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HomeMy WebLinkAbout90-3591 civilGEORGE S. MILLER and MILDRED E. MILLER, his wife and LARRY L. MILLER PLAINTIFFS RIC L. Po3-rEIGER and KATHLEEN GELINAS-RICE, DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 90-3591 IN RE: ADJUDICATION AND DECREE NlSl BAYLEY, J., May 19, 1999:-- On April 17, 1981, defendant Ric L. Potteiger purchased a 8.167 acre lot at the bottom of the North Mountain in North Middleton Township, Cumberland County. His deed describes the land as Lot No. 2 on a subdivision plan for Alan G. Davis and Jeffrey L. Davis dated May 15, 1979, and recorded in the office of the Record of Deeds of Cumberland County at Plan Book 36, Page 141. On September 26, 1988, Ric L. Potteiger deeded his property into a joint tenancy with the right of survivorship with defendant Kathleen Gelinas-Rice. Defendants live in a house on the property. On April 4, 1987, plaintiffs, George S. Miller, Mildred E. Miller'~and Larry L. Miller, purchased two tracts of mountain land in North Middleton Township. Tract I is 192.7 acres and Tract II is approximately 13 acres. Plaintiffs' land borders defendants' property to the north and continues toward the top of the North Mountain at the Cumberland County-Perry County line. Longs Gap Road is a public road designated by North Middleton Township as T-494. Part of the road runs north from the Enola Road, Pa. 944, for 4,366 paved feet to a point just beyond Clara Road which is to the south of defendants' property. The 90-3591 road then continues north but is unpaved. As shown on Exhibits "A" and "B" attached, when Longs Gap Road, which is designated a public road on both plaintiffs' and defendants' deeds, reaches defendants' land, the center line forms the western boundary line of their land for 350.26 feet along the land of Ronald Shughart which is Lot No. 1 of the Davis' subdivision plan. The road then runs for a short way through other Shughart property and the property of J. Lehman Bear to plaintiffs' property at a point just north of defendants' northern property line. The boundary calls for plaintiffs' property are in the middle of Longs Gap Road as the road continues along their land to the top of the North Mountain. Longs Gap Road then goes down the mountain in Perry County until it reaches Pole Cat Road. The current condition of Longs Gap Road along plaintiffs' property is very rough in the manner of a typical logging road. In October, 1990, plaintiffs brought excavating equipment to their property in order to improve the road enough to get equipment in to timber a portion of their property. Defendants prevented the passage of the equipment on Longs Gap Road where it borders their propertY/. Plaintiffs filed a complaint against defendants on October 15, 1990, to quiet title by requiring defendants to bring an action in ejectment or to be forever barred from depriving plaintiffs of their rights of ingress and egress to and from their property. Plaintiffs obtained a default judgment on November 15, 1990. In the summer of 1991, defendants built a metal fence across Longs Gap Road which they chained and locked. The fence denies access to plaintiffs to get to their property on Longs Gap -2- 90-3591 Road? The default judgment that had been entered on November 15, 1990, was stricken for procedural reasons by an order supported by a written opinion on January 3, 1992.2 Plaintiffs filed this amended complaint in equity on September 10, 1992. An adjudication was conducted on April 26, 1999. Plaintiffs seek a decree (1) directing defendants to remove the metal gate they constructed over Longs Gap Road, (2) allowing plaintiffs and their designees unimpeded access to their property on Longs Gap Road, and (3) awarding damages. FINDINGS OF FACT 1. What became Longs Gap Road was opened by an order of court in 1772 when it was called Forty Shillings Gap Road. The name came from a man who was found dead on the North Mountain with forty shillings in his pocket. 2. Plaintiffs' title goes back through seven owners to a warrant to John McCauley dated March 10, 1774. Plaintiffs' land constitutes approximately one-half of that warrant. 3. All of the deeds into plaintiffs' predecessors in title set the'"boundary in the middle of Longs Gap Road. In many of the deeds, Longs Gap Road is described as a public road. 4. Every deed of all of the other property owners along Longs Gap Road on 1. Defendant, Ric L. Potteiger, testified that the fence was constructed "[b]ecause its my private property and I can keep people from going up through there." 