In Re: Petition for Appointment of Board of Viewers for Purpose of Closing Twp. Rd. 444 and/or Compensating Wyoming Land Conservancy, Inc. for the Unlawful Taking of its Property Situate in Windham Twp., Wyoming County, PA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Petition for Appointment of :
Board of Viewers for Purpose of :
Closing Township Road 444 and/or :
Compensating Wyoming Land :
Conservancy, Inc. for the Unlawful :
Taking of its Property Situate in :
Windham Township, Wyoming :
County, Pennsylvania :
:
Appeal of: Wyoming Land : No. 2025 C.D. 2015
Conservancy, Inc. : Argued: September 15, 2016

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
HONORABLE DAN PELLEGRINI, Senior Judge

OPINION BY
SENIOR JUDGE PELLEGRINI FILED: November 15, 2016

Wyoming Land Conservancy, Inc. (WLCI), a for-profit company,
appeals from an order of the Court of Common Pleas of the 44th Judicial District,
Wyoming County Branch (trial court), sustaining the preliminary objections filed
by Windham Township (Township) in response to WLCI’s amended petition for
the appointment of a board of viewers for the purpose of vacating a portion of
Cemetery Road or, in the alternative, compensating WLCI for the unlawful taking
of its property. For the reasons that follow, we affirm.
 I.
WLCI is the record owner of certain parcels of property located in
Windham Township, Wyoming County, Pennsylvania (Property). A portion of
Township Road No. 444, more commonly referred to as Cemetery Road, runs
through WLCI’s Property. Cemetery Road begins at Township Road 443, also
known as Scottsville Road, proceeds in a southwesterly direction for 2.62 miles,
and terminates at an intersection with State Route 4002. Cemetery Road is an
unpaved road which passes through WLCI’s Property for a length of 0.93 miles,
with WLCI’s Property abutting the road on either side.

WLCI filed its initial petition in the trial court on April 23, 2014. An
amended petition (Petition) was filed on July 7, 2014, alleging that the Township
condemned WLCI’s private property without just compensation and without the
benefit of lawful proceedings. The Petition seeks a hearing to determine whether a
condemnation of the Property has occurred, the appointment of a board of viewers
pursuant to Section 502(c) of the Eminent Domain Code, 26 Pa.C.S. § 502(c), to
view the Property for the purpose of closing off and vacating the portion of
Cemetery Road that falls within WLCI’s Property, and an award of just
compensation for the taking of the Property. WLCI did not join other individuals
who owned and occupied property along the portion of Cemetery Road it was
seeking to close to public access.

The Township responded by filing preliminary objections pursuant to
Section 504(d) of the Eminent Domain Code1 asserting that Cemetery Road has

1
26 Pa.C.S. § 504(d). Section 504(d) provides, in pertinent part:
(Footnote continued on next page…)

2
existed on WLCI’s Property for at least 145 years as reflected in numerous historic
maps and the Petition is barred by the statute of limitations and laches; the
Township has maintained Cemetery Road for a period in excess of 21 years and,
therefore, is entitled to continue the use of the road pursuant to Section 2307 of the
Second Class Township Code;2 and the Township is entitled to a prescriptive
easement because Cemetery Road has been used by and open to the public in its
current location in excess of 21 years.

(continued…)

(d) Preliminary Objections.—

(1) Any objection to the appointment of viewers may be
raised by preliminary objections filed within 30 days after receipt
of notice of the appointment of viewers.

(2) Objections to the form of the petition or the
appointment or the qualifications of the viewers in any proceeding
or to the legal sufficiency or factual basis of a petition filed under
section 502(c) (relating to petition for appointment of viewers) are
waived unless included in preliminary objections.

Id. “Preliminary objections are the exclusive method under the Eminent Domain Code of raising
legal and factual objections to a petition for appointment of viewers which alleges a de facto
taking” or compensable injury. German v. City of Philadelphia, 683 A.2d 323, 325 n.5 (Pa.
Cmwlth. 1996) (citing Holmes Protection of Pittsburgh, Inc. v. Port Authority of Allegheny
County, 495 A.2d 630 (Pa. Cmwlth. 1985), appeal denied, 613 A.2d 562 (Pa. 1992)).

