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HomeMy WebLinkAbout98-4410 equityDAVID A. THOMPSON, PLAINTIFF : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA MARTIN L. WELLER and DIANA M. WELLER, his wife, SCOTT A. CALAMAN and MELANIE CALAMAN, his wife, DEFENDANTS 98-4410 EQUITY TERM IN RE: PRELIMINARY INJUNCTION OPINION AND ORDER OF COURT BAYLEY, J., February 3, 1999:-- Plaintiff, David Thompson, is a successor in title from Harold L. Ickes and Barbara A. Ickes of a tract of land on which there is a house in Upper Mifflin Township, Cumberland County. The Ickeses were the successors in title from Frank R. Butler. On July 30, 1977, Butler granted a "Right-Of-Way And Easement" to the Ickeses that was recorded and which provides in pertinent part: Frank R. Butler, the Grantor hereby grants to Harold L. Ickes and Barbara A. Ickes, his wife, the grantees, their heirs and assigns, a right of way and easement to construct, maintain, and replace a drainage system, and grants to the grantees an easement of ingress and egress for the construction, maintenance and repair of the said drainage system Said drainage area commences at a point 700 feet southeast of the graveyard and extending along the northern boundary of the said tract of land some 350 feet and extending into the said tract of land approximately 700 feet as is more fully set forth on the sketch attached to this Right of Way and Easement and incorporated herein. (Emphasis added.) The incorporated sketch, Exhibit A attached, sets out the meets and bounds of the Butler's entire property which is bordered on the north by Mt. Hope Road. The road 98-4410 EQUITY TERM separates the Butler and Ickes properties to the north. The sketch shows the general outline of the drainage easement as it extends from Mt. Hope Road into Butler's property. It does not set out the meets and bounds of the easement. The drainage easement starts at the northern boundary of Butler's property along Mt. Hope Road 700 feet east of a graveyard. The northern boundary of the drainage easement on Butler's property runs 350 feet along Mt. Hope Road. The sketch shows Butler's northern property line running another 545.05 feet to the east of the drainage easement to the northeast corner of his property. Defendants, Martin L. Weller and Diana M. Weller, purchased Butler's property in 1990. In 1998, the Wellers constructed a gravel drive, called Mountain View Lane, south into their property from Middle Road, formerly Mt. Hope Road. The lane leads to a lot that the Wellers rent to defendants, Scott A. Calaman and Melanie Calaman, who live there in a mobile home? In his complaint in equity, plaintiff alleges that the gravel drive crosses over his drainage easement on the Wellers' property. Plaintiff seeks remedies including, inter alia, orders enjoining all defendants from using Mountain View Lane and directing the Wellers to remove Mountain View Lane as it runs over his drainage easement. Ancillary to the complaint, plaintiff filed a motion for a preliminary injunction seeking an order prohibiting defendants from using Mountain 1. The Calamans started to live in their mobile home on the lot before the gravel drive was constructed. Prior to being able to use the drive for ingress and egress to their home they drove over the fields of the Weller property. -2- 98-4410 EQUITY TERM View Lane where it passes over his drainage easement.2 A hearing was conducted on January 13, 1999. A four inch plastic pipe runs underground from the home of plaintiff to his southern property line, then under Middle Road, and then under the Wellers' property. The pipe directs water that collects on Thompson's property and discharges it into his drainage easement on the Wellers' property. The system keeps the basement of Thompson's home from flooding in wet weather. As shown on a survey prepared by Samuel Runyon, a surveyor who testified for defendants, the drainage pipe going under Middle Road from plaintiff's property does not enter the Wellers' property within the 350 feet of the northern boundary of the drainage easement that he depicts as starting 700 feet east at a railroad spike at the northeast corner of the graveyard. The survey shows that the part of Mountain View Lane that the Wellers constructed over the pipe on their land is not within plaintiff's drainage easement. Steven Fisher, a surveyor who testified for plaintiff, could not locate a railroad spike shown on Runyon's survey at the northeast corner of the eastern line of the graveyard as a point 700 feet east of the starting point of the drainage easement. Weller did a survey that shows an area within the graveyard property where there is a fence surrounding graves. The remainder of the graveyard is vacant land. Fisher measured from the eastern fence line of the graves rather than the eastern title lihe of the graveyard to the center line of Mountain View Lane. That distance is 717 feet 2. Pa. Rule of Civil Procedure 1531. -3- 98-4410 EQUITY TERM which puts the center line of Mountain View Lane 17 feet east of the western line of plaintiff's drainage easement, and which means that the Wellers have built Mountain View Lane over the drainpipe at a point within the drainage easement. Accordingly, whether Mountain View Lane is located over the drainage pipe at a point within or without plaintiff's drainage easement on the Wellers' property depends on the starting point of the Right-Of-Way And Easement which was measured in the 1977 document "[alt a point 700 feet southeast of the graveyard.., as is more fully set forth on the sketch attached to this Right of Way and Easement and