2. 42 Cumberland L.J. 62 (1992). -3- 90-3591 both the Cumberland County and Perry County side of the North Mountain refers to In many of the deeds, Longs Gap Road is described as a public Longs Gap Road. road. road. 5. Extensive historical data and maps refer to the Longs Gap Road as a public 6. Longs Gap Road from the top of the North Mountain at the Cumberland- Perry County line as it extends down the mountain in Perry County to Pole Cat Road is a public road. 7. On August 12, 1933, the three supervisors of North Middleton Township, a second class township, swore to a certification to the Pennsylvania Department of Highways: We, the Board of Supervisors of North Middleton Township, Cumberland County, do hereby certify that the information herein given, and on the attached statements, is true and correct to the best of our knowledge and belief, and that we have examined the attached map and declare that the map as returned shows all the township roads under our jurisdiction, and that all of these roads have been established by court order, or have been used for public travel for 'a period of at least twenty-one (21) years and have been maintained and kept in repair by the expenditure of township funds. (Emphasis added.) The road map attached to the certification shows Longs Gap Road running from the top of the North Mountain at the Cumberland-Perry line south to the Enola Road and beyond. 8. On February 21, 1984, after defendant Ric L. Potteiger bought his land and before plaintiffs bought their land, North Middleton Township Ordinance No. 84-5 was -4- 90-3591 enacted after advertising and notice required by law. The title to the ordinance is: AN ORDINANCE VACATING A PORTION OF LONGS GAP ROAD (T- 494), SAID PORTION BEING LOCATED NORTH OF THE INTERSECTION OF LONGS GAP ROAD (T-494) AND ENOLA ROAD (L.R.-21001), BEING 914 FEET IN LENGTH AND HAVING A RIGHT- OF-WAY WIDTH OF 60 FEET. (Emphasis added.) Section 1 of the ordinance titled "LONGS GAP ROAD-PORTION VACATED" stated: That Longs Gap Road (T-494), extending from a point, said point being four thousand three hundred sixty-six (4,366) feet from the intersection of the Enola Road (L.R.-21001) and Longs Gap Road (T- 494), in a northernly [sic] direction nine hundred fourteen (914) feet to a point, said point being at the end of Longs Gap Road, said portion of Longs Gap Road varying in width, but having a sixty (60) foot right-of- way, be vacated as a public road or roadway and that the right, title and interest of North Middleton Township therein is hereby devested [sic]. 9. On April 30, 1992, defendants filed in the office of the Recorder of Deeds of Cumberland County a certified copy of North Middleton Township Ordinance No. 84-5, and a document that states: 1. The applicants are Ric L. Potteiger and Kathleen Gelinas-Rice the titled owners of Lot 2, Plan Book 36, page 141 recorded in Deed Book "P", Vol. 29, page 20 and Deed Book "O", Vol. 33, page 885. See attached portion of subdivision plan. ' 2. On February 21, 1984, North Middleton Township enacted Ordinance No. 84-5 which vacated a portion of Longs Gap Road (T- 494). A certified copy of the ordinance is attached hereto. 3. We submit this application to the county for recording and verify herein that we now own to the center of the road once known as Longs Gap Road as shown in the subdivision cited above and attached hereto. DISCUSSION ACCESS In Southeastern Pennsylvania Transportation Authority v. Pennsylvania -5- 90-3591 Public Utility Commission, 95 Pa. Commw. 341 (1986), the Commonwealth Court of Pennsylvania stated: There are three methods to establish the existence of a township road as a public one: The first is the introduction of court records showing the road to have been opened under the Act of June 13, 1836, P.L. 551, 36 P.S. §1781 et seq. The second is provided in the Second Class Township Code of May 1, 1933, P.L. 103, §1105, 53 P.S. §66105, setting forth the circumstances under which there arises a conclusion or presumption that a road is public. The third is by prescription, requiring uniform, adverse, continuous use of the road under claim of right by the public for twenty-one years. Stewart v. Watkins, 427 Pa. 557, 558-559, 235 