rights of parties under express easements, including the right to
relocate the easement, the Court must look to the terms of the grant and the intention of
the parties.
19. A contract analysis is the only way in which a Court can declare the rights
of the parties to make modifications to that easement.
6
20. As such, it is submitted that the Courts have no power to relocate an
express easement, such as the one described and pled in Plaintiffs" Complaint, through
their equity powers.
21. Plaintiffs have pled insufficient facts to support that the easement in
questions was not an express easement and that the language and intention of the
parties to the express easement permits the Court to modify the location and course of
the "certain private lane" as set forth in detail in the easement as granted in the deed of
1954 over the objections of the Barrs.
22. Plaintiffs have pled insufficient facts to support that the easement in
question was a prescriptive or implied easement.
23. The reservation of easement in the 1954 deed is clear an unambiguous
that the Barrs have the right to use the "certain private lane" and provides no means for
modification over the objection of the dominant estate holder. See, Exhibit B attached to
Plaintiffs' Complaint.
24. As such, there is no legal basis for the Court to grant the relief requested
by Plaintiffs.
7
WHEREFORE, the Defendants respectfully request this Honorable Court to
dismiss Plaintiff's Complaint as the request for relief contained therein has no basis in
Pennsylvania law making Plaintiffs' claim legally insufficient.
JOHNSON, DUFFIE, STEWART & WEIDNER
By d A Jj,, ,?,
Jo . Ninosky
I. D. # 78000
Elizabeth D. Snover
I.D. #200997
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
(717) 761-4540
Attorneys for Defendants Barr
8
11IGHT OF WAY MAINTENANCE AGREEMENT
THIS AGREEMENT made this/ day of iy Mx n-641- A.D. 1998, by and
among the following parties:
PATSY A. HERTZLER, Executrix of the LAN Will and Testament of DALE B. FAILOR,
late of 831 East Winding HIP Road, Mechanloaburg, (Upper Allen Township), Cumberland
County, Pennsylvanla; and
PETER A. WILLMS and MARY G. WR,LMS, his wife, currently of 829 East Winding
HIII Road, Mechanicsburg, (Upper Anon Township) Cumberland County, Pennsylvania.
TJMRY N. BARR and QUINN X. BARR, his wife of 829 East Winding
Hill Road, Mechanicsburg, (Upper Allen Township), Cumberland County, PA
WHEREAS, the above-named parties are owners, In fee simple, of a certain farm and a
residential lot respectively. the recent history of the tide to which follows:
The major portion of the ground herein involved was originally the farm of EDWARD A.
TURNBAUGH, aka E. ALLEN TURNSAUGH, and BLANCHE E. TURNSAUGH, his wife (the
TURNBAUGHS). The taut TURNBAUGHS by dead dated April 1, 1954 and recorded In the
Recorder's Office In and for Cumberland County in Deed Book 'R'. Volume 15, Page 171,
granted and conveyed the major portion of their farm to the said DALE S. FAILOR and
CATHERINE E FAILOR, his wife (the FAILORB).
As is more fully and particularly described therein, over one hundred forty (140) awes
was granted and conveyed to the said FAILORS. Also, as is more fully and particularly
described therein, the said TURNBAUGHS excepted and reserved from the gram and conveyance
to the said FAILORS unto themselves, a certain tract of land and the Improvements thereon
emoted of slightly less than two (2) acres.
(Sae a copy of the survey of June 23, 1963 by W.G. RECHEL Registered Surveyor attached
hereto as 'Exhibit A.")
('N.B.: photocopy has been reduced In size and is therefore not to same scale as noted on the
front thereof).
The said grant and conveyance was made subject to the following express conditions and
reservations:
SUBJECT NEVERTHELESS, to the right of [said
TURNSAUGHS) their heirs and assigns, to the free and
uninterrupted use, liberty and privilege of, and passage In and
along a certain private lane leading from the tract of land
w to [excepted and reserved by Bald TURNSAUGHS) to the lane waft
from Long Level Road to the buildings snuata, on the tract of land
z on. [conveyed to said FAILORS(. The [said FAILORS), their helm
E and assigns have the riche and privilege of crossing said private
" c a= lane with their farm machinery and equipment for the purpose of
a gaining access to the tract of land [conveyed to the said FAILORS[.
°,u SUBJECT FURTHER, to the right of [said
ti! T U R N S A U G H S ], their heirs and assigns, to the free and
m uninterrupted use, Ili", and privilege of, and passage in and
' along, in common with the said (FAILORSj, their heirs and
assigns, that certain private lane leading from the said Long Level
Road to the lane hersinbefore mentioned.
SUBJECT ALSO, to the right and privaege of the [said
TURNSAUGHS), their helm and assigns, to use the lands herein
conveyed and adjacent to the above described lanes for the purpose
of galnkcg access to the pudic road above mentioned in the event
the said lane or lanes become Impassable for travel by reason of
snow, Ice or steel.
EXHIBIT
POUK 539 mu 1.1ft
August ", 1996
WHEREAS, the Bald WILLMS, by virtue of a grant and conveyance from HARRY J.
HEITER and ELEANOR A. HEITER, his eels, by deed dated July S. 1977 and recorded in the
Recorders Office sfon"d In Deed Book •H', Volume 27, Pape 117 and by virtue of various
and diverse moon conveyances as appear more fully at large M the records of the said
Recorders Office, are now the holden of all of the said TURNBAUGH'S rtgh4 title, and
interest M and to the said grounds excepted and reserved unto themselves and In and to the use of
said lanes; and
WHEREAS, the sold FAILORS also since purchased another parcel or tract of land
contiguous to the above land and being sku M In Upper Allen and Lower Alen Townships of
dolly lots than seven (7) acres from Its PENNIVLVAN1A TUANO IE CO SION,
which was granted and conveyed to them by deed dated June 21, 1940 and recorded In the
Recorders Office aforesaid in Dead Book ar, Volume 19, Page 63; and
WHEREAS, slice the dates of the two (2) abtwo-reforon ad purohases, the Bald
CATHERINE S. FAILOR departed this earthy life on 'jg g 19A-.
at which time the sold DALE S. FAILOR, as Burst vlllp spouse, beoams IM%nd e Ante owner
of the sold grounds Mid oil fiohta apPu WWI Alhereto by virtue of the laws of the
Comrnonnr "M of Pennsylvania InhokW4 b Ten x*o by the Endrodes; and
WHEREAS, the Bali DALE B. FAILOR departed this earthy life on May 7, 1996,
having left a Last WIN and Testament doled JaMUry 26, 1992 which was duly probated at the
Register of Wile Ohba in and for Quabstland County on MW 22, 1996 at which tine Letters
Tealamentary were duly issued to PATSY A. HERTZLER as Executrix (docketed to No. 21.96-
413); and
WHEREAS: On Bald grounds have not been opodflnNy devued and the said PATSY A.
HERTZLER, as Executrix, Is in full control of the promNa; and
WHEREAS, in an exercise of an abundance of aaudon, the Bald Executrix tM P6111110rhed
the Orphans, Court for approval hersof,.pursuanl to Title 20, sect. 3323, a copy of the decree
of approval belt affached hereto as'ExhMbN 9'; and
WHERE". the said FAILORS and the old WILLMS and their pro*wsaw in We to
the above-meraioned grounds reserved and exosp ed by the sated TURN MMINS. had, by oral
agreement and common understanding, provided for a sharkp of the maintenance and upkeep
costs associated therewith; and
WHEREAS, the parties hereto are desirous of ratifying and confirming: the said
agreement and understandings In writing and wish to legally bind themselves, their heirs,
executors, adminlatraars, successors, and assigns thereto;
IT IS HERESY AGREED AS FOLLOWS AS TO MAM MANCE AND UPKEEP:
1. FAILORS and their successors in tide shall be responsible for the lane, as it
runs from Fast Winding HMI Road (referred b above ae Long Level PA#4 b the Farm House and
outbuildings and barn at the oulorly side of the grounds.
2. WILLMS and their successors In title shall be rnaponsNNe only for the lane
extending from the W', which is Wanted approzlmaMly tlhitlseft hundred (1300) feet from
East Winding HIN Road, to the WILLMS, formerly TURNINAMM, reserved and excepted
grounds.
The responsibilities for their respective portions of the lanes shall be as follows:
A. Each shall pay hial her own respective costs.
B. Each shall provide his own snow removal within a
reasonable period of time under the circumstances
of any particular snow fall.
August 21, 19"
BOOK 339 PACE 1.102
G Maintenance shag Include the proper maintaining
and repaying of the respective lanes and of mending,
repairing and cleansing the said tares.
0. In the event either owner shag fag or refuse to
provide proper maintenance andlor snow removal,
and In the went that Is" action of any kind Is
necessary to compel them to do so, then the
offending parties shall reimburse the enforcing
parties for all proper court costs, attorneys fees
and related expenses whalsosver.
E The parties herein agree to carry proper insurance
policies b oover any injuries, damages or dais
that might arise from the use of said right of way
by any person or persons.
4. Nothing herein shag be construed to unit or abrogate the original rights granted
by or retained by TURNBAUGHS In the out *W grad and conveyance Woresald, and as has been
done by common understanding, especially as to WILLMS' use of the lane from East Winding
Hill Road to the 'Y and as to FAILORS' use of the WILLMS' lane for moving of farm
equipment.
S. This AGREEMENT may be amended In whole or in part by an instrument M
writing signed by all the then parties therein.
