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HomeMy WebLinkAbout01-2813 CivilKUSIC CAPITAL GROUP, L.L.C., Plaintiff Vo HARRY F. CHRISTIE, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 01-2813 CIVIL TERM IN RE: ADJUDICATION BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., January ,2003. In this equity action Plaintiff seeks a declaratory judgment and injunction premised upon the existence of an implied easement. ~ A nonjury trial was held in the matter on October 7, 2002.2 At trial, Plaintiff contended that an implied easement existed for traffic from a lot owned by Plaintiff to access the Carlisle Pike across two lots owned by Defendant.3 Such access would offer certain advantages to Plaintiff over an alternate means of access to the Pike.4 For the reasons stated in this opinion, the court will find in favor of Defendant and against Plaintiff. FINDINGS OF FACT 1. Plaintiff is Kusic Capital Group, L.L.C., a Pennsylvania limited liability company having its principal place of business at 4201 Crums Mill Road, Harrisburg, Dauphin County, Pennsylvania. 5 ~ Plaintiff's Complaint, filed May 9, 2001. : By agreement of counsel, the trial record was supplemented to include the record from a June 4, 2001, hearing on Plaintiff's petition for a preliminary injunction. See N.T. 4, Trial, October 7, 2002 (hereinafter N.T. __ (Oct. 7, 2002)). The petition for a preliminary injunction had been denied. Order of Court, June 4, 2001. s N.T. 5, Preliminary Injunction Hearing, June 4, 2002 (hereinafter N.T. __ (June 4, 2001). 4 N.T. 14-15 (June 4, 2001). 5 N.T. 12 (Oct. 7, 2002) (agreement of counsel as to truth of certain allegations of Plaintiff's complaint); Plaintiff's Complaint, filed May 9, 2001, para. 1. 2. Defendant is Harry F. Christie, an adult individual residing at 3310 Calle Del Montana, Sedona, Arizona.6 3. Plaintiff is the owner of a 3.6 acre tract of land, containing an office building, in Hampden Township, Cumberland County, Pennsylvania, and having an address of 3 Crossgate Drive, Mechanicsburg, Pennsylvania.7 4. Defendant is the owner of two tracts of land in Hampden Township, Cumberland County, Pennsylvania,8 one being a 1.3 acre tract containing a parking lot and having an address of 1 Crossgate Drive, Mechanicsburg, Pennsylvania,9 and the other being a 1.2 acre tract of land containing a building with two stores, and having an address of 5515 Carlisle Pike, Mechanicsburg, Pennsylvania. ~° 5. The tracts appear as three of four lots on a certain subdivision plan filed on April 17, 1978.~ 6. On the plan, the four lots comprise a larger rectangular tract located in Hampden Township, Cumberland County, Pennsylvania. ~2 7. The rectangular tract is situated at the intersection of the Carlisle Pike and Crossgate Drive. ~3 8. The rectangular tract is bounded on the south by the Carlisle Pike (a short side of the rectangle), and on the east by Crossgate Drive (a long side of the rectangle). ~4 6 N.T. 86 (Oct. 7, 2002). 7 N.T. 17 (June 4, 2001); N.T. 12 (Oct. 7, 2002); Plaintiff's Complaint, filed May 9, 2001, paras. 4-7. 8 N.T. 12 (Oct. 7, 2002); Plaintiff's Complaint, filed May 9, 2001, paras. 8-12. 9 N.T. 12 (Oct. 7, 2002); Plaintiff's Complaint, filed May 9, 2001, paras. 9-10. l0 N.T. 12 (Oct. 7, 2002); Plaintiff's Complaint, filed May 9, 2001, paras. 11-12. ~ Defendant's Ex. 5 (Oct. 7, 2002); Plaintiff's Ex. 1 (June 4, 2001). ~2 Defendant's Ex. 5 (Oct. 7, 2002); Plaintiff's Ex. 1 (June 4, 2001). ~3 Defendant's Ex. 5 (Oct. 7, 2002); Plaintiff's Ex. 1 (June 4, 2001). 14 Defendant's Ex. 5 (Oct. 7, 2002); Plaintiff's Ex. 1 (June 4, 2001). 2 9. An observer on the Carlisle Pike looking north faces Lots 3 and 4, which front on the Carlisle Pike; behind Lots 3 and 4 is located Lot 2, occupying the middle portion of the rectangle and fronting on Crossgate Drive (on the right); behind Lot 2 is located Lot 1, occupying the back part of the rectangle and also fronting on Crossgate Drive (on the right). ~5 10. Plaintiff is the owner of Lot 1 (at the back of the rectangle and most distant from the Carlisle Pike); Defendant is the owner of Lots 2 (in the middle of the rectangle) and 3 (one of the lots at the front of the rectangle and fronting on the Carlisle Pike). 