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HomeMy WebLinkAbout2004-6370 Civil WILLIAM E. FERRIS and : IN THE COURT OF COMMON PLEAS KERRI E. FERRIS, : CUMBERLAND COUNTY, Plaintiffs : PENNSYLVANIA : : vs. : 04-6370 CIVIL TERM : BRUCE ROTZ and : PATSY ROTZ, : CIVIL ACTION LAW Defendants : IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Defendants/Appellants Bruce and Patsy Rotz have filed an appeal to the Superior Court of Pennsylvania following an order awarding Plaintiffs/Appellees an easement by prescription for ingress and egress to and from the Plaintiffs’ property and across Defendants’/Appellants’ 1 property. Defendants now appeal this decision on the following bases: 1.)The Court erred by failing to find that Plaintiffs had not acquired an easement by prescription across the property of Defendants. 2.)The Court erred by failing to find that Plaintiffs had not proved, by clear and convincing evidence, the elements of continuous use and adverse use of the claimed easement track across the property of Defendants for the statutory period of 21 years. 3.)The Court erred by failing to find that the claimed easement track across the property of Defendants passed through unenclosed woodland as that term is defined in 68 P.S. § 411 and has been interpreted by the Pennsylvania courts, and, therefore, Plaintiffs were statutorily barred from acquiring an easement by 2 prescription across the property of Defendants. This opinion in support of the order awarding Plaintiffs an easement by prescription is written pursuant to Pa. R.A.P. 1925(a). 1 See Order of Court, Jan. 23, 2007. The Order further required Appellants to remove all gates, posts, fences, barriers or other obstructions which they may have placed across the prescriptive easement commonly referred to as Cabin Lane. 2 Defendants’ Concise Statement of Matters Complained of on Appeal, filed July 5, 2007. STATEMENT OF FACTS Plaintiffs/Appellees, William and Kerri Ferris, of 51 Chestnut Grove Road in Shippensburg, Pennsylvania, own an 11.6 acre lot of mountain ground which they purchased on 3 August 25, 1972. Since first purchasing the land, Appellees have used a graveled road, 4 commonly referred to as Cabin Lane, to access their mountain property. Cabin Lane is lined by at least five home sites. Some of these are served by a public water line, and utility poles are 5 present along this lane. Appellees were never given permission to use Cabin Lane but openly 6 used the road to reach their property since 1972. William Ferris testified that he always assumed that he had the right to use the road and no one ever attempted to discourage him from 78 using it. The Ferris property is completely forested and no grass is planted on their land. The land has been used in the past for camping, riding, hunting, sledding, and as a site for a mobile 9 home that Plaintiffs removed around 1991. The property is currently uninhabited and is 1011 selectively logged at intervals of around 20 years. There are no fences on this property. Defendants’/Appellants’ property, a 1.428 acre lot of land purchased by Appellants from 12 Bill Cain on June 27, 2003, lies adjacent to Plaintiffs’ property. The Defendants’ deed (Plaintiffs’ Exhibit #2) describes the Defendants’ property as “Shown as Track # 2 on resurvey for Charles Ott, by Kissinger and Gross, Surveyors, dated October 30, 1978 and recorded in Cumberland Deed Book (A), Volume 28, Page 677.” This survey diagram is included in the 3 Pl. Ex. 1 4 Notes of Testimony, hearing Dec. 20, 2006 (hereinafter “N.T. ___”), p. 7; Though the times of access to the property were sporadic, the Ferris family accessed the property yearly. N.T. 7 & 10. 5 N.T. 19-20 6 N.T. 8, 10-11 7 N.T. 10-11 8 N.T. 17 9 N.T. 7; Ferris even gave Defendants permission to hunt on his land. N.T. 14 10 N.T. 22 11 N.T. 24 12 Pl. Ex. 2 2 record at Plaintiff’s Exhibit #4 and clearly shows the “private road” which has been identified as Cabin Lane crossing over the Defendants’ property and continuing in both directions into the adjacent properties not owned by the Defendants. The total distance from the main road (Walnut Dale Road) to the Ferris property line is 600 to 700 yards. Of this distance Cabin Lane crosses 13 Appellant Rotz’s lot for only about 150 to 250 feet. Ferris had given the former owner, Bill Cain, permission to erect a gate on Cabin Lane 14 