incorporated herein." We took the testimony of Harold E. Ickes over the objection of defendants that it violated the parol evidence rule. Ickes testified that he negotiated the drainage easement with Frank Butler so that he could drain water from his land into a pipe to keep his basement from flooding. He put in the pipe himself even before he, his wife and Butler signed the Right-Of-Way And Easement agreement. Ickes testified that he measured the starting point of the easement 700 feet east of the fence line in the graveyard, not the title line. Thus, when he constructed his pipe under Butler's property, it was within the drainage easement. After the pipe was in, Ickes' attorney drafted the Right-Of-Way And Easement to which the sketch was attached and which Butler and the Ickeses signed and recorded. A written agreement may not be contradicted by parol unless it is proved by clear, precise and indubitable evidence that a portion of the writing was either omitted or misstated as a result of either fraud, accident or mistake. Gianni v. R. Russell & -4- 98-4410 EQUITY TERM Co., Inc., 281 Pa. 320 (1924). In Wysinski v. Mazzotta, 325 Pa. Super. 128 (1984), the Superior Court of Pennsylvania stated: In the absence of fraud, accident or mistake, the nature and quantity of the real estate interest conveyed must be ascertained from the deed itself and cannot be shown by parol. Covert Appeal, 409 Pa. 290, 295, 186 A.2d 20, 23 (1962); Highland v. Commonwealth, 400 Pa. 261,283, 161 A.2d 390, 402 (1960), cert. denied, 364 U.S. 630, 81 S.Ct. 357, 5 L. Ed.2d 363 (1961); Johns v. Castellucci, 264 Pa. Super. 591, 596, 401 A.2d 753, 755 (1979). When the language of the deed is clear and free from ambiguity, the intent of the parties must be determined from the language of the deed. Teacher v. Kijurna, 365 Pa. 480, 486, 76 A.2d 197, 200 (1950); Detwiler v. Coldren, 311 Pa. 44, 49, 166 A. 374, 375 (1933); South Connellsville Borough, Inc., 47 Pa. Super. 350, 365 (1911). With respect to unambiguous deeds, a court must ascertain what is the meaning of the words used, not what may have been intended by the parties as shown by parol. Covert Appeal, supra, 409 Pa. at 295, 186 A.2d at 23; Highland v. Commonwealth, supra, 400 Pa. at 283, 161 A.2d at 402; Kimmel v. Svonavec, 369 Pa. 292, 295, 85 A.2d 146, 148 (1952); Johns v. Castellucci, supra 264 Pa. Super. at 596, 401 A.2d at 755. To permit a variation of a deed description which is complete and unambiguous on its face, there must be evidence of a mutual mistake which is clear, precise and convincing. Central Transportation, Inc. v. Board of Assessment Appeals, 490 Pa. 486, 494, 417 A.2d 144, 147-148 (1980); In re Estate of Kostelnik, 471 Pa. 94, 99, 369 A.2d 1211, 1213 (1977). If there is mistake which is unilateral and not caused by fault of the other party, but due to the negligence of the one who acted under mistake, there is no basis for relief. McFadden v. American Oil Co., 215 Pa. Super. 44, 53-54, 257 A.2d 283, 288 (1969). In Baker v. Zingelman, 259 Pa. Super. 441 (1978), the Zinglemans sold a part of their property to Baker. Both parties believed that a barn on the property that was being conveyed to Baker cleared the land being retained by the Zingelmans. Four years later, it was discovered that part of the barn remained on the Zinglemans' property. The Zinglemans demanded that Baker remove that part of the barn or -5- 98-4410 EQUITY TERM purchase from them a strip of property that would clear up the location problem of the building. Baker instituted a suit in equity to enjoin the Zinglemans from using the portion of the barn which was shown to be on Baker's deed, and from destroying any part of the barn. The trial court issued the injunction and directed the Zingelmans to convey to Baker the lar~d which would place the entire building on Baker's property in order to effectuate the original intent of the parties in their conveyance. On appeal, the Zinglemans argued that the trial court erred in permitting the use of parol evidence to determine the intent of the parties where the language in the deed was clear on its face. The Superior Court stated: 'It is a general proposition of equity that when a person grants a thing, he intends to grant also that without which the thing cannot be enjoyed. We must assume the parties intended a reasonable result.' The description in the deed book before us was not prepared by a professional engineer, but by appellant .... There very easily could have been a mistake or ambiguity in the deed concerning the description, regardless of the omission of the word 'building.' Where such an ambiguity exists, the surrounding circumstances may be considered to determine the intent of the parties, and the subsequent acts of the parties are important to manifest their intentions. The actions of the parties subsequent to the deed were that the Bakers moved into the farmhouse and operated the antique shop in the barn. They obviously relied on the deed as having conveyed to them their interest in the property and in the buildings .... (Citations omitted.) The Superior Court affirmed the order of the trial court which stated "It]hat the appellant intended to convey sufficient footage to cover the house, barn, and related buildings to her sister and her husband at the time of the original deed in 1971." In a concurring opinion, Judge Speath stated: I submit that the majority treats 'ambiguity' and 'mistake' as -6- 98-4410 EQUITY TERM synonyms. In my view, there was ambiguity because the surveyors had to resort to using landmarks not included in the deed, and mistake because the parties to