16 11. The street address of Plaintiff's Lot 1 is 3 Crossgate Drive;~7 the street address of Defendant's Lot 2 is 1 Crossgate Drive;la the street address of Defendant's Lot 3 is 5515 Carlisle Pike.~9 12. Lots 3 and 4 (which front on the Carlisle Pike) share direct access to the Pike, but Lots 1 and 2 have only indirect access on the plan to the Carlisle Pike, via Crossgate Drive.2° 13. The direct access to the Carlisle Pike from Lots 3 and 4 permits traffic entering the Pike to proceed in either direction on the highway, but the indirect access from Crossgate Drive permits traffic entering the Pike to proceed in a westwardly (to the right) direction only.2~ ~s Defendant's Ex. 5 (Oct. 7, 2002); Plaintiff's Ex. 1 (June 4, 2001). 16 N.T. 12 (Oct. 7, 2002); Plaintiff's Complaint, filed May 9, 2001, paras. 4, 8. ~v N.T. 12 (Oct. 7, 2002); Plaintiff's Complaint, filed May 9, 2001, para. 5. ~8 N.T. 12 (Oct. 7, 2002); Plaintiff's Complaint, filed May 9, 2001, para. 9. 19 N.T. 12 (Oct. 7, 2002); Plaintiff's Complaint, filed May 9, 2001, para. 11. :0 Defendant's Ex. 5 (Oct. 7, 2002); N.T. 26-28 (June 4, 2001). :~ N.T. 26-28 (June 4, 2001); Defendant's Ex. 5 (Oct. 7, 2002). The entry onto the Carlisle Pike from Crossgate Drive is controlled by a "pork chop" traffic island configuration, directing traffic flow to the right, mandated by the Pennsylvania Department of Transportation for safety reasons. N.T. 15, 20-21, 28 (June 4, 2001); N.T. 95 (Oct. 7, 2002). 3 14. Plaintiff seeks a declaratory judgment and injunction recognizing the existence of an implied easement for traffic to directly access the Carlisle Pike across Defendant's Lots 2 and 3 from Plaintiff's Lot 1.22 15. The implied easement sought by Plaintiff would be beneficial and convenient to the use of its land,23 but would obviously limit the uses to which Defendant could put his land, particularly Lot 2. 16. The pertinent background of the properties in question may be summarized as follows: a. At one time Plaintiff's lot and Defendant's lots were under the common ownership of the Cumberland County Industrial Development Authority.24 b. At the time, Gene Pitnick Development Company, L.P., or a predecessor, had an equitable interest in the properties25 and apparently exerted functional control over their management and disposition.26 c. Some traffic since at least 1990 from Lot 1 accessed the Carlisle Pike by crossing Lot 2 and proceeding along the common border of Lots 3 and 4.27 d. However, no markings on Lots 2, 3 or 4 identified any route for such traffic and the course of a given vehicle was consequently ill-defined.28 22 Plaintiff's Complaint, filed May 9, 2001, Counts I-II. 23 N.T. 14-15 (June 4, 2001). 24 N.T. 12-16 (Oct. 7, 2002); Plaintiff's Exs. 3-4 (October 7, 2002). 25 N.T. 12-16 (Oct. 7, 2002); Plaintiff's Complaint, filed May 9, 2001, para. 3. 26 See N.T. 35-37 (Oct. 7, 2002). 27 N.T. 12-15, 18, 23 (June 4, 2001); N.T. 47-48, 52 (Oct. 7, 2002). 28 N.T. 15-16, 27 (June 4, 2001); N.T. 43-44, 58-59, 102 (Oct. 7, 2002). 4 e. By an agreement of sale dated February 29, 2000, Defendant agreed to purchase Lots 2 and 3 for $1,040,000.00.29 f. Under the agreement of sale, the lots being purchased by Defendant were to be "subject only to easements and restrictions of record which shall not interfere with [Defendant's] intended use of the [lots] for commercial purposes and other related and compatible uses.''3° g. The easement claimed by Plaintiff is not of record and would obviously affect adversely many forms of commercial development of Lot 2.31 h. On May 3, 2000, the common owner conveyed Lot 1 to Plaintiff for a price of $2,425,000.00.32 i. The deed to Plaintiff for Lot 1 did not refer to any right- of-way across Lots 2 and 3 in favor of Lot 1 for access to the Carlisle Pike.33 j. In this regard, the deed instead noted that the conveyance included "the right to use Crossgate Drive.''34 k. The deed to Plaintiff for Lot 1 referred to the aforesaid subdivision plan.35 29 Defendant's Ex. 2 (Oct. 7, 2002). The actual sale price appears to have been $1,026,110.00. Defendant's Ex. 3 (Oct. 7, 2002). 30 N.T. 23-24 (Oct. 7, 2002); Defendant's Ex. 2 (Oct. 7, 2002). 3~ N.T. 106 (Oct. 7, 2002). 