NOW, THEREFORE, WITNESBETH, that in consideration of the sum of ONE
($1.00) DOLLAR good and lawful money of the United Sates of America, In hand paid by the
respective parties hereb, each to the other, the receipt whereof Is hereby admovdedged. as well
as for other good and valuable considerations and the mutual benefits to be derived by the parties
hereto, intending to legally bind themselves, their heirs, executors, administrators, agents,
successors, and assigns, the respective parties hereto have hereunto set their hands and seals on
the day and year first above written.
SEAL)
WITNESS PATSY A ERTZ as
of the Estate of Dale B. Fallor jz??- (1--a 3EAL)
IPETER A. WILLMS
k6??
AY. ?, (SEAL)
M Y G UAG
'36nx? ?Y -- -- --- -- -----(SEAL)
WITNESS RRY N. HARR
(SEAL)
W TNSSS UINN R. BARR
August 23, reed
soox 539 PAcf.11()3
COMMONWEALTH OF PENNSYLVANIA:
W-P
SS.
On this, the .=G day of ae.Ajw/ , A.D. 1906, before me a Notary
Pubic, appeared PATSY A. HERTZLER, Executrix of the Ealate of Dde S. Faildr, known to me (or
saNsfactorgy proven) to be the person whose mm is sullorbW to the within Flight of Way
Agreement, and aduwmbdped that "snouted the same for the purpom therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary Public
lArAhr P-mvIO-W AswdgimM0iiA s
COMMONWEALTH OF PENNSYLVANIA:
SS.
OOINRYOFCUMBERLArD
On this, the 21!-day of V611CON4141- , A.D. 1998, before me a Notary
Public, appeared PETER A. WILLMS and MARY G. WILLMS, his wile, known tome jor
"Velmoorily proven) to be the persons whose name are subpodbsd to the vOla. Rlpllt of Way
Aorasment. and acknowledged that they examwd the same for the plxposoa ftwn cant&ad.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary Public
r: `!f : ` :: Nularia15ea1 p1mic
afowwmg- {~•tt, - (.Jlllil Hin ?OrO. CNII1n1BrRIFK) a1?My
c , , I.: i;omnuubn DO-June tB, 99e
'; ?4' t.:y.f ';? I.? i.a.a,nwxrvN"IiuAamn.•llial, co N~,
Aaycat 21, 1900
BOCK 5-19 PACE u0 4
Commonwealth of Pennsylvania )
: as.
County of Cumberland )
On this, the dllt day of lVO-A,-, - - , 1996, before me, the
undersigned officer, personally appeared Terry N. Barr and Quinn X.
Barr known to me (or satisfactorily proven) to be the person whose
name is subscribed to the within instrument and acknowledged that
he executed the same for the purposes herein contained.
IN WITNESS WBEREOP, I hereunto set mY hand and official seal.
Notary Public
'•. '?{.:
r' ,• J .
' Nolarint sea
flM
nraH
L. Brennonran
Nola F
•
..
:? f'
i
? t
*
.
4
N Boni. Cun4xrlarplyCp??
L I
Ay C
ti .
.? t .?
n• ?
: •'tt
1
...
_
y
ontmitxipo Expires June 18, 1898
I.eatY
:
.
= xx. R>.trKyb's??+Mion of Nolnius
Mr ;39 rns(.t.1.1)5
r
,? r447
/. n. 1
O ? ^ . c
t N R? A S R
Mr,
??_ hw¢'1-4CL???
7
• 1
tn? *1
r
I
N
A.... ?.L,r A.(..
f.
W. a REWEL
Plan h.-'17 fl-
'
COMARO GL
A. FANCMC ' z .el•P's
I r?
o r
Oy OAt L 0. ?GATR(GrR(F F4 tam
_y
?•
w
I_
'-PGR .ILlLM TWP. C4HP. COp 4^.
? Myth
Con/ogttn9 -/IS??t.fC.II! 1 (r•rw••••I
822 5-39 PACE 11.()6
IN RE: ESTATE OF DALE B. FAILOR, IN THE ORPHANS' COURT
DECEASED, DIVISIONOFTHECOLIR'T
LATE OF UPPER ALIEN OFCOMMONPLFAS
TOWNSHIP, CUMBERLAND
COUNTY, PENNA. CUMBERLAND Cgl1 M PDINA.
! NO. 21-96-413
DECREE
1./I
AND NOW, this '?j!- day of 1997, upon consideration of the
attached Petition, it is decreed as follows:
THE RIGHT OF WAY MAINTENANCE AGREEMENT of PATSY A. HERTZLER,
Executrix of the Last WIN and Testament of Dais B. Fallor and of PETER A. WILLMS and
MARY G. WILLMS, his wife, and of TERRY N. BARR and GUINN K. BARR, his wife, Is
hereby approved pursuant to Title 20, sect. 3323 (P.E.F. Code) and may be recorded In the
Recorder's Office,
00
1V Lx;
•
.i :fi ?j `Ii ?•t•r.
1
a7b
1
frf
G
0
?
?s• ; vp ± p,
?,ANr c•
'??
,
^r) I. i 1 1 n7
r
By the Court J.
rn. of Pennsylvania S
!,,of Cumberland
-d in the offxx to tro recording of Deals
is id for umberland County, ft
,9f F?ook= Vol. - Page .IMI
my hand and seal of offigEtf
N31:i, PA this 3 _-day ,s,._•1>
a
December 30, loge
CERTIFICATE OF SERVICE
AND NOW, this May 5, 2008 1 hereby certify that a copy of the foregoing has
been duly served upon the following, by depositing the same in the United States Mail,
postage prepaid, in Lemoyne, Pennsylvania:
The McNaughton Properties, LP and
Mid Penn Estates
c/o Helen L. Gemmil, Esquire
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
JOHNSON, DUFFIE, STEWART & WEIDNER
By 4h4?, L==
Elizabeth Y Snover
9
_
u .T}
ri
THE MCNAUGHTON PROPERTIES, LP IN THE COURT OF COMMON PLEAS OF
and MIDPENN ESTATES CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V.
CIVIL ACTION - EQUITY
TERRY N. BARR and
QUINN K. BARR, :
husband and wife NO. 08-1975
Defendants
PLAINTIFFS' RESPONSE TO DEFENDANTS' PRELIMINARY OBJECTIONS
Plaintiffs The McNaughton Properties, LP and MidPenn Estates, by and through
their counsel McNees Wallace & Nurick LLC, for their response to the Preliminary
Objections of Defendants Terry N. Barr and Quinn K. Barr, state as follows:
1. Paragraph 1 of Defendants' Preliminary Objections states a legal conclusion
as to which no response is required. Further answering, the averments of Plaintiffs'
Complaint speak for themselves in their entirety.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted with qualification. The deed attached as Exhibit B to Plaintiffs'
Complaint speaks for itself in its entirety.
6. Admitted with qualification. The deed attached as Exhibit B to Plaintiffs'
Complaint speaks for itself in its entirety.
7. Admitted with qualification. The deed attached as Exhibit B to Plaintiffs'
Complaint speaks for itself in its entirety.
8. Denied as stated. The deed attached as Exhibit B to Plaintiffs' Complaint
speaks for itself in its entirety. Further answering, the small scale survey does not
delineate the boundaries or location of the lanes.
9. Denied as stated. The survey attached as Exhibit C to Plaintiffs' Complaint
does not delineate the boundaries or location of the lanes.
10. Upon reasonable investigation, Plaintiffs are without knowledge or information
sufficient to form a belief as to whether the access to the 1.83 acre parcel was unchanged
since 1954 or to form a belief as to the purpose for the document attached to the
Preliminary Objections as Exhibit 1, and therefore the averments are denied. Further
answering, paragraph 10 of Defendants' preliminary objections raises facts outside the
pleadings that should not be considered in determining preliminary objections under Pa.
Rule Civ. P. 1028(4) for legal insufficiency.
11. Paragraph 11 of Defendants' Preliminary Objections states a legal conclusion
as to which no response is required. Further answering, the averments of Plaintiffs'
Complaint speak for themselves in their entirety.
12. Denied as stated. Further answering, the averments of Plaintiffs' Complaint
speak for themselves in their entirety as to Plaintiffs' reasons for requesting a slight
relocation of the existing access.
13. Denied as stated. Paragraph 29 of the Complaint refers only to the existing
private lanes, not the lanes shown on the survey. Further answering, the averments of
Plaintiffs' Complaint speak for themselves in their entirety.
14. Admitted. Further answering, the averments of Plaintiffs' Complaint speak for
themselves in their entirety.
2
15. Paragraph 15 of Defendants' Preliminary Objections states a legal conclusion
as to which no response is required. Further answering, the averments of Plaintiffs'
Complaint speak for themselves in their entirety.
16. Paragraph 16 of Defendants' Preliminary Objections states a legal conclusion
as to which no response is required.
17. Upon reasonable investigation, Plaintiffs are without knowledge or information
sufficient to form a belief as to whether Defendants have made a good faith search for
applicable case law and therefore deny the averment. Further answering, Paragraph 17 of
Defendants' Preliminary Objections states a legal conclusion as to which no response is
required.
18. Paragraph 18 of Defendants' Preliminary Objections states a legal conclusion
as to which no response is required.
19. Paragraph 19 of Defendants' Preliminary Objections states a legal conclusion
as to which no response is required.
20. Paragraph 20 of Defendants' Preliminary Objections states a legal conclusion
as to which no response is required.
