Opinion
J. A25042/15 No. 1014 EDA 2015
11-04-2015
J&D BROTHERS, INC., Appellant v. WALTER J. FINNEGAN, DIANE G. FINNEGAN, OSCAR J. CRIST, DOROTHY G. CRIST, WILLIAM SIMON, CAROLYN SIMON, STEVEN SCHNEIDER, CHERYL S. SCHNEIDER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order March 13, 2015
In the Court of Common Pleas of Lehigh County
Civil Division No(s).: 2013-C-0310
BEFORE: PANELLA, MUNDY, and FITZGERALD, JJ. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Appellant, J&D Brothers, Inc., appeals from the order entered in the Lehigh County Court of Common Pleas providing, inter alia, that it, its agents and/or its lessees, have the right to unobstructed use of Beacon Road for any purpose related to the communications tower on Appellant's property an unlimited number of times only on two days per month. Appellant contends the trial court erred in limiting its unobstructed use of the prescriptive easement to two days per month. We reverse and remand.
We note that Beacon Road is a private road traversing residential properties owned by Appellees. Appellees Walter J. Finnegan, Diane G. Finnegan, Oscar J. Crist, and Dorothy Crist did not file briefs.
We adopt the trial court's findings of fact. Trial Ct. Op., 11/6/14, at 2-5. Appellant filed a declaratory judgment action to determine whether an easement existed with regard to Beacon Road. A non-jury trial was held on July 15, 2014. The trial court entered judgment on November 6, 2014, finding, inter alia, that Appellant possesses a prescriptive easement over Beacon Road as it transverses over Appellees' properties. Judgment, 11/6/14, at 1. The court found that Appellant "as owner of the dominant estate, has the right to unobstructed use of Beacon Road for any purpose related to the communications tower on [Appellant's] property or for recreational activity up to two times per month." Id. at 1-2 (unpaginated). Appellant filed post trial motions on November 17, 2014. Appellees filed post trial motions on December 12, 2014. The trial court entered a clarification order on March 13, 2015 which provided that Appellant had unobstructed and unlimited use of Beacon Road for the purposes of maintaining the road, for a reasonable amount of time for recreational use, and for two days per month for any purpose related to the communications tower. Clarification Order, 3/13/15. This timely appeal followed. Appellant was not ordered to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.
We note that the majority of the facts pertinent to the instant appeal are not contested.
Appellant raises the following issue for our review:
The trial court erred when it limited Appellants, its agents' and/or its lessees' unobstructed use of the subject easement to an unlimited number of times two days per month for any purpose related to the communications tower located on Appellant's property.Appellant's Brief at 4.
Appellant argues the trial courts clarification order significantly changed the frequency of use of Beacon Road during the prescriptive period. During the prescriptive period there were no restrictions on the use of Beacon Road. Appellant avers that although the trial court found that the communications tower provides emergency cellular services, cellular and telephone services, its limitation on access to make repairs could have catastrophic consequences. Appellant contends "such limited access during another Hurricane such as that which occurred in 2012, would cripple [Appellant] and its lessee from performing mandated repairs or maintenance . . . ." Id. at 26. Appellant argues that it "has not requested an expansion of its easement, but has always demanded the status quo, to insure that anything necessary with the communications tower may be addressed when and as needed consistent with its prior use over a period more than 21 years." Id. at 31. Appellant claims that the limitations imposed on the prescriptive easement may result in violations of the law with regard to the communications tower.
Our review is governed by the following principles:
Our scope of review is limited. We are bound by findings of fact which are supported by the record, but not the trial court's conclusions of law. We must have due regard for the trial court's superior vantage and its prerogatives to access credibility and to believe all, part, or none of the evidence presented. Finally, we may not reverse absent a clear abuse of discretion or an error of law.Waltimyer v. Smith , 556 A.2d 912, 913 (Pa. Super. 1989).
An easement or right-of-way by prescription arises by adverse, open, continuous, notorious, and uninterrupted use of the land for twenty-one years. The scope of the use during the prescriptive period determines the scope of the easement or right-of-way obtained, except with respect to a reasonable evolution of the use which is not unduly burdensome.Id. at 913-14 (citations omitted).
"A prescriptive easement, once acquired, may not be restricted unreasonably by the possessor of the land subject to the easement." Soderberg v. Weisel , 687 A.2d 839, 842 (Pa. Super. 1997) (citations omitted). Furthermore,
[w]e have recognized that "the degree of use of a prescriptive easement may increase in certain circumstances to accommodate the normal evolution of the dominant tenement where reasonable[.]" [(quoting Hash v. Sofinowski , 487 A.2d 32, 36 (Pa. Super. 1985).]. Nevertheless, "[t]he extent of an easement created by prescription is fixed by the use through which it was created." Id. at 34 (quoting Restatement of Property § 477 (1944)). Consequently, expansion of such use and
the extent to which it may be treated as "normal evolution," is necessarily limited. See id. at 34 ("[T]he scope of such an easement must necessarily be a function of the continued, adverse use by which it was generated and is thus limited to that of the prescriptive period."). As recognized by the Restatement, to determine whether a particular use is permissible under a prescriptive easement "a comparison must be made between such use and the use by which the easement was created with respect to (a) their physical character, (b) their purpose, (c) the relative burden caused by them upon the servient tenement." Id. at 35 (quoting Restatement of Property § 478).McGavitt v. Guttman Realty Co., 909 A.2d 1, 4-5 (Pa. Super. 2006).
