Opinion
J-A32010-17 No. 859 MDA 2017
03-09-2018
ARTHUR R. KRUSEN JR. AND VANESSA KRUSEN Appellants v. PAUL W. WAGNER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment Entered May 2, 2017
In the Court of Common Pleas of Schuylkill County
Civil Division at No(s): S-1378-2013 BEFORE: OTT, J., DUBOW, J., and STRASSBURGER, J. MEMORANDUM BY OTT, J.:
Retired Senior Judge assigned to the Superior Court.
Arthur R. Krusen, Jr., and Vanessa Krusen (Krusens) appeal from the judgment entered May 2, 2017, in the Court of Common Pleas of Schuylkill County, in favor of Paul Wagner and against Krusens on all claims in Krusens' complaint, following a non-jury trial. In the underlying action, Krusens sought to access their landlocked property (the Property) by asserting an easement by necessity, in the alternative, an easement by implication, over a road on Wagner's property. In this appeal, Krusens contend the trial court erred in (1) failing to consider overwhelming, circumstantial evidence that leads to the conclusion that the Property was always accessed by the private road on Wagner's property, (2) concluding that an undisputed, landlocked property does not satisfy the element of "strict necessity" to establish an easement, and (3) concluding that Krusens must prove the specific intent at the time of severance of the Property in 1937. See Krusens' Brief at 4. Based on the following, we affirm on the basis of the trial court's sound opinions.
Krusens' property is bordered on three sides by Wagner's property and on one side by land of Deep Run All Sports Club. See Trial Court Opinion, 11/7/2016, at 6. See also N.T., 10/14/2016, at 36.
The parties are well acquainted with the history of this case and we need not restate it here. By opinion and order of November 7, 2016, the trial court entered judgment in favor of Wagner and against Krusens' on all claims in their complaint. Krusens filed post-trial motions, which the trial court denied by opinion and order of January 18, 2017. Judgment was entered on May 2, 2017, and this appeal followed.
We simply mention that Krusens purchased their landlocked property in 2006. Krusens state in their brief that but for the Pennsylvania Supreme Court's decision in In the Matter of Private Road for the Benefit of O'Reilly , 5 A.3d 246 (Pa. 2010) (holding the opening of a private road must have a public purpose), this matter would have been resolved pursuant to the Private Road Act. See Krusen's Brief at 1, 4.
Krusens timely complied with the trial court's order to file a Pa.R.A.P. 1925(b) concise statement.
Our standard of review of this issue is well-settled:
The trial judge, sitting in equity as a chancellor, is the ultimate fact-finder. The scope of review, therefore, is limited. The final decree will not be disturbed unless the chancellor committed an error of law or abused his or her discretion. The findings of fact made by the trial court will not be disturbed unless they are unsupported by competent evidence or are demonstrably capricious.Daddona v. Thorpe , 749 A.2d 475, 480 (Pa. Super. 2000) (citation omitted).
Relevant to the issues raised in this appeal concerning an easement by necessity and an easement by implication, we observe:
The three fundamental requirements for an easement by necessity to arise are the following:Youst v. Keck's Food Service , Inc., 94 A.3d 1057, 1075 (Pa. Super. 2014) (citations omitted). Furthermore,
1) The titles to the alleged dominant and servient properties must have been held by one person[;]
2) This unity of title must have been severed by a conveyance of one of the tracts[;]
3) The easement must be necessary in order for the owner of the dominant tenement to use his land, with the necessity existing both at the time of the severance of title and at the time of the exercise of the easement.
An easement by necessity is always of strict necessity. An easement by necessity never exists as a mere matter of convenience. . . .
In deciding whether an easement has been created by implication, the Pennsylvania courts have used 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-acting, as distinguished from discontinuous and used only from time to time."
The view expressed in the RESTATEMENT OF PROPERTY § 474 [sic] ... "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."Daddona , supra , 749 A.2d at 481-82 (citations omitted).
The Honorable Jacqueline L. Russell has fully addressed the issues raised by Krusens in this appeal in two thorough opinions. See Trial Court Opinion, 1/18/2017 (finding: (1) Krusens did not present a complete chain of title following what Krusens claimed was the property severance pertinent to their case — namely, when the properties of the predecessors in title of Krusens and Wagner were severed in 1937, (2) Krusens' grantors (Joseph and Kathy Pattay) received the 14.6034 acres (now owned by Krusens) in 1999; however, the location of and access to the land retained by Pattays' grantor in what appeared to be the 1999 severance was never identified and addressed, (3) Reliable testimony established the dirt farm road that Krusens desire to utilize over Wagner's land accessed a public roadway known as Valley Road, but the dirt farm road has a terminus about 500 yards away from Krusens' property line, (4) Reliable proof did not establish that after 1937 any owner of the land now titled in Krusens' names traversed Wagner's land via the farm road without Wagner's consent, (5) To establish an easement by necessity over what Krusens have identified as the servient estate, Krusens were required to prove the easement over that parcel was necessary both at the time of severance of title in 1937 and now, (6) To do so the servient estate must be known, but Krusens never identified the location of that estate, (7) Wagner owns more acreage than the parcel involved in the 1937 severance and the evidence did not address whether access to the public roadway by traversing the alleged servient property existed at any time; Arthur Krusen testified during cross examination that access does not exist and Krusens do not seek access across it, (8) Moreover, Krusens presented no proof about the necessity of an easement over the servient estate in 1937 by the then-predecessor in title to Krusens, (9) Krusens did not prove prior use by their predecessors in title of any portion of any lands now owned by Wagner to access a public road, and reliable evidence established no prior use; and (10) rejecting the issues raised in post-trial motions on the grounds, inter alia, (a) Krusens did not prove strict necessity because their evidence failed to address whether other possible means of access existed at the time of the 1937 severance or the current time, (b) accepting that in 1937 the farm road on Wagner's property existed in the same location from the public road to the terminus in the farm field as it does today does not establish the roadway ended at Krusens' property line or over any of the alleged servient tract, (c) Krusens failed to establish an easement by implication by failing to prove prior use of the alleged easement and did not address multiple factors under the Restatement of Property test for an implied easement). See also Trial Court Opinion, 11/7/2016 (issued following the non-jury trial).
In essence, the trial court found Krusens failed to prove by a preponderance of the evidence that they were entitled to the specific relief requested.
Based on our review, we find no error of law or abuse of discretion by the trial court. Furthermore, in light of the trial court's cogent discussions, no further elaboration is warranted by this Court. Accordingly, we affirm, based upon the sound reasoning of the trial court.
In the event of further proceedings, the parties are directed to attach Judge Russell's opinions of January 18, 2017, and November 7, 2016, to this memorandum. --------
Judgment affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 03/09/2018
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