32 N.T. 12 (Oct. 7, 2002); Plaintiff's Complaint, filed May 9, 2001, para. 4; Plaintiff's Ex. 4 (Oct. 7, 2002). The deed was dated April 6, 2000, but settlement occurred on May 3, 2000. Plaintiff's Ex. 4 (Oct. 7, 2002); N.T. 25 (June 4, 2001). The settlement had been delayed for a week at Plaintiff's request. N.T. 35 (Oct. 7, 2002). Lot 4 had previously been sold to a third party. N.T. 29 (June 4, 2001). 33 Plaintiff's Ex. 4 (Oct. 7, 2002). 34 ]d. Id. 5 1. This plan also did not show any right-of-way across Lots 2 and 3 in favor of Lot 1 for access to the Carlisle Pike.36 m. At settlement, no suggestion was made that access to the Carlisle Pike from the lot being purchased by Plaintiff existed other than by way of Crossgate Drive.37 n. On May 4, 2000, the common grantor conveyed Lots 2 and 3 to Defendant.38 o. The deed to Defendant for Lots 2 and 3 did not refer to any right-of-way across the lots in favor of Lot 1 for access to the Carlisle Pike.39 p. With regard to access to the Carlisle Pike, the conveyance of Lot 2 specifically included only "the right to use Crossgate Drive.''4° q. The deed to Defendant referred to the aforesaid subdivision plan.41 r. As previously noted, this plan also did not show any right-of-way across Lots 1 and 2 in favor of Lot 3 for access to the Carlisle Pike. s. Prior to settlement, Defendant had seen some traffic access the Carlisle Pike across Lots 2 and 3 from Lot 1.42 36 Defendant's Ex. 5 (Oct. 7, 2002). ~7 N.T. 16-17, 56-57 (Oct. 7, 2002). s8 N.T. 12 (Oct. 7, 2002); Plaintiff's Complaint, filed May 9, 2001, para. 8. The deed was dated April 6, 2000, but settlement occurred on May 4, 2000. Plaintiff's Ex. 3 (Oct. 7, 2002); N.T. 18 (Oct. 7, 2002). 39 Plaintiff's Ex. 3 (Oct. 7, 2002). The deed to Defendant did indicate that the lots were being conveyed "under and subject.., to all easements, restrictions, encumbrances and other matters of record or that a physical inspection or survey of the premises would reveal." Id. However, no right-of-way across Lots 2 and 3 in favor of Lot 1 for access to the Carlisle Pike was of record, marked upon the ground or discernible by survey. See N.T. 31,106-08 (Oct. 7, 2002). 40 Plaintiff's Ex. 3 (Oct. 7, 2002). 41 Id. 6 t. At settlement, Defendant inquired as to whether the lots he was buying could be subject to an easement for traffic between the Carlisle Pike and Plaintiff's lot, and counsel for the equitable owner, in the presence of the person who operated the equitable owner's business, indicated that it could not.43 u. At settlement, in the same context, Defendant inquired as to whether he would be able to put a fence up and was told by counsel for the equitable owner that, subject to township approval, he could.44 v. Defendant completed the settlement with the understanding that no such easement existed.45 42 N.T. 87-88 (Oct. 7, 2002). 43 N.T. 19-20, 89, 97-99 (Oct. 7, 2002). The attorney felt that his response was directed to the issue of a prescriptive easement, but this technical legal distinction was understandably not the impression received by Defendant or his counsel. N.T. 19-20, 29, 98, 110-12, 114-15 (Oct. 7, 2002). Defendant further testified, credibly in the court's view, that the person who operated the equitable owner's business also assured him that "she did not grant any easements to anyone," in response to his inquiry at settlement. N.T. 89 (Oct. 7, 2002); see N.T. 57 (Oct. 7, 2002). Defendant's understanding at settlement was summarized in the following testimony, which he gave on cross-examination: Q You didn't ask [the counsel] whether the use of the access across Lots No. 2 and Lot No. 3 created an implied easement? A I didn't ask him that way. What he said and his explanation was that Crossgate's office building, Lot No. 1, had access to Carlisle Pike by Crossgate Drive and they did not have a need, they did not have a specific need to go across, there wasn't any necessity to go across there, it was a habit. Q But you knew there was a habit out there? A I knew there was a habit out there and I asked at settlement about putting a fence up. And they said that it was my right to do so or they felt that I had to go to the township, get a permit, but I could do it, there was no restriction to doing that. N.T. 98-99 (Oct. 7, 2002). 