J. A25042/15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J&D BROTHERS, INC., : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

v. :

:

WALTER J. FINNEGAN, DIANE G. :

FINNEGAN, OSCAR J. CRIST, :

DOROTHY G. CRIST, WILLIAM SIMON, :

CAROLYN SIMON, STEVEN SCHNEIDER, :

CHERYL S. SCHNEIDER :

: No. 1014 EDA 2015

Appeal from the Order March 13, 2015

In the Court of Common Pleas of Lehigh County 

Civil Division No(s).: 2013-C-0310

BEFORE: PANELLA, MUNDY, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED NOVEMBER 04, 2015

Appellant, J&D Brothers, Inc., appeals from the order entered in the 

Lehigh County Court of Common Pleas providing, inter alia, that it, its agents 

and/or its lessees, have the right to unobstructed use of Beacon Road1for 

any purpose related to the communications tower on Appellant’s property an 

unlimited number of times only on two days per month. Appellant contends 

 

*

Former Justice specially assigned to the Superior Court.

1 We note that Beacon Road is a private road traversing residential 

properties owned by Appellees. Appellees Walter J. Finnegan, Diane G. 

Finnegan, Oscar J. Crist, and Dorothy Crist did not file briefs.
J.A25042/15

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the trial court erred in limiting its unobstructed use of the prescriptive 

easement to two days per month. We reverse and remand.

We adopt the trial court’s findings of fact.2 Trial Ct. Op., 11/6/14, at 

2-5. Appellant filed a declaratory judgment action to determine whether an 

easement existed with regard to Beacon Road. A non-jury trial was held on 

July 15, 2014. The trial court entered judgment on November 6, 2014, 

finding, inter alia, that Appellant possesses a prescriptive easement over 

Beacon Road as it transverses over Appellees’ properties. Judgment, 

11/6/14, at 1. The court found that Appellant “as owner of the dominant 

estate, has the right to unobstructed use of Beacon Road for any purpose 

related to the communications tower on [Appellant’s] property or for 

recreational activity up to two times per month.” Id. at 1-2 (unpaginated). 

Appellant filed post trial motions on November 17, 2014. Appellees filed 

post trial motions on December 12, 2014. The trial court entered a 

clarification order on March 13, 2015 which provided that Appellant had 

unobstructed and unlimited use of Beacon Road for the purposes of 

maintaining the road, for a reasonable amount of time for recreational use, 

and for two days per month for any purpose related to the communications 

tower. Clarification Order, 3/13/15. This timely appeal followed. Appellant 

 

2 We note that the majority of the facts pertinent to the instant appeal are 

not contested.
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was not ordered to file a Pa.R.A.P. 1925(b) statement of errors complained 

of on appeal. 

Appellant raises the following issue for our review:

The trial court erred when it limited Appellants, its agents’ 

and/or its lessees’ unobstructed use of the subject 

easement to an unlimited number of times two days per 

month for any purpose related to the communications 

tower located on Appellant’s property.

Appellant’s Brief at 4.

Appellant argues the trial courts clarification order significantly 

changed the frequency of use of Beacon Road during the prescriptive period. 

During the prescriptive period there were no restrictions on the use of 

Beacon Road. Appellant avers that although the trial court found that the 

communications tower provides emergency cellular services, cellular and 

telephone services, its limitation on access to make repairs could have 

catastrophic consequences. Appellant contends “such limited access during 

another Hurricane such as that which occurred in 2012, would cripple 

[Appellant] and its lessee from performing mandated repairs or maintenance 

. . . .” Id. at 26. Appellant argues that it “has not requested an expansion 

of its easement, but has always demanded the status quo, to insure that 

anything necessary with the communications tower may be addressed when 

and as needed consistent with its prior use over a period more than 21 

years.” Id. at 31. Appellant claims that the limitations imposed on the 
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prescriptive easement may result in violations of the law with regard to the 

communications tower. 

Our review is governed by the following principles:

Our scope of review is limited. We are bound by 

findings of fact which are supported by the record, but not 

the trial court’s conclusions of law. We must have due 

regard for the trial court’s superior vantage and its 

prerogatives to access credibility and to believe all, part, or 

none of the evidence presented. Finally, we may not 

reverse absent a clear abuse of discretion or an error of 

law.

Waltimyer v. Smith, 556 A.2d 912, 913 (Pa. Super. 1989).

An easement or right-of-way by prescription arises by 

adverse, open, continuous, notorious, and uninterrupted 

use of the land for twenty-one years. The scope of the use 

during the prescriptive period determines the scope of the

easement or right-of-way obtained, except with respect to 

a reasonable evolution of the use which is not unduly 

burdensome.

Id. at 913-14 (citations omitted).

“A prescriptive easement, once acquired, may not be restricted 

unreasonably by the possessor of the land subject to the easement.” 

Soderberg v. Weisel, 687 A.2d 839, 842 (Pa. Super. 1997) (citations 

omitted). Furthermore, 

[w]e have recognized that “the degree of use of a 

prescriptive easement may increase in certain 

circumstances to accommodate the normal evolution of the 

dominant tenement where reasonable[.]” [(quoting Hash

v. Sofinowski, 487 A.2d 32, 36 (Pa. Super. 1985).]. 

