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HomeMy WebLinkAbout02-3660 CivilEBERLY' S GOD, Plaintiff VS. JAMES TURBAN, Defendant MILL CHURCH OF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-3660 CIVIL CIVIL ACTION - LAW IN RE: ACTION IN EJECTMENT BEFORE HESS. J. OPINION AND ORDER In this case, the plaintiff has filed a complaint in trespass and ejectment to curtail the incursions of the defendant onto land owned by the church. While the dispute between the parties is, for them, a very serious matter and emotions have sometimes run high, there is little disagreement concerning the salient facts. The plaintiff is Eberly's Mill Church of God which owns the church property located at 115 Creek Road, Camp Hill, Cumberland County, Pennsylvania. The plaintiff also holds legal title as trustee, in trust for the East Pennsylvania Conference Church of God, to a residential rental property at 113 Creek Road, which is Lot No. 3 on the plot plan set out on page 3 of this opinion. The church also owns Lot No. 2 depicted on the same diagram. The defendant, James Turban, owns and resides in the residence at 1 Cedar Cliff Drive, Camp Hill, Cumberland County. The residence is located on Lot No. 1. Defendant also owns adjoining Lot No. 3-A. His title is by virtue of a deed from Wayne L. Baer, surviving husband of Mary L. Baer, and son-in-law of the plaintiff' s and defendant's common grantor, Cora E. Hart. This deed was dated May 25, 2000, and is recorded in Cumberland County Recorder of Deeds Book 222, Page 517. Cora E. Hart, by then a widow, lived in the home on the rental 02-3660 CIVIL property when she and her daughter, Mary L. Baer, arranged to have the family's historic dwelling from across Creek Road moved to the east side of the then existing stone driveway. This was for the benefit of Mary L. Baer and her family. By plan ofD. T. Raffensperger dated September 13, 1965, Cora E. Hart subdivided her property to create a flag-shaped lot (Lot No. 1) and Lots 2 and 3 (hereinafter referred to as the rental property) both of which used the stone driveway as depicted on the diagram on page 3. The common stone driveway was the only access to Cedar Cliff Drive. The driveway passed over the property of both Cora and her daughter Mary. By deed dated December 30, 1966, Cora Hart severed Lot No. 1 from her residual property and conveyed it to her daughter, Mary L. Baer. When Cora died in the early 1970s, Mary inherited the newly designated Lot 3-A (now part of the Turban property). On or about June 29, 1994, the then owner (Wayne L. Baer) of the Turban property and the then owners of Lots 2 and 3, the rental property (co-executors of the Estate ofMartha E. Mowery), entered into a right-of-way agreement memorializing their families respective mutual uses of the stone drive and parking area. That agreement granted to owners of the Baer property "the unrestricted right to use the stone drive and parking area as illustrated on the ... survey ... for ingress, egress and regress for all times and purposes in common with each other ... over the existing driveway visible on the ground and extending from the township road to the lands of both .... " From the mid 1960s, following the movement of the house onto Lot No. 1, the Baers had access to the rear of their home along a path which extended to the stone driveway. This pathway went through a lawn area which is on lands retained by Cora Hart. Because of the way that the homes are situated, however, this lawn area appears to the eye to be a portion of the property appurtenant to the residence on Lot No. 1. 2 02-3660 CIVIL The dispute between these parties deals with the striated area of the survey. These portions of land are clearly owned by the plaintiff. Nonetheless, since the summer of 2001, the defendant has usurped this portion of the plaintiff' s property for his own use. At one point, he caused a storage container, a dumpster and a port-a-john to be placed on the plaintiff' s property. These obstructions have since been removed and the plaintiff is not now suffering harm in these regards. Currently, the area in question is landscaped with plants, shrubs and lawn ornaments in something of a rock garden. Ejectment is an action filed by a plaintiff, who does not possess the land but has the right to possess it, against the defendant who has actual possession. Siscos v. Britz, 790 A.2d 1000 (Pa. 2002). At one point, the plaintiff attempted to gain control of the contested square footage by the installation of a large wooden fence. This fence had all the esthetic appeal of a seventeenth century frontier fort.