A.2d 604, 605 (1967). The Act of May 1, 1933, P.L. 103, § 1105, 53 P.S. § 66105, which is one method to establish the existence of a township road as a public one, has been redesignated in Purdons Pennsylvania Statutes Annotated from 53 P.S. Section 66105 to 53 P.S. Section 67307. Titled "Certain roads declared public roads," the Act provides: Every road which has been used for public travel and maintained and kept in repair by the township for a period of at least twenty-one years is a public road having a right-of-way of thirty-thr~e feet even though there is no public record of the laying out or dedication for public use of the road. The certification on August 12, 1933, of the three supervisors of North Middleton Township that Longs Gap Road had "[b]een used for public travel for a period of at least twenty-one (21) years and [had] been maintained and kept in repair by the expenditure of township funds" clearly establishes that Longs Gap Road, T- 494, is a public township road. The only portion of the road that has been vacated is -6- 90-3591 the 914 foot section, part of which at the center line constitutes the western boundary of defendants' land along Lot 1 of the Ronald Shughart property to a point twenty-five feet from where defendants' land meets the eastern boundary of other Ronald Shughart property. The northernmost twenty-five feet of Longs Gap Road that constitutes the center line of the western side of defendants' land was not vacated. Thus, plaintiffs have proven that all of Longs Gap Road running from the top of the North Mountain at the Cumberland-Perry line by plaintiffs' land and continuing to the Enola Road by defendants' land, except for the 914 foot section vacated in 1984, is still a North Middleton Township public road.3 Defendants, citing the following statutes, maintain that plaintiffs have lost the right to seek access to their property on the vacated 914 feet of Longs Gap Road. 53 P.S, 1948. Limitation of actions Where any street.., laid out by any person or persons in any village or town plot, or in any plans of lots on lands owned or controlled by such person or persons, shall have been accepted as, or in any manner become, a public highway, and the said street... or any part thereof has been or shall hereafter be dul~ and lawfully vacated as a public highway, and has been or shall hereafter be actually closed upon the ground, any action, at law or equity, by any person, to enforce any right in said street.., so vacated, or easement in the ground embraced within the boundaries of the same, by reason of ownership of, or interest in, any lot or lots in said plan 3. Waggoners Gap Road, which is near Longs Gap Road, is a paved public road that goes over the North Mountain. Although the Longs Gap Road was for a long period well in excess of twenty-one years maintained and kept in repair by the expenditure of Township funds, it has in the area along which it borders plaintiffs' land to the top of the North Mountain been allowed by the Township to deteriorate to today's rough condition. -7- 90-3591 not abutting on the vacated portion of the said street.., shall be brought within one year after the vacation of said street.., as a public highway and the closing of the same upon the ground, and not thereafter... (Emphasis added.) 53 P.S. 1949. Designation of no effect one year after being closed From and after the expiration of a period of one year after the actual closing upon the ground of a street.., or part thereof, vacated as mentioned in the preceding section, without the bringing of any such action as in said act mentioned, the designation of said street.., or part thereof, upon said plan, shall have no force and effect, and all easements in the ground covered by said street.., or part thereof, of every nature and kind whatsoever, and either public or private, as far as the same shall have been vacated and closed as aforesaid, shall cease and determine, except as to such lot or lots which do actually abut upon the vacated and closed portion thereof. (Footnote omitted.) (Emphasis added.) These statutes are not applicable to plaintiffs. First, plaintiffs brought suit against defendants to obtain access to their land boarding the public Longs Gap Road on October 15, 1990, even before the road was closed on the ground by defendants in the summer of 1991. Second, plaintiffs did not take their title pursuant