44 N.T. 98-99 (Oct. 7, 2002); see N.T. 115 (Oct. 7, 2002). 45 N.T. 19-20 (Oct. 7, 2002). 7 17. In February 2001, Defendant applied for a township building permit to allow him to erect a fence along the northern boundary of Lot 2.46 18. The fence would obstruct the implied easement claimed by Plaintiff.47 19. On May 9, 2001, Plaintiff commenced the present litigation seeking a declaratory judgment affirming the existence of an implied easement for traffic to access the Carlisle Pike from Plaintiff's land across Defendant's lands, and an injunction to prevent erection of the fence.48 20. Plaintiff has shown that title to the property that would benefit from the claimed easement (Lot 1) and to the property that would be burdened by the easement (Lots 2 and 3) has been separated.49 21. Plaintiff has shown that the claimed easement would be convenient and beneficial to the property which the easement would serve (Lot 1).50 22. Plaintiff has not shown that the use represented by the claimed easement was obvious and intended to be a permanent burden upon the servient estate (Lots 2 and 3). DISCUSSION With respect to implied easements, it has been noted by the Pennsylvania Supreme Court that "[t]he law is jealous of a claim to an easement, and the burden is on the party asserting such a claim to prove it clearly." Becket v. Rittenhouse, 297 Pa. 317, 325, 147 A. 51, 53 (1929)(citation omitted). Three things are regarded as essential to create an easement by implication on the severance of the unity of ownership in an estate: First, a separation of the title; second, that, before the separation takes place, the use, which gives rise to the 46 Plaintiff's Complaint, filed May 9, 2001, para. 28; Defendant's Answer and New Matter, filed May 31, 2001, para. 28. 47 Plaintiff's Complaint, filed May 9, 2001, para. 29; Defendant's Answer and New Matter, filed May 31,2001, para. 29. 48 Plaintiff's Complaint, filed May 9, 2001. 49 N.T. 12 (Oct. 7, 2002); Plaintiff's Complaint, filed May 9, 2001, para. 4. 50 N.T. 14-15 (June 4, 2001). 8 easement, shall have been so long continued and so obvious or manifest as to show that it was meant to be permanent; and, third, that the easement shall be necessary to the beneficial enjoyment of the land granted or retained. Id (citation omitted).5~ Implicit within the requirement that the easement have been meant to be permanent is a regard for the intent of the parties to the transaction that generated the purported easement by implication. Thus, the Pennsylvania Superior Court has stated that "an easement by implication can only be found where the intent of the parties is clearly demonstrated by the terms of the grant, the surroundings of the property and other res gestae of the transaction." Mann-Hoffv. Boyer, 413 Pa. Super. 1, 9, 604 A.2d 703, 707 (1992) (citations omitted). In a similar vein, the Pennsylvania Supreme Court has noted that "[t]he effect of the prior use as a circumstance in implying, upon a severance of possession by conveyance, an easement results from an inference as to the intention of the parties." Bucciarelli v. DeLisa, 547 Pa. 431, 436, 691 A.2d 446, 448 (1997) (emphasis added). Among the factors which can be helpful in deriving the parties' intent, actual or implied, are the following: (a) whether the claimant is the conveyor or the conveyee, (b) the terms of the conveyance, (c) the consideration given for it, (d) whether the claim is made against a simultaneous conveyance, (e) the extent of necessity of the easement to the claimant, (f) whether reciprocal benefits result to the conveyor and the conveyee, (g) the manner on which the land was used prior to its conveyance, and 5~ "To these another essential is sometimes added--that the servitude shall be continuous and self-acting, as distinguished from discontinuous and used only from time to time." Becket, 297 Pa. at 325, 147 A. at 53. 