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HomeMy WebLinkAbout99-4189 civil LEE A. CLOUSE and PATRICIA : IN THE COURT OF COMMON PLEAS OF A. CLOUSE, husband and wife, : CUMBERLAND COUNTY, PENNSYLVANIA and GALEN R. CLOUSE and WANDA L. CLOUSE, husband and wife Plaintiffs v. : NO. 99-4189 Civil Term JOYCE E. GRIES, and JAMY L. : CIVIL ACTION-LAW HANDSHEW and PAMELA J. :ACTION TO QUIET TITLE HANDSHEW, husband and wife, Defendants ORDER OF COURT AND NOW, ~ ~1~ , 2001, after careful consideration of briefs submitted, and pursuant to the Opinion filed this date, Plaintiffs' request for an easement over land of Defendants is granted. By the Court, Dale F. Shughart, Jr., Esquire 35 East High Street, Suite 203 Carlisle, PA 17013 Attorney for Plaintiffs John H. Broujos, Esquire 4 North Hanover Street Carlisle, PA 17013 Attorney for Defendants LEE A. CLOUSE and PATRICIA : IN THE COURT OF COMMON PLEAS OF A. CLOUSE, husband and wife, : CUMBERLAND COUNTY, PENNSYLVANIA and GALEN R. CLOUSE and WANDA L. CLOUSE, husband and wife Plaintiffs v. : NO. 99-4189 Civil Term JOYCE E. GRIES, and JAMY L. : CIVIL ACTION-LAW HANDSHEW and PAMELA J. :ACTION TO QUIET TITLE HANDSHEW, husband and wife, Defendants OPINION Before HOFFER, P.J.. FINDINGS OF FACT 1. Plaintiffs, Lee A. Clouse and Patricia A. Clouse, husband and wife, and Galen R. Clouse and Wanda L. Clouse, husband and wife, own a tract of unimproved land containing fifteen (15) acres in Lower Mifflin Township, Cumberland County, Pennsylvania, known as Cumberland County Tax Parcel No. 43-04-089-002. 2. Defendant, Joyce E. Gries, is the owns a tract of land containing 67.82 acres located partially in Lower Mifflin Township and partially in Upper Frankford Township, Cumberland County, Pennsylvania, know as Cumberland County Tax Parcel No. 43-04-0389-004. 3. Defendants, Jamy L. Handshew and Pamela J. Handshew, husband and wife, own a tract of land containing 10.68 acres in Lower Mifflin Township, Cumberland County, Pennsylvania, know as Cumberland County Tax Parcel No. 43-04-0389-035. This tract was created by a subdivision from the lands of Joyce E. Gries. 4. The land of Plaintiffs and Defendants adjoin each other. 5. All Plaintiffs' and Defendants' titles originate from a Patent from the Commonwealth of Pennsylvania to Isaiah Graham dated February 11, 1831 and recorded in Patent Book "U", Volume 36, Page 95. 6. Plaintiffs' and Defendants' parcels are parts of the same original tract of land owned by Christian Failor, Jr., who acquired title by unrecorded deed dated April 1, 1837, from Samuel Graham and James H. Graham, executors under Last Will and Testament of Isaiah Graham. 7. Christian Failor, Jr. died in 1868, and his Last Will and Testament was probated on December 7, 1868, and above-mentioned real estate passed into his estate. 8. The first recorded deed in Plaintiffs' chain of title is a deed from Philip Finkenbinder to Samuel Clouse dated March 18, 1874. This deed contains an express grant of easement from Defendants' predecessors in title to Plaintiffs' predecessors in title. This grant appears in all subsequent deeds of record. 9. The deed from Phillip Finkenbinder to Samuel Clouse confirms by the recital therein contained that this parcel is a portion of the tract of land containing 48 acres which the attorney for the heirs of Christian Failor, granted and conveyed unto Phillip Finkenbinder by deed dated March 31, 1870. 10. The first recorded deed in Defendants' chain of title is a deed of assignment for the benefit of creditors from Will A. Failor and Sarah J. Failor, his wife, to Jacob Weast, dated September 10, 1879. This deed contains a reservation of easement in favor of Plaintiffs' predecessors in titles. 11. The foregoing conveyances and recitals confirm that the Plaintiffs' property was severed from the remainder of the property of the heirs and Estate of Christian Failor prior to the conveyance for the benefit of the creditors of William A. Failor, which is the source of Defendants' title. 12. The need for an easement from the Plaintiffs' property over the land of the Defendants' property to a public road existed at the time of the severance and continues to exist today. 13. At the time of severance and continuing today, the land of the Defendants' does border upon a public road, i.e., Enola Road, SR 0944. 14. At the time of severance there exiSted a private road from Enola Road across the land of the Defendants to the land of the Plaintiffs. The exact location of the previously existing road can no longer be ascertained. 15. There is no evidence to support a finding that Plaintiffs or their predecessors in title abandoned their easement across the land of the Defendants. CONCLUSIONS OF LAW 1. Defendants' predecessor in title, the heirs and Estate of Christian Failor Jr., granted a right of way from Enola Road across Defendants' land for the benefit, use, and enjoyment of the Plaintiffs' property. 2. Defendants, as successors in title to the heirs and Estate of Christian Failor Jr., own the land upon which the aforementioned easement was created in favor of the Plaintiffs' property. 3. When Plaintiffs' property was severed from the whole in 1870, a road existed across Defendants' property to the Plaintiffs' property. 4. Plaintiffs are therefore entitled to an easement by implication over the lands of Defendants. 5. The severance of Plaintiffs' property from the property of Defendants' predecessors in title, landlocked the land of the Plaintiffs. 6. Plaintiffs are therefore entitled to an easement by necessity over the land of the Defendants. 7. The Plaintiffs did not abandon their easement over the lands of the Defendants. 8. Plaintiffs are entitled to a right of way over Defendants' property. 4 9. The easement shall be placed upon the property of Defendants Handshew in a location that is the least intrusive and most direct route from the area of their common boundary to the land of the Plaintiffs.~ 10. Plaintiffs shall bear the entire costs of engineering and/or survey involved in locating the right-of-way. ~ During trial, Handshew indicated a preference that if the court found for the Plaintiffs, then the easement shall be placed at the furthest east entry point in compliance with PennDot regulations as illustrated on Plaintiffs Exhibit 21. 5