HomeMy WebLinkAbout78-0062J. WILBUR WAGNER and
MARY E. WAGNER, his wife,
CARL RIFE,
vs.
: iN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs: CIVIL ACTION-EQUITY
: NO. 62 EQUITY, 1978
: INJUNCTION
Defendant :
NOTICE OF HEARING
AND NOW, this/~day of ~ , 1979, a rule to
show cause why a preliminary in]unction should not issue as
prayed for in the herein contained Complaint to Close Easement
and Terminate Use of Right of Way is granted on the Defendant,
Carl Rife.
Rule returnable and a hearing to be held to determine
whether a preliminary injunction should issue on ~
//~ , 1979, at~.'3~ o'clock ~.M., in Court Room ~
Cumberland County Court House, Carlisle, Pennsylvania.
BY THE COURT,
J. WILBUR WAGNER and
MARY E. WAGNER, his wife,
Plaintiffs
CARL RI FE,
Defendant
: NO.
IN THE COURT OF cOMMON pLEAS OF
CUMBERLAND cOUNTY, PENNSYLVANIA
CIVIL ACTION-EQUITY
~ EQUITY 1978
INJUNCTION
COMPLAINT TO CLOSE EASEMENT AND
TERMINATE USE OF RIGHT OF WAY
1. Plaintiffs in this action are J. Wilbur Wagner and
Mary E. Wagner, his wife, sui juris adults and individuals
residing in West Pennsboro Township, Cumberland County,
Pennsylvania (R.D.4, Newville, PA 17241).
2. Defendant in this action is Carl Rife, a sui juris
individual residing in West Pennsboro Township, cumberland
County, Pennsylvania (R.D.4, Newville, PA 17241).
3. By virtue of deed dated ~o~ I~ , 1945, recorded
in the office of the Recorder of Deeds of Cumberland County, in
Deed Book I~B~, Volume J~ , at page q~3 , plaintiffs are the owner
of certain lands in West Pennsboro Township, Cumberland County,
Pennsylvania, and more fully described in said deed.
4. By virtue of the afore-described deed, plaintiffs are
the owners of a certain easement or right of way for ingress and
egress to and from their property, said easement or right of way
is described as follows: "Also a right of way leading from these
tracts to the Carlisle-Newville concrete road and lying between
or over the land of J.R. Wood's heirs and/or Dave Bishop."
5. The easement or right of way has, over a period of more
than twenty-one (21) years, acquired a fixed location and pathway
and has been extensively improved and maintained by plaintiffs
through the use of slate and macadam surfacing and through
~4~ =~ ~ll~n~ ~h~ roadway surface.
are immediately adjacent to the easement or right of way of the
plaintiffs and occupies a personal residence on said lands.
7. Defendant uses the easement or right of way of the
plaintiffs, and has,for a period of time in excess of one
year, used the easement or right of way of the plaintiffs, for
ingress and egress to and from his property without the
plaintiffs' permission or consent and against their often
repeated protests.
8. From time to time during the past year, plaintiffs have
notified the defendant not to trespass on the plaintiffs' easement
or right of way and to desist from travelling over said easement
or right of way.
9. Notwithstanding said notice, the defendant has persisted
and still does persist in committing the aforesaid acts of
trespass upon the plaintiffs' easement or right of way, all to the
plaintiffs' great injury and irreparable damage.
10. Use of and travel over the plaintiffs' easement or right
of way by the defendant has caused extensive damage to the surface
thereof by the defendant in that the defendant has worn ruts in
the surface of the roadway, broken up and crumbled portions of
the macadam surface of the roadway and dragged dirt and debris
from his property onto the surface of the roadway, all to the
plaintiffs' great injury and irreparable damage.
WHEREFORE, plaintiffs pray:
(a) that an injunction issue, preliminary to hearing and
final thereafter, restraining and enjoining defendant from
entering upon and using plaintiffs' easement or right of way;
(b) damages in the sum of $500.00 resulting from the said
trespasses of the defendantS;
(c) general relief.
MCCREA & DAVIS
Attorneys for Plaintiffs
VERIFICATIO~
cOMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND :
Jo Wilbur Wagner, being first duly sworn according to law, deposes
and says that the facts set forth in the foregoing Complaint are true
and correct to the best of his knowledge, information and belief.
j. wil~Sur Wagner
Sworn to and subscribed
before me this 10th day
of MaY , 1978.
NOTARY PU~BL I C
DONi~A L. ~ gDLL, NO [ARY pUBLIG
in the Court of Common Pleas of Cumberland County,
Co~on~dth of Ptnn$~l~am.
J' Wilbur Wagner and
Mary E. Wagner, his wife
Carl Rife
instance of
RUle on
NO. 62 EqUity
Injunction
19th day of
July
J- Wilbur Wagner and Rary E. Wagner, his Wife
Carl Rife (John MCCrea, III, Esquire)
Term, 19 78
19 79 at the
tO
N_N__OTIcE OF HE____ARIN~;
AND N.OW~ this 19th day o
herein contained Complaint to v~ ~ssue as prayed for i~
Close Easement and Terminate
Use of Right of Way is granted on the Defendant, Carl Rife.
Rule returnable and a hearing to be held to determine
whether a preliminary injunction should issue on August 16, 1979,
at 9:30 o'clock A.M., in Court Room 2, CUmberland County Courthouse,
Carlisle, Pennsylvania.
Order.
BY TI~E COURT,
S/ Harold E. Sheely, j.
July 19, 1979, Rule issued in accordance to above
Peiper '
Deputy Prothonotary
In testimony whereof, I have 'her~,,.~ ~.. _
J. WILBUR WAGNER and
MARY E. WAGNER, his wife,
Plaintiffs
CARL RIFE,
Defendant
IN RE: CONTINUANCE
IN THE COURT OF COMMON PLEAs OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION _ EQUITY
NO. 62 EQUITy 1978
INJUNCTION
ORDER OF COURT
AND NOW, January 17, 1979, at the request of John McCrea, III,
Esquire, COUnsel for the plaintiffs, the Case is Continued generally
and will be relisted at the request of the plaintiffs.
By the Court,
John McCrea, III, Esquire
For the Plaintiffs
:pbf
SHERIFF'S RETURN
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
J. Wilbur Wagner and Mary E.
Wagner his wife
vs.
Carl Rife
In the Court of Common Pleas of
Cumberland County, Pennsylvania
No. 62 Equity Term, %978
Notice of Hearing, Complaint To
Close Easemant and Terminate use
Right of Way
Ronny R. Andersop, ,x~ Deputy Sheriff of
Cumberland CounLv..Pennsylv~nJa. who beiaQdul,y sworn.ac in t law sa s. that e
~erved the wkhin Terminate use of Right of Way
upon Carl Rife
~ o the defendant, at 5: 10 o'clock PM. EDST,
on the 26
day of July ,19 79,at
R. D. 4, Newville
(street number) (city or town.) , Cumberland County,
Pennsylvania, by handing to Berneta E. Rite, -Mother of Carl Rife
of
a true and attested copy of the Notice,
and at the same time directing her
"Notice to Plead" endorsed thereon.
Complaint
attention to the contents thereof and the
Sheriff's Costs:
Docketing
Service
12.75
..5.10
17.85 Pd. by
'Atty.
8-2-79
ROBERT B. FAILOR, Sheriff
Sworn and subscribed before me
this/~','3 Z~'. day of ~
BY
Depu. uf'~'er if f ~.~
Mo.
PEE-$13IPLE DEED--Typewr Jter
in the 3tear o] our Lord On~
A
D
WTLLIk~ J. PO~2ER and LILLTE M. PORTER, his wife, of the BOrough of Newville,
County of Cumberland and State of Pennsylvania, Grantees, parties
o/ tae sum of ~e
Dolfar~. lawful moneu of th~ United Ntates of America, ~'ell attd t~tF paid bN the ~aid parties o3 the
second part to the S,Hd part y o] Ute ]ir~t pttrt, at and bc/or~ the scalin~ and dclfrerF o/the~e
~ranted, bargained, ~old, allencd, enfeof/ed, released, conveu,d and von~ir,wd and bN there ~e~entt ~oes
grant, bar~tln. ~ell. allot, en/eo]f. ~zlea~e, conrcu, a;td o~n/io~t unto the raid ~rties
helm and assiq s.
-~[[ ~at Ce~ain tract of l~d situate in West Pe~s~ro T~S~p, Co~ty of
C~rl~d ~d Sta~e of Pe~sylv~ia, bO~d ~d described ~ foll~s:
BEGI~ING at a point ~ ~e ~n~er of the p~li~ ~ad, Pe~sylv~nia State
Highway No. 641, lea~ f~m ~rlisle to Newville, which point is a co.er
of land now or la~ of ~nevle~ H. Webster in West Panns~o To,~ship;
~en~ along s~d lmnd n~ or la~ of ~nevie~ H. Webster, Ro~h 0
a dis~nce of 326 feet to ~ iron pipet then~ along l~d now or la~ of
~he~e~ R. Iqebster, South 89 degrees 15 ~nutes East a ~S~ce of ~44.30
feet to a iron pipe; thence still alon~ l~d now or late of ~ne~e~ H.
Webster No~h 24 deg~es 0 ~n~tes East 149.23 feet to ~ i~n pi~, W~ch
point is in line of l~d now or late of Em~uel Wa~er; ~en~ ~ong said
l~d now or late of E~uel Wa~er SOU~ 61 de~es East a ~st~ of 206
feet to a point ~ the western s~de of a lane: eh...~ ~,
Being the sam~ premises bounded and described according to a survey preparud by
Thomas A. Neff, P~gis~ered Surveyor, datea October 20, 1969. This deed is b~ing
filed to correct the proper~y d~scrigtion contained in =he deed be~¢een
G~nevieve H. Webster and William J. por~er and Lillie M. Porter, his wife,
dated October 22, 1955 and recorded in Deed Book "U", Vol. 16, Page 298 in =he
Recorder of Reeds Office, Cumberland County, Pennsylvania; A copy of the survey
prepared by Thomas A. Neff, I~gistered Surveyor, dated o~ober 20, 1969 is
attached hereto and made a par~ hereof.
June E. Morgan and Charles E. Morgan, her husband, join in this Deed.
a;~ dcma;~ mha~ever, bo~h i~ law and cquitM, o~ the ,a~ par~ o] the f~r~t ~¢t, o], in, to
or out o) th~ ~d premise*, and ~v~ ~rt
tlw ~aid par~ iGs o~ tiaa s~ond par~, ~eir ' heirs and a~ig.~, to a,~ ;or the onl~ propc¢
use and beho~] o~ the said p~rt iez o~ the second ~, ~eir h~irs a~ assign~
TIlE ~AID Grantor, her,
wltl~ the said part lee o$ th~ second part, their h~irs aad
shall an~ ~iil, b~ these presents, ~FARRANT A~D FOR.
thcreo],
EVE~ DEFEND
oit,,
h~r~nto set ~r ~an~ and ~ ~h~ day and year ~irst abovo wdtt~.
Signed, Sealed and Delivered
in the l~resence of
\
. .:.,',. ¢.
%
UOMMONWISALTI~ OF PENNSYLVANIA ~
C~UNT[ OF ...................................................... ~ ~ 88:
............................................................................... ~,-~ .......................................................
,,#~r, per~o, all~ appea~d ........... ~9~..J~.~.~.~..~.,...~X.~..~ ............................
~arles E. Morg~
kaomn ¢o me (or ~t~actoHl~ ~ ) to b~ th~ per~on ~ ............. ~ho~ n~n~......A~_ ~u~c~bed to
the within in~t~ni, and a~owl~ed that ...j_....the~ ........... e~e~ted the tam~ ]or th~ ~rpote
Iher~n cont~incd.
IN WITNESS WHEREOF, I he.unto ret m~ ha.d and o#ioial seat.
Mg ~mm~ion expires: ............................................ ~....~ .....
............................................ ...............................................................
....................................................................................... ::::::::::::::::::::::::::::::::::::::::
I I AtWmey for
CO,]fJtONWEA'LTH OF I'ENNSYLFANIA ~
~ler~rhv~ In the OJfiee ~or l~eeor~ing ~of Deeds, Mortgages, etc., in and
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~ d=H 'q June
o! our Lord ~ae tho.sand nins handr~d and fifty-five,
BETWEEN Charles M. Rife and Ruth V. Rife, his wife of West Penns-
· ~%boro Tounshl~, Cumberland ~ounty, Pennsylvania, hereinafter oalied
the Hear
· . G,~n tot s,
a~d-%RTHU~ W. RIFE and BE~NETA E. RIFE,his wlfe~ of West Pennsboro'
Township, Cumberland County , Pennsylvania, herelnafte~ called
WITNESSETH, that in c~nsideration bi One Dollar and other good and valuable
consideration
in hand paid, the receipt whereo! is h~rsby acknowledged, tke said ~;ranto~s do hereb~ g~nt
and conv~ to the said prantees,their heirs and assigns, as tenan.~s by the
entireties.
All that certain tract of land situate'in the Township of West
Pennsboro, County of Cumberland and Stets of Pennsy~vanie, bounded
and described as follows:
DEGiN~ING at a polnz in ~he center of the concrete road leading
from Carlisle to Newvllle, and at the land of Gordon Lay; thence
Dy the land of Gordon Lay , South 67 degrees and 35 minutes East
2239.1 feet to a post at the corner of the. Lay land; thence still
by the land of Gordon Lay North 68 degrees and 24 minutes East
508 feet to a point in the center of a public road; thence along ssi
public road and the land of David Jacoby South 3 degrees and 21 mina
East 503 feet to a point in the center of said public road; thence
sOill by same and the land of John Wagner South 46 degrees and 16 mi'-
utes East 889 fee~ to a point in the center of said public road at lihe
land now of David Mellinger, (formerly John Snyder); thence along t~
land of David ?~elllnger South 89 degrees and 21 minutes West 3903 !e
feet to a point in a public road crossing the farm herein described
thence still by the land of David nellinger North 69 degrees and 53
minutes West 1088 feet to a post at the corner of the land of i~rs.
· We0ster; thence by the land of i~rs. Webster North 4 degrees and 13
minutes West 310 feet to a stone; zhence still by the lana of ~'lrs.
WeOst~r North 17 degrees East 333 feet to a point in the center of ~he
concrete road aforesaid; thence alon~ the cente,~ o~ ~,,~ .~:~ ~,,~,~ .... ~*~
road ~orth 81 degrees and 30 minutes East 7 fee~ to a point in the ]
center of tt%e said concrete road; thence by the land of Eugene Thruslh
gor~h 17 degrees East.787 feet to a post at the corn~, nf nh~ %~n~ ~
AND, the said ~rantors . rio
hereby covenant and agree to and with the said yrantee~ . that
~ey , the grantor~, u~Xpheira, execu~rs a~d administrators, slmH and ~vill warra~tt
generally and forever defefld the herein above deathbed
p'remL~es, witk'the hereditam~ts and appurtenances, ilnto the sa~ gmntee ~', ~ heirs
.a~ ~ig~, agai~t the aaig grant~ ~. and aga~t eve~ other pfrs~ law[~dly elalmb~g or ~oho
sh~l hereafter claim the ~am* or any part thereo~.
IN WITNESS }VHEREOF, said grantor '~ have here~¢nto act their
the dcy and year first above w~itten.
hand s and sea~'S
State o~ ?£NNS~LVAi~IA
County O/ CUr,~,ERLAND
On this, the ,.~
day of
June
· lO 5~. before
~he undersigned officer, personally al~eared Gharles l',.]llfe and Ruth V. ~lfe.
J. WILBUR WAGNER and :
MARY E. WAGNER, His Wife, :
Plaintiffs :
VS. :
CARL RIFE, :
Defendant :
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
62 EQUITY 197~
INJUNCTION
ORDER OF COURT
AND NOW, August 16, 1979, after hearing, the request of
the plaintiffs for a preliminary injunction is refused on the basis
that the law requires that there be immediate and irreparable injury
if the preliminary injunction is not granted, and the court believes
from the testimony received that this has not been shown.
The court sets a hearing on the merits of the case for
September 13, 1979, Thursday, at 9:30 a.m. The defendant is directed
to secure private counsel and be in a position to represent the
defendant at that time.
John McCrea, III, Esquire
For the Plaintiffs
By the Court,
old E. Sheely, ~
Laurence Norton, Esquire
For the Defendant
:bn
J. WILBUR WAGNER and
MARY E. WAGNER, His Wife,
Plaintiffs
VS
CARL RIFE,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
62 EQUITY 1978
INJUNCTION
TRANSCRIPT OF PROCEEDINGS
BEFORE:
DATE:
PLACE:
HONORABLE HAROLD E. SHEELY
August 16, 1979, Thursday
Courtroom No. 2
Cumberland County Courthouse
Carlisle, Pennsylvania
COUNSEL PRESENT:
JOHN McCREA, III, Esquire
For - Petitioners
LAURENCE NORTON, Esquire
For - Defendant
(Legal Services)
FOR THE PLAINTIFF
J. Wilbur Wagner
Carl Rife
(As on Cross)
INDEX TO WITNESSES
DIRECT CROSS REDIRECT
4 13 20
21 29 35
-2-
FOR THE PLAINTIFF
Ex. No. 1 - deed
INDEX TO EXHIBITS
MARKED ADMITTED
12 12
-3-
August 16, 1979
Carlisle, Pennsylvania
MR. McCREA: If it please the Court, this is the time and
place set for a hearing on the complaint of J. Wilbur Wagner and
Mary E. Wagner, his wife, versus Carl Rife on the rule to show
cause which was issued to show why a preliminary injunction should
not issue as prayed for in the complaint, close easement and
terminate use of right-of-way.
Relief which was sought in the complaint is for an injunction,
preliminary and final after hearing, and for damages and general
relief. We are here today only to determine whether the preliminary
injunction should issue.
I discussed the case with Mr. Norton, who is representing
Mr. Carl Rife in this case. He has indicated that he is in opposition
to the entry of a preliminary injunction. So we are ready to proceed
with testimony at this time.
J. WILBUR WAGNER, called as a witness, being first duly
sworn according to law, testified as followsi
BY MR.
Q
A
DIRECT EXAMINATION
McCREA:
Would you state your full name, please?
J. Wilbur Wagner.
-4-
Q
What is your current address?
R. D. 4, Box 30.
Are you the owner of certain property in West Pennsboro
Township which adjoins the property owned by Arthur Rife and
occupied by one Carl Rife, the defendant in this case?
A I do.
Q Briefly describe the land which you own in that vicinity,
if you would?
A It lays off of 641 with a narrow right-of-way back eight
acres south -- I mean north of 641.
Q North of Pennsylvania Route 6417
A Right.
Q Generally speaking does this land lie east of the Borough
of Newville?
A Yes.
Q Can you also locate it as being on the eastern slope of
what is locally called Cemetary Hill?
A Yes, it is.
Q How long have you owned this property?
A I bought it in '45.