2
Act of May 1, 1933, P.L. 103, as amended, 53 P.S. §§ 67307. Section 2307(a)
provides, in pertinent part, that “[e]very road which has been used for public travel and
maintained and kept in repair by the township for a period of at least twenty-one years is a public
road having a right-of-way of thirty-three feet even though there is no public record of the laying
out or dedication for public use of the road.” 53 P.S. § 67307(a).

3
 Following an evidentiary hearing, the trial court issued an order on
September 11, 2015, finding that Cemetery Road in its current configuration is a
public road. Therefore, the trial court sustained the Township’s preliminary
objections and dismissed WLCI’s Petition, with prejudice.3 WLCI appealed4 and
in its 1925(a) opinion, the trial court clarified that the “Township has proven a
prescriptive easement with clear and positive evidence.” (Reproduced Record
(R.R.) at 13).

II.
On appeal, WLCI argues for the first time that the Township is
statutorily foreclosed from acquiring an easement by prescription in Cemetery
Road pursuant to Section 21 of the Act of 1850 (Act)5 because the Property is
unenclosed woodlands. This provision of the Act states:

No right of way shall be hereafter acquired by user,
where such way passes through unenclosed [sic]
woodland; but on clearing such woodland, the owner or
owners thereof shall be at liberty to enclose the same, as
if no such way had been used through the same before
such clearing or enclosure.

3
The trial court also vacated the prior orders of October 20, 2008, and April 23, 2014, in
an ancillary matter filed by WLCI, which had appointed a board of viewers for the Property.

4
Our scope of review is limited to determining whether the trial court committed an error
of law and whether findings are supported by competent evidence. German, 683 A.2d at 326.

5
Act of April 25, 1850, P.L. 569, repealed and reenacted and amended by the Act of
July 1, 1981, P.L. 198, 68 P.S. § 411.

4
68 P.S. § 411. This statute applies equally to private and public prescriptive
easements, Sprankle v. Burns, 675 A.2d 1287, 1289 (Pa. Super. 1996) (citing
Brake v. Crider, 107 Pa. 210 (1884)), and “the character of the land itself, is
determinative of the application of the Act of 1850.” Humberston v. Humbert, 407
A.2d 31, 32 (Pa. Super. 1979). Our Supreme Court has held that “the act [of 1850]
. . . admits of but one meaning, viz. that a right by prescription to a road through
unenclosed woodland cannot be obtained.” Minteer v. Wolfe, 446 A.2d 316, 320-
21 (Pa. Super. 1982) (quoting Kurtz v. Hoke, 33 A. 549, 550 (Pa. 1896)).

There are several reasons that the “unenclosed woodlands” argument
is unavailable or applicable. First as the Township correctly points out the
purported issue of whether the road went through “unenclosed woodlands” was not
mentioned at any point during the proceedings before the trial court. WLCI is not
permitted now to raise the issue for the first time on appeal. See Burkett v. Smyder,
535 A.2d 671, 673-74 (Pa. Super. 1988) (“Clearly, the applicability of 68 P.S. §
411 is a defense that should have been advanced during the pre-trial stage of this
case. By failing to raise the defense at the appropriate phase, Appellants have
effectively waived it for appellate consideration.”) (Citation omitted). Moreover,
the issue is waived because WLCI also failed to raise the issue in its 1925(b)
statement. See Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (holding “any
issues not raised in a Rule 1925(b) statement will be deemed waived”); Lang v.
Department of Transportation, 13 A.3d 1043, 1049 (Pa. Cmwlth. 2011).

Second, even if it had been raised and not waived, the “unenclosed
woodlands” defense is not available because it is inconsistent with the remedies

5
sought. WCLI filed a Petition both to vacate the road and, in the alternative, for
the appointment of viewers to be awarded damages for the taking. In seeking to
vacate the road, that remedy presumes that the road in question is already a public
road. 53 P.S. § 67307 only prohibits the acquiring of a prescriptive easement
through “unenclosed woodlands;” it does not have any application where a public
road already exists. As to that portion of WCLI’s Petition alleging a de facto
taking by seeking the appointment of viewers so that it can be paid for the taking
of the road by the Township, once that Petition is filed, you admit the Township
has already taken the road and the only question is how much you should be paid
for the taking.