21. Paragraph 21 of Defendants' Preliminary Objections states a legal conclusion
as to which no response is required. Further answering, the averments of Plaintiffs'
Complaint speak for themselves in their entirety
22. Paragraph 22 of Defendants' Preliminary Objections states a legal conclusion
as to which no response is required. Further answering, the averments of Plaintiffs'
Complaint speak for themselves in their entirety.
23. Paragraph 23 of Defendants' Preliminary Objections states a legal conclusion
as to which no response is required.
3
24. Paragraph 24 of Defendants' Preliminary Objections states a legal conclusion
as to which no response is required.
WHEREFORE, Defendants' Preliminary Objections should be overruled.
McNEES WALLACE & NURICK LLC
By 1, L . lr?-...?
Helen L. Gemmill (ID No. 60661)
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
Tel: (717) 232-8000
Fax: (717) 237-5300
Attorneys for Plaintiffs
The McNaughton Properties, LP and
MidPenn Estates
Dated: May 27, 2008
4
CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of the foregoing was
served on this date by first class mail, postage prepaid, addressed as follows:
John R. Ninosky, Esq.
Elizabeth D. Snover, Esq.
JOHNSON, DUFFIE, STEWART & WEIDNER
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
Attorneys for Defendants
?-Ll?-
He en L. Gemmill
Dated: May 27, 2008
7: -?
} ? ? cap
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next
Argument Court.)
CAPTION OF CASE
(entire caption must be stated in full)
THE MCNAUGHTON PROPERTIES, LP
and MID PENN ESTATES
VS.
CUMBERLAND COUNTY COURT OF
COMMON PLEAS
TERRY N. BARR and QUINN BARR, husband
and wife
CIVIL ACTION - EQUITY
No. 1975, 2008 Term
State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to
complaint, etc.):
Defendants' Preliminary Objections
2. Identify all counsel who will argue cases:
(a) for plaintiffs:
Helen L Gemmil Esquire Mc Nees Wallace & Nurick, 100 Pine Street. P.O. Box 1166
Harrisburg, PA 17108
(Name and Address)
(b) for defendants:
John R. Ninosky Johnson Duffle 301 Market Street, P.O. Box 109, Lemoyne,
PA 17043-0109
(Name and Address)
3. 1 will notify all parties in writing within two days that this case has been listed for
argument.
4. Argument Court Date: July 9, 2008
Date: May 28, 2008
- - !adA 9-dwhA
Sign ure
John R. Ninosky
Print your name
Attorney for Defendant
INSTRUCTIONS:
1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR
(not the Prothonotary) before argument.
2. The moving party shall file and serve their brief 12 days prior to argument.
3. The responding party shall file their brief 5 days prior to argument.
4. If argument is continued new briefs must be filed with the COURT
ADMINISTRATOR (not the Prothonotary) after the case is relisted.
?.., -?
?' , ?? .--t
,
' -r?
c„
g ? ? ,'?"
.
?s t
r s ?,?
,-.-;
??TM
„s
? C..
THE MCNAUGHTON PROPERTIES, IN THE COURT OF COMMON PLEAS OF
LP AND MIDPENN ESTATES, CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFFS
V.
TERRY N. BARR AND
QUINN K. BARR,
DEFENDANTS
:08-1975 CIVIL TERM
IN RE: PRELIMINARY OBJECTION OF DEFENDANTS
TO PLAINTIFFS' COMPLAINT
BEFORE BAYLEY, J AND EBERT, J.
ORDER OF COURT
AND NOW, this J?MA- day of July, 2008, the preliminary objection of
defendants to plaintiffs' complaint, IS SUSTAINED. Plaintiffs' complaint IS DISMISSED.
-/Helen L. Gemmill, Esquire
For Plaintiffs
-1 ?John R. Ninosky, Esquire
For Defendants
:sal
rn??
7?aa.1d?
Edgar B. Bayley, J.
P
>-
ce)
t,f
C-i
THE MCNAUGHTON PROPERTIES, IN THE COURT OF COMMON PLEAS OF
LP AND MIDPENN ESTATES, CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFFS
V.
TERRY N. BARR AND
QUINN K. BARR,
DEFENDANTS :08-1975 CIVIL TERM
IN RE: PRELIMINARY OBJECTION OF DEFENDANTS
TO PLAINTIFFS' COMPLAINT
BEFORE BAYLEY, J AND EBERT, J.
OPINION AND ORDER OF COURT
Bayley, J., July 22, 2008:--
On March 28, 2008, plaintiffs, The McNaughton Properties, LP and MidPenn
Estates, filed a complaint against defendants, Terry N. Barr and Quinn K. Barr.
Plaintiffs seek an order relocating an express easement through their property to the
property of defendants. Defendants filed a preliminary objection to the complaint in the
form of a demurrer in which they maintain that there is no cause of action in
Pennsylvania for the relocation of an express easement. The issue was briefed and
argued on July 9, 2008.
Plaintiffs, hereinafter referred to as "McNaughton," aver in their complaint that
they are the owner of 142.07 acres of land in Upper Allen Township, known as the
"Failor Farm," to which they obtained title on January 31, 2007. The Barrs are the
owners of 1.83 acres of land, to which they obtained title on January 27, 1996, which
08-1975 CIVIL TERM
was carved out of the Failor Farm (the "Reserved Tract"), in a 1954 deed. The tract
does not directly front on a public road. In the 1954 deed, the grantor provided to the
grantee, his heirs and assigns, the use of two private lanes, the first running from the
Reserved Tract to the second lane, and the second running to Long Level Road (now
known as East Winding Hill Road). The deed included a sketch survey of the two
private lanes over the Reserved Tract, but does not delineate the metes and bounds of
the lanes. Plaintiffs further aver that they have filed a preliminary subdivision plan with
Upper Allen Township to develop the Failor Farm into residential tracts. The plan
includes a public street system that complies with all regulations. The design requires a
minor relocation of the existing private lanes that provide access to the Reserved Tract,
such that the access will follow the public streets. The proposed public street system
will provide a shorter, safer and more direct route between the Reserved Tract and East
Winding Hill Road, will accommodate emergency vehicles, and will allow for the safe
and beneficial development of the Failor Farm. The relocation will not substantially
impair defendants' access to the Reserve Tract.
In Soderberg v. Weisel, 687 A.2d 839 (Pa. Super. 1997), the issue before the
Superior Court of Pennsylvania was "[w]hether a court, through the use of its equitable
powers, may compel the relocation of an easement." The easement at issue was a
prescriptive easement providing access from a road to a farm. The dominant tenant
argued that prescriptive easements are akin to boundary disputes, which are resolved
under either a theory of adverse possession or consentable line, a theory separate and
-2-
08-1975 CIVIL TERM
distinct from traditional adverse possession. The Court stated:
A prescriptive easement differs from land acquired by adverse
possession, because an adverse possessor acquires the land in fee,
whereas the prescriptive easement holder is only entitled to an easement-
like use.
In the case of prescriptive easements, however, a dominant estate
never holds title to the easement. Accordingly, prescriptive easements
differ from boundaries by consentable line. Because an estate which
gains a prescriptive easement over another's land does not have
exclusive title in fee over the right-of-way, if the relocated easement is
practically the same in both safety and ease of use to the dominant
estate, and the landowner has articulated substantial reasons for the
relocation, it is fair and just to refrain from moving the easement back to
its original location.3
Prescriptive easements are also quite different from express grant
easements. Express grant easements, once acquired, are much more
difficult to alter. See Zettlemoyer v. Transcontinental Gas Pipeline Corp.,
540 Pa. 337, 657 A.2d 920 (1995) (alternations of easements expressly
granted will be interpreted under contract law principles; permission to
alter must be intended by words or meaning of grant). A prescriptive
easement, however, differs markedly from an express grant easement,
because the prescriptive easement is not fixed by agreement between the
parties or their predecessors in interest.'
(Citations omitted.)
The Court, while noting that the issue before it has received varied treatment in
other jurisdictions, stated:
Specifically, we hold that a court may compel relocation of an
easement if that relocation would not substantially interfere with the
' The issue in Zettlemoyer was whether a pipeline company committed a de facto
taking of land by claiming an area thirty feet beyond a one hundred foot right-of-way
that it had maintained on the owner's property.
-3-
08-1975 CIVIL TERM
easement holder's use and enjoyment of the right of way and it advances
the interest of justice.... We caution, however, that ordering relocation is
an extraordinary remedy and should be used sparingly.
The Restatement (Third) of Property (Servitudes) (2000), at Section 4.8(3),
provides:
Unless expressly denied by the terms of an easement, ... the owner of the
servient estate is entitled to make reasonable changes in the location or
dimensions of an easement, at the servient owner's expense, to permit
normal use or development of the servient estate, but only if the changes
do not
(a) significantly lessen the utility of the easement,
(b) increase the burdens on the owner of the easement in its use
and enjoyment, or
(c) frustrate the purpose for which the easement was created.
In MacMeekin v. Low Income Housing Institute, Inc., 45 P.3d 570 (Wash.