Q Prior to that was it owned by your father?
A It was.
Q What do you use the approximately eight acres for in the
past and at this time?
-5-
A Mostly pasture.
Q You have alleged in your complaint that your right-of-way
is being used and damaged by the defendant, Carl Rife. What is the
surface of the right-of-way and what, if anything, have you done
to maintain and improve this surface over the period of years that
you have owned the land and used the right-of-way?
A I have always kept it mowed and I scraped it. I put
stone on it and kept after it until Mr. Rife started using it.
And then I stopped doing any repair work to it.
Q If you know and can estimate, approximately how long is
this right-of-way from 641 back to the land which you own and
use mostly for pasture as you say?
A I never measured it, but I would say a quarter of a mile.
Q When, if you know, did the defendant, Carl Rife, begin
travelling over your right-of-way?
A I am sorry, I didn't mark the date down. But when he
moved his trailer in, he couldn't take the trailer back the right-
of-way. He come up through his own ground. But after he got the
trailer in, he started using my right-of-way to get back and forth
to it.
Q
A
Q
Do you know approximately how long ago that was?
I am not certain, it has been a couple years.
How was it, Mr. Wagner, that you became aware of Mr.
use of the right-of-way?
Rife's
-6-
A Right after he moved the trailer back he tore his fence
down and started using my right-of-way.
Q What, if any, observations did you make at this time?
A What do you mean by that?
Q What did you observe with respect to the bed of the
right-of-way following Mr. Rife's commencement of use of it?
A I had my right-of-way very clear and he drug mud out on
my driveway.
Q Did you personally observe Mr. Carl Rife travelling over
it on any occasions?
A I did on certain occasions.
Q How were you able to deduce or determine that it was
Mr. Carl Rife that was travelling over it?
A There was no doubt, you could see his tracks bringing
the mud out.
Q From where was mud being tracked out and deposited on
your easement or right-of-way?
A Well, he had the field and the field wasn't piped or
nothing, and he drug it in all kinds of weather and come right
out through.
Q Was this the field where his mobile home and other structures
was located and continues to be located?
A It is.
Q What were the effects which you noticed, Mr. Wagner, from
-7-
his use of that right-of-way? What happened to it, if anything?
A Well, he used it in all kinds of weather and it made
gutters in the driveway.
Q How extensive are these ruts or gutters?
A They are not real bad that you can't use it. But it
isn't like I kept it.
Q In what seasons of the year did these ruts, gutters or
other effects of Mr. Carl Rife show up in the right-of-way?
A In the spring mostly, in wet weather when it would rain.
Q Has there been any real additional damage caused by his
use of it during this period of time, these summer months?
A There certainly has.
Q When, if you know, was the last time that you observed
him travelling over the right-of-way?
A Well, actually he must go in and out in the mornings,
because when I go back and forth in the daytime, I don't very
often see him.
Q
took a
A
Do you see any fresh tracks at all?
Yes, you can see his tracks.
Where do they lead?
Right over to his trailer.
You say that when he moved his trailer back there he
fence down. Where was this fence located, Mr. Wagner?
It was between his ground and my right-of-way.
-8-
Q You have owned this property since 1945. How long has
there been a recognized fence line located alongside and parallel
to the right-of-way?
A That fence has been there ever since I can remember.
There has been a fence there.
Q For the benefit of the Court and the other parties to this
lawsuit, about how long has that been?
A Well, that would have been since back in the thirties.
Q Since Mr. Rife commenced travelling over your right-of-way,
have you at any time notified him or caused him to be notified to
stop using it and to not continue to use it?
A I have on several occasions.
Q Have you directed your counsel to correspond with him to
that same effect?
A I have.
Q Notwithstanding the notice, has Mr. Rife ever at any time
stopped using the right-of-way to the best of your knowledge?
A To the best of my knowledge he hasn't.
Q Was there a particular time when you had placed or caused
to be placed a number of loads of slate in the vicinity of the
right-of-way for some purpose?
A I dumped two load of slate with the intention of repairing
the driveway. And before I got to leveling it off, he just knocked
the top off, made big bumps out of it, very irregular. And I was
-9-
down and saw him do it and told him that he had no right to do that.
And I haven't touched it since.
Q Approximately when was this, Mr. Wagner?
A It has been close to two years. I don't have the dates.
Q What, if any, concern do you have, Mr. Wagner, about the
upcoming fall and winter seasons with respect to your right-of-way
and what may occur if Mr. Rife is permitted to use it during that
season -- during fall and winter of '79?
A What was the question again?
Q What, if any, concerns have you in view of the upcoming
seasons of fall and winter with respect to the right-of-way if
Mr. Rife is allowed to continue to use it?
A Well, he just keeps tearing it up. And he won't do no
repair work.
Q What, if any, difficuly have you been caused with respect
to your ingress and egress and use of the right-of-way because of
the damage that has been caused by Mr. Rife?
A Well, it is very inconvenient for me, because when I want
to go back, I don't know if he is in the way or not. It is very
narrow. It is only one way.
Q What about the effects on the
and your ability to use it --
MR. NORTON:
THE COURT:
surface of the right-of-way
Objection, Your Honor, as being leading.
I will overrule the objection.
-10-
BY MR. McCREA:
Q What, if any,
had on the surface of
effect has Mr. Rife's use of the right-of-way
it?
A Well, it got ruts in it and the water is running down
and they are getting worse.
Q Does Mr. Rife have any other access to his trailer?
A His whole field goes out to 641. There is several
hundred feet along 641. And he built in the back of the field,
so he has the whole right-of-way.
Q In recent months has any roadway been constructed over
his ground or over his father's ground back to his trailer and
other buildings?
A It looks as though they laid some slate back through,
but it doesn't look as though they use it.
Q Has Mr. Rife ever to your knowledge maintained or
stated that that right-of-way is on his ground or on his father's
land?
A
Q
A
Q
He said that that belonged to him.
When was that?
That has been a little over a year ago.
To the best of your knowledge, over whose property does
that right-of-way pass or travel?
A
Shaner
Q
To the best of my knowledge that come off of when John
(phonetic) had owned that.
I mean at the present time it passes over whose property?
-11-
A Lilly Porter.
Q Would that be William Porter and Lilly Porter, his wife?
A That's right.
MR. McCREA: Your Honor, we don't attach it to the complaint,
but I have made a photocopy of the deed in the Recorder's office at
13B, 473, which is the deed we claim in paragraph three was the
conveyance whereby plaintiffs became the owners of the lands in
question and the right-of-way in question. We would ask leave of
Mr. Norton without having this copy certified to offer it into
evidence as Plaintiffs' Exhibit No. 1.
MR. NORTON: No objection, Your Honor.
(Whereupon, Plaintiffs' Exhibit No. 1 was
produced and marked for identification.)
THE COURT: It is admitted.
BY MR. McCREA:
Q To the best of your knowledge, Mr. Wagner, does your
right-of-way pass at any point over any lands of Arthur and
Bernita Rife?
A No.
Q Have you estimated at the present time the amount of
work and/or materials which would be necessary for you to do
and cause to be placed on the right-of-way in order to bring it
back into the condition it occupied before Mr. Rife started to
use it?
A I kind of figured it would be around $500.00.
-12-
Q Without getting into the money end of it, how much materials
and what kind would have to be placed on it, and what kind of work
would have to be done with those materials?
A Well, it will take slate and take stone, and it will have
to be graded.
Q How much slate and how much stone, if you have an estimate?
A The way he started it there, I don't really know. It will
take at least eight load of slate and two loads to three loads
of stone.
Q Would that have to be graded out over the whole way?
A That would have to be graded out.
Q Did you ever at any time give permission to Mr. Carl Rife
or Mr. Arthur Rife or any predecessor in title of ~. Arthur Rife
to use this easement or right-of-way?
A I did not.
MR. McCREA: I have no further questions, cross-examine.
CROSS-EXAMINATION
BY MR. NORTON:
Q Mr. Wagner, when did you first consult your
about this particular problem?
A When I first noticed that he started using it,
don't have the dates for that.
Q
attorney
and we
Was that somewhere around two years ago, would you say?
-13-
A It will be two years or longer.
Q Is it your testimony that since Mr. Carl Rife began using
the road you have not done anything to maintain it?
I started to, and I did mow it once or twice.
Have you done anything to maintain the roadway portion
A
of it?
A
Q
No, I didn't.
Would you tell the Court when you authorized your attorney
to file the complaint in this action, do you recall?
A I say I don't have the dates, but I did when he started
using it.
Q Did you ask to have suit
ago?
A
Q
A
Q
filed
in this case two years
I am not certain whether they started suit or not.
Do you know when suit was filed in this case?
My attorney may have that date.
Are there other people that use this roadway in addition
to yourself and Mr. Carl Rife?
A Not without my permission.
Q Are there people that use the roadway with your permission?
A I have allowed certain ones to go back, yes.
Q Isn't it true that you have people with horses back in
the pasture back on that land?
A It is my ground and I rent it.
-14-
Q
roadway?
A
ground?
Q
A
Q
now?
A
Q
A
Q
Do people haul horses in and out with trailers over that
How else would you get them in there when they rent the
Is the answer to that question yes, they do?
Right.
How many people do you have renting that pasture right
There isn't any right now.
How many people have rented the pasture in the last year?
Just one.
Do you know how frequently that person has hauled horses
in and out on trailers?
A No.
Q Do any other people use that roadway to your knowledge?
A Not that I know of.
Q Do the P.orters use the roadway?
A NO, not that I know of.
Q Does anyone rent from the Porters?
A I believe Mrs. Bollinger (phonetic).
Q Does she use that roadway?
A She uses the front entrance.
Q How far back does she use the roadway?
A Approximately one hundred fifty feet.
-15-
Q Isn't it true, Mr. Wagner,
that roadway for many, many years?
A
that Mr. Arthur Rife has used
If he did, he certainly done it without my permission.
Did you ever know that he did it?
I never caught him.
You never saw him use the roadway?
Not that I recall of.
Were you ever told by anyone that he was using the roadway?
Yes, I was.
When was the earliest time that you were told that?
Well, I say I didn't mark dates down, I don't recall.
Is it possible that from your knowledge he has been
using that roadway since 19427
A Well, I hope he didn't use it that long.
Q You said you gave notice to Mr. Carl Rife that he was
not to use this land, this roadway, is that right?
A Right.
Q How many times did you give him notice?
A My attorney should have that.
Q How many times did you do it personally?
A I don't believe I did personally, done it through the
attorney.
Q Do you know whether or not your attorney has given
Mr. Carl Rife notice not to use that roadway in the last year?
-16-
Do you know whether he has?
A He would have those records, I don't have those.
Q You testified that you observed mud being brought onto the
roadway from an area leading to Mr. Carl Rife's home, is that correct?
A Right.
Q When was that?
A Well, ever since he moved back there when it is wet.
Q When is the most recent time you have observed that?
A Well, now he has slate. He isn't dragging mud out now.
But when he moved back, for over a year before he put any slate
there.
Q It is true though that you haven't observed any mud being
tracked on this road in the last year, is that correct?
A Well, there is mud there on the roadway.
Q Have you observed any mud being tracked onto the roadway
from the area leading to Mr. Rife's home this'last spring?
A Yes.
Q You did this last spring?
A Right.
Q Is it your testimony that the condition of the road right
now is deteriorated from the condition it was two years ago?
A It sure has.
Q There is a fence running in a line between Mr. Arthur
Rife's home and this right-of-way, is that correct?
-17-
A
through.
Q
A
Q
That is right, other than where he tore it down to get
Is there a fence on the other side of the right-of-way?
No.
Was there at one time a fence on the other side of the
right-of-way?
A There was at one time.
Q Do you know when that fence was torn down?
A No, I don't.
Q When is the earliest time you remember that fence being
there on the other side of the right-of-way?
A That was back in the thirties.
Q That was the earliest that you remember it being there?
A Right.
Q You have testified that to the best of your knowledge
the land over which this right-of-way runs belongs to the Porters,
is that correct?
A That is correct.
Q To the best of your knowledge who did the Porters take
their land from, do you know?
A They didn't take it, they bought it.
Q Who did they buy it from?
A They bought it from the Websters (phonetic), to the best
of my knowledge.
-18-
Q
Who did Webster buy it from, do you know?
To the best of my knowledge it was Dave Bishop.
Do you have any knowledge of who Mr. Arthur Rife or his
father bought his land from?
A As I understand it was the Wood's heirs.
Q Do you know whether Mr. Carl Rife is making more or less
use of that road now than he was a year ago?
A The way it looks he has been using it just the same.
Q You are making that judgment from the way the road
looks, is that correct?
A That's right.
Q Does that mean the road looks the same now as it did
a year ago?
A No.
Q The road has deteriorated?
A Right.
Q It is true, isn't it, that a road would deteriorate in
any case if it weren't maintained, isn't that true?
A Right.
Q Mr. Wagner, you testified that you are seeking an injunction
from this Court to prevent Mr. Carl Rife from using this road over
the fall and winter. And one of the reasons you have indicated is
because you don't know when you use the road whether he is going to
be in your way, is that right?
-19-
A Not over the fall and winter, over the year. He is not
to use it at any time.
Q I understand that. But you are concerned evidently with
the fall and winter right now?
A I am concerned over the whole year.
Q Have you ever used the roadway and found Mr. Carl Rife on
it in your way so you could not get by?
A No.
MR. NORTON: I have no further questions.
REDIRECT EXAMINATION
BY MR. McCREA:
Q Is it your testimony, Mr. Wagner, that the reason you
haven't done any maintenance since Mr. Rife started using it was
that he interfered with your slating and grading when you would
dump some slate in there?
A That is correct.
Q How did his interference prevent you from going ahead
with your slating and grading operation?
A Well, I dumped slate in different places. And he just
went and pushed the top off and never leveled it out.
Q
out?
A
How did that interfere with your intentions to level it
Well, now after you run over it you can't -- it takes more
-20-
power and a different machine to grade it out.
MR. McCREA:
THE COURT:
MR. McCREA:
That's all I have.
I have no questions.
You may step down.
CARL RIFE, called as a witness, being first duly sworn
according to law, testified as follows:
BY MR.
Q
A
Q
A
Q
(AS ON CROSS-EXAMINATION)
McCREA:
State your full name?
Carl Lynn Rife.
Where do you reside?
R. D. 1, Newville.
Are you the occupant of a mobile home situated on property
of Arthur and Bernita Rife in West Pennsboro Township?
A Yes.
Q Does that property lie to the rear of lands along 641 and
West Pennsboro Township?
A Yes.
Q How long have you been living at that location?
A Right around two years.
Q Is there a right-of-way which goes in off 641 and goes
along a fence line and continues back to a location adjacent to
your mobile home?
-21-
A Yes.
Q Does that fence line go along the entire western boundary
of your father's land?
A Yes.
Q Did you when you first started to live back there remove
the fence wire in a location so that you could get to your home
from the right-of-way?
A I personally did not move it.
Q Do you know whether your
did remove it?
A
Q
A
Q
father or someone at his direction
Yes.
Who was that?
I think my dad and grandpa.
How long, if you know, had that fence been up before it
was
removed by your
A
A
Q
A
Q
father?
I have no idea.
How old are you?
I am twenty-eight.
Have you lived on this farm all your life?
Yes.
How frequently have you used this easement or right-of-way
since you moved in there?
A Up until about a year ago
Q What occurred a year ago?
I used it pretty regularly.
-22-
A Well, I slated up to the right-of-way,
right-of-way back to my house trailer.
Q
land?
A
Q
and we put another
Was this new driveway located entirely upon your father's
The new one, yes, sir.
Was this new driveway something that you were required to
put in as a fifty foot right-of-way by virtue of the township
requirements?
A Yes.
Q Does this new right-of-way serve all of your purposes in
getting access to your ground?
A I believe so.
Q When couldn't you use that new right-of-way to get back
to your property?
A Well, when I first moved back there, I didn't have no
other way out except the driveway.
Q
that?
A
Q
A
Q
A
Q
Were you notified that Mr. Wagner did not wish you to use
Yes, about a year and a half ago.
Was that through a letter from me on ~. Wagner's behalf?
I believe it was.
Did you respond at all to that letter?
No.
Did you simply continue to use the right-of-way?
-23-
A
time?
A
Q
Yes.
How often do you use that right-of-way at the present
Oh, about three, four times a week.
Why do you use Mr. Wagner's right-of-way rather than
the new slate drive which you
land?
A
Q
I guess just
You heard Mr.
already put in on your father's
a habit, just go out that way.
Wagner testify about him having dumped piles
of slate on the right-of-way.
done by him?
A
Q
A
Q
Do you recall about when this was
Oh, a year, year and a half, I don't really recall.
Do you remember that it was done?
Yes.
Did you push the tops off the slate and just drive over
the piles?
A I did not push -- I didn't level it off.
Q You did just proceed to drive over the slate that he had
piled on the roadway?
A
No, I didn't drive over the piles of slate.
Do you know if someone did push the tops off?
Yes.
Who was that?
My dad and my grandpa.
-24-
Q And then did you proceed to just drive over what they had
pushed off?
A
Q
up this
over it?
A Yes.
Q What?
A Well, right after I moved there it was in the spring. And
two weeks there I made a little bit of ruts out on the road. So
we got slate and I fixed that up. There was a hole up there on
top of the hill and I filled that up.
Q With what?
A With cement, because every time I drive over it, the
stones just fly right out of it.
Q Are you using this at all with the permission of Mr. Wagner?
A No.
Q You are aware that he is opposed to having you use it?
A Yes. '
Q The place where you say you slated, is that right at the
portion of the right-of-way where it comes off Route 6417
A No, that's back at -- the end of the right-of-way goes
into my land.
Q So the slate you put on is partly on your father's ground
and partly on the right-of-way?
Yes.
Have you done any work at all toward maintaining and keeping
right-of-way during the two years that you have been driving
-25-
A
Yes, I filled up the ruts that I made there.
What did you fill the ruts up with?
Slate.
Did you have someone commercially haul in slate or where
did you get it?
A My dad got it from another guy. I don't know who it was.
Q How many truckloads?
A I don't have no idea.
Q How much slate, if you know, got onto the right-of-way?
A The ruts was maybe three inches deep, something like that,
and I just filled them up with slate.
Q Are you contending that there hasn't been any damage or
harm done to the right-of-way by your use of it?
A Not in the last year, no.
Q But prior to that time isn't it true that you did cause
ruts and gutters by your travelling over it?
A At the end of it, yes.
Q When you first started using this, Mr. Rife, did you
have to go into Mr. Wagner's field to get access to your ground?
A Into his field, no, I didn't.
Q You didn't at any time go through the gates into his
eight acre field?
A No, sir.
Q Is it your testimony that you at all times entered your
-26-
land before you got to his, or was it right where his property line
is? Is that where you turn off the right-of-way into your ground?
A Yeah, right before you get to his field gate, I turn right
and right into my property.
Q How much of that fence was removed in order to give you your
access to your trailer and living area?
