dissenting.
I dissent. The majority has determined that appellant, the Estate of Frank S. Spickler, has an easement or right of way across a certain strip of land formerly used as a railroad bed and presently owned and used by appellee, the County of Lancaster, as a recreational walking trail. The majority bases this conclusion solely on the provisions of a now repealed statute, the Railroad Act of 1849, which provides in pertinent part:
Whenever in the construction of such road or roads [railroads], it shall be necessary to cross or intersect an established road or way, it shall be the duty of the ... said company, so to construct the said road across such established road or way, as not to impede the passage or transportation of persons or property along the same; and that, for the accommodation of all persons owning or possessing land through which the said railroad may pass, it shall be the duty of such company to make or cause to be made a good and sufficient causeway or causeways, whenever the same may be necessary to enable the occupant or occupants of said lands to cross or pass over the same, with wagons, carts and implements of husbandry, as occasion may require, and the said causeway or causeways, when so made, shall be maintained and kept in good repair by such company ...
Pa.Stat.Ann. tit. 15, § 4101 (Purdon 1967).
The majority reasons that under this section, when the railroad originally constructed its railroad bed, which bisected an existing farm and allegedly rendered the northern portion of the farm (the property in question) landlocked, the railroad had an absolute duty to provide the then owner of the landlocked property with an easement across the tracks. This right of access from the northern portion to the southern portion, the majority concludes, is a right inherent in the owner of the property who conveyed it to the railroad and a right that passed to each subsequent owner of the property, whether or not it was ever actually *549granted by the railroad or reflected in the deeds from one owner to the next.
I disagree with this construction of the foregoing statute and with the conclusions drawn by the majority in applying the statute to the facts of the case before us. The statute does not provide that the railroad had an absolute duty to grant a private causeway across the railroad at a point along the portion of the railroad that bisected the northern and southern portions of this farm. The statute only states that the railroad must make such a causeway whenever it is necessary to enable the occupant of the farm to cross over the railroad.
Although the record in the instant case does not reveal precisely why the railroad did not create such a causeway at the time it first constructed the railroad, it is clear that the causeway was not established at that time. No such causeway appears in the chain of title to the railroad’s land, nor did it appear in any deed to appellant’s property until the deed to appellant’s decedent in 1942, more than sixty years after the railroad was built. The origins of this reference in the 1942 deed to a causeway across the railroad are unknown. The appellant and appellee stipulated that there is now in existence a farm road across the railroad from the northern portion of the farm to the southern portion, and that this farm road is the causeway referred to in the 1942 deed. In this action to quiet title the appellant seeks a judicial determination that this causeway is an easement which has attached to his property. The record reveals that the earliest date on which this farm path began being used was 1912, more than thirty years after the railroad was constructed. Therefore, since no causeway was established when the railroad was constructed, we can only assume that it was either not necessary that such a causeway be established or that the then owner of the property waived the right to such a causeway.
We note that the record does contain one possible explanation for the failure of the railroad to create such a causeway. Since at least 1909, there was another means of *550access across the railroad. Deeds to the property predating the acquisition of the land by appellant indicate that since at least 1909, there was an easement along the northern boundary of the railroad leading through the farm in question, through other land to the east and ending at a public road which could then be used to cross over the railroad. It is entirely possible that because this easement existed, perhaps informally before 1909 and then pursuant to a formal grant after 1909, it was not necessary that any private causeway be established when the railroad was originally constructed through the farm. It may well be that there already was a perfectly adequate means of access along the northern boundary of the railroad and then across it via a public road. In other words, it may well have been the custom of the original owner of the farm to use the existing public road to the east of the property to cross over the area on which the railroad was eventually built. If the original owner of the farm customarily exited the northern portion of the farm by going across it and across the lands adjoining the farm to the public road to the east, instead of transversing the entire length of the farm from north to south to access the public road to the south, and this means of access to the public road to the east was in no way impeded by the construction of the railroad, then perhaps the original owner simply did not demand the establishment of any other causeway across the railroad.
None of the authorities cited by the majority hold that the statute, which has now been repealed, granted a property owner whose land was bisected by a railroad an absolute right to a causeway across the railroad even when it was not necessary that such be established because there was already an existing means of access across the road or because the owner of the property did not require one as part of the consideration for the land taken by the railroad. For example, Sonnen v. Reading Company, 43 D. & C. 2d 737 (1967), on which the majority heavily relies, actually addresses a situation where a railroad had in fact constructed a private crossing over the railroad, presumably because *551it was necessary to do so when the railroad was constructed, and then attempted to allow the crossing to fall into disrepair when another means of access across the railroad was later constructed. This is a highly distinct situation from that presented by the case at bar. Furthermore, although the Sonnen court did state that the statute gave to every property owner whose land was severed by a railroad a right to a private causeway across such railroad, the Sonnen court also emphasized that the vested right to such a causeway arose from the fact that the causeway, assuming it was in fact given by the railroad, formed part of the consideration for the property conveyed to the railroad.1 In the instant case, no causeway was ever given, apparently because it was not necessary, and thus it did not form part of the consideration given to the original owner of the farm for the railroad’s right of way. In consequence, there is no vested right in any of that owner’s successors, including appellant.
Appellant has simply not established that in 1881, when the railroad was constructed, there was a causeway across the railroad which was necessary to enable the occupant of the farm to cross over the railroad. Clearly on this record there is nothing to support an absolute right in appellant to a present recognition of a right of way or easement across the former railroad dating back to when the railroad was constructed. No such right of way was established by the railroad at that time and appellant has not proven that the failure of the railroad to establish the right of way was a breach of its statutory duty which must now be remedied by a judicial grant of the right of way to appellant.
I have also reviewed appellant’s other arguments in support of a finding of a right of way or easement across the *552railroad.2 Like the trial court, I find no merit in any of appellant’s other arguments. I would affirm the trial court’s disposition of those issues based on the opinion of the trial court, authored by Judge Ronald L. Buckwalter of the Court of Common Pleas for Lancaster County.
. Likewise, in Dubbs v. Philadelphia & Reading Railroad Co., 148 Pa. 66, 23 A. 883 (1892), the court dealt with an attempt by a railroad to remove a crossing which the railroad had established when the railroad was constructed. The court held only that the crossing was necessary to provide access over the railroad and should not have been removed.
. The majority found it unnecessary to address these arguments since it found for appellant solely on the ground that the Railroad Act provided appellant with a vested right to the right of way.