Nevertheless, “[t]he extent of an easement created by 

prescription is fixed by the use through which it was 

created.” Id. at 34 (quoting Restatement of Property § 

477 (1944)). Consequently, expansion of such use and 
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the extent to which it may be treated as “normal 

evolution,” is necessarily limited. See id. at 34 (“[T]he 

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.”). As 

recognized by the Restatement, to determine whether a 

particular use is permissible under a prescriptive easement 

“a comparison must be made between such use and the 

use by which the easement was created with respect to (a) 

their physical character, (b) their purpose, (c) the relative 

burden caused by them upon the servient tenement.” Id.

at 35 (quoting Restatement of Property § 478).

[3]

 

3 Section 478 of the Restatement of Property provides:

In ascertaining whether a particular use is permissible 

under an easement created by prescription a comparison 

must be made between such use and the use by which the 

easement was created with respect to

(a) their physical character,

(b) their purpose,

(c) the relative burden caused by them upon the 

servient tenement.

Restatement (First) of Property § 478 (1944). The comment provides, in 

pertinent part:

d. Increase in burden. The asserted use may so greatly 

increase the burden upon the servient tenement that on 

that ground a conclusion that the use is not permissible 

may be reached. A prescriptive interest presupposes an 

assertion of privilege by the person whose adverse use 

created it and a failure on the part of the owner of the 

servient tenement to interrupt the use. An increase in the 

burden on the servient tenement beyond that caused by 

the adverse use by which an easement was created is an 

undue increase if it is such an increase as, it may 

reasonably be assumed, would have provoked an 

interruption in the adverse use had the increase occurred 
J.A25042/15

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McGavitt v. Guttman Realty Co., 909 A.2d 1, 4-5 (Pa. Super. 2006).4

Instantly, the trial court opined: “The testimony during this trial 

established that [Appellant], and its lessee, have been using Beacon Road in 

excess of twenty-one years in order to access [Appellant’s] property, and, 

specifically, the communications tower located on that property for 

maintenance and repair of the tower. The degree to which Beacon Road 

has been used by [Appellant] and AT&T for that purpose is two times per 

month.” Trial Ct. Op. at 12. The trial court concluded that [Appellant] is 

entitled to unobstructed access over . . . Beacon Road for the purposes of 

attending the matters related to the communications tower . . . two 

times per month.” Id. We find limited relief is due.

 

during the prescriptive period. It is an increase such 

that its tolerance is not implicit in the tolerance of 

the adverse use by which the easement was created.

Restatement (First) of Property § 478 cmt. d (1944) (emphasis added). 

4 The McGavitt Court did not find the proposed use to which the appellant 

would put the easement to be a normal evolution of the use established 

during the prescriptive period. Id. at 5. The easement was used during the 

prescriptive period was “limited to ingress and egress by a single family and 

use consistent with the family’s occupancy of their own land.” Id. This 

Court held: “The burden imposed upon the access road by motor vehicles 

going to and from a single family residence is not comparable in any 

material sense to that of heavy trucks making dozens of deliveries every 

day, loading coal or other cargo onto waiting barges.” Id. Unlike McGavitt, 

in the instant case, during the prescriptive period, the property was always 

used for commercial purposes. AT&T was not limited in its access to 

Appellant’s property via Beacon Road during the prescriptive period.
J.A25042/15

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In the case at bar, Judy Daddona testified at trial regarding the use 

made of Beacon Road during the prescriptive period. Following zoning 

approval, at the end of 1990, construction of the tower was completed in 

November of 1991. N.T., 7/15/14, at 29. Appellant’s tenant was a 

subsidiary of AT&T, suppliers of telephone service, cellular service and 

emergency services. Id. at 29-30. As the owner of the property, she stated 

she had occasion where she needed to access the property. Id. at 30. She 

never had any problems or difficulties from anyone getting ingress or egress 

to the property. Id. She was never blocked or stopped from gaining access 

to the property. Id. at 31. Since January of 1992, AT&T had been able to 

use Beacon Road for ingress and egress to access the communications 

tower. Id. at 31. Last year, Appellee, Mr. Simon, approached an agent of 

AT&T and told him to leave the property. Id. at 33.

Agents of AT&T were required to use Beacon Road to access the 

property after a change in the law 2009. Following Hurricane Sandy, “they 

had to upgrade towers to meet new standards for wind shear.” Id. at 34. 

Ms. Daddona testified that AT&T’s lease provided for “ingress and egress 

seven days a week on a 24-hour basis by foot or motor vehicle, including 

trucks.” Id. at 71-72. 

On cross-examination, she testified that 

generally a vehicle goes in only twice a month. But then 

you are aware that we just had that whole modification 

that required AT&T to go in more than twice a month; and 

then we had emergency─Hurricane Sandy that required 
J.A25042/15

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emergency work to be done. But, generally, yes, they 

may go up there only twice a month.

Id. at 92.

The notes of testimony from the hearing on the emergency motion for 

preliminary and/or special injunction were submitted as an exhibit at trial. 

Id. at 176-77. Ms. Daddona testified at the hearing on the emergency 

motion that the communications tower is used for “cell service, for 

emergency communications, 911 and for─I believe they have their back-up 

long distance AT&T land line back upon the tower as well.” N.T., 6/21/13, at 

10. AT&T is responsible “for maintaining, inspecting and keeping the tower 

in compliance with all laws[.]” Id. Beacon Road is the only access to the 

tower. Id.

