J-A32015-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MARK P. MATTHEWS AND BRENDA IN THE SUPERIOR COURT OF
MATTHEWS, HIS WIFE PENNSYLVANIA
Appellees
v.
GEORGE TESLOVICH, JR.
Appellant No. 54 WDA 2015
Appeal from the Judgment Entered January 7, 2015
In the Court of Common Pleas of Fayette County
Civil Division at No: 2593 of 2011 GD
BEFORE: SHOGAN, OTT, and STABILE, JJ.
DISSENTING MEMORANDUM BY STABILE, J.: FILED MARCH 8, 2016
I respectfully dissent. I believe the Majority’s decision is contrary to
the settled law governing easements in this Commonwealth. Relying upon
PARC Holdings, Inc. v. Killian, 785 A.2d 106 (Pa. Super. 2001), the
Majority impermissibly attempts to use law relevant to express easements to
find an easement by necessity in this case.
The facts and procedural history sub judice are undisputed and
recounted aptly by the Majority. Appellee Brenda Matthews suffered adverse
physical reactions to well water and, as a result, Appellee Brenda and her
husband Appellee Mark Matthews sought public water from Pennsylvania
Water Company. To receive public water, however, Appellees wished to
install a water line along or under Maple Hill Lane, which the parties agree is
a private road. The trial court ultimately concluded Appellees had an
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easement by necessity for ingress and egress over Maple Hill Lane and that
the easement also included a right for installation of utilities.1
As this Court noted in Youst v. Keck’s Food Service, Inc., 94 A.3d
1057 (Pa. Super. 2014), I too am unable to locate and am unaware of any
decision where a court in this Commonwealth has granted an easement by
necessity for anything other than a landlocked property owner’s need for
ingress, egress or regress. Indeed, as we observed in Youst, an easement
by necessity has not been recognized in this Commonwealth “for any other
purpose than for ingress to a piece of land and egress from the piece of
land” and no intervening case has altered that observation. Youst, 94 A.3d
at 1076. The Majority has attempted to borrow logic from PARC Holdings
to find a utility easement by necessity in this case. I find the use of PARC
Holdings and the express easement cases it relies upon to be completely
inapposite given the fundamental difference between express easements and
those by necessity.
An express easement is premised upon an agreement between parties
whereby a property owner is granted a right to use the land of another for a
specific purpose. See generally Clements v. Sannuti, 51 A.2d 697, 698
(Pa. 1947) (citation and emphasis omitted). Generally, to be effective, an
easement must be recorded. Amerikohl Mining Co. v. Peoples Nat. Gas
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1
Appellees’ right to ingress, egress, or regress Maple Hill Lane is not at
dispute here.
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Co., 860 A.2d 547, 549 n.4 (Pa. Super. 2004), appeal denied, 876 A.2d
392 (Pa. 2005). In contrast, an easement by necessity is not based upon an
agreement, but contemplates a situation in which a parcel of land is
landlocked. Phillippi v. Knotter, 748 A.2d 757, 760 (Pa. Super. 2000).
Reliance upon case law that divines the parties’ intentions with respect to
the scope of the rights granted under an express easement has no
application when considering an easement by necessity where no agreement
exists between the parties. An easement by necessity requires no proof of
the parties’ intent. The three fundamental requirements for an easement by
necessity are as follows:
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.
Id. at 760 (citation omitted) (emphasis added).
As is apparent, express easements and easements by necessity are
vastly different. This difference is amplified rather than mitigated by the
decision in PARC Holdings. In PARC Holdings, this Court was asked to
interpret the language of an express easement to determine whether it
encompassed installation of utilities. Id. at 110-11. As with any contract,
the rights conferred by the grant of the express easement had to be
ascertained solely from the language of the deed, provided the deed
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language was unambiguous. Id. (citing Dowgiel v. Reid, 59 A.2d 115 (Pa.
1948); Hutchison v. Sunbeam Coal Corp., 519 A.2d 385 (Pa. 1986)).