under the condition that Ferris be provided a key in order to access his land. A simple gate was erected. The purpose of the gate was to prevent trespassers from driving unto the property to 15 drink. The gate was not on the property line. It was positioned slightly within Cain’s property. The simple gate was later replaced by the metal gate, which currently bars access to Plaintiffs’ 16 land. Previously the key to the gate was left on a nail on the side of the storage shed near the 17 gate. For a period of time Ferris was allowed access to his property, but Rotz removed the key from the nail less than two years ago. Ferris has not been provided with a key for the new gate 18 since the removal and subsequently cannot access his property. On December 18, 2006, this Court, in the presence of both party’s attorneys, conducted a view of Cabin Lane and all properties adjacent to it. Defendants’ land, while surrounded by 19 forest, has been cleared around the trailer and driveway. The road leading to Defendants’ trailer is surrounded by grass and covered by gravel stones. If one continues along Cabin Lane, it leads to the metal gate erected by Bill Cain. The gate is clearly visible from the gravel road and is located just a few yards beyond Defendants’ sheds. Although there are trees located in 13 N.T. 21-22, Pl. Ex. 4. 14 N.T. 9-10 15 N.T. 51 16 N.T. 12 17 N.T. 10;13 18 N.T. 13 19 Pl. Ex. 6,7 3 Defendants’ front yard, the land in front of the residence is not "forested” within the general 20 understanding of the term. 21 The Ferris property begins a short distance from the metal gate. The lane beyond the metal gate is cleared and also covered in gravel, though not as thoroughly as on the other portions leading to the gate. The lane on the Ferris property is surrounded by forest on both 22 sides. Defendant Bruce Rotz claims that he decided to keep the gate closed, and thereby prevent 23 Ferris access to his property, in order to protect his septic system. He does not want Ferris to drive over his septic system pipes and is not open to the idea of improving the site in order to 24 protect the pipes beneath the lane. He maintains that at some unknown time in the future he may build a house for his son, and Cabin Lane would interfere with “the setbacks” of his 25 house. DISCUSSION A. Easement by Prescription “It is ancient and unquestioned law that to acquire an easement by prescription, the exercise of possession must be adverse, open, notorious and uninterrupted for a period of at least twenty-one years.” Lewkowicz v. Blumish, 275 A.2d 69, 70 (Pa. 1971). It is the opinion of this Court that the elements of an easement by prescription are clearly met within the facts of this case. Plaintiffs have adversely and openly used the track known as Cabin Lane to access their property since its purchase more than 35 years ago. Defendants were well aware of this usage 20 Pl. Exs. 6-9 21 N.T. 18; Pl. Ex. 8, Plaintiff stated that the line of his property is located at the lower end of this photograph. The line is within clear vision of Defendants’ storage shed and the gate. 22 Pl. Ex. 9 23 N.T. 35 24 N.T. 58-60 25 N.T. 59 4 even before they purchased their land in 2003, as were all of the other residents who lived along Cabin Lane. Any argument related to the alleged sporadic nature of Plaintiffs’ usage is without merit, as it is plainly established in our law that the term “continuous” does not require a day-to- day usage, Minteer v. Wolfe, 446 A.2d 316, 318-19 (Pa. Super. 1982), and it is clear that Defendants accessed the property regularly. B. Unenclosed Woodlands The sole issue in this case is then whether Plaintiffs are entitled to hold the prescriptive easement due to the wooded nature of the land. Pennsylvania law states: “No right of way shall be hereafter acquired by user, where such way passes through uninclosed (sic) woodland; but on clearing such woodland, the owner or owners thereof shall be at liberty to enclose the same, as if no such way had been used through the same before such clearing or enclosure.” 68 P.S. § 411. In applying this statute and determining whether woodlands are “unenclosed,” the nature of the land itself is determinative. Martin v. Sun Pipe Line Co., 666 A.2d 637. 