HomeMy WebLinkAbout92-0866 CivilEDWARD F. KESSLER,
Plaintiff
v.
ST. PETER'S UPPER FRANKFORD
LUTHERAN CHURCH,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 866 CIVIL 1992
ACTION FOR DECLARATORY JUDGMENT
IN RE: ADJUDICATION
BEFORE OLER J.
ORDER OF COURT
AND NOW, this 261 L day of March, 1993, upon consideration of Plaintiff's
Complaint for declaratory judgment, and following a trial, the Court FINDS in favor
of the Plaintiff and DECLARES the existence of a permanent prescriptive easement,
fourteen feet in width, running diagonally across Defendant's grove lot to its northeast
corner, which lot fronts on Brick Church Road, Upper Frankford Township,
Cumberland County, Pennsylvania, in favor of Plaintiff s contiguous tract, for ingress,
egress and regress, between Plaintiffs tract and Brick Church Road, for agricultural,
Christmas tree and timber, and private recreational use of the northern portion of
Plaintiffs tract, the easement to be exercised in a manner which causes no substantial
and unrepaired harm to the grove, and the user being authorized to vary marginally
the precise path of travel to avoid damage to trees, including roots, in the grove.
BY THE COURT,
J. Wesley Oler, r. J
Edward E. Guido, Esq.
Attorney for Plaintiff
Frances H. Del Duca, Esq.
Attorney for Defendant
: rc
EDWARD F. KESSLER,
Plaintiff
V.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
ST. PETER'S UPPER FRANKFORD
LUTHERAN CHURCH, NO. 866 CIVIL 1992
Defendant ACTION FOR DECLARATORY JUDGMENT
IN RE: ADJUDICATION
BEFORE OLER, J.
OPINION AND ORDER OF COURT
Oler, J.
This case is a declaratory judgment action in which a landowner seeks to
confirm the existence of a permanent easement — express, prescriptive or implied by
necessity — for access to his land across adjoining property. A nonjury trial was held
on December 16,1992, and a transcript of the testimony has been filed. Based upon the
evidence presented at trial, the following Findings of Fact, Discussion and Order of
Court are made and entered:
FINDINGS OF FACT
1. Plaintiff is Edward F. Kessler, an adult individual residing at 155 Clemson
Drive, Carlisle, Cumberland County, Pennsylvania.
2. Defendant is St. Peter's Upper Frankford Lutheran Church, a corporate body
organized in 1871 for religious purposes under the name of "The Evangelical Lutheran
congregation of Upper Frankford and its vicinity,"' and sometimes referred to as an
` The corporation was chartered by this Court on March 21, 1871. Misc. Book 2, Page 187,
Office of the Recorder of Deeds, Cumberland County, Pennsylvania; Defendant's Exhibit 11
(church constitution).
No. 866 CIVIL 1992
unincorporated association,' having a parsonage and church on Brick Church Road,'
Upper Frankford Township, Cumberland County, Pennsylvania.'
3. Plaintiff is the owner of a tract of land on the east side of Brick Church
Road, Upper Frankford Township, Cumberland County, Pennsylvania, containing
about 68 acres.'
4. Plaintiff's tract is the balance of a 70 -acre tract purchased by his parents on
March 31, 1945,8 having been reduced to 68 acres by the parents' conveyance in 1963
of a one -acre parcel, now owned by a third person,' and by their conveyance of a
second one -acre parcel, in 1966, to Defendant church for a parsonage.'
5. Title to the 68 -acre tract of Plaintiff was received by Plaintiff and his spouse
' See, e.g., Defendant's Exhibit 10 (deed from church dated May 3, 1961).
3 Defendant's Exhibit 5.
' Defendant's Exhibit 7; N.T. 14.
5 See Deed dated October 11, 1984, from Edward F. Kessler and Ruth C. Kessler to Edward
F. Kessler, recorded in Deed Book 30X, Page 1019, Office of the Recorder of Deeds in and for
Cumberland County, Pennsylvania; Defendant's Exhibit 7.
