Opinion
No. 429 C.D. 2012
10-23-2012
In Re: Modifying and/or Vacating a Private Road in East Earl Township, Pennsylvania, Premier R&G Properties, LP v. William J. Shirk and Catherine A. Shirk, Husband and Wife, and Mark H. Quinn and Christine H. Quinn, Husband and Wife, Appellants
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
William J. and Catherine A. Shirk (the Shirks) and Mark H. and Christine H. Quinn (the Quinns) (collectively Appellants) appeal from the Lancaster County Court of Common Pleas' (trial court) February 15, 2012 order denying Appellants' exceptions and confirming the January 10, 2012 report of the Board of View (Board) in favor of Premier R&G Properties, LP (Premier). Appellants present four issues for this Court's review: (1) whether an express easement exists on the land designated as a court-ordered private road, and if so, whether the express easement deprived the trial court and Board of jurisdiction to move the private road; (2) whether the trial court erred when it adopted the Board's determination that the private road was eligible for modification; (3) whether the trial court erred when it confirmed the Board's report that the private road is inconvenient and burdensome; and (4) whether the modification of the private road ordered by the trial court and the Board would obstruct and modify an express easement and constitute trespass. We affirm.
By November 20, 1863 order, the trial court granted a predecessor in title to the Shirks' 71-acre tract, access to and from that tract to what is now Pennsylvania Route 23 by way of a 16-foot wide private road running north from the Shirks' tract across the westernmost portion of what is now Premier's tract. For a short distance before the terminus at Route 23, the roadway turned northwest, and ran across property now owned by the Quinns, at which point it connected to Route 23. The Board's report, upon which the order was entered, specified that the private road was laid out for the Shirks' predecessor in title, his heirs and assigns for his and their private use. Premier's predecessor was not included as a permitted user.
At some point thereafter, but before 1968, the eastern boundary of the current Quinn property was incorrectly described as the western boundary of the private road, turning with the private road near the terminus, instead of continuing across the private road as it turned. This error in the legal description of what is now the Quinn property created a gap in title for the area of land that extended into the private road.
In October 1968, the Shirks' predecessor in title, Moses and Grace Shirk, and Premier's predecessor in title, Rutt Custom Kitchens, Inc. (Rutt), entered into an agreement (1968 Agreement) pertaining to the private road. The 1968 Agreement provided for the widening of the existing 16-foot private road, described as extending along the western boundary of Premier's property from a point located on the south side of Route 23 to the end of the Shirks' property. The 1968 Agreement incorrectly or mistakenly identified the terminus of the private road as being on Premier's property rather than on the Quinns' property. The area of the terminus mistakenly identified as Premier's property is in the shape of a triangle and extends into Route 23 (hereinafter referred to as the Quinn Triangle).
The language of the 1968 Agreement does not include the term "easement," but instead notes, as referenced in the deeds conveyed to Moses and Grace Shirk, that the Rutt property is subject to the 16-foot right-of-way and states:
AND WHEREAS Rutt and [Moses and Grace] Shirk are now desirous of widening and improving said private road for the use of themselves, their heirs, successors and assigns, to the width of 22 feet from a point located on the south side of State Highway Route No. 23 southwardly for a distance of 130 feet beyond the southern boundary line of the [property owned by Rutt].Reproduced Record (R.R.) at 8a-9a.
NOW THEREFORE the parties hereto intending to be legally bound, hereby, agree each with the other as follows:
1. The existing 16[-]foot wide private road [from the south side of Rt. 23 to the southern boundary line of the Rutt property] . . . shall be widened on the property of Rutt to a width of 22 feet for use by Rutt and [Moses and Grace] Shirk, their heirs, successors and assigns, for ingress and regress with trucks, tractors and motor vehicles to and from Pa. State Highway Route No. 23 to their respective properties.
2. The existing 16[-]foot wide private road [from the southern boundary of the Rutt property extending 130 feet south] . . . shall be widened on the property of [Moses and Grace] Shirk to a width of 22 feet for use by Rutt and Shirk, their heirs, successors and assigns, for ingress and regress with trucks, tractors and motor vehicles to and from Pa. State Highway Route No. 23 to their respective properties.