Finally, even if it was not waived and was not inconsistent with the
remedies WLCI sought, and if one can get their “head around” the raising of a
defense to one’s own Petition, the “unenclosed woodlands” defense against
someone claiming a public or private prescriptive easement, as an affirmative
defense, was WLCI’s burden to establish that the road was unenclosed woodlands.
Understandably, because the defense was not raised and it was inconsistent with
the remedies it sought, WLCI did not seek to or meet its burden regarding whether
WLCI’s property constitutes woodlands for the purposes of the Act of 1850 or
whether the Property is enclosed or unenclosed earlier than the time period that the
Township claimed it was a public road.

III.
WLCI also argues that the record does not support the trial court’s
finding of sufficient public use upon which to grant a prescriptive easement.

6
According to WLCI, the evidence submitted by the Township does not show that
Cemetery Road was used by the general public uniformly, adversely and
continuously for the statutorily-prescribed period of time. We disagree.

“In order to merit a declaration that a road is public by means of
common law prescription, one must show that the public used the road uniformly,
adversely and continuously under a claim of right for 21 years.” Morgan v.
Richter, 724 A.2d 983, 987 (Pa. Cmwlth. 1999) (citing Stewart v. Watkins, 235
A.2d 604 (Pa. 1967)). Although public use does not mean use by every member of
the community, it is not made out by use of a road merely by those having business
with the establishments to which the road provides access. Southeastern
Pennsylvania Transportation Authority (SEPTA) v. Pennsylvania Public Utility
Commission, 505 A.2d 1046, 1049 (Pa. Cmwlth. 1986). Moreover, “[t]he use must
be by the public in general, as against a limited segment of the public.” Id.
(citation omitted). “[T]he evidence need not show a constant use in order to
establish continuity; rather, continuity is established if the evidence shows a settled
course of conduct indicating an attitude of mind on the part of the user or users that
the use is the exercise of a property right.” Minteer, 446 A.2d at 319 (quoting
Keefer v. Jones, 359 A.2d 735, 737 (Pa. 1976)).

In this case, Robert Doble (Doble) testified as an expert in civil
engineering. Doble conducted an evaluation of the road condition of Cemetery
Road and reviewed the following maps and surveys depicting Cemetery Road: an
1869 historic map which hangs in the Wyoming County Courthouse; a 1912 map
of Windham Township; maps from the Pennsylvania Department of Transportation

7
(PennDOT) dated from 1937 and 2012; and a survey prepared by Milnes
Engineering. Doble testified that the 2012 PennDOT map depicted Cemetery
Road in a virtually identical manner as the 1869 map and, therefore, he opined that
the roads were the same. In addition, Doble testified that he viewed corrugated
metal pipes on Cemetery Road that were deteriorating, leading him to opine that
the pipes had been on the road for more than 21 years.

Chris Donahue (Donahue) testified that he has utilized Cemetery
Road for various purposes since moving to the area 54 years ago, and that he
witnessed his father, a Township supervisor, repairing and maintaining the
roadway. Donahue witnessed the Pennsylvania State Police utilize Cemetery Road
to patrol within the Township. Donahue never asked WLCI for permission to
utilize Cemetery Road.

Reynold Wilson, Jr. (Wilson) owns property on Cemetery Road and is
the President of the Cemetery Road Hunting Club, which owns property abutting
that owned by WLCI. Wilson testified that he has been going to his land and the
hunting club for more than 21 years, he has utilized Cemetery Road for moving
farm equipment, and has witnessed others utilize the road for horseback riding.

Michael Stabinsky (Stabinsky), a Township supervisor and former
trooper with the Pennsylvania State Police, testified that he patrolled Cemetery
Road from the 1980s through the early 2000s. He testified that he regularly travels
the road and that the Township has always maintained the roadway. As Township

8
supervisor, Stabinsky and the roadmaster conferred to plan and execute road
maintenance on Cemetery Road.