6 Plaintiff's Exhibit 2 (deed to parents).
' See Plaintiff's Exhibit 4 (deed containing title reference clause, noting prior conveyance).
This parcel, which was initially conveyed to Plaintiff and Betty A. Kessler, is now owned by
a third person. Id.; N.T. 60-61.
8 Defendant's Exhibit 1; see Plaintiff's Exhibit 4 (deed containing title reference clause,
noting prior conveyance).
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No. 866 CIVIL 1992
in 1977,9 and was placed in Plaintiff's name alone in 1984.10
6. A general description of properties involved herein would provide as follows:
Defendant's church building and cemetery lie on the west side of Brick Church Road;
across the road, on the east side, lie a grove area owned by Defendant, the parsonage,
and the aforesaid parcel of a third person; and behind the grove, parsonage, and
unrelated parcel lies Plaintiffs tract."
9 Plaintiff s Exhibit 4; N.T. 61. The property was bought from Plaintiff's mother, who had
survived his father. Id.
to See Deed dated October 11, 1984, from Edward F. Kessler and Ruth C. Kessler, recorded
in Deed Book 30X, Page 1019, Office of the Recorder of Deeds in and for Cumberland County,
Pennsylvania; Defendant's Exhibit 7; Plaintiff's Complaint, paragraph 3; Defendant's Answer,
paragraph 3.
11 See Defendant's Exhibit 5; N.T. 37. A portion of Plaintiff's tract extends around the
unrelated parcel and fronts on the road. See Defendant's Exhibit 5.
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No. 866 CIVIL 1992
7. A rough drawing of the properties may be rendered as follows:
8. Plaintiff seeks a declaration that one of the following easements of access
exists across Defendant's land in favor of his tract: (a) an easement by express grant
across the grove lot; (b) an easement by prescription across the grove lot; or (c) an
easement implied by necessity across the parsonage lot.
9. Plaintiff's tract has been used for agriculture,'' timber and Christmas
12 N.T. 31-32, 34-35, 38, 56, 80, 93, 102, 111.
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No. 866 CIVIL 1992
trees,19 and recreation14 continuously" since at least 1945,18 when his parents
bought it. 17
10. The northern portion of Plaintiff's tract is divided from the southern portion
by a hilly region, hazardous for farming purposes, 18 and since at least 1945 the
northern portion of the tract has been accessed directly from Brick Church Road by
(a) crossing Defendant's grove lot, 19 and (b), prior to the lot's being donated to the
church by Plaintiffs parents,20 by crossing the (present) parsonage lot.21
11. With specific reference to the grove lot,22 Plaintiff and his parents are
13 N.T. 52, 55, 63-64, 93.
14 N.T. 64, 89, 93.
15 N.T. 33-35, 38, 52-53, 63, 83.
16 N.T. 34, 52, 63.
17 Plaintiff's Exhibit 2. The tract was bought as a farm and contains farm buildings,
including a house. Plaintiff's Exhibits 2, 4; Defendant's Exhibits 5, 7.
18 N.T. 23, 66, 68-69.
19 N.T. 22, 52.
20 N.T. 26-27.
21 N.T. 67.
22 N.T. 18, Plaintiff's Exhibit 1. The church grove is sometimes called the church woods.
N.T. 20; Plaintiff's Exhibit 5.
No. 866 CIVIL 1992
hereby found to have routinely23 used a lane,24 sometimes called a road,25 having
a width of between twelve and sixteen feet 2" running diagonally to the northeast
corner of the lot,27 for vehicular 28 and pedestrian 2' access from Brick Church Road
to Plaintiff's tract, commencing at least in 1945,30 in a manner which avoided
substantial harm to the grove."