The 1968 Agreement sets forth the various duties assigned to the parties which included that Rutt would extend and pave the road, remove a cement wall on the Rutt property in front of the entrance to the roadway from Route 23, cut down a dirt bank and remove a barn on the Rutt property. The 1968 Agreement required Moses and Grace Shirk to "be responsible for snow removal so as to keep one lane of traffic open on said private road." R.R. at 10a. Rutt was required to provide any additional snow removal that was necessary. The 1968 Agreement was recorded by the Lancaster County Recorder of Deeds. The roadway was paved and has been in continuous use since that time. It has been the primary means of ingress and egress from Route 23 to the Shirk property.
In October 2006, Premier submitted a land development plan to East Earl Township for the construction of a self-storage facility, and received the necessary approvals. As part of the development process, Premier was required to obtain a Highway Occupancy Permit (HOP) from the Pennsylvania Department of Transportation (PennDOT) in order to access the Premier property from Route 23. Premier attempted to obtain approval to use the existing entrance to the private road, but PennDOT denied the request because the point of access was not on Premier's property, but within the Quinn Triangle. PennDOT ultimately approved a HOP, contingent on the relocation of the terminus of the private road to a location on Premier's property. The relocation of the terminus would require Premier to install a new curb to obstruct the existing access to the private road.
On March 30, 2009, the Shirks instituted an action in the trial court seeking preliminary and permanent injunctive relief. On April 20, 2009, Judge Jeffrey Wright enjoined Premier from modifying the private road and/or easement, denying or limiting the Shirks access to the private road and over the easement, and encroaching over the private road and/or easement, until a final hearing in the case or further trial court order.
On April 23, 2009, Premier filed its Petition to Modify and/or Vacate Private Road with the trial court. On August 31, 2009, the trial court issued an order appointing the Board. On January 10, 2012, the Board issued its report recommending the modification and vacation of a portion of the private road. The Board concluded that because the 1968 Agreement was not entirely an express easement, it could be relocated pursuant to Soderberg v. Weisel, 687 A.2d 839 (Pa. Super. 1997). The Board also concluded that the existing private road was burdensome, so modification was authorized pursuant to Section 18 of the General Road Law. On January 23, 2012, the trial court issued a decree nisi confirming the Board's report. On February 9, 2012, exceptions to the report were filed by the Shirks and the Quinns. By order dated February 15, 2012, the trial court overruled the exceptions and confirmed the Board's report. Appellants appealed to this Court.
Section 18 of the General Road Law, Act of June 13, 1863, P.L. 551, as amended, 36 P.S. § 1981 authorizes a court of common pleas to modify a public or private road if the road has become useless, inconvenient or burdensome.
"Appellate review of a trial court's decision regarding a Board of View[']s . . . [determination] is limited to ascertaining the validity of the court's jurisdiction, the regularity of proceedings, questions of law and whether there has been an abuse of discretion." In re Private Road in E. Rockhill Twp., 645 A.2d 313, 316 n.3 (Pa. Cmwlth. 1994).
Appellants first argue that the 1968 Agreement is an express easement that was intended to and granted and conveyed rights and imposed obligations for the parties, their heirs and assigns that did not exist by virtue of the 1863 order creating the private road. The private road is contained within the boundaries of the express easement. Appellants contend that because the courts do not have authority to order relocation of an express easement without the consent of the parties, the trial court and the Board did not have jurisdiction to direct that the private road be modified. We disagree.
Section 11 of the Private Road Act, authorizes a person to petition the courts for a private road that affords access from the person's land to a highway, subject to a report of viewers. According to Section 12 of the Private Road Act, 36 P.S. § 2732, if the Board finds that the road is necessary, the "court shall direct what breadth the road . . . shall be opened, and the proceedings . . . shall be entered on [the] record . . . and thenceforth such road shall be deemed and taken to be a lawful private road." That was the case in 1863, when the trial court created the private road for the Shirks' predecessors. The Shirks' predecessors, therefore, had the right to use the private road that crossed Premier's property and the Quinn Triangle.
Act of June 13, 1836, P.L. 551, as amended, 36 P.S. § 2731.
The 1968 Agreement to widen the private road does not expressly refer to the document as an easement. However, we recognize that the use of the word "easement" is not necessary to create an easement. See, e.g., Owens v. Holzheid, 484 A.2d 107 (Pa. Super. 1984). To find the existence of an easement, "[t]he agreement must be in writing and must clearly establish the grantor's intent to burden the servient estate." Kapp v. Norfolk S. Ry. Co., 350 F. Supp. 2d 597, 607 (M.D. Pa. 2004). Moreover, "[i]t is well established that the same rules of construction that apply to contracts are applicable in the construction of easement grants." Zettlemoyer v. Transcon. Gas Pipeline Corp., 540 Pa. 337, 344, 657 A.2d 920, 924 (1995).
