J-A31005-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
REYNOLDS E. JENKINS, JR. AND IN THE SUPERIOR COURT OF
KIMBERLY A. JENKINS, PENNSYLVANIA
Appellees
v.
THOMAS D. GRUVER AND JACQUELINE
K. GRUVER,
Appellants No. 673 MDA 2014
Appeal from the Order Entered March 25, 2014
In the Court of Common Pleas of Schuylkill County
Civil Division at No(s): S-1934-2006
BEFORE: BOWES, OTT, and STABILE, JJ.
MEMORANDUM BY BOWES, J.: FILED DECEMBER 08, 2014
Thomas D. and Jacqueline K. Gruver contest the propriety of the
equity court’s determination that a prescriptive easement owned by
Appellees Reynolds E. and Kimberly A. Jenkins over Appellants’ land is
twenty-two feet wide. We affirm.
The present matter has an extensive procedural history. Appellees
instituted this declaratory judgment action in 2006 against Appellants and
Nicholas Snitzer, seeking a declaration that Appellees enjoyed a prescriptive
easement over property owned by those defendants. The parties are title
holders of adjacent land in West Brunswick Township, Schuylkill County.
Appellees have 16.5 acres of unimproved real estate that they acquired in
1997 from relatives, and the land in question was in Ms. Jenkins’ family
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since 1939. Appellants own a parcel consisting of 2.5 acres that they
purchased in 1999, and, in 2012, while this case was pending, Appellants
bought Mr. Snitzer’s lot.
When they instituted the present lawsuit, Appellees averred that they
acquired a prescriptive easement over a dirt road that traversed the two
parcels now owned by Appellants. Appellees cannot access their acreage
without utilizing the roadway in question. This action was necessitated by
the fact that Appellants prevented Appellees from reaching their property by
installing a chain across the road.
At the first trial in this case, Appellees established the following.
Ms. Jenkins’ grandparents bought Appellees’ 16.5 acre lot in 1939, and it
was used as a Christmas tree and wreath farm that was opened in
approximately 1962 and did not close until the late 1970s. When the land
was utilized commercially, large trucks and machinery would reach it by
using the easement in question, which retained the same size into the
1980s. Ms. Jenkins and her family also used the road from the mid-1960s
until 2002 to access their real estate for recreational purposes. They hiked
and hunted on their acreage and cut firewood for personal use. Appellees’
witnesses reported that no one ever gave them permission, which they
never sought, to use the road. They also established that their use of the
road was actual, continuous, adverse, visible, notorious and hostile from
1962 until 2002. Appellees’ position was that they had acquired an
easement by prescription over the roadway since they and their
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relatives/predecessors in title had continuously used it without permission
from the 1960s to 2002.
After a nonjury trial, the equity court found in favor of Appellants. It
concluded that Appellees had established all the elements of a prescriptive
easement except use without consent and use for the required period of
twenty-one years. The court concluded that Appellees could not tack the
use of the roadway by their predecessors in title/family members to satisfy
the twenty-one-year period required to prove the existence of a prescriptive
easement. It also inferred that the use was permissive based solely upon
the fact that Ms. Jenkins’ family was friendly with the former owners of
Appellants’ land.
On appeal, we reversed. Jenkins v. Gruver, 48 A.3d 490 (Pa.Super.
2012) (unpublished memorandum). We noted that tacking of a prior
owner’s use of a prescriptive easement is allowed under the applicable law
and that the testimony of Appellees’ witnesses was legally sufficient to prove
that the use was non-permissive. We remanded for a determination of the
width of the prescriptive easement.
To comply with our directive, the court conducted a second trial on
December 20, 2013. After hearing testimony, it ruled that Appellees’
easement was twenty-two feet wide. We outline the evidence utilized by the
equity court in making this determination.
Kimberly Jenkins testified that during the time of her use of the
driveway, she traversed the driveway in various vehicles which
ranged from twelve (12), to may be fifteen (15) feet wide.
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Ms. Jenkins stated that it was not tight to get vehicles through
the driveway and you did not have to maneuver around any
rocks or other debris and that there was plenty of room on either
side for maintenance and/or plowing when utilizing driveway
over the course of the prescriptive period. Ms. Jenkins testified
that she was aware that family members of hers used larger
vehicles over the driveway for commercial uses of harvesting
tree branches and Christmas trees. She further testified that the
truck displayed in Plaintiff’s Exhibit 8 was an example of a type
of stake body truck that was regularly used for access on the
driveway during the prescriptive period. Ms. Jenkins noted that
the pictures of the driveway taken in September 2009 do not
look the way the driveway looked throughout the height of the
commercial operation and that in 2009 the driveway was much
narrower and more grown-up than during the prescriptive
period. Reynolds E. Jenkins, Jr. testified that he has been using
the driveway to access the Jenkins’ property since approximately
1984, when he began dating Kimberly A. Jenkins. Mr. Jenkins
testified that when he started using the driveway in 1984, it was
approximately between eighteen (18) and twenty-two (22) feet
wide. Mr. Jenkins testified that at first he used a Nissan car to
access to the property. He further testified that he subsequently
used a pickup truck to go hunting and to cut firewood. Later on
Mr. Jenkins operated a Christmas tree business with his brother-
in-[l]aw and used a stake body truck for ingress and egress over
the driveway. At the time of the tree/wreath business,
Mr. Jenkins believed that the driveway remained eighteen (18)
to twenty-two (22) feet wide and believed so because the stake
body truck could easily get through and there was an ability for
two (2) cars to pass each other on the driveway. Paul Alan
Shealer, Kimberly A. Jenkins' brother, was actively involved in
the tree operations on the Jenkins property. He testified that
the equipment used included a 1978 Chevy Silverado, which was
used from 1979 through the early 1990s at the farm and prior to
the Chevy Silverado, a 1952 Dodge stake body truck was used.