The trial court found that Appellant leased the communications tower 

to AT&T since December of 1991 and that Beacon Road was the only access 

road to the property. We find the trial court abused its discretion in entering 

an order which restricted the use of the prescriptive easement to two days 

per month in light of its finding that Appellant leased the communications 

tower to AT&T for telephone, cellular and emergency communications 

services. See Smith, 556 A.2d at 913-14. The prescriptive easement had 

been used for modification of the communications tower, following Hurricane 

Sandy, and for emergency repairs. See id.; accord McGavitt, 909 A.2d at 

4-5. AT&T had not been limited in its access to the property via Beacon 

Road during the prescriptive period. See id.; accord McGavitt, 909 A.2d at 
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4-5. Denying access to the prescriptive easement for emergency repairs 

and to effect changes to comply with the law would be unreasonable. See

Weisel, 687 A.2d at 842. We reverse and remand for the entry of an order 

consistent with this memorandum.

Order reversed. Case remanded. Jurisdiction relinquished.

Judge Mundy joins the memorandum.

Judge Panella notes dissent. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/4/2015
parties and argument of counsel, we make the following findings of fact and conclusions of law: 

On July 15, 2014, a non-jury trial was held on the within matter. After testimony of the 

CAROL K. McGINLEY, P.J. 

OPINION 

Christopher W. Gittinger, Esquire 

For Defendants 

Gladys E. Wiles, Esquire 

For Plaintiff 

APPEARANCES: 

*************************************************** 

OSCAR J. CRIST, DOROTHY G. CRIST, 

WILLIAM SIMON, CAROLYN SIMON, 

STEVEN SCHNEIDER, and 

CHERYL S. SCHNEIDER, 

Defendants 

v. Case No. 20 l 3·C·3 l O 

J&D BROTHERS, INC., 

Plaintiff 

IN THE COURT OF COMMON PLEAS OF LEI-nGH COUNTY, PENNSYLVANIA 

CIVIL DIVISION 

. FILED 11/6/2014 9:46:r~ AM.Clerk of Judicial Records, Civil (?i"ision, Lehigh County, PA 

' 2013-C-0310 . ~IS D 

Circulated 10/08/2015 03:41 PM
2 

I Findings of Fact 1-1 I have been agreed to by the parties. 

Lehigh County, Pennsylvania with Pin Number 640566643832-1, Document ID 

owners of property located at 2950 Beacon Road, Allentown, Salisbury Township, 

6. At all times material hereto, the Defendants, William Simon and Carolyn Simon, are the 

communications tower with space leased by AT&T. 

subject property contains approximately 19 acres of land, upon which there is located a 

Recorder of Deeds of Lehigh County at.Deed Book Volume 1447, Page 1088. The 

acquired said property by Deed dated January 10, 1990, recorded at the office of the 

Beacon Road, Allentown, Salisbury Township, Lehigh County, Pennsylvania, having 

5. At all times material hereto, the Plaintiff is the owner of the property known as 2911 

3021 Beacon Road, Allentown, Lehigh County, Pennsylvania. 

4. The Defendants, Oscar J. Crist and Dorothy G. Crist, are a husband and wife residing at 

. residing at 2941 Beacon Road, Allentown, Lehigh County, Pennsylvania. 

3. The Defendants, Steven Schneider and Cheryl S. Schneider, are a husband and wife 

2950 Beacon Road, Allentown, Lehigh County, Pennsylvania. 

2. The Defendants, William Simon and Carolyn Simon, are a husband and wife residing at 

640566079926~ 1. 

Beacon Road, Allentown, Lehigh County, Pennsylvania with Pin Number 

Pennsylvania 18062, and is the true and lawful owner of real property known as 2911 

place of business located at 7785 Spring Creek Road, Macungie, Lehigh County, 

1. The Plaintiff, J&D Brothers, Inc. (J&D), is a Pennsylvania corporation with its principal 

FINDINGS OF FACT1 

J&D Brothers, Inc. v. Oscar J. Crist, Dorothy G. Crist, Wiii/am Sh110111 Carolyn Simon, Steven Schnelder a11d 

Cheryl S. Schnelder; Cose No.: 2013-C-0310 

. FILED 11/6/2014 9:46:n~ .AM.Clerk of Judicial Records, Civil Qh,i~ion, Lehigh County, PA 

2013-C-0310 3/S D 

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tho property owners to the north." 

from the eastern boundary line, providing access to West Rock Road, for the benefit of 

located on the eastern side of property now or late of Miriam Reed, approximately 50 feet 

subject to "an easement of a private macadam Jane, approximately l O feet in width 

11. Pursuant to the recorded Deed, the Steve Buss ("Buss Deed") property is under and 

using Beacon Road for access to their respective properties for over twenty-one years. 

10. The Plaintiff and Defendants, their tenants, and their predecessors-in-interest have been 

ownership as well as their predecessors-in-interest. 

Road and identified above, and all have been using Beacon Road during their respective 

located in Salisbury Township, Lehigh County, Pennsylvania, having frontage on Beacon 

9. The respective Plaintiff and Defendants, as aforesaid, own tracts of land or real property 

1135, Page 842, by Deed dated May 19, 1970. 

Lehigh County, Pennsylvania with Pin Number 640576121462- l, Deed Book Volume 

owners of property located at 3021 Beacon Road, Allentown, Salisbury Township, 

8. At all times material hereto, the Defendants, Oscar J. Crist and Dorothy G. Crist, arc the 

Volume 1428, Page 0306, by Deed dated December 9, 1988. 