Gloria Milliron (Milliron), the Township’s secretary and treasurer
since 1972, testified that she is involved with Township roads as it pertains to
budgeting, keeping minutes as to what roads will be repaired, and occasionally
riding Township roads for inspections. The Township receives allocated funds for
PennDOT-approved roads once a year and such allocation often requires that
PennDOT inspect the roads. Milliron testified that Cemetery Road has been
included in this allocation from PennDOT since the 1930s. Milliron herself has
utilized Cemetery Road since 1961, has never seen it closed to public use, and
testified that the location of the road has not changed.

Finally, Jason Vandermark, a Township supervisor and roadmaster
whose responsibilities include overseeing maintenance of the roads, testified that
the Township conducts winter maintenance on Cemetery Road, has graded the
road, completed brush cutting and filled potholes, and completed all other normal
road maintenance on Cemetery Road.

We agree with the trial court that the Township presented clear and
positive evidence of public use of Cemetery Road to warrant the declaration of a
prescriptive easement. It is well-settled that day-to-day use is not required to
satisfy the elements necessary for creation of a prescriptive easement. Minteer,
446 A.2d at 321 (citing Adshead v. Sprung, 375 A.2d 83, 85 (Pa. Super. 1977)).
The Township’s five witnesses were not all individuals owning property or having

9
business along Cemetery Road, but were representative of the broader population.
The record demonstrates a settled course of conduct among the Township’s
representative witnesses that their use of Cemetery Road was the exercise of a
property right. The witnesses described more than an occasional trespass, and the
public use they testified to was substantial rather than casual. See SEPTA, 505
A.2d at 1049 (citations omitted). Therefore, the trial court’s finding of sufficient
public use to warrant a prescriptive easement is supported by competent evidence.

Accordingly, the order of the trial court is affirmed.

DAN PELLEGRINI, Senior Judge

10
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Petition for Appointment of :
Board of Viewers for Purpose of :
Closing Township Road 444 and/or :
Compensating Wyoming Land :
Conservancy, Inc. for the Unlawful :
Taking of its Property Situate in :
Windham Township, Wyoming :
County, Pennsylvania :
:
Appeal of: Wyoming Land :
Conservancy, Inc. : No. 2025 C.D. 2015

ORDER

AND NOW, this 15th day of November, 2016, it is ordered that the
order of the Court of Common Pleas of the 44th Judicial District, Wyoming County
Branch in the above-captioned matter dated September 11, 2015, is hereby
affirmed.

DAN PELLEGRINI, Senior Judge
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In Re: Petition for Appointment of :
Board of Viewers for Purpose of :
Closing Township Road 444 and/or :
Compensating Wyoming Land :
Conservancy, Inc. for the Unlawful :
Taking of its Property Situate in :
Windham Township, Wyoming :
County, Pennsylvania :
:
Appeal of: Wyoming Land : No. 2025 C.D. 2015
Conservancy, Inc. : Argued: September 15, 2016

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
HONORABLE DAN PELLEGRINI, Senior Judge

DISSENTING OPINION BY
JUDGE McCULLOUGH FILED: November 15, 2016

I respectfully dissent because I do not believe that Windham
Township (Township) can acquire a right of way which is per se prohibited by law.
First, I disagree with the Majority that the Act of 18501 does not have
any application where a public road already exists.2 The Pennsylvania Supreme
Court in Kurtz v. Hoke, 33 A. 549, 550 (Pa. 1896), held that the existence of a

1
Act of April 25, 1850, P.L. 569, repealed and reenacted and amended by the Act of
July 1, 1981, P.L. 198, 68 P.S. §411.

2
We note that the Majority references section 2307 of the Second Class Township Code,
53 P.S. §67307, in its discussion of this issue. However, it seems evident that the Majority is
referencing the Act of 1850.
public road does not foreclose a challenge to a purported easement by prescription.
Similarly, here, Wyoming Land Conservancy, Inc. (WLCI) should not be
precluded from challenging the Township’s authority to utilize Cemetery Road as a
public right of way, especially where a statute explicitly precludes such action by
the Township.
More importantly, as the Majority notes, section 21 of the Act of
1850 provides that:

No right of way shall be hereafter acquired by user,
where such way passes through unenclosed woodland;
but on clearing such woodland, the owner or owners
thereof shall be at liberty to enclose the same, as if no
such way had been used through the same before such
clearing or enclosure.
68 P.S. §411. The Township asserted in its preliminary objections, filed in 2014,
that Cemetery Road existed on the property of WLCI for at least 145 years. Even
accepting this assertion as true, the existence of Cemetery Road can only be
established as far back as 1869, while the Act pre-dates said existence by
approximately nineteen years. The Act explicitly precludes any user from
acquiring a right of way where the same passes through unenclosed woodland.
Contrary to the Majority, the Act does not only prohibit the acquiring of a
“prescriptive easement,” it prohibits a user from acquiring any right of way. (Slip
op. at 6.)
The Courts of this Commonwealth, in interpreting the Act, have
consistently held that a prescriptive easement may not be acquired through
unenclosed woodland. See Kurtz; Tomlinson v. Jones, 557 A.2d 1103, 1105 (Pa.
Super. 1989); Humberston v. Humbert, 407 A.2d 31, 32 (Pa. Super. 1979); Trexler
v. Lutz, 118 A.2d 210, 211 (Pa. Super. 1955). Indeed, in Kurtz, our Supreme Court

PAM - 2
found that the common pleas court erred in instructing a jury that a roadway which
traversed through the plaintiff’s unenclosed woodland for more than twenty-one
years could give rise to a right-of-way by prescription, holding that the unenclosed
woodland statute was “so plain, that it admits of but one meaning, viz: that a right
by prescription to a road through uninclosed [sic] woodland cannot be obtained.”
Kurtz, 33 A. at 550.
Our Supreme Court’s decision in Martin v. Sun Pipe Line Co., 666
A.2d 637 (Pa. 1995), while procedurally distinguishable, is also instructive. In that
case, a landowner in 1930 had granted an easement to Susquehanna Pipe Line
Company (a predecessor in interest to Sun Pipe Line Co.) for the purpose of laying
and maintaining a petroleum pipeline across his property. A controversy arose on
two separate occasions when Sun Pipe Line Co. entered the property without the
knowledge of the current owners, Raymond and Joan Martin, and expanded the
width of the easement. While the Martins alleged no knowledge of the pipeline,
which was underground, Sun Pipe Line Co. asserted that it had maintained a
continuous program of maintenance and repair since the inception of the easement
in 1930.
In 1991, the Martins filed suit alleging that Sun Pipe Line Co.’s right
of way terminated upon the death of the original landowner/grantor. Following
pleadings, the Martins filed a motion for summary judgment claiming that they
were the sole owners of the property and that Sun Pipe Line Co. was statutorily
barred from asserting any right or interest in the property pursuant to section 21 of
the Act.3 Sun Pipe Line Co. filed a cross-motion for summary judgment asserting,

3
In the present case, WLCI filed a petition for appointment of a board of viewers for the
purpose of vacating a portion of Cemetery Road or, alternatively, seeking compensation for the
unlawful taking of its property. WLCI did not address section 21 of the Act in its pleadings.
PAM - 3
inter alia, a prescriptive easement over the property.4 The common pleas court
ultimately granted the Martins’ motion and denied Sun Pipe Line Co.’s motion.
The Superior Court vacated the order of the common pleas court and remanded for
trial on the merits. However, our Supreme Court reversed and reinstated the order
of the common pleas court, holding that the common pleas court properly granted
the Martins’ motion for summary judgment “[b]ecause the acquisition of a
prescriptive easement through ‘unenclosed woodland’ is prohibited by statute.”
Id. at 638 (emphasis added).
Our Supreme Court concluded that no material issue of fact existed
regarding whether Sun Pipe Line Co. had acquired a prescriptive easement over the
property because section 21 of the Act had been consistently interpreted as holding
that “a prescriptive easement may not be acquired through unenclosed woodland.”
Id. at 640 (emphasis added). It is clear that our Supreme Court recognizes an
absolute prohibition to acquiring a prescriptive easement over unenclosed
woodlands.
Nevertheless, the Majority concludes that any assertion regarding the
issue of unenclosed woodlands is waived as it was not raised below. The United
States Supreme Court has weighed in heavily on the issue of waiver regarding
questions that may be taken up and resolved for the first time on appeal where the

The Township filed preliminary objections asserting, inter alia, a prescriptive easement, which
the trial court sustained. WLCI first raised an issue regarding section 21 of the Act in its appeal
to this Court.