A I would say around twelve feet, something like that.
Q Do you know if posts were taken out?
A That I couldn't tell you.
Q But the wire was taken away?
A Yes, we just had it hooked over to a fence post.
Q Have you ever at any time gotten permission from William
and Billy Porter, over whose ground the right-of-way passes, to
use that?
A No.
Q Have they ever at any time asked you not to use the
right-of-way?
A No, they didn't.
Q Is it your testimony that you don't really need at this
time to go over Mr. Wagner's right-of-way, but could use the new
slate road which you put in on your dad's ground?
A I could use it, yes.
Q Why is it then that you want to continue using Mr. Wagner's
right-of-way?
-27-
A In case my driveway is blocked.
Q What would block it?
A What?
Q What would block your right-of-way on your father's
ground?
A I don't know.
Q Has it been blocked?
A Occasionally it has been by machinery and stuff.
Q Was this machinery that blocked it while your father's
new house was being built?
A Well, when my dad's house was built, that right-of-way
wasn't in there then.
Q What kind of machinery has blocked it since it was put
in?
A Well, me and my dad had machinery setting there.
Q Any machinery or anything else that blocked that right-of-
way is generally put there by either your father or yourself?
A Yes.
Q You are then the persons that could easily move those
items that are blocking the right-of-way?
A Could have.
MR. McCREA: I have no further questions.
-28-
CROSS-EXAMINATION
BY MR. NORTON:
Q Mr. Rife, essentially then it is a matter of convenience
for you to use this right-of-way on occasion, is that correct?
A Right.
Q The ruts and gutters that you may have caused on a portion
of this right-of-way up to a year ago, did you take any steps to
repair those?
A Yes.
Q Were those repaired to the condition that that section of
roadway was in before you caused the ruts and gutters?
A I don't understand that question.
Q Did you repair those to the condition that they were previously
in, those ruts and gutters? Did you fill those in?
A I filled them in with slate level with the, you know, roadway.
Q What was the roadway composed of prior to that time?
A Gravel, I imagine, I really don't know.
Q Was it also composed of slate?
A It may have, yes.
Q Can you tell the Court whether the roadway's current
condition is better or worse than it was two years ago when you
moved in?
A It is about the same, you know, we keep maintaining it
and so forth.
-29-
Q
Are there ruts and gutters in the road right now?
No, there aren't no ruts in the right-of-way.
Do you know whether people with horse trailers use that
right-of-way?
Yes.
How recently have you seen anyone use that with a horse
A
trailer?
A
Q
A
Q
A
Q
A
Q
In the spring.
This past spring?
Yes.
How big are those trailers?
Well, they are like what you call a horse van.
One horse or more than one horse?
I imagine two, three, I really have no idea.
As far as you know those people are using it with the
permission of Mr. Wagner?
A Yes.
Q Would you state whether or not people using that roadway
occasionally use some of your land to back their trailers on?
A
Yes.
When is the most recent time that has occurred?
When they had horses in there.
How long ago was that?
Well, May, June, I don't have no records exactly when it was.
-30-
Q
occasionally?
A No, I don't.
Q You heard Mr.
Do you have any objection to those people doing that
Wagner testify that you claimed that this
right-of-way --
is that right?
A Yes.
Q
that you have
a right to use this right-of-way,
To the best of your knowledge does
this right-of-way run
over the Porters' land entirely or does it run over a portion of
your father's land?
A That I couldn't tell you, I don't know. I mean I am just
going by what my dad and my grandpa have been saying through the
years. Half was ours and half was theirs.
MR. McCREA: I would object, Your Honor, and ask to
be stricken the portion of his response, which was hearsay,
from his father and grandfather.
MR. NORTON: Your Honor, if I might respond to that.
Every question we have asked that was opened by Mr. McCrea to
the best of your knowledge has been --
THE COURT: I will overrule the objection. He has
stated that he believed that half of it was owned by his father.
BY MR. NORTON:
Q Are you currently using what we are calling the right-of-way
-31-
in dispute here more frequently or less frequently than you were
a year ago?
A Yes.
Q How frequently were you using it at that time?
A That is up to now?
Q No, at that time, a year ago? How often were you using
that roadway?
A Pretty regular.
Q Everyday?
A Just about everyday I would say.
Q That was your only way in and out, is that correct, at
that time?
A At that time, yes.
Q And now you are using it how many times a week?
A Oh, approximately four, something like that, just depends.
Q Do you ever drive any vehicle over it other than your
automobile?
A Myself, no.
Q Anyone coming to your property drive anything over it
other than your automobiles?
A
truck.
Q How often does that come in?
A Three, four times a year.
I have a truck comes in empty, two, two and a half ton
-32-
Q
Three, four times a year?
Yes.
Does it ever use this public right-of-way?
He has used it, yes.
Has he used it since you have opened up your own right-of-
way across your father's land?
A I don't understand that.
Q Well, he used it, didn't he, prior to your having another
way back to your trailer?
A Right.
Q Has he used it since you have another way back to your
trailer?
A A few times, yes.
Q Do you know whether or not there has been any damage
caused to the right-of-way by his use of it?
A No.
Q Has it always been empty when it has run over the right-
of-way?
A A couple of times it was loaded when he came back out.
Q What was it loaded with?
A Iron.
Q Do you know whether any damage was caused to the right-
of-way by that use?
A No, it was always in the summertime.
-33-
Q Do you know whether your father used that right-of-way
prior to your moving into the trailer two years ago?
A That I couldn't tell you, I don't know.
Q You don't know whether he used that to drive back?
A No, he always used his right-of-way in. In other
words, when he built his house there, he used his -- or do you
mean before?
Q Did your father ever have occasion to go back in the back
portion of his land where you have your trailer now?
A Yes, sir, he did.
Q Did he do that prior to your moving in two years ago?
Did he used to go back in there occasionally?
A Yes.
Q When he went back in there, did he ever use this right-of-
way to go back in there?
Yes.
How would he get back in there if there was a fence
A
there?
A
We just had the fence hooked over the post like.
you had to do was bend the wires around.
Q
down?
Ail
Pull the wire out and drive through, is that right?
Yes.
Is that the same place where the fence has now been taken
-34-
A Right.
Q Do you know how frequently your father used to use that
to go back there?
A I would say a few times in the summer.
Q Again, prior to your moving in to this trailer two years
ago, do you know whether either your father or your grandfather
did anything to maintain this right-of-way?
A Just by hearsay, yes.
Q You never observed him do anything to maintain it?
A No, I wasn't there when they maintained it.
Q Did you ever observe your father or grandfather cutting
any of the grass or weeds along the right-of-way?
A I heard he did. I never actually seen him doing it.
Q Never observed it?
MR. NORTON: I have no further questions, Your Honor.
REDIRECT EXAMINATION
BY MR. McCREA:
Q Do you ever recall, Mr. Rife, there being two fences,
one on either side of the right-of-way?
A The only fence I know is on the side of my dad's property.
That's the only fence that I ever know of.
Q You have lived there twenty-eight years?
A Right.
-35-
Q
Did your father walk back to the right-of-way?
Sometimes.
How often, if at all, are you aware of him going back
there with a vehicle?
A We took empty wagons back to get a load of hay, so we
went through sometimes.
Q Could you also go back through the fields?
A We could up to a certain time. The township made the gutter
pretty deep. We couldn't get loaded vehicles across. So we used
the other right-of-way in.
Q Before the township cut the gutters too deep, would you
go in over the fields?
A You mean use that same gutter?
Q Yes.
A With a tractor, yes.
Q Would it be fair to say that the only use of that right-
of-way by your family was for farming operations?
A
correct?
A
I would say so.
And this was only done on very few occasions, is that
Through the summer, that's right.
MR. McCREA: I have nothing further.
BY THE COURT:
Q Has your father deeded to you the ground on which your
-36-
mobile home is erected?
A No.
THE COURT:
MR. McCREA:
MR. NORTON:
Ri fe.
That's all I have. You may step down.
We have no further testimony.
Your Honor, I would like to call Mr. Arthur
THE COURT:
this time.
(Whereupon, a brief recess was taken
and a discussion was held in chambers
off the record with both counsel present.)
I would like to see counsel in chambers at
AFTER RECESS
THE COURT: Mr. Norton, do you want to make your motion
to withdraw at this time?
MR. NORTON: Yes, Your Honor. As I had indicated in
chambers and as I have discussed with my client, Mr. Carl Rife,
prior to this hearing and again just now, our commitment for
representation of Mr. Rife was through this hearing this morning
and to wrap up anything that arose out of this hearing. Because of
the policy of our office in setting priorities for the use of our
time, I am going to request the Court to withdraw from this case.
And I think I can withdraw at this point in time without any
detriment to the client.
THE COURT: The motion of Legal Services to withdraw from
-37-
the representation of the defendant is approved.
(Whereupon, the following order was
entered.)
-38-
J. WILBUR WAGNER and :
MARY E. WAGNER, His Wife, :
Plaintiffs :
:
V :
CARL RIFE, :
Defendant :
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
62 EQUITY 1979
INJUNCTION
ORDER OF COURT
AND NOW, August 16, 1979, after hearing, the request of
the plaintiffs for a preliminary injunction is refused on the basis
that the law requires that there be immediate and irreparable injury
if the preliminary injunction is not granted, and the Court believes
from the testimony received that this has not been shown.
The Court sets a hearing on the merits of the case for
September 13, 1979, Thursday, at
to secure private counsel and be
defendant at that time.
9:30 A.M. The defendant is directed
in a position to represent the
By the Court,
John McCrea, III, Esquire
For the Plaintiffs
Laurence Norton, Esquire
For the Defendant
:bn
/s/ Harold E. Sheel~
Harold E. Sheely, J.
-39-
(Whereupon, Court adjourned at 10:57 A.M.)
-40-
J. WILBUR WAGNER and :
MARY E. WAGNER, His Wife, :
Plaintiffs :
:
V :
CARL RIFE, :
Defendant :
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
62 EQUITY 1978
INJUNCTION
I hereby certify tha~ the proceedings and evidence are
contained fully and accurately in the notes taken by me on the
hearing of the above cause and that this is a correct transcript
of same.
Barbara E. Nickolas
Official Stenographer
The foregoing record of.the proceedings upon the hearing
of the above cause is hereby approved and directed to be filed.
~a~rold E. Sheely~
Ninth Judicial District
-41-
J. WILBUR WAGNER and
MARY E. WAGNER, his wife,
Plaintiffs
Ve
CARL RIFE,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
62 EQUITY 1978
INJUNCTION
IN RE: CONTINUANCE
ORDER OF COURT
AND NOW, September 7, 1979, at the request of counsel
for the defendant, Dale F. Shughart, Jr., Esquire and upon
agreement of counsel for the plaintiffs, John McCrea, Esquire,
hearing in the above-captioned matter is continued until Monday,
October 29, 1979, at 9:30 a.m., in Court Room No. 2.
By the Court,
John McCrea, Esquire
For the Plaintiffs
Dale F. Shughart, Jr.,
For the Defendant
:pbf
Esquire
J. WILBUR WAGNER and
MARY E. WAGNER, his wife,
Plaintiffs
CARL RIFE,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
NO. 62 EQUITY 1978
INJUNCTION
IN RE: CONTINUANCE
ORDER OF COURT
AND NOW, September 17, 1979, at the direction of the court,
the above-captioned case is continued until Wednesday, October 31,
1979, at 9:30 a.m., in Court Room No. 2.
By the Court,
John McCrea, III, Esquire
For the Plaintiffs
Dale F. Shughart, Jr., Esquire
For the Defendant
:pbf
J. WILBUR WAGNER and MARY E.
WAGNER, his wife
VS
CARL RIFE
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:CIVIL ACTION - EQUITY
: NO. 62 EQUITY 1978
:
IN EQUITY
ANSWER WITH NEW MATTER
AND NOW, comes the defendant, Carl Rife and makes the
following Answer and New Matter to the Complaint in the above
matter.
1. Admitted.
2. Admitted.
5.
ANSWER
Admitted.
Admitted.
It is admitted that the easement or right-of-way has
acquired a fixed location and that the right-of-way has been
improved and maintained. It is denied that the plaintiffs have
maintained and improved the right-of-way extensively through
the macadame surfacing and through grading and leveling the
roadway surface. On the contrary, after reasonable investigation,
the defendant is without knowledge or information sufficient
to form a belief as to truth of the averments of Paragraph 5,
the means of proof being solely within control of the plaintiffs,
and proof thereof is demanded. The averments of Defendant's
New Matter are incorporated herein by reference thereto.
6. It is admitted that the defendant is in possession
of certain lands adjacent to the land upon which the right-of-way
is located. It is denied that the defendant is the owner of
such land. By way of further answer, the defendant is a tenant
at will in possession of the land of Arthur W. Rife and Bern~t~ ~_
way above referred to for ingress and regress 'to and from the
property he is occupying without plaintiffs permission and con-
sent. It is denied that defendant has any duty to obtain the
permission or consent of the plaintiffs. On the contrary, the
defendant incorporates herein by reference thereto the averments
of his new matter.
8. It is admitted that plaintiffs have requested defendant
not to utilize the right-ofway. It is denied that defendant
was trespassing on property of the plaintiffs or that defendant
has any duty to obtain the permission or consent of the plaintiffs
to utilize the said right-of-way. On the contrary, the averments
of defendant's New Matter are incorporated herein by reference
thereto.
9. It is admitted that defendant had continued to utilize
the aforesaid right-of-way. It is denied that plaintiffs have
suffered any injury or damage. On the contrary, it is averred
that defendant has a right to use the said right-of-way and
that plaintiffs have no standing to object to his use of the
right-of-way. By way of further answer, the averments of defen-
dant's New Matter are incoPporated herein by reference thereto.
10. Denied. It is denied that defendant has caused damage
to the easement or right-of-way. On the contrary, any wear and
tear to the surface of the right-of-way was and is caused by
normal usage thereof in accordance with defendant's right to
use the same. By way of further answers the averments of defend-
ant's New Matter are incorporated herein by reference thereto.
WHEREFORE, Defendant prays Your Honorable Court to dismiss
the Complaint and enter judgment in favor of the defendant and
against the plaintiffs.
NEW MATTER
12. Arthur W. Rife and Berneta E. Rife, husband and wife,
are the owners of the premises upon which defendant resides,
having acquired the same by Deed dated June 3, 1955 and recorded
in Cumberland County Deed Book "M", Vol 16, Page 7, a true and
correct copy of which is attached thereto, made a part hereof
and marked Defendant's Exhibit "A".
13. Arthur W. Rife and Berneta E. Rife, his wife, have,
for a period in excess of twenty-one (21) years, continuously,
openly, hostilely, adversely and uninterruptedly used the right-
of-way or easement in question for purposes of ingress, egress
and regress to and from their property which is adjacent to
the said right-of-way or easement, by virtue of which they have
acquired for themselves, their heirs and assigns, a prescrip-
tive right to continue using the said right-of-way or easement.
1~. The defendant, as a tenant at will residing upon the'
property of Arthur W. Rife and Berneta E. Rife, is legally entitled
to use the said right-of-way for purposes of ingress, egress
and regress to and from the portion of their property which
he is occupying.
15. The right-of-way owned by the plaintiff is not an
exclusive ownership by the plaintiff but is subject to the rights
of other parties, including the defendant, to use the said right-
of-way as hereinabove set forth.
16. There is no agreement between the individuals having
a right to use the said right-of-way as to the maintenance and
improvement of the said right-of-way. Therefore, the plaintiff,
or any other individual maintaining and improving the said right-
of-way does so at his own risk and subject to the rights of
other individuals to use the said right-of-way.
17. On rare occasions, from on or about 19~2 to the present,
right-of-way on occasion, among other things, filling holes
with crushed stone.
18. The portion of the right-of-way which is used by the
defendant is situate entirely on land now or formerly owned
by William J. and Lillie M. Porter, no part thereof being on
the property of the p].aintiff.
19. The plaintiff has no standing to object to the defend-
ant's use of a right-of-way over the property of other indi-
viduals.
20. Neither William J. Porter nor Lillie M. Porter has
at any time voiced any complaint to the defendant concerning
his use of the right-of-way. The defendant therefore believes
and avers that the said Porters acknowledge the prescriptive
right acquired by Arthur W. Rife and Berneta E. Rife and con-
sequently the right of defendant to utilize the right-of-way
as assignee of his parents.
21. Defendant is advised and therefore avers that for
a period in excess of twenty-one (21) years, prior to 19A2,
a public dance hall and "Trolly Park" were located on the land
now or formerly owned by the plaintiff, the right-of-way in
question being used continuously, openly, hostilely, adversely
and uninterruptedly by members of the general public for purposes
of ingress, egress and regress to and from said dance hall and
"Trolly Park", by virtue of which the public generally acquired
a prescriptive right to use the said right-of-way or easement,
defendant~ right to use said right-of-way also arising from
his status as a member of the general public.
22. On or about the summer of 1978 the Township of West
Pennsboro, through its employees, improved a portion of the
right-of-way in question by placing macadame and blacktop thereon.
right-of-way to be a public right-of-way for use of the general
public as well as the individuals who have acquired a private
right to use said right-of-way.
WHEREFORE, Plaintiff prays Your Honorabale Court to dismiss
the Complaint and enter judgment in favor of the Defendant and
against the Plaintiffs.
FOWLER, ADDAMS & SHUGHART
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
Carl Rife, being duly sowrn according to law, deposes
and says that the facts set forth in the foregoing Answer With
New Matter is true and correct to the best of his knowledge,
information and belief, z~k~/
Sworn and subscribed before me,
this 26th day of September, 1979.
BONNIE L. COYLE, Notary Public
Mt. Holly Spgs., Cumberland Co., Pa.
My Commission Expires Aug. 23, 1982
MADE THE ~ day ./ June a. the y~r
of our Lord ~e U~o.sand nine h~ndr~d a~d ~l~Cy-~ve ~
BETWEEN Cherles M. Rife and Ruth V. Rife, his wife of West Penns-
'born Tounship, Cumberland County, Pennsylvania, hereinafter called
~nd ARTHUR W. RIFE and BERNETA E. RIFE,his wife, of West Pennsboro-
Township, Cumberland County , Pennsylvania, hereinafter called
Grantee s:
WITNESSETH. that ~ cons~e~tion o/ One Dollar and other good and valuable
consideration ~2~,
in handpa~,thereceipt where~ ~ hereby ~kn~nvledged, t~ sad granto~ do hereby ~nt
and conv~ tothesaid granteeS,their heirs and assigns, as tenants by the
entireties.