Township> Lehigh County, Pennsylvania with Pin Number 640566433369-l, Deed Book 

are the owners of property located at 2941 Beacon Road, Allentown, Salisbury 

7. At aU times material hereto, the Defendants, Steven Schneider and Cheryl S. Schneider, 

in the Recorder of Deeds for Lehigh County. 

7334657> and acquired the subject real property by Deed dated March l 7, 2006, recorded 

J&D Brothers, /11c, ,,. Oscar J, Crist, Dorothy G. Crist, Wiiiiam S/111011, Carolyn S/1110111 Steven Schnelder a11d 

Cheryl S. Schnelder; Case No.: 2013-C-0310 

. FILED 11/6/2014 9:46:0R AM.Clerk of Judicial Records, Civil Qh1ision, Lehigh County, PA 

2013-C-0310 3/S D 

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specifically Bmey Street in Allentown. 

Allentown. There is no access from the J&D property to any other public road, and 

23. Beacon Road runs through the J&D property and ends on property owned by the City of 

mature trees. 

22. Beacon Road traverses land with homes, driveways, maintained lawns, shrubs, brush and 

21. Beacon Road is 13 feet, 6 inches from the bedroom wall of Mr. and Mrs. Simon's home. 

includes sections of stone and sections of macadam. 

20. Beacon Road varies in width from approximately ten feet to twelve feet wide and 

19. Beacon Road is a private road which has not been dedicated to public use, 

been used to access the J&D property since 1990. 

18. Beacon Road is the only access road to the J&D property and is the only road that has 

1991 until the filing of the declaratory judgment action without incident. 

17. J&D and its Jessee have used Beacon Road for ingress and egress since December of 

16. The J&D property is used occasionally for recreational purposes. 

telephone> cellular and emergency communications services. 

15, J&D leased the communications tower to AT&T beginning in December of 1991 for 

around November of 1991. 

14. The communication tower was built on the J&D property and was completed sometime 

granted approval to the Plaintiff for the erection of one tower on the subject property. 

13. By opinion dated October 2> 1990, the Zoning Hearing Board of Salisbury Township 

containing 19.6 acres, the subject property owned by the Plaintiff as aforesaid. 

commercial communication towers and an accessory utility building on the premises 

12. In 1990, Plaintiff presented an application requesting a special exception to erect two 

J&D Brothers, Inc. v. Oscar J, Crist, Dorothy G, Crist, William Simo111 Carolyn Simon, Steven Schnelder and 

Cheryl S. Sc/melt/er; Case No.: 2013-C-0310 

. FILED 11/6/2014 9:46''18 AM.Clerk of Judicial Records, Civil Qh,ision, Lehigh County, PA 

2013-C-0310 s/S D 

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property and Schneider property. 

4. J&D holds a prescriptive easement on Beacon Road over the Crist properly, Simon 

3. The land at issue is not characterized as unenclosed woodlands. 

2. J&D was never expressly permitted to use Beacon Road. 

twenty-one years. 

over the Crist property, Simon property and Schneider property for a period of over 

1. J&D has had adverse) open, notorious, continuous and uninterrupted use of Beacon Road 

CONCLUSIONS OF LAW 

property for recreational purposes. 

29. J&D,s owners and family members periodically use Beacon Road to access the J&D 

period. 

28. The normal pattern of use of approximately twice a month resumed after the two-month 

tower every day. 

27, During that time, multiple vehicles traveled on Beacon Road to the communications 

maintenance and repair of communications towers following Hurricane Sandy. 

three times more often than usual to comply with federal regulations regarding the 

26. In 2013, there was a two-month period when AT&T travelled on Beacon Road at least 

approximately twice a month. 

25. AT&T, or its subsidiaries, travel on Beacon Road to access the communications tower 

any vehicles from traveling that route since 1991. 

24. The logging road that connected Beacon Road to Erney Street has been fenced off to stop 

J&D Brothers, Jue. v. Oscar J, Crist, Doro/fly G. Crist, Wtllknn S/111011, Carolyn Simon, Steven Schnelder am/ 

Cheryl S, Schnelder; Case No.: 2013-C-0310 

. FILED 11/6/2014 9:46'nA AM,Clerk of Judicial Records, Civil Dh,ision, Lehigh County, PA 

2013-C-0310 . s/S D 

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cannot gain an easement over property he owns; easements over unenclosed woodlands are 

prescriptive easement does not exist when use of land is based on owner's permission; a person 

(Defendants) contend that J&D does not possess an easement over Beacon Road because: a 

Oscar and Dorothy Crist, William and Carolyn Simon, and Steven and Cheryl Schneider 

4. Defendants are enjoined from interfering with J&D's tenant and/or buyer of 

the subject communications tower, or obstructing, or the like, or impeding 

and/or interfering in any fashion upon J&D's unfettered and unobstructed use 

of Beacon Road. 

3. J&D, as the owner of the dominant estate, has the right to unfettered and 

unobstructed use of Beacon Road; 

2. J&D possesses a prescriptive easement over the entire length of Beacon Road; 

1. J &D possesses an easement by implication over the entire length of Beacon 

Road; 

J&D filed a declaratory judgment action requesting a declaration that: 

DISCUSSION 

9. Defendants are not entitled to attorney's fees. 

its tenant's use of Beacon Road at this time. 