12. The use of the lane across the grove lot for the benefit of Plaintiff's tract is
hereby found to have been adverse,32 open, notorious, and continuous and
uninterrupted for a period in excess of 21 years. 13
13. The grove lot can not be classified as unenclosed woodland during the
23 N.T. 38. The lane was used thirty or more times a year. N.T. 63-64.
24 N.T. 19, 44, 47.
25 N.T. 52.
26 N.T. 37, 48.
27 N.T. 27-28, 78. The lane at some point branched off into a second fork, into Plaintiff's
tract, referred to as the "southern fork". N.T. 29, 46, 70.
28 N.T. 56, 62, 64-65.
29 N.T. 64-65.
30 N.T. 27-28, 34, 52-53, 63.
31 N.T. 15.
32 N.T. 71.
33 N.T. 38, 63-65, 73.
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No. 866 CIVIL 1992
prescriptive period, having been encompassed by a fence on three sides34 and Brick
Church Road on the fourth 3' being regularly mowed and adapted for picnics,31 with
tables, 17 and church services and members' meetings," being improved with
structures such as a shed 3' and outhouse,40 containing an area for motor vehicle
parking,"and having a gate for ingress and egress to and from Plaintiff's tract.42
14. Following the donation by Plaintiffs parents of the parsonage lot to the
church, and because of the loss of access to Plaintiff's tract through that lot,43
Defendant's Council passed the following motion on January 3,1967:
It shall be now recorded in the Church Minutes, that a right
of way, through Church Woods be given, for purposes of
access to field behind Woods and Parsonage."
101. 34 N.T. 18, 53, 61. Plaintiff's Exhibit 1. The fence remained well into the 1960's. N.T. 19,
35 N.T. 20, 61, 86-87; Plaintiff's Exhibit 1.
36 N.T. 15, 41, 50,102.
37 N.T. 57.
m N.T. 55, 57.
39 N.T. 15-16, 18, 41-42, 50, 61-62.
40 N.T. 42-43, 50-51, 61-62.
41 N.T. 41, 50, 61,102.
42 N.T. 19-20, 43, 53-54, 81.
43 N.T. 72-73.
44 Plaintiff's Exhibit 5; N.T. 73.
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No. 866 CIVIL 1992
15. Unhappy differences have arisen between Plaintiff and Defendant as to
whether an easement for access, running with the land, exists in favor of Plaintiff's
tract over Defendant's grove lot.
DISCUSSION
Statement of law. "Based upon the legal fiction of a lost grant, the doctrine of
adverse possession has evolved in the law. Under this doctrine, the use and possession
of land of another may ripen into a legal right." Arnick v. Neiswender, 13 Lebanon Co.
L.J. 187,189 (1971). In Pennsylvania, "[i]t is well-settled that a prescriptive easement
is created by (1) adverse, (2) open, (3) notorious, (4) continuous and uninterrupted use
for a period of 21 years." Burkett v. Smyder, 369 Pa. Super. 519, 522, 535 A.2d 671, 673
(1988). "The party asserting a prescriptive easement must demonstrate each element
of such an easement by proof that is clear and positive." Id. However, "[i]n order to
establish continuity, the evidence need not illustrate constant use. Instead, `continuity
is established if the evidence shows a settled course of conduct indicating an attitude
of mind on the part of the user or users that the use is the exercise of a property
right. ii45
"`[Wlhere one uses an easement whenever he sees fit, without asking leave, and
without objection, it is adverse, and an uninterrupted adverse enjoyment for twenty-
one years is a title which cannot be afterwards disputed."' Loudenslager v. Mosteller,
45 Burkett v. Smyder, 369 Pa. Super. 519, 522, 535 A.2d 671, 673 (1988), quoting Minteer V.
Wolfe, 300 Pa. Super. 234, 240, 446 A.2d 316, 319 (1982).
No. 866 CIVIL 1992
453 Pa. 115, 117, 307 A.2d 286, 287 (1973), quoting Garrett v. Jackson, 20 Pa. 331, 335
(1853). The inability to measure the exact width of a path utilized for the prescriptive
period will not defeat the easement so established. Minteer v. Wolfe, 300 Pa. Super.