~ Unfortunately, the fence had no gate or other opening across the path leading from the rear of the defendant's house to the parking area. In December of ~ Any advice we would give on matters having to do with landscape architecture is, of course, not binding on either party. Nonetheless, we observe that the rights of both sides can be accommodated without installing a fence 3 02-3660 CIVIL 2001, the defendant's house caught fire. Portions of the fence were dismantled by responding firefighters. During the reconstruction of the defendant's home, the fence was removed so that contractors could have access to the Turban residence. It was after that the defendant began his landscaping on the disputed real estate. This action was filed in the summer of 2002. In their filings with the court, the parties refer to the lawns of the disputed parcels of real estate as the "east lawn." The defendant contends that he has an easement by implication across the east lawn between his house and the parking area. We agree with this contention. He then goes on to assert that he has an easement over the entire east lawn. We disagree with this assertion.2 Easements by implication are clearly recognized in Pennsylvania. As noted in Possessky v. D.M., 655 A.2d 1004, at 1008 (Pa. Super. 1995): In determining whether an easement has been created by implication, Pennsylvania courts have utilized two different tests: the traditional test and the Restatement test. The traditional test has been described as follows: "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 title; second, that, before the separation takes place, the use which gives rise to the 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. To these three, another essential element is sometimes added, - that the servitude shall be continuous and self- resembling the Berlin Wall. Were the parties to permit the defendant to install a fence which was compatible with his property, this might go a long way towards healing the sores which have erupted between these two neighbors. : The defendant does not even attempt to explain how an easement over all of the east lawn translates into his right to turn it into a rock garden. 4 02-3660 CIVIL acting, as distinguished from discontinuous and used only from time to time." Id. [297 Pa. 317] at 345, 147 A. [51] at 53 [1929]. See also Depietro v. Triano~ 167 Pa. Super. 29, 31-32, 74 A.2d 710-11 (1950). Mann-HollY. Boyer, 413 Pa. Super. 1, 8, 604 A.2d 703,706-707 (1992), allocatur denied, 531 Pa. 655, 613 A.2d 560 (1992), citing Owens v. Holzheid, 335 Pa. Super. 231,484 A.2d 107 (1984) (Montemuro, J., dissenting). The Restatement test, which was expressly adopted in Pennsylvania in Thomas v. Deliere, 241 Pa. Super. 1,359 A.2d 398 (1976), "emphasizes a balancing approach, designed to ascertain the actual or implied intention of the parties. No single factor under the Restatement approach is dispositive. Thus, the Restatement approach and the more restrictive tests ... co-exist in Pennsylvania." (citations omitted) Mann-HollY. Boyer, supra, 413 Pa. Super. at 8, 604 A.2d at 707. Section 476 of the Restatement of Property designates the following factors as important in determining whether an easement by implication exists: (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 (h) the extent to which the manner of prior use was or might have been known to the parties. Mann-HollY. Boyer, supra, 413 Pa. Super. at 8-9, 604 A.2d at 707 (1992), citing Owens v. Holzheid, 02-3660 CIVIL 335 Pa. Super. 231,484 A.2d 107 (1984) (Montemuro, J., dissenting). "The extent to which an easement is necessary under the circumstances is a factor heavily weighed in determining whether an easement should be implied." Tomlinson v. dones, 384 Pa. Super. 176, 179, 557 A.2d 1103, 1104(1989). Additionally, when a right is of ancient origin and is too remote to be capable of direct proof"a relaxed burden of proof falls upon one claiming such rights." Owens v. Holzheid, 335 Pa. Super. 231,238, 484 A.2d 107, 111 (1984); Tomlinson v. dones, 384 Pa. Super. 176, 557 A.2d 1103 (1989) In this case, by an agreement filed of record, both owners of the adjoining tracts agreed to rights-of-way over the "existing driveway visible on the ground." Moreover, the right-of-way encompassed use of the driveway as a "parking area." Since the mid 1960s, a walkway extended from the parking area providing access therefrom to the home currently owned by James Turban, the defendant. The use of that walkway as access has continued for almost forty years. The walkway is clearly visible. To prevent the use of the walkway in connection with an easement over the parking area renders the parking area virtually useless. Thus, the easement is clearly necessary. The fact that the defendant enjoys the right to traverse the existing path does not, however, suggest that the parking area is somehow the "gateway" to his property. Such a "gateway" is at the point where the pathway passes onto Lot No. 1. Thus, any disturbance, by the defendant, of the land in Lot No. 3, even surrounding the walkway is a trespass. We will, accordingly, grant the plaintiff a judgment in ejectment. An award of damages (other than nominal damages) for trespass