All that certain tract of land situate'in the Township of West
Pennsboro, County of Cumberland end State of Pennsylvania, bounded
and described as follows:
~EGiNNING at a poln~ in ~he center of the concrete road leading
from Carlisle to Newville, and at the land of Gordon Lay; thence
by the land of Gor~on Lay , South 67 degrees and 35 minutes East
2239.1 feet to a post at the corner of the-Lay land; thence still
by the lend of Gordon Lay North 68 degrees and 24 minutes East
508 feet to a point in the center of a public road; thence along sa
public road and the land of David Jacoby South 3 degrees and 21 min~
East 503 feet to a point in the center of said public road; thence
still by same and the land of John Wagner South 46 degrees and 16 m~
utes East 889 feet to a point in the center of said public road at ~
land now of David Mellinger, (formerly John Snyder); thence along t?
lend of David Hellinger South 89 degrees and 21 minutes West 3903
feet to a point in a public r~ad crossing the farm herein described;
thence still by the land of David Nellinger North 69 degrees and 5~
minutes West 1088 feet to a post at the corner of the land of ilrs.
Webster; thence by the land of i~rs. Webster North 4 degrees and 13
minutes West 310 feet to e stone; ~hence still by the lung of Mrs.
Webster North 17 degrees East 333 feet to a point in the center of la~
concr~ce roa~ aioresaid; thenue oxong ~he cen~er of the sax~ con~re {
road North 81 degrees and 30 minutes East 7 feet to a point in the
center of the said concrete road; thence by the land of'Eugene Thrush
North 17 degrees East 787 feet to a post at the corner of the land
of Gordon Lay; thence along the land of Gordon Lay South 62 degrees
~mM mR ~,~t~ E~t 1]?] f~t tn a ~olnt in the center of the said
d
tea
AND, the said grantors . do he~reby corenantand ag ee to and with the said flrant,~eS . that
~.~ey , t~e g~ntor~, 5~aeXrheirs, exempts and administrators, s~g and will ~va~ant
generally and forever defend the herein above described
prem~es, with the hereditam~ts and appurtenances, unto the said grantee S', 't~elr heirs
.a~ ~g~, agai~t ihe said g~nt~ ~, and aga~t every other pqrs~ lawftdly claiming or who
shall hereafter claim the same or any part thereof.
IN WITNESS WHEREOF, said granto'r s have here~nto set thelr
the dcy and year firs~ above written.
ha~d S and seal
State o! PENNSY~'NAi~IA % ss.
County of COi~:~L~ D
On this. the ..~ day o! June . 19 5~ . before
the undersigned o~c~r, personally appeared Charles r,.}~lfe and Hu~ ~. Rife,
his wife
MCCREA & DAVIS
J. WILBUR WAGNER and MARY E.
WAGNER, his wife
vs.
CARL RIFE
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
NO. 62 EQUITY 1978
IN EQUITY
REPLY TO NEW MATTER
AND NOW, come the plaintiffs, J. Wilbur Wagner and Mary E. Wagner, his
wife, who make the following reply to New Matter in the above-captioned
action:
11. This paragraph of New Matter incorporates by reference the
averments of defendant's Answer, paragraphs 1 through 10, and therefore,
is not required to be admitted or denied by the plaintiff.
12. Admitted.
13. Denied. On the contrary, plaintiffs aver that neither Arthur W.
Rife nor Berneta E. Rife, his wife, have obtained any prescriptive right
to use the said right-of-way or easement, but have at all times been
trespassers on the said property.
14. Denied, for the reasons stated in paragraph 13 of this Reply to
New Matter.
15. Denied. On the contrary, plaintiffs aver that their easement and
right-of-way is an exclusive easement and right-of-way, subject only to
rights of the owners of the property, Genevieve H. Webster and June E. W.
Morgan, who hold the fee over which the easement runs.
16. It is admitted that there is no agreement in existence as to the
maintenance and improvement of the said right-of-way. Plaintiffs, however,
deny that the defendant or anyone else has a right to use the said right-of-
way.
17. Denied. On the contrary, after reasonable investigation, the
Plaintiffs are without knowledge or information sufficient to form a belief
as to the truth of the averments of paragraph 17 of the New Matter, and
proof thereof at the trial of the case is demanded.
18. Denied. On the contrary, plaintiffs aver that the land upon which
the right-of-way is situate is located on lands owned now by Genevieve H.
Webster and June E.W. Morgan, by virtue of a deed dated June 26, 1970 and
recorded in the office of the Recorder of Deeds at Deed Book "R", Volume 23,
Page 600.
19. Denied. On the contrary, plaintiffs aver that they have an
exclusive right-of-way and therefore, are clothed with standing to object
to the defendant's use of their exclusive right-of-way.
20. Denied. After reasonable investigation, the plaintiffs are without
knowledge or information sufficient to form belief as to the truth of the
averments of paragraph 20 of the New Matter and proof thereof at the trial
of the case is demanded.
21. Denied. On the contrary, plaintiffs aver that the public dance
hall and trolley park only operated during a period of time less than twenty-
one (21) years, or slightly between 1910 and 1920. Therefore, the public
did not acquire any prescriptive right to use the said right-of-way or ease-
ment in question.
22. Denied. On the contrary, plaintiffs aver that the beliefs of
West Pennsboro Township as to the status of the right-of-way in question
as a public right-of-way are not relevant to the Complaint for a preliminary
injunction Moreover, after reasonable investigation, the Defendant is with-
out knowledge or information sufficient to form a belief as to the truth of
the averment concerning the opinions and belief of the Township of West Penns-
boro and the Porters, and proof thereof at the trial of the case is demanded.
WHEREFORE, Plaintiffs pray Your Honorable Court to dismiss the
Answer and New Matter of the Defendant and to enter judgment in favor
of the Plaintiff and against the Defendant.
McCREA & DAVIS
BY:
John McCrea III, Esquire
Attorney for Plaintiffs, J.
Wilbur Wagner and Mary E.
Wagner, his wife
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND :
SS,
J. WILBUR WAGNER, being duly sworn according to law, deposes and says
that the facts set forth in the foregoing Reply to New Matter are true and
correct to the best of his knowledge, information and belief.
Sworn to and subscri_ked
before me this ~day
of October, 1979.
Newville,~C~)~nberland Co., Pa.
~ ComaJ~sion [~xpires Sept. 6, 1~
J. Wilbur Wagner
J. WILBUR WAGNER and
MARY E. WAGNER, His Wife,
Plaintiffs
V
CARL RIFE,
Defendant
IN THE COURT OF CO~ON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
62 EOUITY 1978
INJUNCTION
TRANSCRIPT OF PROCEEDINGS
BEFORE:
DATE:
PLACE:
HONORABLE HAROLD E. SHEELY
October 31, 1979, Wednesday
Courtroom No. 2
Cumberland County Courthouse
Carlisle, Pennsylvania
COUNSEL PRESENT:
JOHN McCREA, III, Esquire
For - Plaintiffs
DALE F. SHUGHART, JR.,
For - Defendant
Esquire
FOR THE DEFENDANTS
Arthur W. Rife
Carl Rife
INDEX OF WITNESSES
DIRECT CROSS REDIRECT RECROSS
9 16 25 28
28 31 33, 36 35
FOR THE PLAINTIFFS
J. Wilbur Wagner
36 43
October 31, 1979
Carlisle, Pennsylvania
THE COURT: Gentlemen, I understand there are some
stipulations at this time to be put on the record.
MR. McCREA: Yes, sir. This is the time and place set
for a hearing on the Equity case of J. Wilbur Wagner and Mary E.
Wagner, his wife.
I would at this time file the reply to New Matter, which
essentially admits or denies the claims in the New Matter filed by
the defendant Carl Rife.
The first stipulation we would have is that the parties
would stipulate and agree to join as party defendants Arthur W.
Rife and Berneta E. Rife, his wife, who are fee owners of the land
on which Carl Rife, the named defendant, is a tenant and has a mobile
home and lives in it.
We would also stipulate without going into any detail
as far as the chain of title for Arthur W. Rife and Berneta E. Rife.
That Arthur W. Rife and Berneta E. Rife that they or their predecessor
in title Charles M. Rife and Ruth V. Rife have owned this property
since April 1, 1942, by virtue of a deed from Richard O. Woods and
wife and to Charles M. Rife and Ruth V. Rife, dated April 1, 1942,
and recorded in Deed Book N, Volume 12, page 383.
We would also stipulate to the chain of title for J. Wilbur
-4-
Wagner and Mary E. Wagner, his wife. That they have owned the
property continuously since November 14, 1945, by virtue of a
deed into them from the estate of Emanuel C. Wagner, who was the
father of J. Wilbur Wagner. Those deeds are found at Deed Book B,
Volume 13, page 472. And also at --
THE COURT: Is that the later deed, is
deed or are there several tracts on this deed?
Honor.
three,
that the one tract
MR. SHUGHART: There are three tracts on that deed, Your
THE COURT: Which tract would this be?
MR. SHUGHART: Tract number three.
MR. McCREA: Actually it would be tracts one,
totally approximately eight acres.
THE COURT:
two and
In other words, all those tracts if you put
them together, would be the tract of land that is back there now?
MR. SHUGHART: Yes.
MR. McCREA: And that deed into the Wagners' contains
the express right-of-way to the Carlisle-Newville Concrete Road
and lying between or over the land of J. R. Woods' heirs and/or
Dave Bishop.
THE COURT: Do counsel wish to have these deeds marked
at this time and put in evidence?
MR. SHUGHART: We would mark as Plaintiffs' 1 a copy of
the deed from Dorothy C. Rook to J. Wilbur Wagner and wife. And as
-5-
Defendants' No.
Rife, and wife,
the Court.
1 a deed from Charles M. Rife, and wife, to Arthur W.
which are the immediate deeds of the parties before
In addition to that, I will elaborate on some of the
stipulations stated by Mr. McCrea. The defendants do not contest
the facts that Mr. Wagner has a right-of-way as stated in his
deed. The right-of-way as stated in the deed refers to land of
J. R. Woods' heirs, which is the property which is now owned by
the defendants and/or the land of David Bishop. And that is the
property now owned by the Porters and by Mrs. Webster.
MR. McCREA: Genevieve H. Webster.
MR. SHUGHART: I would also mark and would stipulate
into evidence as Defense Exhibit 2 a copy of the land subdivision
plan for Arthur W. Rife, and wife, which is recorded in Cumberland
County, Plan Book 29, page 126, which shows the property of the
defendants and shows generally the line between the Porters' and
the Wagners' to the west of the land of the defendants, and also
shows the entrance of the lane in question.
And would stipulate as Defense Exhibit 3 a deed from
Genevieve H. Webster, widow, to William J. Porter and Lillie M.
Porter, which describes the Porters' property and bounds the
Porters' property on the western edge of the private lane as
evidence to the stipulation of the parties that the lane in question
is owned by Mrs. Webster and her daughter, whose name is I believe
-6-
June Morgan.
And the final stipulations are historic in nature. I
believe I will state these correctly. Prior to 1920 the land
which is now owned by the Wagners was known as the Trolley Park
or the Newville Park. The trolley line ran through there, well,
through the property that is now Rifes' and across the property
that is now Wagners'.
Prior to 1920 there was a park back there. And this
lane was public access into that park for the Newville Road.
However, the defendant does not at this time have any evidence
to indicate either that there was a dedication to or a conveyance
to the municipality of this road or that the use of it by the
public exceeded or met the statutory twenty-one years.
But if there are further proceedings in this matter,
we would reserve the right to offer any documentary evidence that
might be later discovered in support of an actual public ownership
of the land. Did I state that correctly?
MR. McCREA: That's correct. In the nature of an admission
I think rather than a stipulation, the New Matter, paragraph 18 of
Carl Rife, and the defendants now joined by stipulation, Arthur
and Berneta Rife, admits that no portion of the right-of-way in
question is on property of the defendant.
MR. SHUGHART: That is correct. The defendants' property
line is the fence which Your Honor viewed this morning. And the
-7-
lane is entirely to the west of that fence, and therefore, not at
all on the property of the defendants.
THE COURT: Really, gentlemen, the issues are going to
be limited in this particular proceeding.
MR. SHUGHART: As we have discussed, the defendant has
raised the standing issue whether the plaintiffs have standing,
and that may perhaps be resolved by things that transpire after
this hearing today by stipulation.
The testimony of the defendants will be presented first.
And it is going to be limited to their testimony as to a prescriptive
ownership of a right-of-way over the lane and then subject to any
rebuttal that the Wagners might wish to offer. Both sides I believe
are reserving the right to produce further testimony if appropriate
after Mrs. Webster has made a decision as to any involvement she
may have in this matter, because I believe she may well be a necessary
party.
MR. McCREA: That's correct, Your Honor.
(Whereupon, Defendants' Exhibits No. 1, 2 and 3
were produced and marked for identification.)
(Whereupon, Plaintiffs' Exhibit No. 1 having
been marked and admitted at the previous
hearing of August 16, 1979.)
-8-
ARTHUR W. RIFE, called as a witness, being first duly
sworn according to law, testified as follows:
BY MR. SHUGHART:
Q
A
Q
DIRECT EX~-~INATI ON
Please state your name and address?
Arthur Rife, Route 1, Newville.
Mr. Rife, you were present and heard the stipulations
which Mr. McCrea and I just entered as far as your ownership of
the property adjacent to property of the plaintiffs here and the
lane in question. Did you hear those stipulations?
A I believe so, yes.
Q And just to familiarize you with what we are discussing.
Your subdivision plan has been stipulated into evidence as
Defendants' Exhibit No. 2. Does this accurately show your property
which lies to the north of the Newville Road with a private lane
on or near property of
not on your property?
A
Q
A
Q
A
Q
the Porters as it appears on this plan, but
Yes.
When did you first come to live on what is your farm?
1942.
Who purchased the property at that time?
My father and mother.
About how old were you at that time?
-9-
A
Around nineteen.
Have you lived on that farm continuously from 1942 to
Q
the present?
A Yes.
Q During the forties and the fifties and the sixties, not
only your land that's adjacent to the lane but your land on the
south side of the Newville Road, what was that used for?
A Farming.
Q In the process of farming over that period of time, did
you ever have occasion to use the private lane along your western
boundary which is in question here?
A Yes.
Q Would you explain to the Court please what occurred when
you first became aware of this lane or when you first wanted to use
this lane?
A I am not sure I understand, would you please repeat that?
Q When you first moved to the property, did you have any
discussion with Mr. Wagner at that time back in 1942 about the use
of the lane?
A I don't believe so.
Q Was there ever a time when there was a chain put across
that lane?
A Yes.
Q When was that?
-10-
A That would have been in '42 when we moved there.
Q Would you explain what happened and what your discussions
were at the time when there was a chain across the lane?
A There was one discussion in that in Sam Burkholder's
(phonetic) drugstore one evening.
Q
A
Q
A
take the
He asked me if I --
Who asked you?
Mr. Wagner.
That is Mr. Wagner who is seated here beside Mr. McCrea?
Yes. He asked me if I would ask my father if we would
fence away along this lane so he could mow and keep it
clean. And I said well we just moved down here. I said after
harvest dad planned on pasturing over there for this year. And
he found a couple springs in the trolley bed. And I said there
would be no use to take her fence down, don't want to do that,
they were going to repair it. And I said I understand it is
a public right-of-way. And by rights if we wanted to,
be a charge made for out of the use of the lane.
MR. McCREA: For what, a charge for what?
THE WITNESS: For not being able to use the public
right-of-way.
there could
BY MR.
Q
A
SHUGHART:
Why couldn't you use the lane at that time?
Because there was a chain across in from the road a
little ways with a lock on.
-11-
Q
What did Mr. Wagner say at that time?
He informed me there was a private right-of-way.
What did you say to him?
I said I understand it is public. And we wouldn't do
it.
But we both could just spend money, that we could charge for being
out of the use of the public right-of-way. And the chain came down.
I can't tell you how soon, but it came down. It wasn't used from
there on.
down?
A
Q
A
Q
Would that have still been in 1942 when the chain came
Yes, sir.
Do you know who took the chain down?
No, I don't.
From 1942 up to today, has there ever been another chain
put back up there?
A Not to my knowledge.
Q Did you over this period of time have occasion to use
this lane?
A Yes.
Q Would you explain in general terms in what manner or how
you would use the lane or to do what that you would use this lane?
A Well, repair fence or now and then we would plow up over
there and put wheat or barley in order to get it reseeded back in
better grass. And we have made hay a couple times. We used up
-12-
there to take over because the opening down below would need a
culvert in the water gutter. And the State supervisors wouldn't
allow us to have a culvert.
Q On a yearly basis from 1942 up until the time the culvert
was fixed, do you have an idea how many times on a yearly basis you
might use the lane?
A Possibly three, four, five, it would vary.
Q When I say you would use the lane, other than yourself,
was there anybody else in your family who was using it?
A My father.
Q Did you ever ask anybody permission to use the lane?
A No.
Q Did you use the lane secretly or did you use it anytime
you might want to use it?
A No. I used it not secretly, openly.
Q Did anybody ever until recently object in any way to your
using the road?
A No, sir.
Q Did you to your recollection ever do anything on the road
surface itself to improve it for any vehicles you might have been
taking over?
A Occasionally, but it would have only been minor.
Q We noticed at the view this morning that there is a small
patch of dirt and weeds that are from the western side of your fence
-13-
out to the lane.
on that small strip of property?
A
Did you ever do anything to maintain the weeds
Over the period of years you mean?
Yes, sir.
Yes.
What did you do?
Mowed it, cut them.
Would there have been any year from 1942 up until
the
culvert was fixed that you did not use this lane?
A
Q
owned the
road?
A
Q
until these problems surfaced when your son moved in
Mr. Wagner ever object to your using the road?
A
the road,
A
I would have used it at least once every year.
Did Mrs. Webster over the period of time that she has
adjacent land, has she ever objected to your using the
No.
From the time of your discussion in 1942 with Mr. Wagner
that area, did
No.
If Mrs. Webster or Mr. Wagner had objected to your using
what would you have said or done?
Well, I would have at least found out whether it was
public for sure,
well then
on that.
Q
which I understood it was. If it had been private,
it would have been different. That's the best I can answer
Did you ever ask anybody whether you could have their,
-14-
whether it be Mr. Wagner or Mrs. Webster or anybody that might have
owned before them, did you ever ask any of those people whether you
could use the lane?
A No, I didn't.
Q There has been some discussion about a drainage culvert
that ran across your property. Could you explain what the condition
was previously and what effect that had on your access to your
fields to the north of the Newville Road?
A A drainage problem did you say?
Q Yes, sir.
MR. McCREA: Drainage culvert he said.
BY MR.
Q
A
Q To the east of the lane?
A Sir?
SHUGHART:
The culvert.
Down where -- down below you mean?
Q To the east of the lane. The problem was mentioned
this morning when we were out on the view?
A Down at the curve where the State took the View Block,
as they call it, off, more or less widen the curve, two times we
had put a culvert in the water gutters so we could take some pieces
of machinery in. And at two different times the State took our
culvert out.
Q When they took the culvert out, how did you get access
to your fields?
A Up this right-of-way that is in question.
Q What happened with this culvert -- continue with what
you were explaining before I interrupted you?
A How is that again?
Q You had a problem with the State in your drainage tiles.