App. 2002), a Court of Appeals in Washington commented on this section of the
Restatement:
The provision applies to express easements as well as those acquired by
implication or prescription. Comment f. explains that this subsection
adopts the civil law rule that is in effect in Louisiana and a few other
states, and rejects the rule espoused by the weight of authority in this
country-that the owner of the servient estate may not unilaterally relocate
an easement. By way of further explanation: This rule is designed to
permit development of the servient estate to the extent it can be
accomplished without unduly interfering with the legitimate interests of the
easement holder. It complements the rule that the easement holder may
increase use of the easement to permit normal development of the
dominant estate, if the increase does not unduly burden the servient
estate.... This rule is not reciprocal. It permits unilateral relocation only
by the owner of the servient estate; it does not entitle the owner of the
easement to relocate the easement. The reasons for the rule are that it
will increase overall utility because it will increase the value of the servient
estate without diminishing the value of the dominant estate and it will
encourage the use of easements and lower their price by decreasing the
risk the easements will unduly restrict future development of the servient
-4-
08-1975 CIVIL TERM
estate. In addition, permitting the servient owner to change the location
under the enumerated circumstances provides a fair trade-off for the
vulnerability of the servient estate to increased use of the easement to
accommodate changes in technology and development of the dominant
estate.
Restatement (Third) of Property (Servitudes) § 4.8, Comment f.
Section 7.10 of Restatement (Third) discusses modification and
termination of servitudes because of changed conditions, and provides in
subsection (2) that "[i]f the purpose of a servitude can be accomplished,
but because of changed conditions the servient estate is no longer
suitable for uses permitted by the servitude, a court may modify the
servitude to permit other uses under conditions designed to preserve the
benefits of the original servitude." Restatement (Third) of Property
(Servitudes) § 7.10(2). Comment a. to this section indicates that this rule
applies to easements as well as covenants, and permits a party seeking
relief from the servitude to petition the court at the point of need.
The reform movement espoused by Restatement (Third) generated
considerable academic debate over the years, as the American Law
Institute issued various tentative drafts. Professor Uriel Reichman, in
discussing the changed conditions doctrine (which terminology the
Restatement (Third) uses both for easements and restrictive covenants)
praises the doctrine for introducing a necessary element of flexibility as
well as the means to control servitudes that would otherwise result in
inefficient land use. See Uriel Reichman, Toward a Unified Concept of
Servitudes, 55 So. Cal. L.Rev. 1177, 1259 (1982); see also Douglas B.
Harris, Balancing the Equities: Is Missouri Adopting a Progressive Rule
for Relocation of Easements?, 61 Mo. L.Rev. 1039 (1996). Others have
criticized the doctrine on the ground that it permits undue interference with
property rights. See Carol M. Rose, Servitudes, Security, and Assent:
some Comments on Professors French and Reichman, 55 So. Cal. L.Rev.
1403, 1404 (1982); Richard Epstein, Notice and Freedom of Contract in
the Law of Servitudes, 55 So. Cal. L.Rev. 1353, 1358 (1982); see also
Note, The Right of Owners of Servient Estates to Relocate Easements
Unilaterally, 109 Harv. L. Rev. 1693 (1996). As noted by the commentator
in the Restatement, "Rose reminds us the [neighborhood] holdout is not
necessarily a rascal, and that the right to hold out is an important aspect
of property ownership, normally relaxes only through an eminent domain
proceeding. 'If we are to take servitudes seriously as property rights then
the neighbors' holdout is perfectly legitimate.'" Restatement (Third) of
Property (Servitudes) § 7. 10, Rationale, Comment a. (quoting Carol M.
Rose, Servitudes, Security, and Assent, supra at 1412).
-5-
08-1975 CIVIL TERM
In MacMeekin, a division of the court of appeals of Washington declined to
adopt the Restatement (Third), and even after citing the Superior Court of Pennsylvania
in Soderberg v. Weisel, supra, concluding that there was no cause of action for the
relocation of an easement implied from prior use.
In the case sub judice, unlike in Soderberg, which involved the relocation of a
prescriptive easement, plaintiffs are seeking a remedy relocating an express easement.
However, no such cause of action has been recognized in Pennsylvania. Although
plaintiffs urge this court to adopt the Restatment (Third) of Property (Servitudes) (2000),
Section 4.8(3), which would create such a cause of action, "[o]nly our supreme court
and the legislature can adopt new causes of action in Pennsylvania." D'Errico v.
DeFazio, 763 A.2d 424, 433 (Pa. Super. 2000). Accordingly, the following order is
entered.
ORDER OF COURT
AND NOW, this day of July, 2008, the preliminary objection of
defendants to plaintiffs' complaint, IS SUSTAINED. Plaintiffs' complaint IS DISMISSED.
Edgar B. Bayley, J.
I
-6-
08-1975 CIVIL TERM
Helen L. Gemmill, Esquire
For Plaintiffs
John R. Ninosky, Esquire
For Defendants
sal
-7-
THE MCNAUGHTON PROPERTIES, LP
and MIDPENN ESTATES
Plaintiff
V.
TERRY N. BARR and
QUINN K. BARR,
husband and wife
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - EQUITY
NO. 08-1975
NOTICE OF APPEAL
Notice is hereby given that The McNaughton Properties, LP and MidPenn Estates,
the above-named Plaintiffs, hereby appeal to the Superior Court of Pennsylvania from the
Order entered in this matter on July 22, 2008. This Order has been entered in the docket,
as evidenced by the attached copy of the docket entry.
There is no verbatim record of the proceedings in the trial court.
Respectfully submitted,
McNEES WALLACE & NURICK LLC
By / 4/-.
c?
Helen L. Gemmill (ID No. 60661)
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
Tel: (717) 237-5273
Fax: (717) 260-1697
Attorneys for Plaintiffs
The McNaughton Properties, LP and
MidPenn Estates
Dated: August 18, 2008
CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of the foregoing was served
on this date by first class mail, postage prepaid, addressed as follows:
John R. Ninosky, Esq.
Elizabeth D. Snover, Esq.
JOHNSON, DUFFIE, STEWART & WEIDNER
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
Attorneys for Defendants
The Honorable Edgar B. Bayley
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013
Official Court Reporter for the Honorable Edgar B. Bayley
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013
Court Administrator
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013
- lu L .
Helen L. Gemmill
Dated: August 18, 2008
YS511 Cumberland County Prothonotary's Office Page 1
Civil Case Print
2008-01975 MCNAUGHTIN PROPERTIES LP ET AL (vs) BARR TERRY N ET AL
Reference No..:
Case Type ..... : COMPLAINT
J
d Filed........:
Time.........: 3/28/2008
1:08
u
gment..... 00
Judge Assigned: BAYLEY EDGAR B Execution Date 0/00/0000
Disposed Desc.:
------------ Case Comments ------------- Jury Trial....
Dispposed Date.
Hi
0/00/0000
gher Crt 1.:
Higher Crt 2.:
********************************************************************************
General Index Attorney Info
MCNAUGHTON PROPERTIES LP THE PLAINTIFF
4400 DEER PATH ROAD GEMMILL HELEN L
SUITE 200
HARRISBURG PA 17110
MIDPENN ESTATES PLAINTIFF
4400 DEER PATH ROAD GEMMILL HELEN L
SUITE 201
HARRISBURG PA 17110
BARR TERRY N DEFENDANT
829 E WINDING HILL ROAD NINOSKY JOHN R
MECHANICSBURG PA
BARR QUINN K DEFENDANT
829 E WINDING HILL ROAD NINOSKY JOHN R
MECHANICSBURG P
********************************************************************************
* Date Entries
********************************************************************************
FIRST ENTRY _ _ _ _
3/28/2008 COMPLAINT - CIVIL ACTION - BY HELEN L GEMMILL ESQ FOR PLFF
-----------------------------------------------------
4/17/2008 ACCEPTANCE OF SERVICE - COMPLAINT UPON DEFTS TERRY N BARR AND
QUINN K BARR - BY JERRY DUFFIE ATTY FOR DEFTS
------------------------------ _ _
------------------------------
4 23/2008 PRAECIPE FOR ENTRY OF APPEARANCE FOR DEFTS - BY JOHN R NINOSKY ESQ
-------------------------------- _ _ ____
-------------------------
5 05/2008 DEFENDANTS' PRELIMINARY OBJECTIONS TO THE PLFF'S COMPLAINT - BY
JOHN R NINOSKY ATTY FOR DEFTS
---------------------------------- _ _
------------------------ _
5 27/2008 PLAINTIFF'S RESPONSE TO DEFT'S PRELIMINARY OBJECTIONS - BY HELEN L
GEMMILL ATTY FOR PLFFS
------------- ____
---------------------------
-----------------------
5 29/2008 PRAECIPE FOR LISTING CASE FOR ARGUMENT - BY JOHN R NINOSKY ATTY
FOR DEFT
------------------------------------------------------
7/22/2008 OPINION-AND-ORDER-OF-COURT--7/22-08- /IN - RE: - PRELIMINARY - OBJECTION
OF DEFTS TO PLFFS COMPLAINT - THE PRELIMINARY OBJECTION OF DEFTS
TO PLFFS COMPLAINT IS SUSTAINED - PLFFS COMPLAINT IS DISMISSED -
BY EDGAR B BAYLEY J - COPIES MAILED 7/22/08
- - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - -
********************************************************************************
* Escrow Information
* Fees & Debits Beg
COMPLAINT
TAX ON CMPLT 55.00 55.00 .00
SETTLEMENT
•50
00
.50
8.00 .00
00
AUTOMATION
JCP FEE 5.
5.00 5.00 .
.00
10.00
-------------- 10.00
----- .00
78.50 ----- ---
78.50 ---------
.00
*
*****
End of Case Information
ad IN WW of S? COt1fI Carpals, Pa.
a00g
414 C-y rv
FT,
O'
Karen Reid Bramblett, Esq.
