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THE MCNAUGHTON PROPERTIES, : IN THE COURT OF COMMON PLEAS OF
LP AND MIDPENN ESTATES, : CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFFS :
:
V. :
:
TERRY N. BARR AND :
QUINN K. BARR, :
DEFENDANTS : 08-1975 CIVIL TERM
IN RE: PRELIMINARY OBJECTION OF DEFENDANTS
TO PLAINTIFFS’ COMPLAINT
BEFORE BAYLEY, J AND EBERT, J.
OPINION AND ORDER OF COURT
Bayley, J., July 22, 2008:--
On March 28, 2008, plaintiffs, The McNaughton Properties, LP and MidPenn
Estates, filed a complaint against defendants, Terry N. Barr and Quinn K. Barr.
Plaintiffs seek an order relocating an express easement through their property to the
property of defendants. Defendants filed a preliminary objection to the complaint in the
form of a demurrer in which they maintain that there is no cause of action in
Pennsylvania for the relocation of an express easement. The issue was briefed and
argued on July 9, 2008.
Plaintiffs, hereinafter referred to as “McNaughton,” aver in their complaint that
they are the owner of 142.07 acres of land in Upper Allen Township, known as the
“Failor Farm,” to which they obtained title on January 31, 2007. The Barrs are the
owners of 1.83 acres of land, to which they obtained title on January 27, 1996, which
08-1975 CIVIL TERM
was carved out of the Failor Farm (the “Reserved Tract”), in a 1954 deed. The tract
does not directly front on a public road. In the 1954 deed, the grantor provided to the
grantee, his heirs and assigns, the use of two private lanes, the first running from the
Reserved Tract to the second lane, and the second running to Long Level Road (now
known as East Winding Hill Road). The deed included a sketch survey of the two
private lanes over the Reserved Tract, but does not delineate the metes and bounds of
the lanes. Plaintiffs further aver that they have filed a preliminary subdivision plan with
Upper Allen Township to develop the Failor Farm into residential tracts. The plan
includes a public street system that complies with all regulations. The design requires
a minor relocation of the existing private lanes that provide access to the Reserved
Tract, such that the access will follow the public streets. The proposed public street
system will provide a shorter, safer and more direct route between the Reserved Tract
and East Winding Hill Road, will accommodate emergency vehicles, and will allow for
the safe and beneficial development of the Failor Farm. The relocation will not
substantially impair defendants’ access to the Reserve Tract.
Soderberg v. Weisel,
In 687 A.2d 839 (Pa. Super. 1997), the issue before the
Superior Court of Pennsylvania was “[w]hether a court, through the use of its equitable
powers, may compel the relocation of an easement.” The easement at issue was a
prescriptive easement providing access from a road to a farm. The dominant tenant
argued that prescriptive easements are akin to boundary disputes, which are resolved
under either a theory of adverse possession or consentable line, a theory separate and
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distinct from traditional adverse possession. The Court stated:
A prescriptive easement differs from land acquired by adverse
possession, because an adverse possessor acquires the land in fee,
whereas the prescriptive easement holder is only entitled to an easement-
like use.
* * *
In the case of prescriptive easements, however, a dominant estate
never
holds title to the easement. Accordingly, prescriptive easements
differ from boundaries by consentable line. Because an estate which
gains a prescriptive easement over another’s land does not have
exclusive title in fee over the right-of-way, if the relocated easement is
practically the same in both safety and ease of use to the dominant
estate, and the landowner has articulated substantial reasons for the
relocation, it is fair and just to refrain from moving the easement back to
3
its original location.
3
Prescriptive easements are also quite different from express grant
easements. Express grant easements, once acquired, are much more
difficult to alter. See Zettlemoyer v. Transcontinental Gas Pipeline Corp.,
540 Pa. 337, 657 A.2d 920 (1995) (alternations of easements expressly
granted will be interpreted under contract law principles; permission to
alter must be intended by words or meaning of grant). A prescriptive
easement, however, differs markedly from an express grant easement,
because the prescriptive easement is not fixed by agreement between the
1
parties or their predecessors in interest.
(Citations omitted.)
The Court, while noting that the issue before it has received varied treatment in
other jurisdictions, stated:
Specifically, we hold that a court may compel relocation of an
__________
1 Zettlemoyer
The issue in was whether a pipeline company committed a de facto
taking of land by claiming an area thirty feet beyond a one hundred foot right-of-way
that it had maintained on the owner’s property.
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easement if that relocation would not substantially interfere with the
easement holder’s use and enjoyment of the right of way and it advances
the interest of justice. . . . We caution, however, that ordering relocation
is an extraordinary remedy and should be used sparingly.
The Restatement (Third) of Property (Servitudes) (2000), at Section 4.8(3),
provides:
Unless expressly denied by the terms of an easement, … the owner of the
servient estate is entitled to make reasonable changes in the location or
dimensions of an easement, at the servient owner’s expense, to permit
normal use or development of the servient estate, but only if the changes
do not
(a) significantly lessen the utility of the easement,
(b) increase the burdens on the owner of the easement in its use
and enjoyment, or
(c) frustrate the purpose for which the easement was created.
MacMeekin v. Low Income Housing Institute, Inc.,
In 45 P.3d 570 (Wash.