Would you explain what happened, how that was corrected?
A Well, when they widened the curve, then the State made
us the good drive.
Q Do you recall when that was?
A Not exactly, no, possibly six, eight years ago.
pinpoint.
Q
near the
A
Q
I can't
When your son first put his home on your property there
lane, how did he get back to his home?
This right-of-way.
Have you since that time put in another road that goes
back to your house?
A Yes.
MR. SHUGHART:
I have no further questions.
CROSS-EXAMINATION
BY MR. McCREA:
Q When did your son Carl put his trailer back there?
-16-
A
I believe '77, I believe.
How was the trailer taken back?
Across the field.
It did not use the right-of-way in question then, did it?
Not to move the trailer in, no.
Am I correct that there is a new slate road entirely on
your property which leads
A
Q
A
back to Carl's trailer?
Yes.
Is that usable in all weather?
Yes.
When was the last time you can remember having a crop
on the back field where Carl~s trailer is?
A A crop?
Q And harvesting it?
A I can't give you an exact, but I would say in the matter
of six~ eight, maybe ten years, where we have been pasturing.
Q Ten years ago you would have had what kind of crop on?
A Either barley or wheat.
Q Would it be fair to say that your having a barley or
wheat crop on it would have been since 1942 only two or three
separate crops in that entire thirty-seven year period?
A You mean two or three years of that period?
Q Two or three years that you had a crop other than grass
or hay?
-17-
A
A
on that.
Q
It would be more than two or three times.
How many times, to the best of your memory?
Six or eight at least. I can't give you a good figure
As we saw in the view this morning, there is an old
fence line which is your property line and which is the, shall we
say, the eastern boundary of
correct?
A
Q
the right-of-way in question, is that
Yes.
Does that fence or did that fence run the entire length
of the right-of-way when you bought the property in 19427
A Yes.
THE COURT: Excuse me, when his dad bought it.
BY MR. McCREA:
Q Whenyour father bought it in 19427
A Yes.
Q Is the fence wire which is still there,
fence wire which was there in 19427
A No.
Q When would the new fence wire have been put there,
Mr. Rife, if you can recall, approximately?
A I wouldn't know whether to say ten or fifteen years.
wouldn't be
yet.
the original
I
able to say. A few of the original pieces are there
Q Was there an American wire fence there throughout the
period of time since 19427
A Yes.
Q Continuously?
A Yes.
Q We saw that the fence has been removed from a distance
back where there have been tracks worn into your son~s area, is
that correct?
Yes.
When was that fence completely removed?
It would have been whenever the boy's mobile home was
A
A
placed.
Q
A
Q
Would that have been in 19777
Yes.
Would a number of pieces have been taken out at that
time as well as the fence wire been removed?
that
now has?
A
Q
between
A
A Yes.
Q Approximately how many pieces had to be removed at
location in 1977 to form the entrance way that your son
I imagine three or four.
Is it correct that a fence was there or a fence wire
1942 and 19777
Yes.
-19-
Q Isn't it true that through many of those years you
were pasturing cattle back there and required a fence to keep
the heifers from breaking out?
A Yes.
Q Before several days ago did you know that Mrs. Webster
and her daughter had retained title to the bed of that right-of-way?
A No, I didn't know.
Q Did you in fact believe that it had been sold to William
and Lillie Porter when they bought the adjoining ground?
A I may have assumed that.
Q In 1942 when you had your discussion with Mr. Wagner
at Sam Burkholder's drugstore, did you state to him that it was
your belief that that right-of-way was a public right-of-way?
A Yes.
Q What was the source of that belief, Mr. Rife? How did
you come to believe that?
A I don't remember the neighbors who told me, but someone
around there, neighbors or someone, had told me that it was
public due to the Trolley Park being back there.
Q Did you then use it from 1942 onward and continue to
use it in the belief that you were using something which was
open to all the public?
A Generally speaking, yes.
Q You say that at least once a year you used the right-of-way.
-20-
What would be an occasion or a reason for you going back there
once in any one year?
A Well, the machinery or to repair a fence, and also to
mow the fence row.
Q So there were years where you would have gone in once
and come back out, and that would have been the only time you
did it in that particular year?
It is possible. I can't honestly give you an exact
A
figure.
Q
Isn't it true that before 1977 there were never any
recognized tracks or observable tracks leading from that right-of-way
into your field?
A I don't hardly know how to answer, because we opened
a fence to take a tractor and a piece of machinery through. Surely
it would show a little bit of a track. Not trying to avoid your
question, sir.
Q Are you saying that there was enough room between any
two fence posts back there, if there were three or four in that
space, to get a tractor and wagon through?
A
anything.
Q
A
Q
No. We also had to take at least one piece out for
Did you have movable posts?
You can take them out and put them back in,
Is that what you believe you did?
yes.
-21-
A
Oh, yes.
Take a piece out and take the fence away?
Yes.
Would. you then also at the close of the day or the
finish of that day's work put the piece and the fence back?
A Yes.
Q Would you do that even times when you didn't have
stock pastured there?
A Yes.
Q You said that you may have had six or e~ght grain
crops in there over the thirty-seven years, is that correct?
A To be honest about it, I am not sure I understand, six
or eight different crops or six or eight different years, which?
Q Six or eight different crops?
A No, not six or eight different crops, no, either wheat,
barley or hay.
Q You would have had wheat, barley or hay in there a total
of six or eight times?
Yes, at least, yes.
In the other years would it have been used only for
A
pasture?
A Mostly,
or two of hay on
year.
Q
however, now and then we would make a load
the upper end even though we were pasturing that
How would you get the livestock to and from the field?
-22-
A
correct.
Q
A We mostly trucked them over, and then run them over on
foot in the fall. The first years we lived there we would run them
both ways mostly, depends. As the track increased, we would truck
them over, and then we would run them home in the fall.
Q When you trucked them over, you took them in below the
right-of-way we are talking about in this lawsuit?
A Sometimes, and sometimes we took them up the right-of-way,
depending on the condition of the water belt. We have taken them
both ways.
Q Approximately how soon after your discussion with
Mr. Wagner did that locked chain come down?
It would have been before the end of the year.
Before the end of 19427
Yeah, I am safe on that.
Before that happened, you didn't use that right-of-way?
No. We moved there in the spring of '42, yeah, that's
the
to use it, because you thought it was public?
statement you made to Mr. Wagner?
A I don't recall on the conversation I
So at least that one time you did discuss the use of
lane with Mr. Wagner, did you not?
A Yes.
Q Wouldn't it be fair to say that you asked permission
And that was the
distinctly asked'him
-23-
to use it. I don't recall of him telling me not to use it straight
out. That's the honest -- best I can answer on that.
Q Do you recall whether he may have given you permission by
anything that he said?
A I don't recall him giving me permission, no.
Q Has anything happened since 1942 to change your opinion
and belief that that right-of-way was a public roadway?
A Nothing has changed my opinion that it wasn't public, no.
Q Do you still believe that?
A Well, since the few things I heard this morning.
Q In other words, since matters have developed in this
lawsuit, you may have had a change of opinion, but up until that
time you always believed it was public?
A Yes, indeed.
Q Did Mrs. Webster ever see you or observe you using that
right-of-way to the best of your knowledge?
A She possibly did, but I can't say definitely she did.
Q Did Mr. Wagner ever to the best of your knowledge have
a firsthand observation of your use of that right-of-way?
A
It is very possible. I never noticed it.
But you didn't notice?
I don't recall any time that he noticed me.
Is it not correct that you are aware, Mr. Rife, that
Wagner demanded that your son stop using the right-of-way
-24-
after he moved his trailer back there and started to use it regularly?
A Yes. May I back up please, something has come to my
mind? I want to make sure it is all right. When you asked your
last question, Mr. Wagner may have seen us use it whenever they
took the hill off down where the school used to be. The State
trucks used the right-of-way.
We give permission to level up our trolley bed, which was
twelve, fifteen foot deep at that point, where we were this morning.
The State trucks used that to dump in this trolley bed to level up.
Q When was that fill taken back there, if you can remember?
A I can't give no point on that either. Possibly ten years
ago, it may be longer, maybe fifteen, I have no point on that.
Q Those State trucks only went in for a period of three
days or so, did they not?
A At the most.
MR. McCREA: I have no further questions.
REDIRECT EXAMINATION
BY MR. SHUGHART:
Q Mr. Rife, in your own mind after your discussion in
1942 with Mr. Wagner and up to the present, in your own mind,
were you using that right-of-way because you had Mr. Wagner's
permission to use it, or were you using it because you felt you
had a right to use it?
-25-
A Because I felt I had a right to use it.
Q You mentioned the time sometime ago when the State trucks
used that right-of-way. Were there any discussions at that time
between you and Mr. Wagner that indicated he was aware that the
trucks went back there?
A Mr. Wagner, if I understand your question, I miss a syllable
now and then. Mr. Wagner was back there one noontime when they were
Would that answer your question?
these trucks dumping fill on your property?
Yes. Were
Yes.
Did he say
dumping.
Q
A
Q
anything to you or did you observe him say
anything to anybody else about the State trucks using that road
to get back to your property?
A No. He didn't say anything to me, and I didn't notice
him say anything to anyone else.
Q When you would reconnect the fence and put the fence
post back in after you used the right-of-way to get to your fields,
was there any special way that you would reconnect the wire to the
fence?
A We would staple it onto the post, except the corner post
we would wrap a few wires around rather than staple it, to make it
easier to loosen the next time.
Q When you say the corner post, is that any particular post
that is still
out there?
-26-
A
Q
yours?
A
Q
Yes.
Is that the corner post where Mr.
Wagner's property joins
Yes.
Is your son Carl living on your property with your
permission?
A Yes.
Q Have you given him permission to use the property
the same way in which you have a right to use it?
A Yes.
MR. SHUGHART: I have no further questions.
in
BY THE COURT:
Q Do I understand, Mr. Rife, at one time the house and
the barn was on the south side of the road, the main road?
A Still is, sir. We split the farm -- in other words,
this part here we had surveyed off before we built our house last
summer. And we moved from the farmhouse up last fall.
Q Do I gather you do not farm actively anymore, do you?
A We own twenty-seven acres of whole farm yet. And, for
example, this year we mowed and baled 452 bales of hay to feed --
we have eight steers.
Q When your father first bought this property in '42, were
the trolley tracks still in on this right-of-way?
bank.
A Not the tracks themselves, only this cut up through the
-27-
THE COURT: That's all I have, gentlemen.
RECROSS EXAMINATION
BY MR. McCREA:
Q The use that your son made of this right-of-way since
he moved in during 1977 has been a lot more extensive than your
use of it prior to that time?
A Oh, yes. Especially the first of the winter until last
summer when we go~ our home. We didn't know where it was going to
be. And then last summer we got things lined up.
Q He was using it everyday, twice a day, wasn't he, when
he was going in and coming out?
A Yes.
MR. McCREA: That's all I have.
THE COURT: I have no further questions.
MR. SHUGHART: I have no further questions. You may
step down.
CARL RIFE, called as a witness, being first duly sworn
according to law, testified as follows:
BY MR. SHUGHART:
Q Please
DIRECT EXk~INATION
state your name and address?
-28-
A Carl Rife, R. D. 1, Newville.
Q Are you the son of Arthur Rife, the owner of the property
on which your mobile home has become a dwelling house?
A Yes, I am.
Q Did you grow up on your father's farm?
A Yes, I did.
Q When were you born?
A 1951, May 25th.
Q Do you, over the period of growing up, remember using
the lane that's in question here?
A A few times, yes.
Q Did you hear your father's testimony?
A Yes.
Q As far as you are concerned is that accurate to your
recollection as far as the use of that road?
A Yes, it is.
Q When did you move onto this property?
A 1977.
Q When you moved in, what did you use as your primary
access to your mobile home?
A The right-of-way that went back a little bit.
Q The one that is in question here?
A Yes.
Q How long did you use that exclusively as access to your
mobile home?
-29-
A
road in,
then.
Q
own property?
Well, I guess I used it up to now. Until he put the
I used it a little bit more than what I did the right-of-way
But primarily now do you use the road that is all on your
A Most of the time, yes.
Q Do you still occasionally use this
in question?
A Yes.
Q Did you ever ask anybody's permission to use the road?
A Yes, I did.
Q Whose?
A My dad's.
Q What did he indicate to you?
A He said I could use it.
Q Why did you ask him?
A I don't know why, just did.
Q Did you ever damage this road?
A Not damage. I put a little bit of mud on it, which I
fixed up after we got my own lane of slate.
Q Did you ever spread gravel out there or spread slate?
A Right there at the boundary line, yeah. Just a little
bit of ruts I fixed on with slate, yes.
Q Do you remember when you did that?
road, the one that is
-30-
I think that was in the spring of '78, I believe. I
A
ain't sure.
Q When you first started using the road in '77, was it
asphalt on there like it is now, macadam?
A Up to that hill it was macadam, yeah.
Q Up to Mrs. Bollinger's (phonetic) trailer?
A Yes.
Q Beyond that what was the nature of the road?
A I guess slate and a little bit of stones.
Q As a boy growing up on the farm, do you remember at all
cutting weeds along the outer side of your fence and along the
lane there?
A I never did, no.
Q Do you remember anybody else doing it?
A I remember grandpa did a couple times.
MR. SHUGHART: I have no further questions.
CROSS-EXAMINATION
BY MR. McCREA:
Q Isn't it true that when you started using it in 1977,
up until the time that you stopped using it everyday, you used
it in all types of weather?
A Yes.
Q Rain, snow, freezing weather,
existed?
mud, and any conditions that
-31-
A Right, yes.
Q Isn't it true that your use in that fashion did cause fairly
extensive ruts to grow in the right-of-way?
A Down towards mine, where it goes in my land, a little bit,
yes, which later I fixed'up then.
Q What about deterioration of the macadam roadway, would it
be fair to say that your extensive use of it contributed to that
deterioration?
A I guess some.
Q Before you started to use the right-of-way, was there
fence all the way back to Wagner's corner?
A
posts?
A
Q
Yes.
Did you have a part in removing the three or four fence
A
remember yourself or any member of your
you
of-way before 19777
A Well, see I left home when I was eighteen.
never used it that much.
Q Let's say before you left home?
A
No, I didn't.
Did you know when that was done?
I couldn't tell, I guess in '77 sometime.
Before 1977, when you started to use it, when is the last time
family using that right-
After that I
We used to haul cattle back there and make hay back there.
-32-
Q
How many times can you remember making hay?
Just a couple times.
How many times can you remember hauling cattle back there?
Just a few times, two or three times.
Isn't it true that most of the time you take your cattle
in below that right-of-way or further down the hill?
A I never -- I don't remember taking them through there unless
we ran them through.
Q Did you run them through often?
A Well, like we take them in the other way. And then when
we come back in the fall we run them across the road then.
Q Did your father, Arthur Rife, ever say to you that he
believed that to be a public right-of-way?
A Yes, he did.
Q Would he have repeated that assertion or that statement
in 1977 when you asked permission to use it?
A Yes. He said it was a public driveway and I could use
it.
MR. McCREA: I have no further questions.
BY MR. SHUGHART:
Q
road?
A
REDIRECT EXAMINATION
When did Mr. Wagner first ask you to
stop using the
It was either late '77 or in '78, I am not sure.
-33-
Q
to stop?
A
Q
Did you continue using it despite his requesting you
Yes, sir.
You indicated you made some ruts in the road where it
went off onto your property. Did you repair those ruts?
A Yes, I did.
Q The portion of the road up to Mrs. Bollinger's that is
macadam, a year or so ago did you see any repair work being done
on that road?
A Yes, I did, back in '78 in the summer.
Q Who did that repair work?
A I think the Township or the State. I can't tell the
difference. I don't know if it was the Township that did it.
Q Why do you say it was the Township or the State?
A The Township I imagine they did it, I don't know.
Q Did you see trucks back there?
A Oh, yes.
Q Whose trucks were they, could you tell?
A Well, I know they were the Township or the State.
Q Why do you know that? Is there something about the way
the trucks were?
A I recognized the truck. Like I say, I don't know if they
were from the State or the Township. But I knew there was one of
them back there. They were tarring the road, backtopping and filling
-34-
the holes in.
Q Other than that, have you ever seen anybody put macadam
on that road?
A Other than that, no.
Q And you explained the times you remembered using this
lane when you were a boy. Did you ever use it secretly or did
you use it openly?
A I used it openly.
Q Do you ever remember your father or your grandfather
or anybody ever asking anybody permission to use it?
A No.
MR. SHUGHART: I have no further questions.
THE COURT: I have no questions.
RECROSS EXAMINATION
BY MR. McCREA:
Q Did Mr. Wagner at any time pile up slate in the middle
of that right-oflway that impeded your pathway over it?
A Yes.
Q What did you do?
A Well, I told my dad about it. And he made a telephone
call to his attorney. And then he leveled it off.
Q Using equipment owned by him?
A Yes.
-35-
MR. McCREA: That's all I have.
REDIRECT EXAMINATION
BY MR. SHUGHART:
Q Who leveled it off?
A My dad and my grandpa.
MR. SHUGHART: That's all I have.
testimony, Your Honor.
THE COURT: On that issue.
MR. SHUGHART: On that issue.
That's all our
J. WILBUR WAGNER, called as a witness, being first duly
sworn according to law, testified as follows:
BY MR.
Q
A
Q
DIRECT EXA34INATION
McCREA:
State your name for the record, please?
J. Wilbur Wagner, NeWVille, R. D. 4.
You are the owner of the land which has previously been
described as the Trolley Park, is that correct?
A I am.
Q When did you first begin using that right-of-way which
is the subject of this lawsuit?
A Near as I can recall about 1940.
-36-
Q
Wagner?
A
Q
of the
A
Q
Was that when it was still owned by your father,
Emanuel
Right.
Did you use it for farming purposes while he was
land and up until you acquired title to it in 19457
No. I never farmed it. I used it for pasture.
Did you use it for pasture purposes while he owned it
the owner
and
up until you acquired title?
A My father used it for pasture.
Q After you got it in 1945, how extensively did you use that
eight-acre piece of land for pasture and up until how long ago did
you continue to use it?
A I used it every year till about the last week or two. I
didn't have stock in continuously.
Q During those periods that you either had stock in there
or had rented it to other people for
you go back the lane?
stock pasture, how often would
A
A
there.
Q
A
Q
At least three or four times a week.
What would you do on those occasions?
I would check the stock to see that they were all in
Would you sometimes take feed back to them?
Yes, I would take feed back.
Do you remember what months of the year would you have
-37-
stock back there?
A From April up through November, depended on the weather.
Q Have you ever observed Arthur Rife or his father using
that right-of-way during any of the period of time from 1942 on
up until several years ago when Carl started to use it?
A I never saw them using it with any machinery.
Q Were you aware that there was a fence all the way from
the hard road back to your corner?
A There was.