This Court however, found the language to be ambiguous in that it did not
specify a limited purpose for the access granted and therefore, we
determined the focal point of inquiry was the intention of the parties who
created the easement. Ultimately, this Court held that the evidence found
credible by the trial court was sufficient to find that the easement agreed to
between the parties permitted an extension of the public road with utilities
to the remaining property. Since utilities already were installed along the
public road, the logical implication was that the parties intended to extend
the utilities along with the road. The decision in PARC Holdings was a
matter of contract interpretation, an irrelevant consideration to determining
if an easement by necessity exists.
I further disagree with the Majority’s attempt to equate our decision in
PARC Holdings to this case based upon the rationale that we are evaluating
the words “ingress and egress” over a road originally referred to as a “public
road” in the conveyance from Beal. Maj. Mem. At 6. The words “ingress
and egress” do not appear anywhere in the 1972 Beal conveyance to the
grantee Rhodes, who subsequently conveyed the property to Appellees in
2007. The reference to a “public road” in the conveyance appears solely to
delineate the boundaries of the property conveyed. Although Maple Hill Lane
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was initially intended to be dedicated as a public road, this never occurred
and it is undisputed the road then and now exists as a private road.2
Without a conveyance providing for ingress and egress, the rationale in
PARC Holdings is of little assistance to resolving the instant appeal. To hold
otherwise, would vastly change our law relating to easements by necessity.
Even were we to assume for the moment that easements by necessity
could be claimed for utilities, Appellees still are not entitled to relief. To
establish an easement by necessity, Appellees have to demonstrate that the
necessity giving rise to the easement existed both “at the time of the
severance of title and at the time of the exercise of the easement.”
Phillippi, supra, see also Possessky v. Diem, 399, 655 A.2d 1004, 1010
(Pa. Super. 1995) (noting that “the necessity must exist at the time of
severance of the land.”) (citation omitted). The Appellees’ property first was
deeded from Beal to Frank and Editha Rhodes in 1972 when Beal began to
subdivide land and severed the subject property from a larger parcel.
Complaint ¶’s 4-5. The Rhodes deeded the property to Appellees in 2007.
The record before us does not indicate that any necessity existed at the time
title was severed in 1972 to create Appellees’ parcel. To claim an easement
by necessity Appellees had to show that the necessity for water existed in
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2
In order for a road to gain public status in a second class township like
South Union Township where the Appellees’ property is located, it first must
be accepted for dedication by the township. See 53 P.S. § 67316.
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1972 and was claimed as of that time. It is undisputed that Appellees were
aware of the lack of public water when they purchased the property in 2007,
some 35 years after the severance in title. The property had well water.
The necessity raised here did not involve a lack of water or access to water
necessary for the use and enjoyment of the property at the time title was
severed in 1972. The necessity claimed is predicated solely on Appellee
Brenda Matthews’ personal reaction to well water in 2010 some three years
after the Appellees acquired the property.3 Appellees’ Complaint, 11/21/11,
at ¶ 3. Since the necessity claimed arises more than 40 years after
severance of title, an easement by necessity cannot be found to exist.
Finally, to the extent Appellant also argues that the trial court abused
its discretion in granting Appellees an easement by implication for utilities, I
agree. It is settled that an easement by implication:
rest[s] upon the principle that, where the owner of two or more
adjacent lots sells a part thereof, he grants by implication to the
grantee all those apparent and visible easements which are
necessary for the reasonable use of the property granted,
which at the time of the grant are used by the owner of the
entirety for the benefit of the part granted.
Sentz v. Crabbs, 630 A.2d 894, 895 (Pa. Super. 1993) (citation omitted)
(emphasis added). Instantly, the record before us is devoid of any evidence
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3
I would note that the grant of an easement by necessity for installation of
a public water line may have an adverse consequence for not only Appellant,
but also neighboring landowners who use well water. Many municipalities in
this Commonwealth have ordinances requiring landowners to connect to a
public water system if their primary residence is located within 150 feet of
the system, regardless of the availability of well water. See 53 P.S. § 67603.
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that Maple Hill Lane ever was ever for any purpose other than ingress,
egress or regress. In my opinion, the trial court likewise abused its
discretion in finding an easement by implication for utilities.
Accordingly, I would reverse the judgment entered in this case.
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