Prothonotary
James D. McCullough, Esq.
Deputy Prothonotary
Mr. Curtis R. Long
C F- ,? 7 {
COMMONWEALTH OF PENNSYLVANIA
P4 y
Superior Court of Pennsylvania
Middle District 100 Pine Street. Suite 400
Harrisbure. PA 17101
August 21, 2008 717-772-1294
www.superior.court.state.pa.us
Prothonotary
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013
Re: 1468 MDA 2008
The McNaughton Properties, LP and MidPenn Estates, Appellants
V.
Terry N. Barr and Quinn K. Barr, husband and wife
Dear Mr. Long:
Enclosed please find a copy of the docket for the above appeal that was recently filed in the
Superior Court. Kindly review the information on this docket and notify this office in writing if
you believe any corrections are required.
Appellant's counsel is also being sent a Docketing Statement, pursuant to Pa.R.A.P. 3517,
for completion and filing. Please note that Superior Court Dockets are available on the Internet
at the Web site address printed at the top of this page. Thank you.
Very truly yours,
Karen Reid Bramblett, Esq.
Prothonotary
VSL
2:51 P.M.
Appeal Docket Sheet
Docket Number:
Page 1 of 2
August 21, 2008
1468 MDA 2008
The McNaughton Properties, LP and MidPenn Estates, Appellants
V.
Terry N. Barr and Quinn K. Barr, husband and wife
Initiating Document: Notice of Appeal
Case Status: Active
Case Processing Status: August 20, 2008
Journal Number:
Case Category: Civil
Awaiting Original Record
CaseType: Equity
Consolidated Docket Nos.:
Related Docket Nos.:
SCHEDULED EVENT
Next Event Type: Receive Docketing Statement Next Event Due Date: September 4, 2008
Next Event Type: Original Record Received Next Event Due Date: October 20, 2008
COUNSEL INFORMATION
Appellant The McNaughton Properties, LP and MidPenn Estates
Pro Se: Appoint Counsel Status:
IFP Status: No
Appellant Attorney Information:
Attorney: Gemmill, Helen Louise
Bar No.: 60661 Law Firm: McNees, Wallace & Nurick, LLC
Address: 100 Pine St PO Box 1166
Harrisburg, PA 17108-1166
Phone No.: (717)237-5273 Fax No.: (717)237-5300
Receive Mail: Yes
E-Mail Address:
Receive E-Mail: No
Appellee Barr, Terry N. & Quinn
Pro Se: Appoint Counsel Status:
IFP Status:
Appellee Attorney Information:
Attorney: Ninosky, John Robert
Bar No.: 78000 Law Firm: Johnson, Duffle, Stewart & Weidner
Address: 301 Market Street PO Box 109
Lemoyne, PA 17043
Phone No.: (717)761-4540 Fax No.: (717)761-3015
Receive Mail: Yes
E-Mail Address: jrn@jdsw.com
Receive E-Mail: No
Superior Court of Pennsylvania
8/21/2008 3023
2:52 P.M.
Appeal Docket Sheet
Docket Number: 1468 MDA 2008
Superior Court of Pennsylvania
Page 2 of 2
August 21, 2008
FEE INFORMATION
Paid
Fee Date Fee Name Fee Amt Amount Receipt Number
8/19/08 Notice of Appeal 60.00 60.00 2008SPRMD000718
TRIAL COURT/AGENCY INFORMATION
Court Below: Cumberland County Court of Common Pleas
County: Cumberland Division: Civil
Date of Order Appealed From: July 22, 2008 Judicial District: 9
Date Documents Received: August 20, 2008 Date Notice of Appeal Filed: August 19, 2008
Order Type: Order Entered OTN:
Judge: Bayley, Edgar B. Lower Court Docket No.: 08-1975
President Judge
ORIGINAL RECORD CONTENTS
Original Record Item Filed Date Content/Description
Date of Remand of Record:
BRIEFS
DOCKET ENTRIES
Filed Date Docket Entry/Document Name Party Type Filed By
August 20, 2008 Notice of Appeal Filed
Appellant The McNaughton Properties, LP and
MidPenn Estates
August 21, 2008 Docketing Statement Exited (Civil)
Middle District Filing Office
8/21/2008
3023
r
y
l
'
cn
• i
CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER
PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C)
To the Prothonotary of the Apellate Court to which the within matter has been appealed:
Superior Court of PA
The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County,
the said court being a court of record, do hereby certify that annexed hereto is a true and
correct copy of the whole and entire record, including an opinion of the court as required
by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the
proceedings, if any, and the docket entries in the following matter:
The McNaughton Properties, LP
and Midpenn Estates
VS.
Terry N. Barr and
Quinn K. Barr,
husband and wife
08-1975 Civil Term
1468 MDA 2008
The documents comprising the record have been numbered from No.1 to 82, and attached
hereto as Exhibit A is a list of the documents correspondingly numbered and identified
with reasonable definiteness, including with respect to each document, the number of
pages comprising the document.
The date on which the record has been transmitted to the Appellate Court is 09/11/2008.
is R. , ro Itary
Regina Lebo
An additional copy of this certificate is enclosed. Please sign and date cony, thereby
acknowledging receipt of this record.
Date
Signature & Title
?,..--,
?.
,? ???'? .
Among the Records and PrPceedings enrolled in the court of Common Pleas in and for the
county of Cimberland in the Commonwealth of Pennsylvania
to No. nR-19791 riv; l Term, 19 is contained the following:
COPY OF - Appearanrra DOCKET ENTRY
The McNaughton Properties, LP and
MidPenn Estates
VS.
Terry N. Barr and
Quinn K. Barr
husband and wife
**See Certified Copy of the Docket Entries**
Commonwealth of Pennsylvania
County of Cumberland ss:
1, CttrtiS R. Long , Prothonotary
of the Court of Common Pleas in and for said
County, do hereby certify that the foregoing is a
full, true and correct copy of the whole record of the
case therein stated, wherein
Plaintiff, and T,-3= N, Barr and
Quirin _K Pam'., i9 mband anti wi fP
Defendant s , as the same remains of record
before the said Court at No. 08-1975 of
;}3;.pi Term, A. D. 19 .
In TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seat of said Court
this 11th day of A. D., Wt2008. ;F S=ternber Prothonotary
1, I&gar B. I?yley President Judge of the Ninth
Judicial District, composed of the County of Cumberland, do certify that
Curtis R. Long , by whom the annexed record, certificate and
attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name
and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is
Prothonotary in and for said County of Cumberland in
the Commonwealth of Pennsylvania, duly commissioned and qua to all 1w cts as such full faith
and credit are and ought to be given as well in Courts of judic ur as elsew re, hat t e said record,
certificate and attestation are in due form of law and made e p o r office
President Judge
Commonwealth of Pennsylvania
County of Cumberland ss:
1, Ci't3r, -F Lnnrg Prothonotary bf the Court of Common Pleas in
and for the said County, do certify that the Honorable FrIgar B. Bayley
by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time
of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of
Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts
as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere.
IN TESTIMONY WHEREOF, I have hereunto
set my hand and affixed the seal of said Court this
11th of Sept A. D. 14?200B
Prothonotary
It
0
S
?-t
K
E
• a Co
G ? ? N
o.
n
0
v
0
C
r ?
I r ? iG
p
4 '
UD
c
a
I
PYS511 Cumberland County Prothonotary's Office Page 1
Civil Case.Print
2008-01975 MCNAUGHTON PROPERTIES LP ET AL (vs) BARR TERRY N ET AL
Reference No... Filed......... 3/28/2008
Case Type.....: COMPLAINT
Judgment......: 00 Time.........:
Execution Date 1:08
0/00/0000
Judge Assigned: BAYLEY EDGAR B Jury Trial....
Disposed Desc.:
t Disposed Date.