Q Did you at any time between 1942 and 1977 observe a
break in the fence or the fence cut for purposes of gaining access
to the Rifes' field from your right-of-way?
A I never saw the fence cut. I never saw any posts being
removed and replaced.
Q Did you see any tracks worn which would indicate vehicle
traffic from your right-of-way over into Rifes' field?
A I never took notice to any.
Q Mr. Rife has recounted a conversation between yourself
and him back around 1942 at Sam Burkholder's drugstore in Newville.
Do you recall that conversation at all?
A I do not recall that conversation at all. If it was, I
completely forgot about it.
Q Was there a chain across that right-of-way back in the
early forties?
-38-
A There was a chain across that right-of-way for at least
ten years.
Q Beginning when and ending when?
A I don't have the dates. But I kept going back, and it was
hard for me to get in and out there on the grade, stop and open and
shut the gate. So I took it away and moved it back the other end.
Q Approximately when would you have taken that gate or chain
out?
A As near as I can recall around '48.
Q Was that gate or chain locked?
A It was most of the time.
Q Mr. Rife testified that he believed
away by the end of 1942.
occurrence?
that chain was taken
Do you agree with his recollection of that
A
Q
away ?
A
Q
A
Q
A
Q
it,
I do not agree with that.
What's your best recollection of when the chain was taken
As near as I can say around eight years, around 1948.
Was there always a lock on that?
It wasn't always locked, no.
Was it locked periodically?
Yes, it was.
When you would use it, would you have to stop and unlock
go in, and then when you come back out, relock it again?
-39-
A I did.
Q When did it first appear to you that anyone other than
yourself was using that right-of-way?
A After Mr. Rife moved the trailer back in there.
Q And that would have been in 1977, as we have learned in
earlier testimony?
A That's when he said it was. I don't recall the date.
Q Did you ever in your use of that right-of-way and the
use of your pasture field see the Rifes harvesting any crops off
of their land back in that area?
A I don't recall of them harvesting anything other than
hay. I think they did make hay a few years.
Q Did you ever see them making hay?
A I think I did, but just what years I can't recall.
Q Did you see how they would get in and get out of that
field when they were making hay?
A No, but I never saw the fence down or saw any tracks on
my right-of-way.
Q What was the predominant use of that land by the Rifes?
What did they usually have back there?
A The only way they could get to
to go over, because they couldn't go any
A
it was to cut the fence
further than the gate.
What did they usually have in that field?
That was most of the time they used it for pasture.
-40-
Q
So they would have cows, is that correct?
There was cows there most of the time that I recall of.
You don't recall any discussion then between Arthur Rife
and yourself concerning whether the right-of-way was public or
private?
A We never discussed that as I recall of.
Q Ever since you have had it, what has been your belief
as to the character of that right-of-way as between public and
private?
A To the best of my knowledge it belonged to me when I
owned the ground back there.
Q Carl Rife has testified that he has been advised not to
use that right-of-way. Did you ever tell Arthur Rife that he should
not use that right-of-way?
A I don't recall if it was handled through you that you --
you had sent them the notices.
Q You didn't --
A I didn't contact either one of them personally.
Q When in your recollection did the trolley line of Cumberland
County railway stop operating?
A As near as I can recall, it was about 1918.
Q Was that Trolley Park ever used for public purposes
to your knowledge after that trolley stopped running?
A To the best of my knowledge, no. Pardon me, I believe
-41-
they did have some meetings back there that they could have used it
after the trolley stopped.
Q For how many years after it stopped running?
A It could have only been a couple years, because the pavilion
was tore down.
Q Did you ever give consent to Arthur Rife or his father
or Carl Rife to use that right-of-way?
A Not that I ever recall of.
Q Do you know whether or not Mr.
Carl Rife repaired any of
the damage that he caused to the right-of-way as he testified earlier
today?
A If he ever pulled any weeds or done any work to the right-
of-way, it never showed up that I could see.
Q What damage do you say that he caused by his use of it?
A Well, it is slate ground, there is no stone there.
using it continuously, it wore ruts in the road. And I had
had it in good shape before he started using it.
Q Did those ruts interfere with your use of it?
A Not exactly. I could use it, but it wasn't as nice as
it was before.
Q Did that make it any more difficult for you to get back
to your property?
A It didn't make it any easier.
And by
it stoned,
MR. McCREA: Cross-examine.
-42-
A
CROSS-EXAMINATION
BY MR. SHUGHART:
Q Isn't it correct that you dumped slate back there, and
it was spread out out there by somebody other than you?
A I dumped two load of slate hoping to repair it and raise
the ground up. And Mr. Rife came in and just pushed the top off
and made it very uncomfortable, without my permission.
Q Would it be fair to say that an occasional use of this
lane by either Arthur Rife or Carl Rife, an occasional use of the
lane by them, is not going to interfere with your getting back
to and from your pasture fields?
A There is no way you can pass. If I am going in, how
do I know if he is coming out or not. It is only one way -- it
isn't wide enough for two.
Q But there is a turnaround at the trailer there at
Mrs. Bollinger's?
A That belongs to Mrs. Bollinger.
Q So if two vehicles come at each other, somebody has got
to back up?
If they do the right thing, that is correct.
What type of animals
Mostly young cattle.
was some horses back there.
Q
did you pasture back in this field?
Until the last year or two there
Do you recall when your father bought this piece of land?
-43-
A No, I don't. It was in the thirties, but I
what year.
Q
A
Q
of time when you leased this pasture field to somebody else?
A I rented it.
Q Over what period of time did you rent it?
A Well, when they put cattle in, they would rent it from
April till November.
Q Over the last thirty-seven years how many of those years
would this pasture have been leased to somebody else?
A Well, it wouldn't have been over ten, twelve.
Q But when it was leased to somebody else, you wouldn't
be going back there three or four times a week?
A I still went back and checked on the stock for them.
Q How far from this field do you live?
A Approximately a mile.
Q In which direction, toward Newville, toward Carlisle?
A It would be west, go towards Newville.
Q So this lane that's in question here, that isn't in
view from your house?
A No.
Q
don't recall
Were you farming with him at that time?
I was working for him.
From that time up until the present, was there any period
You indicated you did not recall a conversation with
-44-
Arthur Rife back in 1942. It is possible, however, that you did have
a conversation with him?
A That could be possible, but I don't recall of it.
Q Do you recall ever observing Arthur Rife or hi~ father
cutting weeds alonq the outside of their fence, along the lane?
A If they ever did, I don't know where they put them. They
never showed up.
Q Would it be fair to say that over this period of time
somebody other than you was cutting along the outside of that
fence, at least on some occasions?
A If they did, I never saw them. I kept it in repair and
kept it mowed.
Q How often did you mow it?
A That depended on the weather and when I needed it.
Q You say the chain came down in 1948. That's just what
you recall now thirty years later?
A I am not positive on that date.
Q Bu% you have been going to this pasture field and been
living in this area since your father has owned the farm, and
then you succeeded him extending back into the 1930's?
A
that gets
A
Correct.
There is no structure or dwelling house on this field
access from this lane, is there?
Are you talking about the property that I have?
-45-
Q Yeah, this eight-acres that is your pasture field that
your only access to is this lane, there aren't any buildings back
there, are there?
A There is a shed there for the protection of the stock.
There is a well and a good spring.
Q Are there any stock there now?
A Not that I know of.
Q And you never observed the fence down or never observed
the Rifes using this lane over the whole period of 1942 up to the
time Carl Rife started using it?
A I don't recall of any time that that was used. There
would certainly have been evidence of the fence being moved, and
Other than when the State did haul that
fill the right-of-way, I recall that. They
I would have saw it.
ground back there to
used it then.
A
didn't I?
Q
Q Do you recall what Mr. Arthur Rife discussed about the
State trucks coming back with fill to fill in the trolley bed on his
side, do you remember %hat?
I just told you I remember the State hauling stuff back,
I want to make sure we are talking about the same time.
You didn't complain on that occasion about the use of the road,
did you?
A I complained, but they were going ahead and doing it.
-46-
In fact, they were at it till dinner time before I knew it. And
I didn't try to stop them. But I did shut the gate. They were using
my ground. And I did shut the gate and didn't let them in there any-
more. In fact, they dumped one load over on my side without my
permission.
Q And did you complain about that?
A I did.
Q You complained about them dropping the fill on your side
of the line?
A They did ruin the driveway at that time. And I repaired
it.
Mr. Rife did not do any repair work to it at that time.
Q But they would have taken the fence down on that occasion
to get over onto Mr. Rife's property?
A The fence was down at that particular time.
Q Do you recall when that occurred?
A No, I don't.
Q Do you remember were you around at any time when
Trolley Park was in existence?
A
Q
A
Q
A
the
I believe I was.
Do you ever remember going there?
I was pretty small, I wasn't allowed.
When were you born?
That's beyond the question.
THE COURT: Do you want him to state his date of birth?
-47-
BY MR. SHUGHART:
Q You say you did go there when you were a small boy?
A I said I wasn't allowed.
Q You weren't allowed by your parents to go there, is that
what you are indicating?
A I just told you I wasn't allowed, didn't I?
Q So you don't ever remember going there, because your
parents didn't allow you?
A I do not.
MR. SHUGHART: That is all I have.
BY THE COURT:
Q Mr. Wagner,
did you put it up?
A I did.
THE COURT:
MR. SHUGHART:
MR. McCREA:
testimony, Your Honor,
the chain that has been testified about,
That's all I have, gentlemen.
I have nothing further.
I have nothing further. We have no
on this point.
further
counsel.
hearing.
THE COURT: Gentlemen, I will await until I hear from
If a further hearing is requested, we will set another
If no further hearings are requested, I will wait until
I hear from counsel either way.
(Whereupon, Court adjourned at 12:35 p.m.)
-48-
J. WILBUR WAGNER and
MARY E. WAGNER, His Wife,
Plaintiffs
V
CARL RIFE,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
62 EQUITY 1978
INJUNCTION
I hereby certify that the proceedings and evidence are
contained fully and accurately in the notes taken by me on the
hearing of the above cause and that this is a correct transcript
of same.
Barbara E. Nickolas
Official Stenographer
The foregoing record of the proceedings upon the hearing
of the above cause is hereby approved and directed to be filed.
Date
Harold E. ' ,
Ninth Judicial District
-49-
FOWL]~R, ADDA~8 &
February 12, 1980
Honorable Harold E. sheely
Cumberland County Courthouse
Carlisle, PA 17013
Wilbur.Wagner and Mary E. Wagner, b_is wife V..~
Carl Rife and ArthUr W. Rife and Berne~a E. Rzze,
his wife
No. 62 Equity 1978
Dear Judge sheely:
After recent discussions witk Mr. McCrea, attorney for the Wagners,
it is my understanding that neither side proposes to offer any
additional testimony in regard to the above matter. It is therefore
my request and one in which I believe Fir. McCrea joins, that the
record in the matter be closed and a decision be entered. I would
request a period of twenty (20) days to submit to the Court argument
on the case toge~her with proposed findings of fact and conclusions
.A,.~ ~I,T annreciate your advising Mr. ~cCrea and.
of law. I wuu~ ~T~ ~ ~
me if this request zs agreeable. Thank you for your kznd attentzon.
Very truly yours,
FOWLER, ~AMS & SHUGHART ^
cc John McCrea, Esquire
Attorney for Wagner
cc Mr. and Mrs. Arthur W.
and Mr. Carl Rife
Rife
DFS,JR/mlh
J. W~R WAGNER AND =
MARY E. %iAGNER, his wi~e :
CARL RIFE '
IN THE COURT OF COCA, ON PLKAS OF
CUM~R/~AND COUNTY, pEN~{SYLVANIA
CIVIL ACTION - L~JITY
NO. 62 EQUITY 1978
A~D NOW, February 14, 19B0, by agreement off c~unsel that
no further testimony will be offered in the above-captioned case,
the record is dee~d closed and the Court Reporter is directed to
tzanscribe the notes of testimony.
The court will grant both counsel twenty (20) days from
this date to s~t briefs and request ~or Findings of Fact and
Concl~sions oX Law.
By the Court,
~arol~ E. Gheely, J.
John McCrea, IIX, lis~re
Dale F. Shughar~, Jr., Esquire
J. WILBUR WAGNER AND : IN THE COURT OF COMMON PLEAS OF
MARY E. WAGNER, his wife : CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - EQUITY
V. :
CARL RIFE : NO. 62 EQUITY 1978
ORDER OF COURT
AND NOW, February 14, 1980, by agreement of counsel that
no further testimony will be offered in the above-captioned case,
the record is deemed closed and the Court Reporter is directed to
transcribe the notes of testimony.
The court will grant both counsel twenty (20) days from
this date to submit briefs and request for Findings of Fact and
Conclusions of Law.
John McCrea, III, Esquire
Dale F. Shughart, Jr.,
By the Court,
Harold E. Sheely,
Esquire
:pbf
J. WILBUR WAGNER and :
MARY E. WAGNER, :
Plaintiffs :
V. :
CARL RIFE, :
Defendant :
and :
:
ARTHUR W. RIFE and :
BERNETA E. RIFE, husband and wife, :
Defendants :
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,PENNSYLVANIA
CIVIL ACTION - EQUITY
NO. 62 EQUITY, 1979
INJUNCTION
DEFENDANT'S BRIEF IN SUPPORT OF DISMISSAL
I. HISTORY AND FACTS OF THE CASE
On July 25, 1979, Plaintiff filed this action against
Defendant, Carl Rife, requesting to enjoin Carl Rife from using
a right-of-way which provides access to property of the plaintiff.
A hearing was held before Honorable Harold E. Sheely on the request
for preliminary injunction at which Defendant was represented by Legal
Services, Inc. The request for preliminary injunction was denied and
the case was scheduled for hearing on the merits. The undersigned
attorney appeared for the defendant, Carl Rife and filed an Answer
with New Matter. A reply was subsequently filed by the plaintiff.
The parties appeared before the Court on October 31, 1979
at which time numerous stipulations were arrived at by the parties,
through their respective attorneys. Those stipulations are as follows:
1. That Arthur W. Rife and Berneta E. Rife would be added
as defendants in the action.
2. That plaintiff was the owner of a tract of land by
virtue of deed dated November 14, 1945 and recorded in Cumberland
County Deed Book "V", Vol. 13, Page 733 and was the owner of a
right-of-way (or easement) as set forth on that deed, which was
incorporated into the pleadings.
3. That the right-of-way was located on property of
Genevieve H. Webster and June E.W. Morgan, whose property was
formerly the property of "Dave Bishop" as referred to in plaintiff's
deed.
4. That a portion of the property owned by Webster and Morgan
was conveyed to William J. and Lillie M. Porter, Deed Book "Z", Vol. 27,
Page 990.
5. That
the area of the
the description of the land sold to Porter bordered
right-of-way from the Carlisle-Newville Road north
to the boundary with Wagner, leaving the ownership of the right-of-way
in fee simple, to Webster and Morgan, severed from that portion of
the Webster and Morgan farm to the north of the Carlisle-Newville
Road and contiguous only to a portion of the property to the South
of such road.
6. That Arthur W. Rife and Berneta E. Rife, husband and wife,
are the owners of property immediately adjacent to the east of the
right-of-way in question having acquired their property by deed dated
June 3, 1955 and recorded in Cumberland County Deed Book "M", Vol. 16,
Page 7, which property was originally the N.J.R. Woods Farm as referred
to in plaintiff's deed.
-2-
7. That Carl Rife, defendant, was the son of Arthur W. Rife
and Berneta E. Rife residing on the property of his parents as a
tenant-at-will.
8. That the property owned by Wagner was at one time an area
known as the "Trolley Park" at which a public dance hall and other
buildings were located. Defendant had alleged that the right-of-way
in question was a prescriptive public right-of-way acquired during the
operation of the "Trolley Park". Defendant stipulated prior to the
hearing that it had no evidence to support the allegation and in fact
~research indicated that the "Trolley Park" itself operated for a
period less than twenty-one ~21) years.
Testimony was offered by both plaintiff and defendant relating
to the issue raised in the pleadings by plaintiff that defendant had
damaged the right-of-way, entitling him to damages; and also to
defendant's averments, raised in their New Matter, that they had
acquired a prescriptive easement and/or right-of-way to utilize the
area of the right-of-way. The entire area in question was viewed by
the Court. After the hearing, the matter was continued, both parties
reserving the right to attempt to Join Webster and Morgan as additional
plaintiffs or defendants, and/or to reconvene a hearing to provide
further testimony.
However, neither party filed any joinder of Webster and Morgan
in the action and neither party requested an additional hearing. The
Court has therefore been requested to decide the matter on the basis
of the record.
The defendants concede that since Webster and Morgan are
\ not parties to the action, they are unable to sustain the claim
of having acquired a prescriptive easement or right-of-way due
to the absence of a necessary party.
It is the defendant's position, however that (a) plaintiff
does not own an exclusive easement or right-of-way, (b) the defendants
have not damaged the right-of-way and have not interferred with the
plaintiffs use of the right-of-way, and that therefore (c) plaintiff
has not proven their entitlement to an injunction to prohibit
defendants from using the right-of-way.
II. ISSUE:
Has plaintiff proven that defendants have interferred with
and/or damaged their right-of-way in such a manner as to entitle
them to injunctive relief against further use of the right-of-way
by defendants?
Answer of the defendants: No.
III. DISCUSSION:
Initially,
that an exclusive
the law of the Commonwealth of Pennsylvania provides
easement may be created by clear and unambiguous
language, but where there is any ambiguity, an exclusive easement
will not be presumed. Caramanico v. Ciccantelli, 74 D&C 504 (1951).
It is respectfully contended that the only evidence of the easement
or right-of-way is in the deed of the plaintiff and that the language
-4-
certainly no'exclusive. Moreover, no evidence was presented
is
regarding the original creation of the easement by either "Dave
Bishop" or "N.J.R. Woods" or their predeceasors in title. It is
therefore contended that the right-of-way and/or easement in
question is not exclusive to the plaintiff.
It is therefore respectfully contended that Mrs. Webster
and her daughter, June Morgan, being the owners of the right-of-way
control permissive use of the right-of-way by other individuals
and further~are the parties against whom any prescriptive rights
would be created. It is respectfully contended that the owners
of the fee in the right-of-way are certainly subject to having
prescriptive rights acquired against them, may grant rights in
the right-of-way to adjacent land owners, and further may grant
reasonable permissible use of the property.
In O'Reilly v. Clinton Block Co., 266 Pa. 198, 109 A.609
(1920) an injunction was sought by an owner of a farm who also
owned a right-of-way to a public road. The owner of the ground
on which the right-of-way was located granted a railway the right
to cross the lane with its tracks. The Pennsylvania Supreme Court
ruled that the crossing and operation of the railroad was not per se
an interference with the right of passage. Moreover, the possibility
of danger in the future from the operation of the railroad was not
sufficient grounds for the granting of an injunction. Specifically,
an owner of land who grants a right-of-way over it conveys nothing but
-5-
the right of passage and may make any use of it that is reasonable
and does not substantially interfere with the easement. See Edwards
v. Julian, 192 Pa. Superior Ct. 121, 159 A.2d 547 (1960). In that
case, the Court ruled:
The right to use the easement is implicitly
reserved to the owner of the fee of the
servant tenament. Id., at 192 Pa. Superior
Ct. page 125.