In interpreting a document purportedly granting an interest in real property, the following rules are to be applied:
(1) the nature and quantity of the interest conveyed must be ascertained from the instrument itself and cannot be orally shown in the absence of fraud, accident or mistake and we seek to ascertain not what the parties may have intended by the language but what is the meaning of the words; (2) effect must be given to all the language of the instrument and no part shall be rejected if it can be given a meaning; (3) if a doubt arises concerning the interpretation of the instrument it will be resolved against the party who prepared it; (4) unless contrary to the plain meaning of the instrument, an interpretation given it by the parties themselves will be favored; (5) to ascertain the intention of the parties, the language of a deed should be interpreted in the light of the subject matter, the apparent object or purpose of the parties and the conditions existing when it was executed.Brookbank v. Benedum-Trees Oil Co., 389 Pa. 151, 157 n.6, 131 A.2d 103, 107 n.6 (1957) (citations and quotation marks omitted). Importantly, "[u]nder Pennsylvania law. . . courts may reform written contracts only when its terms do not reflect the intent of the parties to the contract, including in cases of fraud, accident or mistake." McNaughton Props., LP v. Barr, 981 A.2d 222, 229 (Pa. Super. 2009).
Here, the Board determined that the private road was neither a prescriptive easement nor an express easement. Instead, the rights to the private road constituted a hybrid. It found that the private road came into existence "by authority of law," and not by an "agreement of persons." R.R. at 420a. The Board rejected the contention that the 1968 Agreement had converted the private road to an express easement, finding that the 1968 Agreement did not serve to "alter the basic character of what had indisputably been a private road. Although the width of the passageway changed, its location vis-à-vis the adjoining parcels did not, the persons entitled to make use of it did not, and the projected usage did not." R.R. at 420a.
We conclude that the 1968 Agreement is not an easement. The document does not evidence a clear intent to burden the property. Instead, it appears that the intent was merely to widen the existing private road and memorialize the parties' responsibilities for widening and maintaining the road in a written document. The 1968 Agreement repeatedly references the subject area as the private road created by the 1863 order, and describes the parties' intent to widen that road. As noted by the Board:
[n]o less than 14 times in the body of [the 1968 Agreement] did the parties identify and label the subject strip of land, both in its then format and in its to-be-widened-and-improved status, as the 'private road'. . . . It is abundantly evident that the parties to the 1968 Agreement intended that the strip of land then considered by all of them to be a private road would continue to be just that: a private road.R.R. at 421a. Thus, by its wording, the 1968 Agreement is not an express easement.
Further, given the specific circumstances at the time the 1968 Agreement was executed, it is not reasonable to conclude that the 1968 Agreement was intended to be an easement. First, because the right to use the private road had been previously granted to the Shirks' predecessors by the trial court's 1863 order, there would have been no reason to grant them an easement to allow them to use the private road that they were already permitted to use. As to Rutt's use of the road, if Rutt was unable to use the private road because the 1863 order did not designate it as a permitted user, neither Rutt nor the Shirks' predecessor in title (merely a permitted user of the road) could have granted Rutt an easement to use a court-ordered private road. In the alternative, if Rutt could lawfully use the road, there would have been no need for Rutt to create an easement to allow it to use the road which was on its property. Because the 1968 Agreement does not "clearly establish the grantor's intent to burden the servient estate[,]" we conclude that the 1968 Agreement did not create an easement. Kapp, 350 F. Supp. 2d at 607.
Notwithstanding the above, even if we were to determine that the 1968 Agreement is an express easement, we would hold that the Board still had jurisdiction to recommend modification of a court-created private road. The mere fact that the road is within the bounds of the purported easement does not mean that the road created by the 1863 court order could not be relocated. Simply put, it is the court-created road that is to be relocated, not the alleged express easement. The court-created private road was not extinguished by the 1968 Agreement, as is evidenced by the fact that the Shirks continued to have authority to cross the Quinn Triangle even after the 1968 Agreement was executed. It is the court-ordered private road that continues to provide the Shirks with lawful access to Route 23, not the 1968 Agreement, since that agreement could not authorize travel over the Quinns' property. Thus, even if we had determined that an easement exists, we would hold that it is not being reformed. Instead, the terminus and a portion of the private road are being moved.