In the Christmas tree operation, an Asplundh chipper was used.
Testimony revealed that this chipper was approximately nine (9)
feet wide and would stick out beyond the wheels of a regular
truck.
Testimony further revealed that a Ford 4000 backhoe and
loader with Caretree 28 inch tree spade on the front was taken
in and out of the property on the driveway and was used on the
property starting between 1978 and 1982, and was about eight
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(8) feet in width, similar to the stake body truck. Also used on
the property was a John Deere tractor, [s]aid tractor was used
from the mid-1960s through the early 1990s and was
approximately seven (7) and eight (8) feet wide. Mr. Shealer
also testified that they used a Ford 6610 with a twelve (12) foot
disc that was purchased in 1982 (disc purchased in 1983 or
1984) which equipment was used throughout the 1980s and 90s
at the property and was accessed through the driveway.
Mr. Shealer testified that he measured the disc, which is the
actual disc that was taken up and down the driveway for use on
the Christmas tree farm and that using a surveyor's pole, the
disc measured eleven (11) feet, six (6) inches to the outside tire,
as depicted in Plaintiffs’ Exhibit 15. Mr. Shealer testified that
when taking the 11 ½ foot disc through the driveway, he had
some room on both sides and no difficulty, except early on when
there was still a bridge instead of the pipe and the disc would
hang off the bridge. He noted that all the equipment shown in
Plaintiffs' Exhibits 8 - 15, he had taken up and down the
driveway for use on the Christmas tree farm. Mr. Shealer stated
that when he was using the driveway for a Christmas tree
operation, using the equipment shown in the pictures, the
driveway was approximately twenty (20) feet wide.
Trial Court Opinion, 3/3/14, at 4-7 (citations to record omitted). Appellees
submitted into evidence various photographs of the actual equipment used
to harvest the Christmas trees, and the photographs were taken on their
land.
The trial court credited Appellees’ proof. It based its ruling “upon the
width at the time the prescriptive period had run, that is approximately
1962-1983.” Id. at 7. In light of the three eyewitnesses’ reports about the
type of vehicles, as confirmed by the pictures, used to traverse the
easement when it was used to access the commercial Christmas tree
operation, as well as the testimony of Mr. Jenkins and Mr. Shealer about its
size during that period, the trial court found that the easement in question
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was twenty-two feet wide. This appeal followed denial of Appellants’ post-
trial motion. On appeal, Appellants raise these issues for our review:
A. Did the Trial Court abuse its discretion in finding that the
prescriptive easement over the Appellants’ driveway is
twenty-two (22) feet wide?
B. Did the Appellees/Plaintiffs meet their burden of proof to
establish that the prescriptive easement was twenty-two
(22') feet wide during the period of the alleged prescription?
C. Did the Trial Court abuse its discretion and/or commit an
error of law [by] failing to allow testimony and the admission
of certified copies of historical aerial maps obtained from the
United States Department of Agriculture and the National
Archives?
Appellants’ brief at 4. Initially, we outline the applicable standard of review:
[W]e have stated that our standard of review of a decree in
equity is particularly limited and that such a decree will not be
disturbed unless it is unsupported by the evidence or
demonstrably capricious. The findings of the chancellor will not
be reversed unless it appears the chancellor clearly abused the
court's discretion or committed an error of law. The test is not
whether we would have reached the same result on the evidence
presented, but whether the chancellor's conclusion can
reasonably be drawn from the evidence.
Mid Penn Bank v. Farhat, 74 A.3d 149, 153 (Pa.Super. 2013) (citation
omitted). As a matter of course, “we are bound by the chancellor's findings
of fact, including findings regarding the credibility of witnesses, because the
chancellor has the opportunity to hear the witnesses and observe their
demeanor on the stand.” Makozy v. Makozy, 874 A.2d 1160, 1168
(Pa.Super. 2005) (citation omitted).
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Next, we observe that the equity court correctly concluded that the
width of the easement was to be ascertained by examining its use when the
prescriptive easement was created. In Hash v. Sofinowski, 487 A.2d 32,
34 (Pa.Super. 1985), we noted that a prescriptive easement is established
“by actual, continuous, adverse, visible, notorious and hostile possession of
the property in question for a period of 21 years.” We continued, “It stands
to reason that the 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.” Id. We specifically held that a
prescriptive easement is set by its location and size that arose during the
prescriptive period. Id. at 36; see also Bodman v. Bodman, 321 A.2d
910, 912 (Pa. 1974) (“Because it is created by adverse use, an easement by
prescription is limited by the use made during the prescriptive period.”).