In Percy A. Brown & Co. v. Raub, 357 Pa. 271, 54 A.2d 35 (1947),
the Court ruled that the owner of lots could permit customers to use
them for any lawful purpose, and the owners customers could use the
alley over which plaintiff had an easement, for the purpose of ingress,
egress and regress from the owners place of business.
It is therefore respectfully contended that the owners of the
fee in the right-of-way maintain all rights in that property so long
as the use of the right-of-way is not unreasonably interferred with.
Conversely, it is respectfully submitted that plaintiff does not have
standing to object to any usage of the right-of-way by any one, so
long as it does not interfere with his utilization of that right of way.
The defendant's testimony indicated that, while the area of
the right-of-way has been used continuously for a period in excess
of twenty-one (21) years, the use was only frequent at one point in
time when Carl Rife utilized it as his only access to his home on
his parents' property. Presently, Carl Rife has a separate access
and does not frequently use the right-of-way in question. Moreover,
the Court observed the right-of-way itself and it is respectfully
submitted that it could hardly be considered subject to any substantial
damage as a result of usage by Carl Rife.
--6--
It is therefore respectfully submitted that the plaintiff
has failed to prove a substantial or permanent interference with his
right to use the right-of-way. See Trimble Services~ Inc. v. Franchise
Realty Interstate Corp., 445 Pa. 333, 285 A.2d ll~ (19?l). If any
minimal amount of damage was done to the right-of-way, he would have
an adequate remedy at law.
In sum, plaintiff has instituted the within action to enjoin a
continued use of the right-of-way by the defendants. The plaintiff
has failed to prove that he owns an exclusive right-of-way. On the
contrary, the evidence clearly indicates that it is not an exclusive
right-of-way. It is the plaintiff's duty to prove that defendants
substantially interferred with or caused permansnt damage to his right-
of-way. It is respectfully contended that there is no proof of any
interference with the access of the plaintiff to his property. The
Court observed the right-of-way in question and it is contended that
there hardly could have been any damage to the right-of-way by the
use by Carl Rife. It is respectfully contended that, even were the
Riles mere trespassers as against Mrs. Webster and her daughter, they
are not trespassers against Mr. Wagner since the use has not interferred
with his limited rights in the lane. Moreover, Mrs. Webster and her
daughter are necessary parties to the action and it was plaintiff's
responsibility to Join them were he to prevail on the action. The
owners of the fee in the lane might consider the defendants to be
permissive users, which would be entirely within the rights of Mrs.
Webster and her daughter. They may also consider Riles to be
-7-
trespassers, which is unknown. They may finally agree that the
defendants have acquired a prescriptive easement in the right-of-
way. Certainly the defendants have used the lane under a claim of
right. In any event, the burden of proof rested upon the plaintiff
to prove a substantial interference with his right-of-way to entitle
him to an injunction against further use by the defendants and he
has failed to meet this burden of proof.
IV. CONCLUSION:
In light of the foregoing, it is respectfully submitted that
the plaintiff has failed to prove the necessary prerequisites for
injunctive relief and that the request for an injunction should
therefore be denied.
Respectfully submitted,
FOWLER, AD,AMS & SHUGHART ^!
~ale F. Shughart, Jr.
Attorney for Defendants
-8-
J. WILBUR WAGNER AND
MARY E. WAGNER, his wife,
Plaintiffs
CARL RIFE AND ARTHUR W. RIFE
AND BERNETA E.
RIFE, his wife,:
Defendants :
IN THE COURT OF COA~ON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
NO. 62 EQUITY 1978
INJUNCTION
IN RE: DECISION OF COURT
BEFORE SHEELY, J.
DECREE NISI
AND NOW, this ~~ day of May, 1980, in accordance with
the adjudication filed this date, it is ordered, decreed and directed
as follows:
The defendants, Carl Rife, Arthur W. Rife and Berneta
E. Rife, are hereby permanently enjoined from in any way using
the plaintiffs' easement or right-of-way across the property of
Genevieve H. Webster and June Morgan.
If no exceptions to this Decree Nisi are filed within
ten (10) days from this date, the Prothonotary shall on praecipe
enter this Decree Nisi as the final decree~ · ~
By the Court, .....
H~rold E. Sheely, J.
NO. 62 EQUITY 1978
John McCrea III, Esquire
For the Plaintiffs
Dale F. Shughart, Jr., Esquire ~.~ ~ ~ ~/~9 /~A
For the Defendants
:pbf
J. WILBUR WAGNER and :
MARY E. WAGNER, his wife, :
Plaintiffs :
:
V.
CARL RIFE and ARTHUR W. RIFE :
and BERNETA E. RIFE, his wife,:
Defendants :
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
NO. 62 EQUITY 1978
INJUNCTION
IN RE: DECISION OF COURT
~.EFORE SHEELY, J.
ADJUDICATION AND DECREE NISI
HISTORY
On November 29, 1978, the plaintiffs
against the defendant, Carl Rife,
an injunction, preliminarily until
commenced this action
by filing a complaint requesting
hearing and permanently there-
after, to enjoin Carl Rife from using a right-of-way which provides
access to property of the plaintiffs. A hearing was scheduled
for January 18, 1979, to determine whether a preliminary injunction
should be issued.
for the plaintiffs,
at the direction of plaintiffs'
On January 17, 1979, at the request of counsel
this case was continued generally. Again
counsel, the complaint was reinstated
NO. 62 EQUITY 1978
and reissued by the Prothonotary on July 19, 1979.
determine whether a preliminary injunction should
scheduled for and later held on August 16, 1979.
of this hearing, this court by order refused to issue a prelimary
injunction on the grounds that no immediate and irreparable injury
was shown by the plaintiffs. A hearing on the merits was set
for September 13, 1979. This hearing was twice continued and
finally set for October 31, 1979. Defendant Carl Rife, filed an
answer with new matter on September 27, 1979. In his new matter
Carl Rife asserted he was a tenant-at-will residing on the property
of Arthur W. Rife and Berneta E. Rife, whom he alleged had acquired
the right to use the right-of-way by prescription. Carl Rife also
asserted in his new matter that the general public had acquired
the right to use the right-of-way by prescription. A hearing was
held on October 31, 1979, at which all interested parties were
present. Plaintiffs' reply to the new matter was admitted at the
hearing upon the stipulation of the parties. Also at the hearing
Arthur W. Rife and Berneta E. Rife were added as defendants in this
action upon the stipulation of the parties. From the testimony
presented at the hearings and the stipulations entered on the
record, we make the following:
A hearing to
issue was
At the conclusion
-2-
NO. 62 EQUITY 1978
FINDINGS OF FACT
1. Plaintiffs, J. Wilbur Wagner and Mary E. Wagner,
are adult individuals residing in West Pennsboro Township at
R. D. #4, Newville, Cumberland County, Pennsylvania.
2. Defendants, Arthur W.
adult individuals residing at R. D.
Pennsylvania.
at R. D.
Rife and Berneta E. Rife, are
#1, Newville, Cumberland County,
3. Defendant, Carl Rife, is an adult individual residing
#1, Newville, Cumberland County, Pennsylvania.
4. Plaintiffs are owners of certain lands in West Pennsboro
Township, Cumberland County, Pennsylvania by virtue of a deed dated
November 14, 1945, and recorded in Cumberland County Deed Book
"B", Volume 13, at page 473.
5. By virtue of the above deed, plaintiffs are the owners
of a right-of-way or easement for ingress and egress to and from
their property. Said easement or right-of-way is described as
follows: "Also a right-of-way leading from these tracts to the
Carlisle-Newville concrete road and lying between or over the
land of J. R. Wood's heirs and/or Dave Bishop."
6. The right-of-way is located on property now owned
by Genevieve H. Webster and June Morgan, whose property was
formerly the property of "Dave Bishop" as referred to in the
plaintiffs' deed.
-3-
NO. 62 EQUITY 1978
7. Defendants, Arthur W. Rife and Berneta E. Rife, are
the owners of property immediately adjacent to', and to the east
of, the right-of-way in question and the plaintiffs' property,
having acquired their property by deed dated June 3, 1955, and
recorded in Cumberland County Deed Book "M", Volume 16, at page 7.
8. Defendant, Carl Rife, is the son of defendants,
Arthur W. Rife and Berneta E. Rife, and resides on the property
of his parents as a tenant-at-will.
9. Beginning in 1977, and continuing up to the time of
the hearing, defendant, Carl Rife, used the plaintiffs' right-of-way
for ingress and egress to and from his residence located on his
parents' property.
10. Defendant, Carl Rife, used the right-of-way without
the permission or consent of the plaintiffs' and he continued to
use it after the plaintiffs asked him to stop using it.
11. Defendant, Carl Rife's, use of the right-of-way caused
some ruts to develop in the roadway. He repaired these ruts
himself and restored the roadway to its former condition.
DISCUSSION
The parties have stipulated to the facts that the
plaintiffs have a right-of-way over land now owned by Genevieve
H. Webster and June Morgan and that none of the said right-of-way
--4--
NO. 62 EQUITY 1978
is on the property of the defendants. The defendants concede in
their brief that they are unable to sustain their claim that they
obtained a right to use the easement by prescription and they also
concede that no public easement over the right-of-way has been
obtained by prescription. Thus, the only issue left for our
determination is whether one who has an easement or right-of-way
over another's property can enjoin the use of that easement
by a third person.
It is the defendants' contention that, since the plaintiffs
did not show that they had an exclusive easement and did not show
a substantial interference with their enjoyment of the easement,
they cannot maintain this injunction action. We disagree.
In Schmoele v. Betz, 212 Pa. 32, 61 A. 525 (1905), the
trial judge in the case below apparently operated under a view
similar to that contended for by the defendants here. This led out
Supreme Court to say:
IT]he learned trial judge was led into error .... The
authorities he cites have no application here. In both
cases the oWner of the fee had granted a right of way
over the premises, retaining ownership of the soil, and
it was held that the grantee could not enjoin him from
building over the alley if it did not interfere with
use of the way. But those are not the facts of this
case. The parties to this suit hold under a common
grantor, who first conveyed the theater property ...
before dedication of the alley in question, and with
no reference to an alley or to a right of way over an
alley .... Hence it is clear that the defendants, as
-5-
NO. 62 EQUITY 1978
owners of the theater premises, have neither ownershi~
~or easement in the soil of the alle~, and therefore.
have no right to utiliz~ or obstruct the alle~ for any
Rurpose.
Id. at 35, 61 A. at 526. (Emphases added).
The Court then went on to hold:
We do not agree.., that the plaintiffs cannot
restrain the defendants from maintaining a fire
escape unless they show that it in some material
respects impairs the use of the easement. The
erection of the fire escape by the defendants was
a trespass, and an infringement on the rights of
the plaintiffs in the alley, and, the right of the
latter to the easement being conceded, equity will
direct a removal of the obstruction and enjoin a
continuance of the trespass without proof of actual
damages.
.I.d. at 39, 61 A. at 527.
Likewise, in the case at bar the defendants have neither
ownership of nor an easement over the soil of the right-of-way
in question and therefore have no right to use it. Likewise, the
defendants' uses of the easement were trespasses and infringements
on the rights of the plaintiffs. Thus, the plaintiffs are entitled
to an injunction prohibiting continuance of the trespasses without
proof of substantial interference.
IT]he owner of an easement in a private alley
way, created for passageway ... may enjoin the
owner of the land on the opposite side of the alley,
who has no easement therein, from erecting a fire
escape on his wall so as to overhang the alley,
although the plaintiff's use of the alley is not
materially impaired.
-6-
NO. 62 EQUITY 1978
Shore v. Friedman, 142 Pa. Superior Ct. 373, 381, 16 A.2d 727,
730 (1940) (citing Schmoele v. Betz, supra). See also, Rogoff v.
Buncher Company, 395 Pa. 477, 151 A.2d 83 (1959) (equity may prevent
a right-of-way from being used to pass to land adjoining that to
which the easement is appurtenant).
However, because there was no substantial damage to the
right-of-way caused by the defendant, Carl Rife's, use, and because
what little damage that was caused was repaired by him, the court
feels that an award of damages to the plaintiffs is not justified
in this case.
Accordingly, we reach the following:
CONCLUSIONS OF LAW
1. The court has jurisdiction of the parties and of
the case.
2. Plaintiffs have an easement or right-of-way over the
property owned by Genevieve H. Webster and June Morgan for ingress
and egress to and from the plaintiffs' property.
3. The defendants have no right to travel over or to
in any way use the aforesaid easement.
AND NOW,
the adjudication
directed as
DECREE NISI
this ~ day of May, 1980,
filed this date, it is ordered,
follows:
in accordance with
decreed and
-7-
NO. 62 EQUITY 1978
The defendants, Carl Rife, Arthur W. Rife and Berneta
E. Rife, are hereby permanently enjoined from in any way using
the plaintiffs' easement or right-of-way across the property of
Genevieve H. Webster and June Morgan.
If no exceptions to this Decree Nisi are filed within
ten (10) days from this date, the Prothonotary shall on praecipe
enter this Decree Nisi as the final decree.
By the Court,
John McCrea, III, Esquire
For the Plaintiffs
Dale F. Shughart, Jr.,
For the Defendants
:pbf
/s/ Harold E. Sheely
Esquire
-8-
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY/OF CUMBERLAND cOUNTY:
Please list the within matter for the next:
] Pre-Trial Argument Court
Argument Court
CAPTION OF CASE
(entire caption must be stated in full)
(Plaintiff)
VS.
(Defendant)
VS.
1. State matter to be a~gued (i. e., plaintiff's motion for new trial,
defendant's demurrer to complaint, etc.):
2. Identify counsel who will argue case:
(a)
(b)
I will notify all parties in writing within two days that this case has been
listed for argument. -
~Attorney for O~ ~_~ ~¢k7~-~)
J. WILBUR WAGNER and
MARY E. WAGNER, his wife,
Plaintiffs
Vo
CARL RIFE and ARTHUR W. RIFE
and BERNETA E. RIFE, his wife,
Defendants
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - EQUITY
: NO. 62 EQUITY 1978
: INJUNCTION
EXCEPTIONS TO ADJUDICATION AND DECREE NISI
AND NOW, come the Defendants, Carl Rife and Arthur W. Rife
and Berneta E. Rife, his wife, defendants in the above captioned
action, and file the following Exceptions to Adjudication and Decree
Nisi issued on May 29, 1980:
1. The Court erred in making a conclusion of law that the
defendants have no right to travel over or to in any way use the
easement in question.
2. The Court erred in not making a conclusion of law that
defendants may use the right-of-way in question with the permission
of Genevieve H. Webster and June Morgan, the owners of the fee
simple interest in the land in question or by acquiring a right-of-
way from them.
3. The Court erred in not making a finding of fact and/or
conclusion of law that plaintiffs failed to prove that defendants
were not entitled to use the right-of-way in question by virtue
of permission from the owners of the fee simple interest in the land.
4. The Court erred in not making a finding of fact and/or
conclusion of law that the use of the right-of-way by defendants
for access to their property did not materially impair the rights
of the plaintiffs.
5. The Court erred in not finding as fact that defendants
used the right-of-way in question with the permission of the owners
of the fee simple interest in the land in question.
6. The Court erred in not making a conclusion of law that
plaintiffs are not entitled to injuru~ve relief for failing to
join as parties to the proceeding, the owners of the fee simple
interest in the land in question, which individuals were necessary
parties to the proceedings, With rights to permit use of the
right-of-way which prerogatives of ownership may not be impinged
by plaintiffs.
7. For all the foregoing reasons, the Court erred in entering
a permanent injunction against the defendants.
8. Alternatively, for all of the foregoing reasons, the Court
erred in granting a permanent injunction against the defendants
without qualifying such injunction by providing that defendants
have a right to use the right-of-way in question by permission from
or acquiring a right-of-way from the owners of the fee simple
interest in the land in question so long as such use does not
materially impair the use by the plaintiffs of their right-of-way.
WHEREFORE, the defendants pray Your Honorable Court to
amend its decision and Decree Nisi of May 29, 1980, to refuse t-
issue a permanent injunction, or alternatively to qualify such
injunction to allow defendants to use the right-of-way in question
by acquiring an interest in the same or by permission from the
owners of the fee so long as such use does not materially impair
the rights of the plaintiff.
Respectfully submitted,
FOWLER, ADDAMS & SHUGHART
Da e F. Shughar~_~r._ ~
Attorney~ for Carl Ri~e,_ /_.
Arthur Rzfe and Berneta E3 Rife
Sune 23, 1980
(7i7) ~4g- 8300
Honorable Harold E. Sheely
Cumberland County Courthouse
Carlisle, PA 17013
RE: Wagner vs. Rife
No. 62 Equity 1978
Dear Judge Sheely:
This letter is to confirm that John McCrea, III, attorney for
the Wagners and I have agreed to submit my exceptions to the
Decree Nisi on briefs. It is my understanding that you have
agreed to our proposal under which my brief would be submitted
by July 7, 1980 and Attorney McCrea's by July 15, 1980. I
have enclosed herewith a copy of my letter to Attorney McCrea
confirming our agreement, for your information.
Thank you for your kind cooperation.
DFS,Jr/blc
eric.
Very truly yours,
FOYER, ADDA S a
Dale F. Shughart, Jr. i l/
1 cc John McCrea, III, Esq.
J. WILBUR WAGNER AND
MARY E. WAGNER, his wife,
Plaintiffs
V.
CARL RIFE AND ARTHUR W. RIFE
AND BERN-ETA E. RIFE, his wife,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION _ EQUITY
NO. 62 EQUITY 1978
INJUNCTION
DEFENDANT,S B ....
-~o~l~ IN SUPPORT OF
I. HISTORy AND FACTS OF THE CASE. The general history and facts
of the case are accurately set forth, in the court's opinion filed
May 29, 1980. The defendants have, however, filed exceptions to
certain findings of fact and conclusions of law. Certain of the
defendant,s exceptions raise the issue that a permanent injunction
should not have been issued against defendants when plaintiff
failed to join Webster and Morgan, the owners of the fee simple
interest in the roadway, as party plaintiffs to the action. It
is submitted that in defendant,s new matter paragraphs 18 through
20, defendant raised the fact that ownership of the right-of-way
was in other individuals who had not complained to the defendant
about the use of the right-of-way and averring that plaintiff had
no standing to object to use of property of those other individuals.
Although those pleadings referred to "Porters" as the owners of
the fee, the stipulations entered prior to the hearing placed
before the court the fact that Webster and Morgan actually owned
the said roadway. In his testimony at n.t. 14, Arthur W. Rife
testified that Mrs. Webster had never complained about his use of
the right-of-way.