8. J&D is not entitled to an injunction enjoining Defendants from interfering with J&D or 

7. J&D does not hold an easement by implication. 

month. 

purposes related to the communications tower and recreational activities six times per 

6. The reasonable extent of J&D's prescriptive easement is for travel over Beacon Road for 

communications tower on the J&D property and for recreational purposes. 

5. The scope of the prescriptive easement is for commercial use related to the 

J&D Brothers, Ille, v. Oscar J. Crist, Dorothy G. Crist, JJIJ/llam S/1110111 Carolyn S/111011, Ste11e11 Schnelder mu/ 

Cheryl S. Schnelder; Case No.: 2013-C-0310 

FILED 11/6/2014 9;46·na AM.Clerk of Judicial Records, Civil f'hlision, Lehigh County, PA 

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Road is not adverse to the Defendants because the Defendants granted J&D permission to use it. 

whether J&D's use of Beacon Road is adverse. Defendants contend that J&D,s use of Beacon 

The remaining element needed to establish the existence of a prescriptive easement is 

vehicles traveling on Beacon Road to the J&D property. 

notorious, Mr. Crist testified regarding his ability to count the number of J&D and AT&T -related 

Road, constituting an open and notorious use of Beacon Road. In fact, the use is so open and 

period in excess of twenty-one years. In addition, J&D or its lessee drives vehicles on Beacon 

access its property. J&D's use of Beacon Road has been continuous and uninterrupted for a 

Beacon Road on January 10, 1990. Since that time, J&D has exclusively used Beacon Roa<l to 

property and ends in property owned by the City of Allentown. J&D was deeded 19 acres on 

Schneider property, before reaching the J&D property. Beacon Road travels through the J&D 

the Buss property, the Finnegan property, the Crist property, the Simon property and the 

Beacon Road begins at West Rock Road and runs through several properties including 

Smyder, 369 Pa.Super. 519, 522, 535 A.2d 671, 673 ( 1988). 

demonstrate each element of such an easement by proof that is clear and positive. Burkel/ v. 

Super. 436, 441, 520 A.2d 886, 889 (1987). The party asserting a prescriptive casement must 

continuous and uninterrupted use for a period of twenty-one (21) years. Walley v. Iraca, 360 Pa. 

settled in the law. A prescriptive easement is created by (l) adverse, (2) open, (3) notorious, ( 4) 

The elements that must be established to prove an easement by prescription are well 

Beacon Road twice a month. 

easement does exist, the extent of such easement cannot be extended and J&D is limited to using 

not entitled to an easement over Beacon Road. In the alternative, Defendants argue that if an 

statutorily prohibited; and J&D blocked the other means of access to its property and is therefore 

J&D Brothers, /11c. v. Oscar J. Crist, Dorothy G. Crist, WI/limn Simon, Carolyn Simon, Steven Schnelder am/ 

Cheryl S. Schneider; Case No.: 2013-C-0310 

FILED 11/6/2014 9:46:08 AM,Clerk of Judicial Records, Civil {)ivision, Lehigh County, PA 

2013-C-0310 /s/S D 

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testified that none of the property owners, including J&D, ever asked him permission to use the 

Beacon Road was pursuant to express permission, license or special contract. In fact, Oscar Crist 

Defendants did not provide any evidence to support the contention that J&D's use of 

Defendants to establish that J&D had the property owner's permission to use Beacon Road. 

presumption that the use is adverse and under a claim of right. As a result, the burden shifts to 

prescriptive period without evidence of how the use began. Accordingly, J&D is entitled to a 

J&D has established an open, notorious, continuous and uninterrupted use for the 

Kew/er v. Beccaris, 401 Pa. Super. I, 5-6, 584 A.2d 357, 359 (1991), citations omitted. 

Although it is clear that permissive use will not support an easement by 

prescription, it is equally clear that "[a]bscnce of objection by the owner to use of 

the land is not equivalent to a grant of permission by him such as will preclude the 

acquisition of title to an easement by prescriptive use." 12A P.L.E. Easements§ 

23 (1985). The owner of the servient tenement will not be permitted to sit back 

and silently watch as an open use continues and then, at the end of the prescriptive 

period, assert that it was permissive because he did not object. See: Orth v. 

Werkheiser, 305 Pa. Super. 576, 451 A.2d 1026 (1982). 

"[Wjhere one uses an easement whenever he sees fit, without 

asking leave, and without objection, it is adverse> and an 

uninterrupted adverse enjoyment for twenty-one years is a title 

which cannot be afterwards disputed. Such enjoyment, without 

evidence to explain how it began, is presumed to have been in 

pursuance of a full and unqualified grant. The owner of the land 

has the burden of proving that the use of the easement was under 

some license, indulgence, or special contract inconsistent with a 

claim of right by the other party." 

Proof of an open, notorious, continuous and uninterrupted use for the prescriptive 

period, without evidence to explain how it began, raises a presumption that it is 

adverse and under claim of right. Once this presumption is raised, the burden 

shifts to the owner of the servient tenement to show by affirmative proof that the 

use was by virtue of some license, indulgence, permission or agreement 

inconsistent with a claim of right by the other party. See: Walley v. Iraca, supra. 

Thus, in Loudenslager v. MosJe/let"i [453 Pa. 115, 307 A.2d 286 (1973)], the 

Supreme Court said: 

J&D Brothers, /11c. l', Oscar J. Crist, Dorothy G. Crist, W/11/11111 S/111011, Carotyn S/111011, Steven Schnelder nnd 

Cheryl S. Schnelder; Case No.: 2013-C-03.IO 

FILED 11/6/2014 9:46·na AM,Clerk of Judicial Records, Civil J1i11ision, Lehigh County, PA 

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2 Praecipe and Power of Attorney For Satisfaction and/or Termination of Lawsuit Against Defendants, Walter J. 