234, 446 A.2d 316 (1982). And "[a] prescriptive right of way is not invalidated because
of deviations from the original route ... where it appears that such changes were made
by agreement between the owner of the land and the person claiming the right of way,
in apparent recognition of the latter's rights." 48 "Where an easement is acquired by
prescription, the extent of the right is determined by the extent of the prior user."
Hann v. Saylor, 386 Pa. Super. 248, 252, 562 A.2d 891, 893 (1989).
A statute in Pennsylvania precludes the acquisition of a prescriptive easement
across unenclosed woodland. Act of April 25, 1850, P.L. 569, §21, as amended, 68 P.S.
§411 (1992 Supp.). However, "'[t]he character of the land itself is determinative of the
application of the [a]ct ...."' Tomlinson v. Jones, 384 Pa. Super. 176,178, 557 A.2d 1103,
1104 (1989). A contrast is sometimes drawn between land that has been improved and
unenclosed woodland. Trexler v. Lutz, 47 Berks Co. L.J. 107 (1954).
In the present case, Plaintiff has established by clear and positive evidence the
open, hostile, and notorious use of Defendant's property as aforesaid on a routine
basis, for an uninterrupted period in excess of twenty-one years. The land so utilized
can not be classified as unenclosed woodland. For these reasons, a prescriptive
46 Loudenslager v. Mosteller, 453 Pa. 115, 118, 307 A.2d 286, 287 (1973).
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No. 866 CIVIL 1992
easement exists in favor of Plaintiffs tract, limited by the extent of the prior user.47
The following Order will therefore be entered: 48
ORDER OF COURT
AND NOW, this 26CG day of March, 1993, upon consideration of Plaintiffs
Complaint for declaratory judgment, and following a trial, the Court FINDS in favor
of the Plaintiff and DECLARES the existence of a permanent prescriptive easement,
fourteen feet in width, running diagonally across Defendant's grove lot to its northeast
corner, which lot fronts on Brick Church Road, Upper Frankford Township,
Cumberland County, Pennsylvania, in favor of Plaintiffs contiguous tract, for ingress,
egress and regress, between Plaintiffs tract and Brick Church Road, for agricultural,
Christmas tree and timber, and private recreational use of the northern portion of
Plaintiff s tract, the easement to be exercised in a manner which causes no substantial
47 Although Defendant has pled the affirmative defense of laches, such a defense is not of
assistance to it under the present circumstances. First, "it is settled beyond reasonable dispute
that the equitable defense of laches cannot be invoked to deprive a party of his rights at law."
Pennsylvania Turnpike Commission v. Atlantic Richfield Co., 31 Pa. Commw. 212, 215, 375 A.2d
890, 891 (1977) (laches not available as defense in action for accounting brought in law), aff d,
482 Pa. 615, 394 A.2d 491 (1978); cf.. Arnick v. Neiswender, 13 Lebanon Co. N.J. 187 (1971).
Second, "[t]he essence of laches is estoppel ... arising out of inexcusable delay in the bringing
of suit which prejudices the defendant's rights to such an extent that it would be an injustice
to permit suit to be brought." Id. In view of the acknowledgement of a right-of-way by
Defendant's Council in 1967, Plaintiff was justified in believing legal action was unnecessary;
and Defendant has suffered no significant prejudice from any delay in the bringing of suit.
as Because of the Court's disposition of this case, it is unnecessary to determine whether
Plaintiff's alternative theories for relief are meritorious.
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No. 866 CIVIL 1992
and unrepaired harm to the grove, and the user being authorized to vary marginally
the precise path of travel to avoid damage to trees, including roots, in the grove.
Edward E. Guido, Esq.
Attorney for Plaintiff
Frances H. Del Duca, Esq.
Attorney for Defendant
:rc
BY THE COURT,
s/ J. Wesley Oler, Jr
J. Wesley Oler, Jr. J.
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