App. 2002), a Court of Appeals in Washington commented on this section of the
Restatement:
The provision applies to express easements as well as those acquired by
implication or prescription. Comment f. explains that this subsection
adopts the civil law rule that is in effect in Louisiana and a few other
states, and rejects the rule espoused by the weight of authority in this
country-that the owner of the servient estate may not unilaterally relocate
an easement. By way of further explanation: This rule is designed to
permit development of the servient estate to the extent it can be
accomplished without unduly interfering with the legitimate interests of the
easement holder. It complements the rule that the easement holder may
increase use of the easement to permit normal development of the
dominant estate, if the increase does not unduly burden the servient
estate…. This rule is not reciprocal. It permits unilateral relocation only
by the owner of the servient estate; it does not entitle the owner of the
easement to relocate the easement. The reasons for the rule are that it
will increase overall utility because it will increase the value of the
servient estate without diminishing the value of the dominant estate and it
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will encourage the use of easements and lower their price by decreasing
the risk the easements will unduly restrict future development of the
servient estate. In addition, permitting the servient owner to change the
location under the enumerated circumstances provides a fair trade-off for
the vulnerability of the servient estate to increased use of the easement to
accommodate changes in technology and development of the dominant
estate.
Restatement (Third) of Property (Servitudes) § 4.8, Comment f.
Section 7.10 of Restatement (Third) discusses modification and
termination of servitudes because of changed conditions, and provides in
subsection (2) that “[i]f the purpose of a servitude can be accomplished,
but because of changed conditions the servient estate is no longer
suitable for uses permitted by the servitude, a court may modify the
servitude to permit other uses under conditions designed to preserve the
benefits of the original servitude.” Restatement (Third) of Property
(Servitudes) § 7.10(2). Comment a. to this section indicates that this rule
applies to easements as well as covenants, and permits a party seeking
relief from the servitude to petition the court at the point of need.
The reform movement espoused by Restatement (Third) generated
considerable academic debate over the years, as the American Law
Institute issued various tentative drafts. Professor Uriel Reichman, in
discussing the changed conditions doctrine (which terminology the
Restatement (Third) uses both for easements and restrictive covenants)
praises the doctrine for introducing a necessary element of flexibility as
well as the means to control servitudes that would otherwise result in
inefficient land use. See Uriel Reichman, Toward a Unified Concept of
Servitudes, 55 So. Cal. L.Rev. 1177, 1259 (1982); see also Douglas B.
Harris, Balancing the Equities: Is Missouri Adopting a Progressive Rule
for Relocation of Easements?, 61 Mo. L.Rev. 1039 (1996). Others have
criticized the doctrine on the ground that it permits undue interference
with property rights. See Carol M. Rose, Servitudes, Security, and
Assent: some Comments on Professors French and Reichman, 55 So.
Cal. L.Rev. 1403, 1404 (1982); Richard Epstein, Notice and Freedom of
Contract in the Law of Servitudes, 55 So. Cal. L.Rev. 1353, 1358 (1982);
see also Note, The Right of Owners of Servient Estates to Relocate
Easements Unilaterally, 109 Harv. L.Rev. 1693 (1996). As noted by the
commentator in the Restatement, “Rose reminds us the [neighborhood]
holdout is not necessarily a rascal, and that the right to hold out is an
important aspect of property ownership, normally relaxes only through an
eminent domain proceeding. ‘If we are to take servitudes seriously as
property rights then the neighbors’ holdout is perfectly legitimate.’ ”
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Restatement (Third) of Property (Servitudes) § 7.10, Rationale, Comment
a. (quoting Carol M. Rose, Servitudes, Security, and Assent, supra at
1412).
MacMeekin,
In a division of the court of appeals of Washington declined to
adopt the Restatement (Third), and even after citing the Superior Court of Pennsylvania
Soderberg v. Weisel, supra,
in concluding that there was no cause of action for the
relocation of an easement implied from prior use.
sub judiceSoderberg
In the case , unlike in , which involved the relocation of a
prescriptive easement, plaintiffs are seeking a remedy relocating an express easement.
However, no such cause of action has been recognized in Pennsylvania. Although
plaintiffs urge this court to adopt the Restatment (Third) of Property (Servitudes)
(2000), Section 4.8(3), which would create such a cause of action, “[o]nly our supreme
D’Errico v.
court and the legislature can adopt new causes of action in Pennsylvania.”
DeFazio
, 763 A.2d 424, 433 (Pa. Super. 2000). Accordingly, the following order is
entered.
ORDER OF COURT
AND NOW, this day of July, 2008, the preliminary objection of
IS SUSTAINED. IS DISMISSED.
defendants to plaintiffs’ complaint, Plaintiffs’ complaint
By the Court,
Edgar B. Bayley, J.
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Helen L. Gemmill, Esquire
For Plaintiffs
John R. Ninosky, Esquire
For Defendants
:sal
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THE MCNAUGHTON PROPERTIES, : IN THE COURT OF COMMON PLEAS OF
LP AND MIDPENN ESTATES, : CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFFS :
:
V. :
:
TERRY N. BARR AND :
QUINN K. BARR, :
DEFENDANTS : 08-1975 CIVIL TERM
IN RE: PRELIMINARY OBJECTION OF DEFENDANTS
TO PLAINTIFFS’ COMPLAINT
BEFORE BAYLEY, J AND EBERT, J.
ORDER OF COURT
AND NOW, this day of July, 2008, the preliminary objection of
IS SUSTAINED. IS DISMISSED.
defendants to plaintiffs’ complaint, Plaintiffs’ complaint
By the Court,
Edgar B. Bayley, J.
Helen L. Gemmill, Esquire
For Plaintiffs
John R. Ninosky, Esquire
For Defendants
:sal