Hi 0/00/0000
s -------------
------------ Case Commen gher Crt 1.: 1468 MDA2008
Higher Crt 2.:
********************************************** **********************************
General Index Attorney Info
MCNAUGHTON PROPERTIES LP THE PLAINTIFF GEMMILL HELEN L
4400 DEER PATH ROAD
SUITE 200
HARRISBURG PA 17110
MIDPENN ESTATES PLAINTIFF GEMMILL HELEN L
4400 DEER PATH ROAD
SUITE 201
HARRISBURG PA 17110
BARR TERRY N DEFENDANT NINOSKY JOHN R
829 E WINDING HILL ROAD
MECHANICSBURG PA
BARR QUINN K DEFENDANT NINOSKY JOHN R
829 E WINDING HILL ROAD
MECHANICSBURG P
* Date Entries
********************************************************************************
J-jQ 3/28/2008
#3 4/17/2008
,yy 4/23/2008
ilk_ 5/05/2008
&3 5/27/2008
k 5/29/2008
6 ?-?& 7/22/2008
7-2--)!' 8/19/2008
{/ 8/27/2008
9/11/2008
FIRST ENTRY
COMPLAINT - CIVIL ACTION - BY HELEN L GEMMILL ESQ FOR PLFF
-------------------------------------------------------------------
ACCEPTANCE OF SERVICE - COMPLAINT UPON DEFTS TERRY N BARR AND
QUINN K BARR - BY JERRY DUFFIE ATTY FOR DEFTS
-------------------------------------------------------------------
PRAECIPE FOR ENTRY OF APPEARANCE FOR DEFTS - BY JOHN R NINOSKY ESQ
-------------------------------------------------------------------
DEFENDANTS' PRELIMINARY OBJECTIONS TO THE PLFF'S COMPLAINT - BY
JOHN R NINOSKY ATTY FOR DEFTS
-------------------------------------------------------------------
PLAINTIFF'S RESPONSE TO DEFT'S PRELIMINARY OBJECTIONS - BY HELEN L
GEMMILL ATTY FOR PLFFS
-------------------------------------------------------------------
PRAECIPE FOR LISTING CASE FOR ARGUMENT - BY JOHN R NINOSKY ATTY
FOR DEFT
-------------------------------------------------------------------
OPINION AND ORDER OF COURT -7/22 08 IN RE: PRELIMINARY OBJECTION
OF DEFTS TO PLFFS COMPLAINT - TH PRELIMINARY OBJECTION OF DEFTS
TO PLFFS COMPLAINT IS SUSTAINED - PLFFS OMPLAINT IS DISMISSED -
BY EDGAR B BAYLEY J - COPIES MAILED 7/22//08
-------------------------------------------------------------------
NOTICE OF APPEAL TO SUPERIOR COURT - BY HELEN L GEMMILL ATTY FOR
PLFFS
-------------------------------------------------------------------
SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO # 1468 MDA 2008
-------------------------------------------------------------------
NOTICE OF DOCKET ENTRIES MAILED TO HELEN L GEMMILL ESQ AND JOHN R
NINOSKY ESQ
- - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - -
********************************************************************************
* Escrow Information
* Fees & Debits Beg Bal Pymts/Adj End Bal
******************************** ******** ****** *******************************
COMPLAINT 55.00 55.00 .00
TAX ON CMPLT .50 .50 .00
SETTLEMENT 8.00 8.00 .00
AUTOMATION 5.00 5.00 .00
JCP FEE 10.00 10.00 .00
PYS511 Cumberland County Prothonotary's Office Page 2
Civil Case Print
2008-01975 MCNAUGHTON PROPERTIES LP ET AL (vs) BARR TERRY N ET AL
Reference No... Filed......... 3/28/2008
Case Type...... COMPLAINT Time. 1.08
Judgment..... 00 Execution Date 0/00/0000
Judge Assigned: BAYLEY EDGAR B Jury Trial....
Disposed Desc.: Disposed Date. 0/00/0000
------------ Case Comments ------------- Higher Crt 1.: 1468 MDA2008
Higher Crt 2.:
APPEAL HIGH CT 48.00 48.00 .00
------------------------ ------------
126.50 126.50 .00
********************************************************************************
* End of Case Information
********************************************************************************
TRIBE COPY r
In Testimony wh,,,rt:E.''i', ! hand
and the seal of said Court at Carlisic, Pa.
This ...& ......... day ofd`........, .
.,................. . ..... :...
Prothonotary
Karen Reid Bramblett, Esq.
Prothonotary
Milan K. Mrkobrad, Esq.
Deputy Prothonotary
Middle District
Pennsylvania Judicial Center
P.O. Box 62435
601 Commonwealth Avenue, Suite 1600
Harrisburg, PA 17106-2435
(717) 772-1294
www. superior.court. state.pa. us
CERTIFICATE OF REMITTAUREMAND OF RECORD
TO: Mr. Long
Prothonotary
RE: The McNaughton Prop et al v. Barr, T. et al
1468 MDA 2008
Trial Court: Cumberland County Court of Common Pleas
Trial Court Docket No: 08-1975
Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is
the entire record for the above matter.
Original Record contents:
Item
Filed Date Description
Part September 15, 2008 1
Remand/Remittal Date: 10/16/2009
ORIGINAL RECIPIENT ONLY - Please acknowledge receipt by signing, dating, and
returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need
not acknowledge receipt.
Respectfully,
J?XACX? r-.5
C)
Milan K. Mrkobrad, Esq.
Deputy Prothonotary ° rn
/vsl
Enclosure .o li f^
cc: The Honorable Edgar B. Bayley, President Judge
c ..
Helen Louise Gemmill, Esq.
John Robert Ninosky, Esq. -?'
1. A09018/09
2009 PA Super 173
THE McNAUGHTON PROPERTIES, LP IN THE SUPERIOR COURT OF
and MIDPENN ESTATES, PENNSYLVANIA
Appellants
V.
TERRY N. BARR and QUINN K. BARR,
Husband and Wife,
Appellees
No. 1468 MDA 2008
Appeal from the Order entered July 22, 2008,
Court of Common Pleas, Cumberland County,
Civil Division at No. 08-1975
BEFORE: BOWES, DONOHUE and FREEDBERG, JJ.
OPINION BY DONOHUE, J.: FILED: September 1, 2009
¶ 1 Appellants, The McNaughton Properties, LP, and MidPenn Estates
(collectively "McNaughton"), appeal from the trial court's order dated July
22, 2008 sustaining the preliminary objections of Appellees, Terry N. Barr
and Quinn K Barr (collectively, the "Barrs"). This case raises an issue of first
impression in Pennsylvania: whether a court may order the relocation of an
express easement. For the reasons that follow, we conclude that under
existing Pennsylvania law, express easements must be construed according
to contract interpretation principles, and thus we are without authority to
modify the terms of an unambiguous express easement. Hence, we affirm
the trial court's dismissal of McNaughton's declaratory judgment action.
1. A09018/09
¶ 2 Our review of the record discloses the following averments of fact in
NcNaughton's complaint relating to McNaughton's request to relocate the
Barr's easement to another location. McNaughton is the owner of 142.07
acres of land in Upper Allen Township in Cumberland County. Complaint at
¶ 4. McNaughton purchased this property, known as the "Failor Farm", in
2007. Id. at 5. The Barrs are the owners of 1.83 acres of land (hereinafter,
the Reserved Tract") that was carved out of the Failor Farm in a 1954 deed.
Id. at 20. The Reserved Tract does not front directly onto a public road, and
thus in the 1954 deed, the grantor provided to the grantee and his heirs and
assigns (including the Barrs) the use of two private lanes (the "Two Lanes")
- the first lane running from the Reserved Tract to the second lane, and the
second running to Long Level Road (now East Winding Hill Road). Id. at 10,
13. The 1954 deed includes a sketch of the Two Lanes, but does not
delineate their precise metes and bounds. Id, at 9, 11.
$ 3 McNaughton has filed a preliminary subdivision plan with Upper Allen
Township to develop the Failor Farm into residential tracts. Id, at 23. The
subdivision plan includes a public street system that complies with all local
regulations. Id. at 24. The new street system will provide the Barrs with
access to the Reserved Tract that will be safer (both because it will be
shorter and with improved emergency vehicle access) than the Two Lanes.
Id. at 32. The new access (via the new street system), which will constitute
"only a minor change from the existing access," is necessary for McNaughton
-2-
J. A09018/09
to develop Failor Farm. Id. at 33-34. McNaughton will grant and convey to
the Barrs an express easement over the new street system. Id. at 35.
¶ 4 In a written opinion dated July 22, 2008, the Honorable Judge Edgar
B. Bayley granted the Barrs' preliminary objections in the nature of a
demurrer and disrraissed McNaughton's Complaint. Judge Bayley ruled that
no Pennsylvania appellate court has ever recognized a cause of action to
relocate an express easement without the permission of the owner of the
dominant estate. Trial Court Opinion at 6. Judge Bayley further ruled that it
was not within his power or jurisdiction to recognize section 4.8(3) of the
Restatement (Third) of Property (Servitudes) (2000), which permits the
relocation of express easements under certain specified circumstances. Id.
¶ 5 This timely appeal followed, in which McNaughton questions whether
the trial court erred in holding that it "lacked the authority to declare that
the owner of the servient estate is legally entitled to relocate an express
easement." Appellants' Brief at 2. McNaughton further argues that the
Barrs' express easement rights are ambiguous, thus entitling the court to
compel relocation of the easement to any location suitable for the Barrs'
convenient and ordinary use. Appellants' Brief at 14-15.
$ 6 An appeal from an order granting preliminary objections in the nature
of a demurrer is subject to plenary review. Erde/y v. Hinchc/iffe and
Keener, Inc., 875 A.2d 1078, 1081 (Pa. Super. 2005). In determining
whether the trial court properly sustained preliminary objections, the
-3-
1. A09018/09
appellate court must examine only the averments in the complaint, together
with the documents and exhibits attached thereto, and the impetus of our
inquiry is to determine the legal sufficiency of the complaint and whether the
pleading would permit recovery if ultimately proven. Id. This Court will
reverse the trial court's decision regarding preliminary objections only where
there has been an error of law or abuse of discretion. Id. at 1081-82;
Brosovic v. Nationwide Mutual Insurance Company, 841 A.2d 10711
1073 (Pa. Super. 2004). Finally, preliminary objections in the nature of a
demurrer require the court to resolve issues solely on the basis of the
pleadings, and no testimony or other evidence outside of the complaint may
be considered to dispose of the legal issues presented. Mistick, Inc, v.
Northwestern National Casualty Company, 806 A.2d 39, 42 (Pa. Super.
2002).