Appellants present a consolidated position as to their first two claims.
They suggest that there was no competent evidence to support the trial
court’s finding that the easement was twenty-two feet wide. Appellants’
brief at 20. They insist that their proof should have been credited.
Appellants presented pictures of the present size of their driveway, which
varied between eight to twelve feet in width. Additionally, they offered the
testimony of a forester who claimed to know that the width of the 1962-
1984 easement based upon the condition of the trees presently surrounding
it. Appellants invite us to declare that the width of Appellees’ easement is to
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be “set at eight (8’) to twelve (12’) feet, which is the current width of [the]
driveway[.]” Appellants’ brief at 27.
We decline this request to re-weigh the evidence. Appellees presented
three eyewitnesses as to the width of the easement during the prescriptive
period. Two witnesses stated outright that it was approximately twenty feet
in width. Contrary to Appellants’ assertion on appeal, this testimony was not
impermissibly speculative and unreliable. Mr. Shealer and Mr. Jenkins were
permitted to offer estimates about the width of the easement since they
personally observed it during the time the easement arose. Pa.R.E. 701 (a)
(a non-expert can offer testimony in the form of an opinion if the opinion is
“rationally based on the witness’s perception”). Ms. Jenkins confirmed that
two cars could pass each other easily on the roadway in question, which
means that the easement must have been significantly wider than it is
presently. As admitted by Appellants’ own witness, the forestry expert, two
cars could not pass each other on the present driveway.
Additionally, the equity court’s conclusion was not merely premised
upon the estimates proffered by Mr. Shealer and Mr. Jenkins, but also on the
size of the vehicles depicted in the photographs that traversed the
easement. When the land was used as a Christmas tree farm, it was
accessed by commercial vehicles that were well in excess of the present size
of the driveway, which Appellants now insist is the scope of the easement in
question. Additionally, Ms. Jenkins reported that the present width of the
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easement did not reflect its width from 1962 to 1984, and Mr. Gruver
admitted that he was not aware of the use made of the driveway prior to
1999. The equity court was free to accept Appellees’ evidence and reject
that offered by Appellants. Hence, we reject the first and second
contentions raised by Appellants and decline to award them their requested
relief, which is a declaration that their present driveway reflects the contours
of the easement enjoyed by Appellees.
Appellant’s final position is that the equity court erred in failing to
admit into evidence aerial photographs of the area taken by the United
States Department of Agriculture during the time that the easement was
being created. This contention is subject to a well-ensconced standard of
review. “When we review a trial court ruling on admission of evidence, we
must acknowledge that decisions on admissibility are within the sound
discretion of the trial court and will not be overturned absent an abuse of
discretion or misapplication of law.” Phillips v. Lock, 86 A.3d 906, 920
(Pa.Super. 2014) (citation omitted). “An abuse of discretion is not merely
an error of judgment, but if in reaching a conclusion the law is overridden or
misapplied, or the judgment exercised is manifestly unreasonable, or the
result of partiality, prejudice, bias or ill-will, as shown by the evidence or the
record, discretion is abused.” Id.
On appeal, Appellants claim that the photographs were admissible
because they established that the easement did not exist. Specifically,
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Appellants contend that the aerial pictures, which were taken at a great
distance, “showed no evidence of the vast majority of the alleged driveway.”
Appellants’ brief at 24. Appellants note that one “photograph shows the
driveway going in a different direction and does not even depict the vast
majority of [the] driveway[.]” Id. at 25. Appellants continue with the
rhetorical question, “Why, didn’t the certified copy of the 1971 aerial
photograph from the United States Department of Agricultural [sic] no[t]
show the vast majority of the driveway?” Id. They then answer this
question with the declaration, “Because it simply did not exist as claimed by
the Appellees.” Id. Appellants assert that the “aerial photographs would be
evidence to show that the driveway did not exist in its present location
during the alleged period of prescription as alleged by the Plaintiffs and their
witnesses.” Id. at 26.1 In closing, they aver that, “based on the historical
aerial photographs, . . . it is clear that only a small portion of the driveway
that currently exists served as access to [Appellees’] property and therefore
the Superior Court should set the prescriptive easement aside.” Id. at 27.
Based upon these assertions, it is clear that Appellants sought to
introduce the pictures taken by the United States Department of Agriculture
to demonstrate that there was no easement at all and to re-litigate the issue
that was decided adversely to them on direct appeal, where we held that
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1
As noted by Appellees, the aerial photographs were taken at such a
distance that the trees covered certain portions of the road.
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Appellees enjoyed an easement over Appellants’ driveway. That ruling is
now the law of the case and cannot be disturbed. In re Estate of Elkins, 32
A.3d 768, 776 (Pa.Super. 2011). At trial, Appellants impermissibly sought
to use the photographs to establish that there was no easement. The
pictures were inadmissible for that purpose. Hence, we find that the trial
court did not abuse its discretion in refusing to consider those photographs
during its deliberative process.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2014
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