Finnegan, Diane G. Finnegan, Jung Six Lee, Sung Ja Lee and Suk Won Lee Only filed with the Clerk of Judicial 

Records -Civil Division on July 8, 2014. 

established all of the necessary elements required for a prescriptive easement. However, 

adverse to the property owners at issue for a period over twenty-one years and J&D has 

landowner permission or ownership of the land are flawed. J&D1s use of Beacon Road has been 

Defendants' arguments that J&D was not using Beacon Road adversely because of either 

precludes our finding of an easement over the remaining lands, 

Beacon Road as it transverses the Finnegan property, but do not find that such information 

not know what, if any, arrangements have been worked out regarding J&D's right to travel over 

J&D's prior ownership of that section of road is not before this court for determination. We do 

Finnegan portion of Beacon Road is no longer before this court, and, therefore, the issue of 

Although the Finnegans were initially named defendants in this action, they were 

removed as defendants by praecipe.2 J&D's declaratory judgment action as it relates to the 

he himself is the owner of the property." Tosh v. Wills, 381 Pa. 255, 113 A.2d 226 (1955). 

Supreme Court, "[ o ]ne does not gain a prescriptive right by adverse user during the period when 

Beacon Road while it owned the abutting property was not adverse. As has been stated by our 

twenty-one years because J&D previously owned the Finnegan property and J&D's use of 

Defendants also argue that J&D did not establish that it used Beacon Road adversely for 

use of Beacon Road was adverse to the homeowners' interests. 

express permission of each homeowner to use their portion of Beacon Road; therefore, J&D's 

equivalent to permission. Defendants did not meet their burden in establishing that J&D had the 

to J&D's use of Beacon Road prior to the filing of this action and their failure to object is not 

portion of Beacon Road that travels over his property. Defendants did not object in any manner 

J&D Brothers, Inc, I', Oscar J. Crist, Dorothy G. Crist, Wlttiam S/1110111 Carolyn S/1110111 Steven Sc/melt/er and 

Cheryl S. Sch11elder; Case No.: 2013-C-0310 

FILED 11/6/2014 9:46:08 AM,Clerk of Judicial Records, Civil Division, Lehigh County, PA 

2013-C-0310' :s/S D 

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parking areas, maintained lawns, shrubs and brush, and mature trees. The pictures do not reflect 

surrounding properties. The pictures depict a macadam road surrounded by homes, garages, 

In addition to testimony, Plaintiff provided photographs of Beacon Road and the 

Simon and Mr. Crist testified that Beacon Road is surrounded by woods on both sides. 

Crist driveway and the Simon parking space which has trees on both sides. In contrast, Mr. 

Otherwise, there is a home on either side of Beacon Road for all but a small portion between the 

place where there are woods on Beacon Road is on the J&D property at the top of the hill. 

principal of J&D, testified that Beacon Road is not surrounded by woods; she testified the only 

specifically whether Beacon Road was surrounded by woods on both sides. Judy Daddona, a 

There was conflicting testimony in this matter regarding the character of the land and 

Super. 433, 667 A.2<l 228 (1995). 

Humbert, 267 Pa. Super. 518, 521, 407 A.2d 31, 32 ( 1979), Matakttts v. Woodmansee, 446 Pa. 

of 1850.>' Sprankle v Burns, 450 Pa. Super. 319, 675 A.2d 1287 (1996), citing Humberston v. 

"It is the character of the land itself which is determinative of the application of the Act 

68 P.S. § 41 l. 

No right of way shall be hereafter acquired by user, where such way passes 

through uninclosed 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. 

§411. None through uninclosed woodland 

such easement is precluded by statute. Pursuant to statute: 

The Defendants contend that no prescriptive casement exists over Beacon Road because 

prescriptive easement. 

Defendants raised additional issues that must be examined before declaring that J&D holds a 

J&D Brothers, Inc. v. Oscar J, Crist, Dorothy G. Crist, William S/111011, Carolyn S/111011, Steven Sc/mel<ler am! 

Cheryl S. Schnelder; Case No.: 2013-C-0310 

. FILED 11/6/2014 9:46:06 AM.Clerk of Judicial Records, Civil pivision, Lehigh County, PA 

2013-C-031 O 1 :'s/S D 

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use by which it was generated and is thus limited to that of the prescriptive period." Hash v. 

The scope of a prescriptive easement "must necessarily be a function of the continued, adverse 

We now address Defendants' alternative argument regarding the extent of the easement. 

Crist, Simon and Schneider properties. 

easement, we find that J&D holds a prescriptive easement over Beacon Road as it crosses the 

Having found that none of Defendants' arguments refute the existence of a prescriptive 

and egress, the blocking of that road does not impact J&D's right to a prescriptive easement. 

over private lands belonging to others. Since that road was not an authorized source of ingress 

Street. In 1991, J&D fenced off the logging road to prohibit any travel on that logging road and 

over the logging road that crossed the private properties between the J&D property and Erney 

ingress and egress; however, Mrs. Daddona testified that J&D did not have authorized access 

property and continued through other private land to access Erney Street as another means of 

the property. Defendants attempted to establish that Beacon Road continued across the J&D 

at trial established that Beacon Road was the only access road J&D used during its ownership of 

easement by necessity, not a prescriptive easement as asserted by Plaintiff. Second, the evidence 

without merit. First, the case cited by Defendants in support of their position relates to an 

because J&D blocked the other means of access to its property. We find Defendants' argument 

Finally, Defendants argue that J&D is not entitled to an easement over Beacon Road 

statute excluding a prescriptive easement does not apply. 