9 (h) the extent to which the manner of prior use was or might have been known to the parties. Mann-Hoff, 413 Pa. Super. at 8-9, 604 A.2d at 707; Restatement of Property §476 (1944); see Bucciare//i, 547 Pa. at 436, 691 A.2d at 448. An implied easement, as distinguished from an easement by necessity, need not be absolutely necessary to the use of the dominant estate. Daddona v. Thorpe, 749 A.2d 475, 481 (Pa. Super. Ct. 2000). Commonly, such uses found to constitute implied easements "have so altered the premises as to make them apparent" and occupy "well-defined route[s]" as opposed to non-specific courses over the servient property. See Bucciare//i, 547 Pa. at 437-38, 691 A.2d at 448-49 (citations omitted). In the present case, a number of objective indicia of intent militate against a finding that the implied easement claimed by Plaintiff was meant to constitute a permanent burden upon the servient estate. These include (a) the absence of a visible track or marking upon the ground evidencing the easement, (b) the consequent lack of definition to the course of the easement, (c) the absence of reciprocal benefits from the easement to the land now owned by Defendant, (d) the availability of access from Plaintiff's land to the Carlisle Pike by means other than the easement claimed, (e) the representation in Defendant's agreement of sale that the property he was purchasing would not be subject to such an easement, (f) the absence of any suggestion at settlement on Plaintiff's property that it was served by such an easement over land retained by the common grantor (now owned by Defendant), (g) the unlikelihood that the common grantor as conveyor would have desired such an easement upon retained lands, (h) the conspicuous inclusion in Plaintiff's deed of an easement of access to the Carlisle Pike without reference to the easement of access claimed by Plaintiff,52 (i) the assurance at settlement the s: The expression of an easement (via Crossgate Drive) in the instrument indicates that the common grantor was aware of the method by which an easement serving the property being conveyed could be referenced, and lends some support to the proposition that the grantor did not 10 following day on Defendant's property that his lots were not subject to an access easement in favor of Plaintiff's land, and (j) the absence of any reference to such an easement in the deed provided by the common grantor to Defendant, in conjunction with reference in the same instrument to other easements to which the property was subject. Based upon all of the evidence found credible, it is the view of the court that Plaintiff did not satisfy all the criteria necessary to prove clearly the existence of the implied easement claimed. CONCLUSIONS OF LAW 1. This court has jurisdiction over the parties and subject matter of the case. 2. The implied easement of access to the Carlisle Pike claimed by Plaintiff across lands owned by Defendant has not been demonstrated by the evidence. 3. Plaintiff is not entitled to a declaratory judgment to the effect that such an easement exists nor to an injunction to prevent Defendant from erecting a fence that would interfere with the purported easement. DECREE NISI AND NOW, this 6th day of January, 2003, upon consideration of Plaintiff' s complaint in the above-captioned matter, following a non-jury trial, and for the reasons stated in the accompanying opinion, the court finds in favor of Defendant and against Plaintiff. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. contemplate the subjection of land being retained by the granter to the (unreferenced) easement claimed by Plaintiff. C~.' In re Heath's Estate, 286 Pa. 335, 133 A. 558 (1926). 11 Helen L. Gemmill, Esq. 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 Attorney for Plaintiff William L. Adler, Esq. P.O. Box 11933 Harrisburg, PA 17108 Attorney for Defendant 12 13 KUSIC CAPITAL GROUP, L.L.C., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Vo HARRY F. CHRISTIE, Defendant CIVIL ACTION - EQUITY NO. 01-2813 CIVIL TERM IN RE: ADJUDICATION BEFORE OLER, J. DECREE NISI AND NOW, this day of January, 2003, upon consideration of Plaintiff' s complaint in the above-captioned matter, following a non-jury trial, and for the reasons stated in the accompanying opinion, the court finds in favor of Defendant and against Plaintiff. BY THE COURT, Helen L. Gemmill, Esq. 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108 Attorney for Plaintiff William L. Adler, Esq. P.O. Box 11933 Harrisburg, PA 17108 Attorney for Defendant J. Wesley Oler, Jr., J.