4
Sun Pipe Line Co. asserted that the Martins had raised the issue of section 21 of the Act
outside the scope of permissible pleadings, i.e., as new matter in their reply to Sun Pipe Line
Co.’s new matter. However, the Supreme Court noted that Sun Pipe Line Co. failed to raise an
objection at the time of this alleged defect either by preliminary objection, answer, or reply and,
thus, any objection was waived.
PAM - 4
proper resolution is beyond any doubt, Turner v. City of Memphis, 369 U.S. 350
(1962), or where “injustice might otherwise result,” Hormel v. Helvering, 312 U.S.
552, 557 (1941). See also Singleton v. Wolf, 428 U.S. 106 (1976) (reversing
decision of Court of Appeals for the Eighth Circuit that addressed the merits when
the only issue below was standing of the plaintiffs and holding that injustice was
more likely to be caused than avoided by deciding the issue without allowing
parties an opportunity to be heard). In Singleton, the United States Supreme Court
explained the general rule that “a federal appellate court does not consider an issue
not passed upon below,” as to issues raised for the first time on appeal, but the
Court went further to emphasize that:

The matter of what questions may be taken up and
resolved for the first time on appeal is one left primarily
to the discretion of the courts of appeals, to be exercised
on the facts of individual cases. We announce no general
rule. Certainly there are circumstances in which a
federal appellate court is justified in resolving an issue
not passed on below, as where the proper resolution is
beyond any doubt, see Turner v. City of Memphis, 369
U.S. 350 (1962), or where ‘injustice might otherwise
result.’ Hormel v. Helvering, 312 U.S. [552,] 557 . . .
[I]njustice was more likely to be caused than avoided by
deciding the issue without petitioner’s having had an
opportunity to be heard.
Id. at 120-21 (emphasis added).5
In Turner, the Court addressed the constitutionality of certain
Tennessee state statutes requiring segregation in restaurants that was not addressed
below and held the same to be violative of the Fourteenth Amendment to the
United States Constitution. In Hormel, the Court affirmed a decision of the Circuit

5
At the very least, similar to the outcome of Singleton, a remand may be warranted to the
trial court for consideration of the issue of section 21 of the Act.

PAM - 5
Court of Appeals for the Eighth Circuit which had reversed a decision of the Board
of Tax Appeals and relied on a section of the tax code that was not raised below.
The United States Supreme Court in Hormel observed that a “reviewing court
should pass by, without decision, questions which were not urged before the Board
of Tax Appeals,” but further reasoned that “[t]here may always be exceptional
cases or particular circumstances which will prompt a reviewing or appellate court,
where injustice might otherwise result, to consider questions of law which were
neither pressed nor passed upon by the court or administrative agency below.” Id.
at 556-57. The United States Supreme Court explained that:

Rules of practice and procedure are devised to promote
the ends of justice, not to defeat them. A rigid and
undeviating judicially declared practice under which
courts of review would invariably and under all
circumstances decline to consider all questions which had
not previously been specifically urged would be out of
harmony with this policy. Orderly rules of procedure do
not require sacrifice of the rules of fundamental justice.
Id.
Here, the concern is that failure to apply a statutory prohibition to a
right “which cannot be obtained,” Kurtz, 33 A. at 550, results in deprivation of a
fundamental constitutional right,6 and a sacrifice of the rules of fundamental
justice.

6
Article 1, section 1 of the Pennsylvania Constitution guarantees the right of all men to
acquire, possess, and protect property. PA Const. art. 1, §1. This right is further protected by
Fifth and Fourteenth Amendments to the United States Constitution. U.S. Const. amends. V,
XIV. The Fifth Amendment provides that no person shall be deprived of life, liberty, or
property, without due process of law; nor shall private property be taken for public use, without
just compensation. The Fourteenth Amendment makes these protections applicable to the states.

PAM - 6
 For these reasons, I would reverse the order of the Court of Common
Pleas of the 44th Judicial District, Wyoming County Branch and remand to allow
evidence on the matter consistent with this opinion.

________________________________
PATRICIA A. McCULLOUGH, Judge

PAM - 7