Section 478 of the Restatement of Property provides:
In ascertaining whether a particular use is permissible under an easement created by prescription a comparison must be made between such use and the use by which the easement was created with respect to
Restatement (First) of Property § 478 (1944). The comment provides, in pertinent part:(a) their physical character,
(b) their purpose,
(c) the relative burden caused by them upon the servient tenement.
d. Increase in burden. The asserted use may so greatly increase the burden upon the servient tenement that on that ground a conclusion that the use is not permissible may be reached. A prescriptive interest presupposes an assertion of privilege by the person whose adverse use created it and a failure on the part of the owner of the servient tenement to interrupt the use. An increase in the burden on the servient tenement beyond that caused by the adverse use by which an easement was created is an undue increase if it is such an increase as, it may reasonably be assumed, would have provoked an interruption in the adverse use had the increase occurred during the prescriptive period. It is an increase such that its tolerance is not implicit in the tolerance of the adverse use by which the easement was created.Restatement (First) of Property § 478 cmt. d (1944) (emphasis added).
The McGavitt Court did not find the proposed use to which the appellant would put the easement to be a normal evolution of the use established during the prescriptive period. Id. at 5. The easement was used during the prescriptive period was "limited to ingress and egress by a single family and use consistent with the family's occupancy of their own land." Id. This Court held: "The burden imposed upon the access road by motor vehicles going to and from a single family residence is not comparable in any material sense to that of heavy trucks making dozens of deliveries every day, loading coal or other cargo onto waiting barges." Id. Unlike McGavitt , in the instant case, during the prescriptive period, the property was always used for commercial purposes. AT&T was not limited in its access to Appellant's property via Beacon Road during the prescriptive period.
Instantly, the trial court opined: "The testimony during this trial established that [Appellant], and its lessee, have been using Beacon Road in excess of twenty-one years in order to access [Appellant's] property, and, specifically, the communications tower located on that property for maintenance and repair of the tower. The degree to which Beacon Road has been used by [Appellant] and AT&T for that purpose is two times per month." Trial Ct. Op. at 12. The trial court concluded that [Appellant] is entitled to unobstructed access over . . . Beacon Road for the purposes of attending the matters related to the communications tower . . . two times per month." Id. We find limited relief is due.
In the case at bar, Judy Daddona testified at trial regarding the use made of Beacon Road during the prescriptive period. Following zoning approval, at the end of 1990, construction of the tower was completed in November of 1991. N.T., 7/15/14, at 29. Appellant's tenant was a subsidiary of AT&T, suppliers of telephone service, cellular service and emergency services. Id. at 29-30. As the owner of the property, she stated she had occasion where she needed to access the property. Id. at 30. She never had any problems or difficulties from anyone getting ingress or egress to the property. Id. She was never blocked or stopped from gaining access to the property. Id. at 31. Since January of 1992, AT&T had been able to use Beacon Road for ingress and egress to access the communications tower. Id. at 31. Last year, Appellee, Mr. Simon, approached an agent of AT&T and told him to leave the property. Id. at 33.
Agents of AT&T were required to use Beacon Road to access the property after a change in the law 2009. Following Hurricane Sandy, "they had to upgrade towers to meet new standards for wind shear." Id. at 34. Ms. Daddona testified that AT&T's lease provided for "ingress and egress seven days a week on a 24-hour basis by foot or motor vehicle, including trucks." Id. at 71-72.
On cross-examination, she testified that
generally a vehicle goes in only twice a month. But then you are aware that we just had that whole modification that required AT&T to go in more than twice a month; and then we had emergency—Hurricane Sandy that required
emergency work to be done. But, generally, yes, they may go up there only twice a month.Id. at 92.
The notes of testimony from the hearing on the emergency motion for preliminary and/or special injunction were submitted as an exhibit at trial. Id. at 176-77. Ms. Daddona testified at the hearing on the emergency motion that the communications tower is used for "cell service, for emergency communications, 911 and for—I believe they have their back-up long distance AT&T land line back upon the tower as well." N.T., 6/21/13, at 10. AT&T is responsible "for maintaining, inspecting and keeping the tower in compliance with all laws[.]" Id. Beacon Road is the only access to the tower. Id.
The trial court found that Appellant leased the communications tower to AT&T since December of 1991 and that Beacon Road was the only access road to the property. We find the trial court abused its discretion in entering an order which restricted the use of the prescriptive easement to two days per month in light of its finding that Appellant leased the communications tower to AT&T for telephone, cellular and emergency communications services. See Smith , 556 A.2d at 913-14. The prescriptive easement had been used for modification of the communications tower, following Hurricane Sandy, and for emergency repairs. See id.; accord McGavitt , 909 A.2d at 4-5. AT&T had not been limited in its access to the property via Beacon Road during the prescriptive period. See id.; accord McGavitt , 909 A.2d at 4-5. Denying access to the prescriptive easement for emergency repairs and to effect changes to comply with the law would be unreasonable. See Weisel , 687 A.2d at 842. We reverse and remand for the entry of an order consistent with this memorandum.
Order reversed. Case remanded. Jurisdiction relinquished.
Judge Mundy joins the memorandum.
Judge Panella notes dissent. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/4/2015
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