would be improvident at this time. No monetary amounts have been pled or proven with respect to the past or present trespass. While it may well be that the measure of damages is the cost of restoring the lawn to its 6 02-3660 CIVIL condition prior to the defendant's encroachment, it is, as yet, unknown as to whether the defendant will cooperate in or assist with such restoration. The plaintiff may choose to give the defendant the opportunity to remedy the matter to plaintiff' s satisfaction in a manner which is financially advantageous to both parties. As this opinion goes to press, the first snow of the winter is falling. Any order from this court that extensive landscaping work be undertaken by the defendant in the immediate future would be clearly impracticable. We thus leave for another day the amount of a monetary award, if any, against the defendant. The plaintiff seeks counsel fees against the defendant. We will deny this request. It is true that a party may be awarded counsel fees where the conduct of another party "in commencing the matter or otherwise was arbitrary, vexatious, or in bad faith." 42 Pa.C. $.A. 2503. The defendant, of course, did not commence this lawsuit. We agree with the plaintiff that the defendant's conduct, in defending his supposed property rights was at times extreme. Nonetheless, we do not believe that his contention, that he had the right of access to the rear of his home across the east lawn, was arbitrary or made in bad faith. In the meantime, we know of nothing that the defendant has done in the conduct of the litigation which could be described at all as vexatious. The defendant has asserted that the extension of the driveway of Lot No. 3 into the church parking lot somehow constitutes a defense to an action in ejectment with respect to lands of the plaintiff. These are entirely separate matters and we simply do not understand the connection. ORDER AND NOW, this day of December, 2003, it is hereby ordered and decreed that the plaintiff is the undisputed owner of the property located at 113 Creek Road, Camp Hill, 7 02-3660 CIVIL Cumberland County, Pennsylvania, as further described in the deed to Eberly's Mill Church of God and recorded in Deed Book 109, Page 812 in the Cumberland County Recorder of Deeds Office. The defendant is liable to the plaintiff for damages in trespass and ejectment in the amount of $1.00. It is further ordered and directed that the defendant and all future owners of the neighboring property located at 1 Cedar Cliff Drive, Camp Hill, Cumberland County, Pennsylvania: 1. Shall cease using or entering any of the property within the boundaries of the plaintiff' s aforementioned deed except for that property specifically set forth in the Right-of- Way Agreement dated June 29, 1994, as defined on Trial Exhibit F, and with the right of access over a pathway from said right-of-way to the rear of the home on Lot No. 1; and 2. Shall abide by the Right-of-Way Agreement and only use the portion of property set forth in the Right-of-Way Agreement for the specific purposes of ingress, egress, and shall park so as not to obstruct the plaintiff' s use of the right-of-way for ingress, egress and regress. BY THE COURT, Kevin A. Hess, J. 02-3660 CIVIL Karen L. Koenigsberg, Esquire For the Plaintiff Lawrence Abrams, Esquire For the Defendant 9 EBERLY'S MILL CHURCH OF GOD, Plaintiff VS. JAMES TURBAN, Defendant AND NOW, this IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-3660 CIVIL CIVIL ACTION - LAW IN RE: ACTION IN EJECTMENT BEFORE HESS. J. ORDER day of December, 2003, it is hereby ordered and decreed that the plaintiff is the undisputed owner of the property located at 113 Creek Road, Camp Hill, Cumberland County, Pennsylvania, as further described in the deed to Eberly's Mill Church of God and recorded in Deed Book 109, Page 812 in the Cumberland County Recorder of Deeds Office. The defendant is liable to the plaintiff for damages in trespass and ejectment in the amount of $1.00. It is further ordered and directed that the defendant and all future owners of the neighboring property located at 1 Cedar Cliff Drive, Camp Hill, Cumberland County, Pennsylvania: 1. Shall cease using or entering any of the property within the boundaries of the plaintiff' s aforementioned deed except for that property specifically set forth in the Right-of- Way Agreement dated June 29, 1994, as defined on Trial Exhibit F, and with the right of access over a pathway from said right-of-way to the rear of the home on Lot No. 1; and 2. Shall abide by the Right-of-Way Agreement and only use the portion of property set forth in the Right-of-Way Agreement for the specific purposes of ingress, egress, and shall park so as not to obstruct the plaimiff' s use of the right-of-way for ingress, egress and regress. BY THE COURT, Kevin A. Hess, J. Karen L. Koenigsberg, Esquire For the Plaimiff Lawrence Abrams, Esquire For the Defendant