641 (Pa. 1995). See McCormick v. Camp Pocono Ridge, Inc. II, 781 F.Supp. 328, 333 (M.D.Pa.1991) (“It is beyond question that the words ‘uninclosed woodland’ in this statute refer to a wooded area which is not enclosed by a fence or some other barrier”) (footnotes omitted). As is often the case in the art of statutory interpretation, it is necessary for us to look to the purpose of this statute in making our application to the present factual situation. The origins 26 of this statute, formerly known as the Act of 1850, are deeply rooted in pre-existing Pennsylvania land conditions. At the time of enactment, great areas of timber existed which, for a multitude of possible reasons, were not able to be enclosed. Accordingly, in such times property owners were unable to defend against the acquisition of a prescriptive way through such 26 This act was repealed generally by the Act of December 10, 1974 P.L. 867, § 19. It is generally accepted that the repeal was inadvertent and that therefore the substance of the statute was reenacted by the Act of 1981 P.A. 198 § 1. See Babcock Enter., Inc. v. Wilderness Club, 27 Pa. D&C.3d 84, 87 (1982). 5 tracts as they were often undetected in the wooded land and changed due to new growth or other obstructions. It was with these very instances in mind that the Act of 1850 was enacted. Babcock Enter., Inc. v. Wilderness Club, 27 Pa. D&C.3d 84, 89 (1982). In the case of Minteer v. Wolfe, 446 A.2d 316 (Pa. Super. 1982), a factually similar case to the one sub justice, our Superior Court held that Plaintiff was not precluded from acquiring an easement by prescription by application of the Act of 1850. In Minteer, Plaintiff sought to use a lane which traversed the boundary line of the contiguous tracts of land owned by the Defendants in order to access gas wells which had been there and operating since 1918. Plaintiffs had acquired the property in 1964 and had since that time used the lane as an access to the wells. In 1975 Defendants blocked Plaintiffs’ access to the land by erecting a cable across its entrance. Defendants argued that Plaintiffs could not acquire an easement by prescription to the lane because the lane passed through unenclosed woodland, which is prohibited by the Act of 1850. The Court found that the land surrounding the lane was not woodland within the meaning contemplated by the Act of 1850 when the “woodland” consisted of a fence row of trees and brush as is commonly found to exist on the boundary lines of land located in rural areas. Id. at 320-21. We find the Minteer holding applicable to the case at bar. Appellants contend that Ferris cannot acquire an easement on the land because the lane passes through unenclosed woodland. However, having conducted a view, and considering the testimony and photographic evidence we do not find that the land surrounding the lane is “unenclosed woodland” within the meaning contemplated by the Act of 1850. There are five homes on the private road known as Cabin Lane. The number of trees around the homes are similar to that commonly surrounding many homes located in rural Pennsylvania. In short, the Defendants’ 1.428 acre property is simply a 6 home lot from which most of the forest has been cleared. The area between the gate and Plaintiffs’ landline is so close to the clearing containing the Defendants’ residence that we cannot classify the area under the category of “unenclosed woodlands” given the purpose and history of the statute. The private road “Cabin Lane” was clearly indicated as existing at the time Rotz acquired title to this property in 2003. For approximately 2 years Ferris was allowed to use the key to open the gate to access his property. The fact that Appellants are able to see any vehicles which may traverse their land gives us even greater cause to believe that the statute does not apply to this particular situation. We therefore find that the lane does not pass through unenclosed woodland and accordingly find that the easement by prescription is warranted in this specific instance. CONCLUSION Because Plaintiffs/Appellees satisfy the elements which allow them to obtain an easement by prescription and since the area in question does not fall within the definition of unenclosed woodlands provided by 68 P.S. § 411, Plaintiffs were duly awarded an easement by prescription across Defendants’/Appellants’ land. By the Court, M. L. Ebert, Jr., J. H. Anthony Adams, Esquire Attorney for Plaintiffs Sally J. Winder, Esquire Attorney for Defendants 7