Defendant's other exceptions are addressed to failure
of the court to affirmatively find as fact and/or
conclusion of law that defendants had permission from Webster
and Morgan or alternatively that any injunction should have been
qualified to permit utilization of the right-of-way by permission
or by acquiring a right-of-way from Webster and Morgan. These
exceptions are based on the legal rights of Webster and Morgan
as owners of the servient estate in the property in question.
This matter is being submitted to the court on brief by
agreement of the court and counsel.
II. ISSUES.
A. Is plaintiff entitled to a Permanent injunction barring
use by the defendants of the roadway in question when he
has failed to join as parties to the action the owners of the
fee simple interest in the land?
Answer of the defendant: No.
B. Is plaintiff entitled to a permanent injunction when
defendants have raised the ownership rights of fee simple owners
of the land in question and plaintiff has failed to prove that
defendants are not using the roadway with permission of the
owners of the fee simple interest in the land?
Answer of the defendants: No.
C. Alternatively, if the plaintiff is entitled to an
injunction, is he entitled to an injunction forever barring
defendants from acquiring such rights by acquisition or permission
from the fee simple owners when the easement in question is not
exclusive?
III.
Answer of the defendants: No.
DISCUSSION
It is respectfully submitted that defendant raised in the
pleadings the issue of the rights of the owners of the fee simple
interest in the roadway in question. It is the law of the
Commonwealth of Pennsylvania that the owners of the fee retain
all incidents of ownership in every way that does not materially
impair the use of the easement. See ChambersburM Woolen C~o.~v.
Hair, 66 Pa. Sup. Ct. 63, 65 (1917), citing ~
Fidelity Trust Company, 235 Pa. 5. It is contended that ncldents
i '
of ownership certainly include the right to either allow other
individuals to use the right-of-way or to convey additional easements
or right-of-ways so long as they do not materially impair the rights
of the dominant estate. It is respectfully contended that although
the court did not make a finding of fact that the use by Rifes
did not materially impair the Wagners use of the property, (which
finding of fact is requested by virtue of defendant,s exceptions),
the court's opinion implicitly finds that there was no such material
impairing of the right-of-way. It has been stated to be a general
principal of law that "...the owner of the servient estate may himself
use the way or Permit others to do so unless the rights of the owner
of the easement are exclusive.,, 28 C.J.S. 2d EASEMENTS, Section 90,
Page 770. In the Pennsylvania ease of ~dwards v. Julian, 192 Pa.
Sup. Ct. 121 (1960), the court specifically relied on the rights
of the servient owner to permit traffic over a right-of-way by
virtue of its fee simple ownership interest. Other courts have
even held that the owner of the servient estate may dedicate a
right-of-way to public use so long as it does not unreasonably
burden the rights of the owner of the dominant estate. See 69 A.L.R.
2d 1236; J_ennings v. High Farms CorporatioJ,, 28 App Div 2d 693 281
N.Y.S. 2d 110. '
It is respectfully contended that since defendants raised
the rights of the owners of the servient estate as an issue in
the ease, the plaintiff, having the burden of proof in the ease,
was required to join Webster and Morgan as necessary parties
to the action, and failing to do so is not entitled to injunctive
relief. Defendants respectfully request the court to dismiss
plaintiffs complaint for failure to join a necessary party to the
action.
It is further contended by the defendants that since they
raised the rights of the owners of the fee, it would be the
affirmative burden of the plaintiff, and not their burden as
defendants, to establish that they were not using the roadway
with the permission of Webster and Morgan.
The case relied on by the court in reaching its decision,
that is, Sehmoele v. Bettq, 212 Pa. 32 (1905) is, it is contended,
ot COrrectly apPlicable to this situation.
innv°lved the owner of the do · The Schmoel_e case
mlnant estate extending the right-
°f-way or easement to a contiguous tract of land to which the
right-of-way was not appurtenant. It is still the law that
the dominant owner may not do so, however, this proscription
is based upon a principal that avoids an increase of burden
upon the servient estate. See ~ro.wn and COmpany
v. Raub, 357 Pa. 271, 293 (1947). In the instant case the
defendants are not the owners of a dominant estate unreasonably
extending their easement but are in fact third parties invoking
the right of the servient estate to permit use by them. Since
plaintiff has requested the inju/~ction, it is conte ded it
should be his burden to establish that the use by Rz?fe was
a trespass and not a Permissive use allowed by Webster and Morgan,
since their rights were raised in the pleadings.
Finally, the manner in which the conclusions of law and
decree nisi failed to refer to the rights of Morgan and Webster
could be considered as creating a collateral estoppel and/or
res j udicata to any further effort of Rife to use the roadway
in question with either the express Permission of Webster and
Morgan or by acquiring a right-of-way from them. It is respectfully
contended that if in fact the court finds that Webster and Morgan
were not necessary parties to the action and that it was defendant,s
burden to prove Permission, nevertheless, the order of court
should recognize the right of the defendants to subsequently acquire
permission or ownership of a right-of-way in the premises.
Specifically, since Webster and Morgan are not parties to the
action, it is contended to be improper to issue a permanent
injunction against the defendants which might impede their
ability to utilize the roadway with the permission of
the owners of the fee so long as such use does not materially
impair the rights of Wagners' It also impedes Morgan and Webster's
rights to convey an easement or right-of-way to Rife. Therefore,
it is respectfully submitted that even if the court holds that
Rifes are trespassers as to Wagner who may now be en3oined by him,
it should nevertheless acknowledge their right to use the roadway
with the Permission of the owners of the fee or by acquiring a
right-of-way from them so as to clarify the matter and avoid future
litigation.
IV. CONCLUSION. For all the foregoing reasons, the defendants
pray Your Honorable Court to amend its findings of fact, conclusions
of law and decree nisi of May 29, 1980, to allow plaintiffs to
use the right-of-way in question so long as such use is by acquisition
of an interest from the fee simple owners or by Permission of such
owners, and so long as such use does not materially impair the rights
of the plaintiff.
Respectfully submitted,
FOWLER, ADDAMS & SHUGHART . J
Attorneys for defendants
B~r~n~e~i, fR~!uer~e~!i~e and~
J. WILBUR WAGNER and MARY E.
WAGNER, his wife,
Plaintiffs,
VS,
CARL RIFE and ARTHUR W. RIFE and
BERNETA E. RIFE, his wife,
Defendants.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
:
NO. 62 EQUITY 1978
INJUNCTION
P~LAINTIFFS' BRIEF IN OPPOSITION TO
DEFENDANTS' EXCEPTION TO DECREE NI$1
The thrust of Defendants' argument in support of their exception is that
the Court erred in granting in3unctive relief to the Plaintiffs either because
they failed to Join the owners of the servient estate as a party to the equity
suit or because the Plaintiffs failed to prove that the Defendants were not
using the right-of-way in question with permission of the owners of the
servlent estate.
In answer to the latter argument, it should be pointed out that Permiasive
use by the Defendants was the very antithesis of Defendants' posture throughout
the case (at least until counsel for Defendants conceded this point in his earlier
brief). The responsive pleadings by Defendants claimed a prescriptive right
and a public right to use the roadway in question. This claim of user did not
in any way depend upon Permission from the owners of the servisnt estate. If
there had been permissive use averred or proved, this might have prevented the
Defendants from or at least increased their burden of proving an easement by
prescription.
Quite simply, the Plaintiffs' case was that they enjoyed a right-of-way
by express grant or covenant, that the Defendants (or at least one of the
Defendants) was using or attempting to use their right-of-way, but the
Defendants had no right to use that right,of-way and that, therefore, they
should be enjoined from so doing. It should be remembered that the only two
property rights involved here are the rights of the fee owner or servient
estate and the owner of the easement or dominant estate. The Plaintiffs were
the owners of the dominant estate. The Defendants had no property rights
whatsoever in the property or on the property in question. Plaintiffs have
been unable to find any authority to support DefendantS' contention that
there is any affirmative burden on the Plaintiffs in such a situation to
establish a negative in order to defeat the affirmative defenses or contentions
of Defendants.
Also, it should be pointed out that the Defendants never did testify that
they were using the right-of-way with permission of the owners of the servient
estate. When Arthur Rife testified that Mrs. Webster had never complained
about his use of the right-of-way, this statement is not the equivalent of
a statement that he had Mrs. Webster's permission to use the right-of-way. In
any eVent, it is the law in Pennsylvania that a permissive use will not support
an easement, Pribek McGahan, 172 A. 709, 314 Pa. 529 (1934). Therefore,
Plaintiffs would argue that mere permission would not enable the Defendants
to defeat the property rights of Plaintiffs and use the Plaintiffs' easement.
It would be necessary for Defendants to acquire an easement either by express
grant or by prescriptive right or by some other legal means in order to have
any enforceable claim to use the Wagners' right-of-way. The mere fact that
the OWners of the servient estate were not parties to the lawsuit did not
prevent the Rifes from alleging and proving this affirmative defense if they
had chosen to or been able to do so.
- 2 -
Quite simply, there was a failure of proof on the part of the Defendants.
In this case which involved a controversy concerning property between
Plaintiffs who had property rights in the property and Defendants who had
no property rights, it is clear that the benefit of the doubt and the
benefit of the decision should go to the side which enjoyed property rights.
It would have made more sense for the Defendants to join the owners of the
servient estate and obtained from them some concession or admission that an
express grant of easement had been given or that some other situation existed
giving right to an easement for the Defendants. It was not incumbent upon
the Plaintiffs to join the owners of the servient estate. The Plaintiffs
already had property rights which they themselves were attempting to protect
by the injunction proceeding.
It is Plaintiffs' contention that your Honorable Court was correct in
its application of the principles enunciated in Schmoeie v. Bet~s, 212 Pa. 32
(1905). We believe that that case establishes the proposition t~at the owner
of a dominant estate has the right to enjoin an infringement upon his property
rights by one who has no express or implied rights in the property prior to
his attempted use of it.
We believe that the decision of the Court was proper and should be entered
as a final decree. We believe that the argument of the Defendants that this
decision will affect their rights vis-a-vis Morgan and Webster, the Owners of the
servient estate, lacks merit. What the Defendants do or do not do with the
owners of the servient estate is not at issue in this case and is not something
that should be addressed by the Court in its decision. Consequently no amend-
ment of the Conclusions of Law or Decree should be entered to accommodate this
- 3-
new iSSue, since the say to join Morgan and Webster as parties would result in
any decision affecting them being unenforceable.
Respectfully submitted,
John McCrea III, ~
Attorney for Plaintiffs,
J. W. Wagner and Mary E. Wagner
-4-
e!U~^lASUUed '6~nq~uedcl!qS
~!u~^i,~suued 'elj;^.~eN
J. WILBUR WAGNER and
MARY E. WAGNER, his wife
Plaintiffs
V.
CARL RIFE and
ARTHUR W. RIFE and
BERNETA E. RIFE, his wife,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND C CUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
NO. 62 EQUITY 1978
INJUNCTION
DEFENDANTS REPLY TO PLAINTIFFS BRIEF
Defendants, by their undersigned attorney, believe that
the brief of the Plaintiffs merits a response.
This case is an excellent illustration of how individuals
can begin to become involved in an ever-increasing spiral of
disputes and hostility over the nature and extent of their
property rights when a little neighborly cooperation would
easily solve the problem. The number of decisions involving
similar types of situations seems to indicate that the
"territorial" instinct of human beings can control their
otherwise good common sense. In fact, I submit that the
record in this case adequately demonstrates that plaintiffs rights
would not be impaired by routine use of the roadway by the
defendants. Conversely, the record also probably demonstrates
that the defendants don't need to use the roadway at all.
Counsel for both parties have tried earnestly to work out a
settlement between the parties but to no avail. The purpose
for the filing of exceptions to the decree in this case was
primarily to obtain clarification of the decision to avoid
a renewal of this dispute.
The defendants raised in their exceptions and brief
an assertion that it was the plaintiffs duty to prove lack
of permission. Permission is probably synonymous with
"license" under Pa.R.C.P. 1030 and therefore an affirmative
of burden of the defendants. Defendants additionally raised
the question of a lack of joinder of a necessary party pursuant
to Pa.R.C.P. 1032. The rule on compulsory joinder, Pa,R.C.P.
2227 probably does not require joinder of Webster and Morgan
in this case. On the other hand, however, it is respectfully
submitted that the decision of the court should be careful to
avoid infringing upon Webster and Morgan's right to use or
dispose of their property or upon the right of the defendants
to obtain additional property rights in the future.
It is further contended that th~ status of the owners
of the fee interest in the land in question was very definitely
before the court throughout the proceedings. It was originally
raised in the defendants new matter and the proper identity of
the fee owners later stipulated before presentation of testimony.
After presentation of testimony both counsel agreed to a
continuance with the possibility of either party joining Webster
and Morgan as parties to the proceeding and/or requesting a
further hearing to present testimony from them. Neither party
undertook either action.
The case is now in a status where a permanent injunction
has been issued. Quite conceivably the defendants might in
the future obtain specific permission to use the roadway
or a grant of a right-of-way from the owners of the fee. Should
-2-
this occur, the plaintiff might, because of the wording of
the decision file contempt proceedings for violation of the
injunction if the defendants were to endeavor to use the property
under such claim of right. Plaintiff could plead resjudicata
and/or collateral estoppel if the defendants endeavored to affirma-
tively plead their right-of-way or permission. Again the parties,
probably more entrenched in their own beliefs than ever, would
proceed to again litigate the matter.
Under the circumstances, I respectfully aubmit, that
this case is one in which the rights of the servient owners
havelbeen raised by the parties, the future rights of the
defendants to acquire property rights might well be affected
by the decision of the court, and the possibility of further
litigation very definitely exists if the isaues relating to
the servient owners are not somewhat clarified. It is
respectfully requested that the court amend its prior decision
so as to clarify whether the "permanent injunction" is meant
to operate as a permanent bar to the ability of the defendants
to obtain through the servient owners a right or license to
use the roadway; or whether it is not meant to foreclose their
acquiring such rights so long as such rights would not
materially impair the use by the plaintiff of the roadway. The
argument of the defendants in support of the latter contention
is set forth in the brief previously filed. It is respectfully
requested that the court address the issue and not ignore it
as requested by the plaintiffs. At the very least, it is
requested the following changes be made in the present decision.
-3-
The defendants respectfully request Your Honorable Court
to amend its findings of fact by adding a finding of fact
as follows:
The use by the defendant Carl Rife of the
roadway in question for access to and from
their property did not materially impair the
rights of the plaintiff to use their right-
of-way.
It is respectfully submitted that Your Honorable Court amend
its conclusions of law to add the following conclusion of law:
Genevieve H. Webster and June Morgan, owners of
the servient estate, not being parties to the
action, the decision in this case does not
address what, if any, rights defendants may
be entitled to obtain by virtue of grant or
permission from Genevieve H. Webster and
June Morgan.
The defendants respectfully request Your Honorable Court to
amend the injunction issued on May 29, 1980, to provide as
follows:
The defendants, Carl Rife, Arthur W. Rife
and Berneta E. Rife, are hereby enjoined
from in any way trespassing upon plaintiffs
easement or right-of-way.
It is respectfully submitted that exceptions filed by the plaintiffs
specifically raised as issues the matters of record which would
be cured by the above suggested amendments to the decision of
-4-
the court. It is further submitted, however, that the court
can further hold that the defendants may, in fact, obtain
rights in the roadway through Webster and Morgan and that
if they obtained such rights they would share the obligation
of maintenance of the roadway. It is contended that the law
and facts of this case would support such a decision and that
such a decision would clearly delineate the alternatives
available to both parties in the f=ture.
Respectfully submitted,
FOWLER, ADDAMS & SHUGHART
J. WILBUR WAGNER and
MARY E. WAGNER, his wife,
Plaintiffs
IN THE COURT OF CO~ON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
CARL RIFE and ARTHUR W. RIFE
and BERNETA E. RIFE, his wife,:
Defendants :
NO. 62 EQUITY 1978
INJUNCTION
IN RE: EXCEPTIONS TO ADJUDICATION AND DECREE NISI
BEFORE SHEELY, J. AND HOFFER, J.
ORDER OF COURT
AND NOW, this I~?~.. day of August, 1980, in accordance
with the opinion filed this date, the defendants' exceptions to
the Adjudication and Decree Nisi are dismissed. The May 29, 1980,
Decree Nisi is made a final Decree.
John McCrea, III, Esquire
For the Plaintiffs
Dale F. Shughart, Jr.,
For the Defendants
By the Court,
Harold E. Sheely, J. C~'
:pbf
j. WILBUR WAGNER and
MARY E. WAGNER, his wife,
Plaintiffs
CARL RIFE and ARTHUR W.
and BERNETA E.
IN THE COURT OF CO~4ON PLEAS OF
CUMBERLAND cOUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
IN RE:
RIFE '
RIFE, his wife,:
DefendantS :
NO. 62 EQUITY 1978
iNJUNCTION
EXCEPTIONS TO ADJUDICATION AND DECREE NISI
BEFORE SHEELY, J. AND HOFFER, J.
oPINION AND ORDER OF COURT
The defendants filed exceptionS to the Adjudication and
Decree Nisi of May 29, 1980, which permanently enjoined the defen-
dants from i__n ~n~ way using the plaintiffs' easement or right-of-way
across the property of Genevieve H. Webster and June Morgan. By
their exceptions, the defendantS request the court to make the
following additional finding of fact and additional conclusions of
law: 1) the defendantS' use of the roadway across the property
owned by Webster and Morgan did not materially impair the plaintiffs'
rights to use their right-of-way; 2) the Adjudication and Decree
Nisi does not determine what rights defendantS may obtain if
Webster and Morgan, owners of the servient estate, grant them
NO. 62 EQUITY 1978
permission to use the right-of-way; and 3) the defendants are
enjoined from trespassin~ on the plaintiffs' easement.
The issue before the court in the Adjudication was merely
whether to grant the injunction. This court was not faced with
the issue of whether the defendants were materially impairing the
plaintiffs' right-of-way, nor was it necessary to draw that con-
clusion before granting the injunction- Webster and Morgan, owners
of the servient estate, were not parties to the prior Adjudication.
At no time during the prior proceedings did the defendants attempt
to prove that they used the right-of-way with the permission of
Webster and Morgan. Since this court was not faced with the
question of whether the defendants could use the right-of-way
if they obtained the permission of the owners of the servient
estate and if they did not materially impair the plaintiffs'
rights to t~ right-of-way, we made no determination in this
ORDER OF COURT
AND NOW, this day of August, 1980, in accordance
with the opinion filed this date, the defendants' exceptions to
the Adjudication and Decree Nisi are dismissed. The May 29, 1980,
Decree Nisi is made a final Decree.
By the Court,
/~s/ Harold E. Sheely
regard.
Jo
John McCrea, III, Esquire
For the Plaintiffs
Dale F. Shughart, Jr., Esquire
For the Defendants