Daddona convince us that Beacon Road docs not travel through woodlands, and, therefore, the 

Road more credible than that of Ml'. Simon and Mr. Crist. The pictures and testimony of Mrs. 

testimony. We find Mrs. Daddona's description of the character of the area surrounding Beacon 

an area that would be characterized as woodlands. The pictures corroborate Mrs. Daddona's 

J&J> Brothers, Inc. v. Oscar J, Crist, Dorothy G. Crist, Wiiiiam Simon, Carolyn S/1110111 Steven Schneider ((/UI 

Cheryl S. Schnetder; Case No.: 2013·C-03IO 

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time to maintain Beacon Road and because a Road Maintenance Agreement was entered in 1998 

individuals owning property adjacent to Beacon Road, because J&D expended money at one 

J&D requests an easement by implication because Beacon Road has been open for decades for 

We have also reviewed J&D's request for a declaration of an casement by implication. 

for recreational activities two times per month. 

the purposes of attending to matters related to the communications tower and surrounding land or 

Mrs. Schneider. J&D is entitled to unobstructed access over said sections of Beacon Road for 

transverses over the properties owned by Mr. and Mrs. Crist, Mr. and Mrs. Simon and Mr. and 

twenty-one years. As such, J&D possesses a prescriptive easement over Beacon Road as it 

J&D is entitled to the same scope and degree of use it has used over Beacon Road for the past 

period, J&D is not entitled to an unfettered and unobstructed use of Beacon Road as requested. 

Given the scope and degree to which J&D has used Beacon Road during the prescriptive 

to access the J&D property for recreational purposes. 

per month. In addition, J&D owners and family members have used Beacon Road periodically 

degree to which Beacon Road has been used by J&D and AT&T for that purpose is two times 

the communications tower located on that property for maintenance and repair of the tower. The 

Beacon Road in excess of twenty-one years in order to access the J&D property and, specifically, 

The testimony during this trial established that J&D, and its lessee, have been using 

created." McGavitt v. Guttman Realty Co., 909 A.2d 1 (Pa. Super. 2006) quoting Hash, supra. 

the extent of an easement created by prescription is fixed by the use through which it was 

accommodate the normal evolution of the dominant tenement where reasonable ... Nevertheless, 

"the degree of use of a prescriptive casement may increase in certain circumstances to 

Sofinowski, 337 Pa. Super. 45 I, 487 A.2d 32 (l 985). The Superior Court has recognized that 

J&D Brothers, Inc. v. Oscar J, Crist, Dorothy G. Crist, Wif/inm S/111011, Carolyn S/1110111 Steven Schneider and 

Cheryl S. Schnelder; Case No.: 2013-C-0310 

FILED 11/6/2014 9:46·0f3 AM.Clerk of Judicial Records, Civil f)ilfision, Lehigh County, PA 

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The Restatement of Properly test "emphasizes a balancing approach, designed 

to ascertain the actual or implied intention of the parties." Possessky, 655 A.2d at 

Id., 691 A.2d at 449 ( citation omitted). 

Easements by implied reservation ... are based on the theory that 

continuous use of a permanent right-of-way gives rise to the 

implication that the parties intended that S\ICh use would continue, 

notwithstanding the absence of necessity for the use. 

Bucciarelli v. Delisa, 547 Pa. 431, 437-438, 691 A.2d 446, 448-449 (1997) 

(citations omitted). Our Supreme Court further stated: 

"[Wjhere an owner of land subjects part of it to an open, visible, 

permanent and continuous servitude or casement in favor of another 

part and then aliens either, the purchaser takes subject to the burden or 

the benefit as the case may be, and this irrespective of whether or not 

the easement constituted a necessary right of way." [ Tosh, 113 A.2d 

at 228] (citations omitted). 

It has long been held in this Conunonwealth that although the language of a 

granting clause does not contain an express reservation of an easement in 

favor of the granter, such an interest may be reserved by implication, and 

this is notwithstanding that the easement is not essential for the beneficial 

use of the property..., The circumstances which will give rise to an 

impliedly reserved easement have been concisely put by Chief Justice 

Horace Stern speaking for the Court in Tosh v. Witts [381 Pa. 255, 113 A.2d 

226 (1955)]: 

An easement by implication can be found to exist where the intent of the parties 

is demonstrated by the terms of the grant, the property's surroundings and any 

other res gestae of the transaction." Sentz v. Crabbs, 428 Pa.Super. 205, 630 A.2d 

894, 895-896 (1993) (citation omitted). Two different tests have been utilized in 

this Commonwealth to determine whether an easement has been created by 

implication: the traditional test and the Restatement of Property test. Possessky, 

655 A.2d at 1008. The Pennsylvania Supreme Court defined the traditional test as 

follows: 

easement by implication exists. 

