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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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(s): 2593 of 2011 GD
BEFORE: SHOGAN, OTT, and STABILE, JJ.
DISSENTING MEMORANDUM BY SHOGAN, J.: FILED JUNE 28, 2016
After my review of the record, the briefs of the parties, the trial court
opinion, and relevant authority, I discern no abuse of discretion or error of
law in the trial court’s decision to grant an easement by necessity for
utilities. Accordingly, I respectfully dissent.
In this Commonwealth “an easement may be created 1) expressly; 2)
by prescription; 3) by necessity; or 4) by implication.” Phillippi v. Knotter,
748 A.2d 757, 758 (Pa. Super. 2000) (citation omitted). Here, it is
undisputed that the trial court’s order granted an easement by necessity.
An easement by necessity contemplates a situation in which a parcel of land
is landlocked. Id. at 760. “Landlocked” is defined as “surrounded by land,
often with the suggestion that there is little or no way to get in or out
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without crossing the land of another.” Id. (quoting Black’s Law Dictionary
883 (7th edition 1999)). “It is a well-settled principle of law that, in the
event property is conveyed and is so situated that access to it from the
highway cannot be had except by passing over the remaining land of the
grantor, then the grantee is entitled to a way of necessity over the lands of
his grantor.” Phillippi, 748 A.2d at 758 (citation omitted). 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. (citation omitted). An easement by necessity is due to strict necessity,
and it never exists as a mere matter of convenience. Id. (citations
omitted).
In the case at bar, Appellant does not challenge the trial court’s finding
of an easement by necessity for ingress and egress; Appellant’s sole
challenge is to the trial court’s finding of an easement by necessity for
utilities. Appellant’s Brief at 7. There is a dearth of case law on the discrete
issue of easements by necessity for utilities.
However, in PARC Holdings, Inc. v. Killian, 785 A.2d 106 (Pa.
Super. 2001), this Court was faced with a similar scenario. In PARC
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Holdings, the issue was whether an express easement “for ingress and
egress to certain land now owned by Grantor” included an easement for
utilities. Id. at 109. While that case involved an express easement, I
conclude that the decision is instructive. The PARC Holdings Court relied
on Dowgiel v. Reid, 59 A.2d 115 (Pa. 1948), which held that “Pennsylvania
has adopted the rule that where a right of way is granted or reserved
without limit of use, it may be used for any purpose to which the land
accommodated thereby may naturally and reasonably be devoted.” PARC
Holdings, 785 A.2d at 114 (citing Dowgiel, 59 A.2d at 118). This Court in
PARC Holdings reasoned as follows:
The deed reserving the easement in the present case
provided in pertinent part as follows: “a non-exclusive fifty (50)
foot wide right-of-way, with Grantee, their heirs and assigns, for
ingress and egress to certain land now owned by Grantor.” We
find the wording of the reservation as to its purpose ambiguous,
as it generally defines its purpose in terms of providing
mere access to the dominant estate by extension of a
public road. The language does not specify a limited purpose to
the access, such as “for the purpose of maintaining a water
system” or “for pedestrian and vehicular travel only.” Since we
are dealing with the reservation of an easement or right of
way in general terms without a specific statement of purpose,
case law clearly expresses that the focal point of inquiry is the
intention of the parties who created the easement.
Id. at 112 (emphases added). Thus, this Court concluded that the express
easement was ambiguous, and the attendant circumstances weighed in favor
of PARC Holdings’ contention that the easement was reserved for future
land development; the intent was that the easement was not simply for
ingress and egress, but also included the right to install utilities. Id. at 116.
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Here, I recognize that this Court is not assessing an express
easement. However, because we are evaluating the import of the words
“ingress and egress” over a road that was originally referred to as a “public
road” in the deed of conveyance from Beal, and because the survey attached
to the deed depicted a “public road,” the rationale from PARC Holdings
persuades my decision that ingress and egress may include utilities.
Because the road was termed a “public road” without a limit on its usage at
the time of conveyance from Beal in 1972, a reservation was created at that
time for “any purpose to which the land accommodated thereby may
naturally and reasonably be devoted.” PARC Holdings, 785 A.2d at 114
(citing Dowgiel, 59 A.2d at 118). I conclude that an easement for public
water, under the facts of this case, is both necessary and reasonable. In the
absence of contrary binding authority,1 I find no abuse of discretion or error
of law by the trial court in granting Appellees an easement by necessity for
utilities.
1
Other jurisdictions similarly include access to utilities within the meaning of
ingress and egress pursuant to an easement by necessity. See Regan v.
Pomerleau, 107 A.3d 327, 338 (Vt. 2014) (citing Berge v. State, 915 A.2d
189 (Vt. 2006)); Brown v. Miller, 95 P.3d 57 (Id. 2004); Smith v.
Heissinger, 745 N.E.2d 666 (Ill. App. 2001); Morrell v. Rice, 622 A.2d
1156 (Me. 1993); Huggins v. Wright, 774 So.2d 408 (Miss. 2000); and 1
Restatement (Third) of Prop.: Servitudes § 2.15 comment d. (2000)
(observing that “increasing dependence” on access to utilities for reasonable
enjoyment of property supports recognition of easement by necessity).
I am cognizant, however, of contrary holdings as well. See
Albenberg v. Szalay, 774 S.E.2d 730, 735 (Ga. App. 2015) (stating that an
easement for ingress and egress does not include a utility easement, citing
Lanier v. Burnette, 538 S.E.2d 476 (Ga. App. 2000)).
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For the reasons set forth above, I would affirm the judgment entered
in favor of Appellees.
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Matthews, M. v. Teslovich, G.
Combined Opinion