the deed thought that all buildings were included, but they weren't. On either ground -- ambiguity or mistake -- parol evidence was admissible. We conclude that the testimony of Harold E. Ickes was admissible because there was a mutual mistake as to the point from which the measurement for determining the start of the drainage easement along Mt. Hope Road was depicted in the recorded 1977 Right-Of-Way And Easement. As noted in Baker v. Zingelman, supra, it is a general proposition of equity that when a person grants a thing he intends to grant also that without which the thing cannot be enjoyed. We assume the Butlers and the Ickeses intended a reasonable result which would put the drainpipe within the drainage easement that Butler granted to the Ickeses on his property. The word "graveyard" in the 1977 Right-Of-Way And Easement is not defined and is ambiguous. Does it mean where the graves are located or the entire cemetery property? The incorporated sketch that depicts the "graveyard" and a starting point of the drainage easement as 700 feet east of the title line of the "graveyard" is not a professional survey. The sketch shows the general location of the drainage easement which is described as "700 feet to the south of Mt. Hope Road," but it does not set out the meets and bounds of the easement. Given these facts and because (1) Ickes and Butler had already negotiated the drainage easement on Butler's property before Ickes put in the pipe that extended into Butler's land, (2) the pipe was put in before the Right-Of-Way And Easement was drafted, (3) Ickes used a measurement of 700 -7- 98-4410 EQUITY TERM feet from the fence line of the graves in the graveyard rather than from the title line of the cemetery to determine the starting point of the drainage easement along Mt. Hope Road, and (4) using that measurement resulted in the drainpipe coming onto Butler's property within the area that the parties had negotiated the drainage easement, it is apparent that the recorded Right-Of-Way And Easement does not accurately depict the actual western line of the drainage easement. Based on this evidence, plaintiff has proven by clear, precise and convincing parol evidence that Mountain View Lane crosses over his drainage pipe at a point within his drainage easement and that the location of the easement is misstated in the recorded Right-Of- Way And Easement. In T.W. Phillips Gas and Oil Co. v. Peoples Natural Gas Co., 89 Pa. Commw. 377 (1985), the Commonwealth Court set forth the well-established standards necessary for the issuance of a preliminary injunction: A court may grant a preliminary injunction only where the moving party establishes the following familiar elements: (1) the relief is necessary to prevent immediate and irreparable harm which cannot be compensated by damages; (2) greater injury will occur from refusing the injunction than from granting it; (3) the injunction will restore the parties to the status quo as it existed immediately before the alleged wrongful conduct; (4) the alleged wrong is manifest, and the injunction is reasonably suited to abate it; and (5) the plaintiff's right to relief is clear. (Citation omitted.) A servient owner may make any reasonable use of land encompassed in an easement which does not interfere with the dominant owner's easement. Graham v. Safe Harbor Water Power Corp., 315 Pa. 572 (1934). Plaintiff herein testified that he -8- 98-4410 EQUITY TERM is concerned that the vehicular use of Mountain View Lane will crush his drainage pipe and cause water to back into his basement. He testified that a tenant on the Wellers' property other then the Calamans has been driving heavy trucks over Mountain View Lane. Martin Weller is a contractor, and he testified that the drainage pipe is approximately four feet under the ground that is covered with approximately eight inches of shale and two inches of 2A modified. The lane was completed on July 11, 1998. Some of defendants' fields are used for crops, and before Mountain View Lane was constructed farm machinery was driven on the ground that is above the drainage pipe to get to those fields. Mountain View Lane has not impeded water from being discharged through the drainage pipe onto the land in plaintiff's drainage easement. Due to the limited amount of evidence as to the risk of crushing the drainage pipe from the use of Mountain View Lane, we are not satisfied that plaintiff has shown at this point that he is suffering immediate and irreparable harm.which cannot be compensated in damages without an injunction being issued prohibiting defendants from using the lane where it passes over the drainage easement. Accordingly, we will deny plaintiff's motion for the issuance of a preliminary injunction. Evidence can be presented during the adjudication as to whether the use of Mountain View Lane in its current condition (1) is reasonable, (2) does not and will not interfere with plaintiff's easement, and (3) if it will interfere with the easement what remedies should be -9- 98-4410 EQUITY TERM ordered to abate such interference.3 ORDER OF COURT AND NOW, this ~/~ day of February, 1999, the motion of plaintiff for the issuance of a preliminary injunction, IS DENIED. By the Court, ./ / Edgar B. B,~'~y, J'. Carl C. Risch, Esquire For Plaintiff Steven A. Stine, Esquire For the Wellers Lisa M. Greason, Esquire For the Calamans :saa 3. Now that it has been determined that Mountain View Lane encroaches onto plaintiff's drainage easement, it is not difficult to discern how this matter can and should be resolved by the parties in order to meet the concerns of plaintiff. -10-