Our Superior Court has clearly set forth two tests that are used to determine if an 

the care and maintenance of Beacon Road. 

in which the then owners of property adjacent to Beacon Road agreed to share responsibility for 

J&.D Brothers, Jue. v. OSC(lf J. Crist, Dorothy G. Crist, Wllllam Simon, Carotyn Simon, Steven Schnelder and 

Cheryl S. Schnelder; Case No.: 2013-C-0310 

FILED 11/6(2014 9:46'08 AM,Clerk of Judicial Records, Civil Pivision, Lehigh County, PA 

. . ' 2013-C-0310 /s/S D 

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14 

, We note that J&D did not cite any case law to support its contention that it is entitled to an casement by 

implication or discuss either of the two tests necessary for such a finding to be made. See Plaintiff, J&D Brothers, 

Inc.ts, Memorandum of Law filed with the Clerk of Judicial Records-Civil Division on August 5, 2014. 

the other land located on Beacon Road, and, it is, therefore, impossible for us to determine or 

infer any possible easement by implication under either of the tests discussed above. 

3 Further, the 

J&D did not provide any evidence regarding the original severance of its property from 

Phillippi v. Knotter, 748 A2d 757, 761-762 (Pa.Super. 2000). 

An easement by implication could have arisen ·only at the time at which 

ownership of the two parcels in question first became separated. Possessky, 655 

A.2d at 1009. Thus, the primary focus under either of the two tests is on the time 

of the original severance of the property .... 

Id. (citing Mann-Hoff v. Boyer, 413 Pa.Super. I, 604 A.2d 703, 706-707 (1992)). 

In addition, this court has noted that "[t]he extent to which an easement is 

necessary under the circumstances is a factor heavily weighed in determining 

whether an easement should be implied." Id. (quoting Tomlinson v. Jones, 384 

Pa.Super. 176, 557 A.2d 1103, I l 04 (] 989)). 

(h) the extent to which the manner of prior use was or might have been known to 

the parties. 

(g) the manner on which the land was used prior to its conveyance, and 

(f) whether reciprocal benefits result to the conveyor and the conveyee, 

( e) the extent of necessity of the easement to the claimant, 

(d) whether the claim is made against a simultaneous conveyance, 

(c) the consideration given for it, 

(b) the terms of the conveyance, 

(a) whether the claimant is the conveyor or the conveyee, · 

1008. "No single factor under the Restatement approach is dispositive." Id. 

Section 476 of the Restatement of Property designates the following factors as 

important in determining whether an easement by implication exists: 

J&D Brothers, Inc, v. Oscar J, Crist, Dorothy G. Crist, William S/1110111 Carolyn S/111011, Steven Schnelder am/ 

Chery! S. Sclmelder; Case No.: 2013-C-0310 

FILED 11/6/2014 9:46:0!3 AM,Clerk of Judicial Records, Civil [)ivision, Lehigh County, PA 

. 2013-C-0310i /s/S D 

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15 

t!rl,4/z{~ 

CAROL K. McGINLEY, P.J.-·-· '-J 

DA TE: ;t;~ij.e,,- ?_ 20 / 7' BY THE COURT: 

communications tower or for recreational activities two times per month. 

Road as it traverses over the Crist, Simon and Schneider properties for any purpose related to the 

After examining all of the issues, J&D is entitled to a prescriptive easement over Beacon 

852 A.2d 347, 350 (2004). Therefore, Defendants are not entitled to attorney's fees. 

bad faith conduct. See 42 Pa. C,S.A. § 2503; Regis Insurance Co. v. Wood, 2004 Pa. Super. 209, 

they are entitled to attorney's fees as a result of Plaintiff's stubbornly litigious, unreasonable or 

See 42 Pa. C.S.A. §§ 7538, 6541. Nor did Defendants provide evidence to support its claim that 

limited circumstances that would justify providing supplemental relief in the interest of justice. 

sufficient evidence to demonstrate that this declaratory judgment action falls within one of the 

Further, we deny Defendants' request for attorney's fees. Defendants failed to provide 

opportunity to comply. 

this time. Now that the respective rights have been delineated, the parties will be given the 

upon J&D's unfettered and unobstructed use of Beacon Road. No injunction will be ordered at 

tenant and/or buyer of the communications tower, or obstructing, impeding and/or interfering 

J&D also requested a declaration enjoining Defendants from interfering with J&D's 

implication over Beacon Road. 

facts relied on by J&D are not sufficient to persuade us that J&D is entitled to an easement by 

J&D Brothers, Inc. v. Oscar J. Crist, Dorothy G. Crist, Wiiiiam S/111011, Carolyn S/111011, Steven Sehneider am/ 

Cheryl S. Schnelder; Case No.: 2013-C-0310 

. FILED 11/6/2014 9:46'Q8 AM.Clerk of Judicial Records, Civil.fti~ision, Lehigh County, PA 

. 2013-C-031 O' i/s/S D 

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CVJ:-b 

Andrea E. Naugle 

Clerk of Judicial Records 

the above captioned matter has been entered. 

Pursuant to Pa.R.C.P. § 236, notice is hereby given that an order, decree, or judgment in 

236NOTICE 

Snyder & Wiles PC 

7731 Main Street 

Fogelsville PA 18051 

Gladys E Wiles, Esq J 

Gross McGinley LLP 

33 South Seventh Street 

PO Box 4060 

Allentown PA 18105-4060 

Christopher W Gittinger, Esq J 

~ File No.: 2013-C-0310 11/6/2014 

Document Distribution List 

IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA 

CIVIL COURT DIVISION 

Circulated 10/08/2015 03:41 PM