to the Davis' subdivision plan dated May 15, 1979, as did defendants. Thus, plaintiffs' access to their land on the public Longs Gap Road is not dependent on their having purchased their land pursuant to the 1979 subdivision plan filed by the developer of defendants' lot. The limitations on bringing actions set forth in 53 P.S. 1948 and 1949 are only for streets laid out by a developer on a plan of lots which are later vacated. Accordingly, the limitations are not applicable to plaintiffs. The legal issue, therefore, is whether defendants, one of whom purchased their land in 1981 before the 914 foot section of Longs Gap Road was vacated in 1984, -8- 90-3591 and whose land has a boundary at the center line of the public Longs Gap Road, can prevent plaintiffs, whose land is north of defendants' land and whose title as well as their predecessors in title has a boundary at the center line of the public Longs Gap Road, but who purchased their land in 1988 subsequent to the vacation by North Middleton Township of a 914 foot section of Longs Gap Road where it is in part a boundary of defendants' land, can prevent plaintiffs from accessing their land on Longs Gap Road. Stated another way, can defendants whose land and whose predecessors in title border a public road deny access over that road to defendants whose land and whose predecessors in title border the same public road because North Middleton Township vacated a portion of that public road in part where it is a boundary of defendants' land? There are many cases holding that where land borders a street that is laid out on a plan and dedicated and accepted as a public street, and the street is later vacated, the abutting landowners maintain an easement by implication over the street. Rahn v, Hess, 378 Pa. 264 (1954); Beechwood v. Reed, 438 Pa. 178 (1970); Chambersburg Shoe Manufacturing Co. v. Cumberland Valley Railroad Co., 240 Pa. 519 (1913); Ferko v. Spisak, 373 Pa. Super. 303 (1988); Riek v. Binnie, 352 Pa. Super. 246 (1986); McLaughlin v. Cybulski, 192 Pa. Super. 7 (1960). The same can certainly be said of a landowner abutting a public street that was not laid out by a developer on a plan but which street has been in the public domain since 1772. Using the same reasoning as in the aforesaid cases, it would be illogical to conclude -9- 90-3591 that a landowner boarding on a vacated portion of a public street could block access to a landowner boarding on another part of the street that is not vacated. If so, one could never buy land on a public street and be sure that access to the land could not be later blocked if a municipality vacates another portion of the street. In the case sub judice, the easement of plaintiffs to Longs Gap Road is implied because it can be construed by the references to the abutting public road in plaintiffs' and their predecessors' deeds and in defendants' and their predecessors' deeds as well as on the developer's plan setting out defendants' lot. Accordingly, we will enter a decree directing defendants to remove the metal gate they constructed over Longs Gap Road and allowing plaintiffs' access to their property on the road. SCOPE OF THE IMPLIED EASEMENT If plaintiffs' easement was prescriptive by actual, continuous, adverse, visible, notorious and hostile possession its scope would be a function of the continued adverse use by which it was generated and it would be limited to that use generated during the prescriptive period. Hash v. Sofinowski, 337 Pa. Super?451 (1995). In contrast, if plaintiffs' easement was by necessity its scope would be determined by a reasonable necessity standard, i.e., it could be enlarged from its original use in order to meet the reasonable needs of the dominant estate for such an easement, and to vary with the necessity, insofar, however, as the use was consistent with the full reasonable enjoyment of the servient tenement. Graft v. Scanlan, 673 A.2d 1028 (Pa. Commw. 