¶ 7 In support of its first issue on appeal, McNaughton argues that this
Court's decision in Soderberg v. Weisel, 687 A.2d 839 (Pa. Super. 1997)
provided the trial court with the authority to compel the relocation of the
Barr's express easement. Appellants' Brief at 10. In Soderberg, we
addressed a request by the owner of a servient estate' to relocate a
prescriptive easement to another area on the property to protect young
1 With regard to easements, the owner of the dominant estate owns the
easement rights and the owner of the servient state owns the land over
which the easement extends.
-4-
1. A09018/09
children from the large farm machinery used by the owners of the dominant
estate. Id. at 841. The trial court permitted the relocation. Id.
¶ 8 In affirming the trial court's decision, this Court began by recognizing
the general rule that "easements may not be modified, changed, altered, or
relocated without the consent of both the dominant and servient estates."
Id. at 842 (citing Pennsylvania Water and Power Co. v. Reigart, 193 A.
311, 314 (Pa. Super. 1937)). We also acknowledged, however, that prior
cases had not established a "per se prohibition" against the unilateral
relocation of a prescriptive easement2 by the owner of a servient estate. Id.
In this regard, we cited to Palmer v. Soloe, 601 A.2d 1250 (Pa. Super.
1992), in which we affirmed a trial court's decision to order the owner of the
servient estate to return a prescriptive easement to its original location. The
basis of this ruling was that the new easement location was not as safe as
the original one and thus constituted an unreasonable interference with the
dominant's estate's easement rights. Id, at 1253. As such, in Soderberg
we concluded that the owner of a servient estate may unilaterally (i.e.,
without prior court approval) relocate a prescriptive easement if the new
z A prescriptive easement is a right to use another's property which is not
inconsistent with the owner's rights and which is acquired by a use that is
open, notorious, and uninterrupted for a period of 21 years. See, e.g.,
Waltimyer v. Smith, 556 A.2d 912 (Pa. Super. 1989). As we indicated in
Soderberg, a prescriptive easement "differs markedly from an express grant
easement, because the prescriptive easement is not fixed by agreement
between the parties or their predecessors in interest." Soderberg, 687
A.2d at 843 n.3.
-5-
3. A09018/09
easement location is as safe as the original location, the relocation is a
relatively minor change, and the reasons for relocation are substantial.
Soderberg, 687 A.2d at 842.
¶ 9 Having decided that a court may deny relief to a prescriptive easement
holder whose easement was unilaterally relocated, we then turned to the
question of "whether a court, through the use of its equitable powers, may
compel the relocation of an easement." Id. at 843. With no prior
Pennsylvania appellate cases having addressed this issue, we looked to
cases from other jurisdictions. Courts in some states have held that they
lack the authority to order the relocation of an easement for any reason,
deciding that once established an easement is not movable without the
consent of both parties.3 In contrast, other courts have recognized their
authority to order relocation of easements.4
$ 10 In Soderberg, this Court adopted the latter approach, stating that
"we hold that a court may compel relocation of an easement if that
3 Thomason v. Kern & Co., Inc., 259 Ga. 119, 376 S.E.2d 872 (1989)
(prescriptive easement); Edgelf v. Divver, 402 A.2d 395, 397-98 (Del. Ch.
1979) (express easement); Davis v. Bruk, 411 A.2d 660, 664-66 (Me.
1980) (express easement); Daviess-Martin County v. Meadows, 386
N.E.2d 1000, 1002 (1979) (prescriptive easement).
4 Kline v. Bernardsville Association, Inc., 267 N.J.Super. 473, 631 A.2d
1263 (1993) (express easement); RFS Inc. v. Cohen, 772 S.W.2d 713,
714-15 (Mo. Ct. App. 1989) (easement by necessity); Ramsey v. Johnson,
312 So.2d 671, 672 (La. Ct. App. 1975) (easement by statute); Sedillo
Title Guaranty, Inc. v. Wagner, 457 P.2d 361, 363-64 (N.M. 1969)
(express easement).
-6-
3. A09018/09
relocation would not substantially interfere with the easement holder's use
and enjoyment of the right of way and it advances the interests of justice."
Id. at 844. We did so to avoid inconsistent results, as the owner of a
servient estate could unilaterally relocate an easement without concern that
the court would order its return to the original location, but the same owner
could not seek relocation of the easement to a new location through judicial
proceedings. td. We also cautioned that "ordering relocation is an
extraordinary remedy and should be used sparingly." Id.
¶ 11 McNaughton contends that our holding in Soderberg that a court has
the authority to order the relocation of an easement "was not predicated on
any differences between the nature of prescriptive and express easements,"
and thus forms a basis for holding that Pennsylvania law allows a court to
order the relocation of any easement (prescriptive or express) °so long as
the relocation would not substantially interfere with the easement holder's
use and enjoyment of the right of way and advances the interests of
justice." Appellants' Brief at 10. We disagree that Soderberg may be
interpreted to support a determination that Pennsylvania courts may order
the relocation of express easements. The issue addressed in Soderberg
was limited to whether the trial court erred in ordering the relocation of a
prescriptive easement. In a footnote, we made clear that our analysis was
not intended to extend to consideration of express easements, since
"[e]xpress grant easements, once acquired, are much more difficult to
-7-
J. A09018/09
alter." Zd. at 843 n.3 (citing Zettlemoyer v. Transcontinental Gas
Pipeline Corp., 540 Pa. 337, 657 A.2d 920 (1995)). We further indicated
that prescriptive easements are more amenable to relocation because, unlike
with express easements, the location of a prescriptive easement "is not fixed
by agreement between the parties or their predecessors in interest." Zd. at
843 n.3
$ 12 The Supreme Court's decision in Zettlemoyer is highly instructive in
this regard. In that case, Transcontinental purchased a right-of-way across
a property to construct natural gas pipelines. In 1958 and 1971, it
constructed two such pipelines, on each occasion clearing the same 100 feet
across the property. In 1991, it constructed a third pipeline within the same
easement, but on this occasion it cleared an additional 30 feet of woods
adjacent to the original 100 foot right of way to provide more room for
construction equipment. The Zettlemoyers, owners of the servient estate
property in 1991, filed an eminent domain claim alleging that the clearing of
the additional 30 feet was a de facto taking. The trial court granted
Transcontinental's preliminary objections but the Commonwealth Court
reversed, holding that the scope of the easement was established at 100
feet over the course of the preceding thirty-three years (1958-1991).
Zettlemoyer v. Transcontinental Gas Pipeline Co., 617 A.2d 51, 55 (Pa.
Commw. 1992).
-8-
1. A09018/09
¶ 13 Our Supreme Court reversed the Commonwealth Court, concluding
that "the clear language of the agreement is evidence of the original intent
of the parties to allow [Transcontinental] to clear additional land where such
clearing is reasonably necessary to achieve the purpose of the agreement."
Zett/emoyer, 540 Pa. at 346, 657 A.2d at 925. To reach this conclusion,
the Supreme Court set forth the law with respect to the construction of the
scope of express easements as follows:
It is well-established that the same rules of
construction that apply to contracts are applicable in
the construction of easements.... In ascertaining the
scope of an easement, the intention of the parties
must be advanced. Such intention [of the parties] is
determined by a fair interpretation and construction
of the grant and may be shown by the words
employed construed with reference to the attending
circumstances known to the parties at the time the
grant was made.
Zd. at 344, 657 A.2d at 924 (citations omitted).
¶ 14 The Zettlemoyers contended that because the express grant did not
specify a precise width of the easement and was therefore ambiguous in this
regard, the parties "subsequent agreement, use, and acquiescence" from
the time of the grant established the scope of the easement at 100 feet. Zd.
at 346, 657 A.2d at 925. The Supreme Court disagreed, holding that "where
an easement is ambiguous, the grantee shall have "reasonable and
necessary use' of the right of way within the purpose of the easement and
the intentions of the original parties to the grant." Id. at 349, 657 A.2d at
-9-
1. A09018/09
926. Based upon the language of the grant, "the clearing of the additional
30 feet by (Transcontinental] was within the original intent of the parties to
this grant." Id. at 346, 657 A.2d at 925.
¶ 15 In Zettlemoyer, the Supreme Court made clear that the scope of an
express easement must be determined in strict conformity with the
intentions of the original parties as set forth in the grant of the easement.
Id.; see also Lease v. Doll, 485 Pa. 615, 621, 403 A.2d 558, 561 (1979);
Piper v. Mowris, 466 Pa. 89, 95, 351 A.2d 635, 638 (1976). Applying this
principle to the present case, we disagree with McNaughton that
Pennsylvania law permits a trial court to order the relocation of an express
easement in order to permit the owner of the servient estate to develop its
property. The trial court must interpret the Barrs' easement rights in
accordance with the terms of the original grant of the easement (i.e., in the
1954 deed), and no language in that 1954 deed suggests that the easement
over the Two Lanes may be relocated to another area to permit
development. The intent of the parties to the original grant of the easement
must govern, and the subsequent conduct of the parties, including
McNaughton's decision to develop its property, is irrelevant in this regard.
$ 16 For the same reasons, we decline McNaughton's invitation to adopt
section 4.8(3) of the Restatement (Third) of Property (Servitudes) (2000).
Section 4.8(3) provides in relevant part as follows:
-10-
I A09018/09
Unless expressly denied by the terms of the easement, ... the
owner of the servient estate is entitled to make reasonable
changes in the location or dimensions of an easement, at the
servient owner's expense, to permit normal use or development
of the servient estate, but only if the changes to not
(a) significantly lessen the utility of the easement.
(b) increase the burdens on the owner of the
easement in its use and enjoyment, or
(c) frustrate the purpose for which the easement
was created.