Further the moving of the portion of the private road and its terminus, and the curbing of the existing terminus at Route 23 would not interfere with the intended use of the purported easement. While access to Route 23 would be obstructed upon the relocation of the terminus, it is not the proposed road relocation and curbing at Route 23 that would interfere with Appellants' use of the alleged easement. What interferes with the intended use of the supposed easement is the 1968 Agreement itself. Since only the small portion of the terminus at Route 23 not located on the Quinns' property could have been subject to an easement if one were created, the purported easement could not serve its clearly stated intended purpose - access for trucks, tractors and motor vehicles. In other words, the 1968 Agreement alone could not provide the intended access for trucks, tractors and motor vehicles because the area is too small for them to travel. Thus, even if the 1968 Agreement was an express easement, action taken by the Board in modifying the private road would not serve to impair the use of the easement, since rights for that use could not have been conferred by the 1968 Agreement. Accordingly, we conclude that the trial court and the Board properly exercised jurisdiction pursuant to Section 18 of the General Road Law to modify the private road.
The installation of a curb at the terminus of the private road could not interfere with an intended use that is impossible.
Appellants next contend that the trial court erred in confirming the Board's determination that the private road is inconvenient and burdensome. We disagree.
The General Road Law does not define the terms "useless," "inconvenient" or "burdensome," as referenced in Section 18. This Court has stated: "Because the standard is in the disjunctive, only one of the three conditions is needed to justify the vacation. The concepts of 'useless,' 'inconvenient,' or 'burdensome' are not cast in stone; they must necessarily draw their meaning from the facts of a particular case." In re: Vacation of a Portion of Twp. Rd. 308 Located in Leidy Twp., 943 A.2d 372, 375 (Pa. Cmwlth. 2008) (quoting In re Swamp Rd. in Wayne Twp., 859 A.2d 528, 532 (Pa. Cmwlth 2004)).
Here, the Board determined that, even for its current use, the private road is inconvenient and burdensome. The evidence of record established that Premier's predecessor was not a permitted user under the 1863 order. Further, the 1968 Agreement did not and could not effectively grant Premier's predecessor in interest the right to access the Quinns' property, since the Quinns were not party to the Agreement. Consequently, as the Board concluded, Premier's property is effectively land-locked. For this reason, the Board determined that the private road, in its current configuration, is inconvenient and burdensome and the proposed plan would provide both Premier and the Shirks access to Route 23. We discern no error. Accordingly, the trial court properly adopted the Board's determination.
Notably, the relocation of the private road in accordance with the proposed plan would also unencumber the Quinns' property.
Appellants next argue that the trial court erred when it adopted the Board's report because the proposed modification of the private road does not extinguish the express easement or permit its removal, relocation or modification, and that the purported express easement (which includes the private road) cannot be moved without the express consent of the parties. As previously discussed, the 1968 Agreement is not an easement. However, even if it were, the trial court's order and the Board's determination did not modify the 1968 Agreement, but instead modified the private road. Thus, the trial court properly adopted the Board's report.
Finally, Appellants claim that installation of a curb along the terminus to Route 23 would constitute trespass. We disagree.
Pursuant to Section 420(a) of the State Highway Law, the Secretary of the Department of Highways is authorized to control traffic on state highways "by the placement of official traffic control devices, curbs, medians or other physical barriers . . . ." Id. Hence, PennDOT, in regulating traffic on state highways may install a curb in the right-of-way along a state highway. "The Commonwealth's interest in advancing the safety and convenience of the public prevails over [a l]andowner's desire. . . to maintain a preferred configuration of public roadways." Sienkiewicz v. Dep't of Transp., 584 Pa. 270, 283, 883 A.2d 494, 502 (2005). PennDOT's District Permit Manager, Mahzhar Mahlik, testified at the Board hearing that PennDOT controls the right-of-way on Route 23, including the curb area in front of the Quinn property. Accordingly, we conclude that the trial court and the Board did not err.
Act of June 1, 1945, P.L. 1242, as amended, 36 P.S. § 670-420(a). --------
For all the above-stated reasons, the trial court's order is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 23rd day of October, 2012, the Lancaster County Court of Common Pleas' February 15, 2012 order is affirmed.
/s/_________
ANNE E. COVEY, Judge