1996). If plaintiffs' easement was an express easement not specifically -10- 90-3591 defined it could be used in any manner that is reasonable. Lease v. Doll, 485 Pa. 615 (1979). In Lease, a reasonable use was held to include vehicular access over an easement serving as an outlet to a public road. Likewise, in the case sub judice, Longs Gap Road provides access to plaintiffs' land, and because plaintiffs' easement in the road is implied its scope includes all reasonable access to their property deeded to them in 1987. Beechwood v. Reed, supra. Legally removing timber from mountain land is a reasonable use of the property. Plaintiffs' access to their property on Longs Gap Road is at a width of 60 feet which was the width vacated in the 914 foot section by North Middleton Township Ordinance No. 84-5. Accordingly, plaintiffs can timber their property by moving the equipment necessary to accomplish that purpose over the entire length of Longs Gap Road at a width of 60 feet, and plaintiffs may improve that part of the road no longer being maintained by North Middleton Township to accommodate their access. DAMAGES Plaintiff, Larry L. Miller, testified that gypsy moth went througli"his land in 1989 causing extensive damage. He entered into a contract with the Jarrett Lumber Company for $23,500 to timber the damaged red oak before it died. Plaintiffs seek damages of $23,500 and $51,000 for what they claim is the lost use and enjoyment of the eastern end of their property containing approximately 50 acres. Plaintiffs have a camper on Tract I1. Plaintiffs calculate these damages by estimating that the value per acre in October, 1990, was $2,000, and then taking six percent of that value for -11- 90-3591 8.5 years. the timber to Jarrett Lumber Company for $23,500. evidence as to what those costs would have been. Plaintiffs would obviously have had costs in preparing their property to sell They have introduced no Before 1991, plaintiffs drove a 4- wheel drive vehicle on Longs Gap Road into their property. They have still been able to walk to their property on Longs Gap Road, and they can drive in on Longs Gap Road, albeit with much more difficulty, from the Perry County side of the North Mountain or on Turkey Foot Road which connects to Tract II from Waggoners Gap Road. Why plaintiffs did not move expeditiously to litigate this case is not in evidence or known to this court. How long the damaged timber remained saleable is not known. Based on all of these circumstances we find that plaintiffs have not proven by a preponderance of the evidence that defendants' wrongful conduct caused them to lose the value of any timber or caused any compensable loss of use and enjoyment of the eastern end of their property. Plaintiffs did pay $225 to the excavator for the equipment that was brought to their property and turned away by defendants. Plaintiffs are entitled to recover that $225. DECREE NISI AND NOW, this ~ OJ~'~day of May, 1999, IT IS DECREED: (1) Defendants, Ric L. Potteiger and Kathleen Gelinas-Rice shall remove the metal gate that they constructed across Longs Gap Road. (2) Defendants are prohibited from impeding access of plaintiffs or their designees to their property on Longs Gap Road. -12- 90-3591 (3) Plaintiffs are awarded damages against defendants in the amount of $225. R. James Reynolds, Jr., Esquire For Plaintiffs Frances Del Duca, Esquire For Defendants :saa -13- .09'999l ~ .oo,ot'.gg N 1056.00' H 79'OO'00' E. ~51.2.5' d' 75.00,00° E ~ BEAR PROPERTY 0EEDBOOK 025-899 point in SHUGHART PROPERTY oEF_OBOOK V25-102 SHU IdlU.EE PROPERTY OEEOBOOK P-32-375 stone heap near a small b/ack oa~ on no~h side of. at. junction of the old road paint in center of rood [. in .r~aJ~r 71~0'00' N 99.00' the rdd COOK.KRUUPE.$HUGH.RT AND 8ARR D£EDBOOK C-52-64 TRACT NO.4 PARC['L3 4- RIC L POTTEIGER/ KATHLEEN GEUNAS-RICE PROPERTY LOT NO. 2. LOT NO-'1 0A~15 sUBOIVlSION pLANBOOK 36-14-1 iBOOK LOT NO 5 EXHIBIT , · . ~ '~ ........ :-: ' ,~',~ ~.-" '. -:, '.~ '~.~..~.,, .... ~..'~ .r...,-..'~,: -,)..-..,.;~-'.~,;~:.~,t~.~.~_~,F¥%T~.,~,~,,~,~:~...~_~l ~..~ '~:;~T~:~ ~:-~.~'~:~'" - ..... .- -- ......... .: ....., ~-~''.--~ .... .~-..~.o.~.' ~,~'~:~.,.. · .'~, ....... :. · ~ .........;--.~.: ,.; -,~....: ....- . ;. , - GE~GE S. MI~ MITRED E. MI~R/ ~RY L MI~R PROPER~ C/L LON~' ~ ~AP ~0AD T-4~4 $~$.$4' IOTATE0 TO C0RRESPON0 WITH ECORO PlAT - RIC L PO'I'FEIGER/ .,,,,~ KATHLEEN GEUNA~RICE ~/ PROPERTY ~/L 6O*DED3¢ATE0 R/W PER PB.36;P;.I4J t t RONALD E/ SHUGHART PROPERTY LOTI2 036. LOTI3 %1 .30' DEOJCATEO R/W L,1NE EXHIBIT CLARA ROAO .SO' J . LEI~MAN BEAR H0rITH MJCInL, ETOH TWP,'CUMBEflLANn C:Gt p ENNS YLVAN,IA COMPOSITE DRAFT SC.ALE: I' - "]551 DATE,. ~--~R-"]"~ Dr'~WN SY: V.1 C MICHAEL C. D'ANGELO, R.S, BURVE'(Ofl~ ,AND ENGINEErTs 714 nfllOOp STREET NEW CUMgERI=AND. PA 17010 TELEPHONE ?17.T14.048g SHEET_..] OF ..J .....