Restatement (Third) of Property (Servitudes) (2000) § 4.8(3).
¶ 17 Since this Restatement provision does not distinguish between
prescriptive and express easements, it would, if adopted,5 provide
5 Adoption of section 4.8(3) appears to be the minority position of other
states considering the issue. A number of states have rejected its adoption.
See, e.g., Herren v. Pettengill, 273 Ga. 122, 123, 538 S.E.2d 735, 736
(2000) ("Allowing unilateral avoidance of the contract by the owner of the
servient estate not only would violate fairness principles, it also would create
uncertainty in real property law by opening the door for increased litigation
over 'reasonableness' issues based upon today's conditions rather than those
considered in the original bargain."); Teitel v. Wal-Mart Stores, Inc., 287
F. Supp.2d 1268, 1277 (M.D. Ala. 2003) (section 4.8(3) "does not conform
with Alabama law"); MacMeekin v. Low Income Housing Inst., 45 P.3d
570, 579 (Wash. App. 2002) ("Washington adheres to the traditional rule
that easements, however created, are property rights, and as such are not
subject to relocation absent the consent of both parties."); AKG Real
Estate, LLC v. Kosterman, 296 Wis.2d 1, 23, 717 N.W.2d 835, 845-46
(Wis. 2006); Davis v. Bruk, 411 A.2d 660, 665 (Me. 1980). Two states,
Massachusetts and Colorado, appear to have adopted section 4.8, although
Colorado's acceptance seems limited to circumstances where the express
grant is unambiguous in some way. M.P.M. Builders, LLC v. Dwyer, 442
Mass. 87, 90-91, 809 N.E.2d 1053, 1057 (2004) ("Section 4.8(3) maximizes
the over-all property utility by increasing the value of the servient estate
without diminishing the value of the dominant estate; minimizes the cost
associated with an easement by reducing the risk that the easement will
- 11 -
3. A09018/09
Pennsylvania courts with authority to order the relocation of express
easements. McNaughton argues that section 4.8(3) is consistent with
Pennsylvania law, citing to Hash v. Sofinowski, 487 A.2d 32, 34 (Pa.
Super. 1985) (width of a prescriptive easement must be determined by
actual use during the prescriptive period). Hash, however, like Soderberg,
involved a prescriptive easement, and McNaughton has not directed us to
any Pennsylvania appellate court decision that addresses the issue of
whether a court may order relocation of an express easement.
$ 18 Whether to adopt section 4.8(3) presents a fundamental policy choice.
Proponents of its adoption contend that it favors flexibility, the development
potential of the servient estate, and court control over easements to avoid
the inefficient use of land. Restatement (Third) of Property (Servitudes) §
4.8 Comment f; MacMeekin, 45 P.3d 570, 578 (Wash. App. 2002).
Opponents, however, criticize the rule as threatening the uniformity,
stability, and predictability of deeds and other written documents conveying
property interests, as a catalyst for increased litigation, and as a means for
purchasers of servient estates to reap a windfall at the expense of owners of
dominant estates. AKG Real Estate, 296 Wis.2d at 23, 717 N.W.2d at 845.
prevent future beneficial development of the servient estate; and
encourages the use of easements."); Roaring Fork Club, L.P. v. St. lude's
Co., 36 P.3d 1229, 1236 (Colo. 2001) (""[U]nder the Restatement, a
burdened estate owner may unilaterally move an easement (unless it is
specified in deeds or otherwise to have a location certain), subject both to a
reasonableness test and to the constraints delimited in [§ 4.8(3)].")
(emphasis added).
-12-
J. A09018/09
¶ 19 Based upon our review of decisions from our Supreme Court, we find
no basis for Pennsylvania to adopt Restatement section 4.8(3). Again the
Supreme Court's decision in Zettlemoyer is instructive, as it requires
adherence to the language of the original grant of the easement and the
intentions of the parties thereto. Zettlemoyer, 540 Pa. at 346, 657 A.2d at
925; see also PARC Holdings, Inc, v. Killian, 785 A.2d 106, 111 (Pa.
Super. 2001) ("These rules [of construction] provide that if the location, size
or purpose of an easement is specified in the grant, then the use of an
easement is limited to the specifications."). Conversely, section 4.8(3)
would permit the owner of the servient estate (or the trial court) to alter the
dominant estate's easement rights based upon entirely different
considerations, including the relative utility and purpose of the relocated
easement and any increases in the burdens on the easement owner. As the
Supreme Court in Zettlemoyer has insisted on strict conformity with the
intentions of the original parties to the grant with respect to the width of an
express easement, we conclude there is no basis to permit an even more
radical modification (relocation) based upon the types of considerations
contained in section 4.8(3).
¶ 20 We also find that section 4.8(3) is inconsistent with well-established
principles of Pennsylvania contract law. The location of the Barrs' express
easement is fixed by agreement of the original parties, and thus
McNaughton's declaratory judgment action seeking permission to relocate
- 13 -
). A09018/09
that easement constitutes a request that the trial court modify the Barrs'
contractual easement rights. Under Pennsylvania law, however, courts may
reform written contracts only when its terms do not reflect the intent of the
parties to the contract, including in cases of fraud, accident or mistake.
See, e.g., Kutsenkow v. Kutsenkow, 414 Pa. 610, 612, 202 A.2d 68, 68-
69 (1964). Reformation of deeds has generally been restricted to cases
involving a mutual mistake in the description of the property interest to be
conveyed. See, e.g., Krieger et at. v. Rizzo and Rizzo, 161 A. 483, 484
(1932) (citing Baab v. Houser, 203 Pa. 470, 53 A. 344 (1902)). Section
4.8(3) would thus permit the reformation of contractual easement rights
based upon considerations never authorized by Pennsylvania courts.
¶ 21 Accordingly, we decline to adopt the Restatement (Third) approach.
Adoption of section 4.8(3) would constitute a significant departure from
existing Pennsylvania law in this area, and thus is a policy choice best left to
our Supreme Court or the Pennsylvania legislature.
$ 22 For its second issue on appeal, McNaughton contends that the location
of the Barrs' express easement is ambiguous because the deed granting the
easement does not delineate its precise boundaries or location. The
easement at issue here consists of the right of passage over the Two Lanes
across the Failor Farm. While the original 1954 deed granting this easement
does not specify specific metes and bounds descriptions, it does provide a
-14-
1. A09018/09
description of the Two Lanes6 - indicating that the first lane extends from
the Reserved Tract to the second lane, which in turn extends across the
Failor Farm to a public road (Long Level Road, now East Winding Hill Road).
Moreover, the 1954 deed contains a sketch survey that sets forth the
location of the two private lanes on the Failor Farm. For these reasons, we
conclude that the trial court did not abuse its discretion by failing to find that
the location of the Barrs` express easement is ambiguous.
¶ 23 Order affirmed.
Judgment Entered.
Deputy Prothonotary
September 1, 2009
Date:
6 We also note that McNaughton`s declaratory judgment action, which
requests permission to relocate the Barrs` easement, appears to presuppose
that the current location of said easement is not a matter of dispute between
the parties. The record on appeal does not contain any information
indicating that McNaughton has filed an action quiet title with regard to the
Barrs` easement rights (location, width, use, etc.).
-15-
• CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER
PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C)
To the Prothonotary of the Apellate Court to which the within matter has been appealed:
Superior Court of PA
The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County,
the said court being a court of record, do hereby certify that annexed hereto is a true and
correct copy of the whole and entire record, including an opinion of the court as required
by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the
proceedings, if any, and the docket entries in the following matter:
The McNaughton Properties, LP
and Midpenn Estates
VS.
Terry N. Barr and
Quinn K. Barr,
husband and wife
• 08-1975 Civil Term
1468 MDA 2008
The documents comprising the record have been numbered from No.l to 82, and attached
hereto as Exhibit A is a list of the documents correspondingly numbered and identified
with reasonable definiteness, including with respect to each document, the number of
pages comprising the document.
The date on which the record has been transmitted to the Appellate Court is 09/11/2008 .
,Sp ? 2 zoos
//71. _ - I -
t '--p L"?-Z& L?-of?
C is R. Lon o on ary
Regina Lebo
An additional copy of this certificate is enclosed. Please sign and date copy, thereby
acknowledging receipt of this record.
0 Date
Signature & Title
L-1
CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER
PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C)
To the Prothonotary of the Apellate Court to which the within matter has been appealed:
Superior Court of PA
The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County,
the said court being a court of record, do hereby certify that annexed hereto is a true and
correct copy of the whole and entire record, including an opinion of the court as required
by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the
proceedings, if any, and the docket entries in the following matter:
The McNaughton Properties, LP
and Midpenn Estates
VS.
RECORD FILED IN SUPERIOR COURT
•
Terry N. Barr and
Quinn K. Barr,
husband and wife
08-1975 Civil Term
1468 MDA 2008
SEP 1 5 2008
MIDDLE
The documents comprising the record have been numbered from No.1 to 82, and attached
hereto as Exhibit A is a list of the documents correspondingly numbered and identified
with reasonable definiteness, including with respect to each document, the number of
pages comprising the document.
The date on which the record has been transmitted to the Appellate Court is 09/11/2008 .
O-P
C rtis R. Lo g-RkAro-i-57ary
Regina Lebo
An additional copy of this certificate is enclosed. Please sign and date copy, thereby
acknowledging receipt of this record.
0 Date
Signature & Title