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. C RIST, : DOROTHY G. CRIST, WILLIAM SI MON, : CAROLYN SIMON, STEVE N 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 unobstructe d use of Beacon Road 1 for 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 resi dential 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

easeme nt 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

- jur y 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 co urt 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.J.A25042/15

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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 o f 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 cha nged 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 emerg ency 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 [Ap pellant] 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 commu nications 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 theJ.A25042/15

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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 fo r 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 9 12, 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 o f 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 andJ.A25042/15

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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 fun ction 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 mus t 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 th e 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 physic al 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 th e 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 occurredJ.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 t o 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 reli ef 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.
Restatemen t (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 e asement 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 v ehicles 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., 7/15/1 4, 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 ing ress 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 cha nge 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; an d then we had emer gency─Hurricane Sandy that requiredJ.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 submit ted 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 App ellant 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 t o 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 atJ.A25042/15

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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 memo randum. Order reversed. Case remanded. Jurisdiction relinquished. Judge Mundy joins the memorandum. Judge Panella notes dissent. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary
Date: 11/4/2015parties and argument of coun s el, w e make the following finding s 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

Chri st opher W. Gittinger, Esquire For Defendants Gladys E. Wiles , Esquire Fo r Plaintiff APP E ARANCES:



### ****************** * ******************************** OSCAR 

### J

. CRIST, DOROTHY G

. CRIST, WILLIAM SIMON, CAROLYN SIMON, STEVEN SCHNEIDER, and CHERYL S

. SCHNEIDER,

Defendants Case No

. 20 l 3·C·3 l O v . J&D BROTHERS, INC.,

Plaintiff IN THE COURT OF COMMON PLEAS OF LEI-nGH C OUNTY, PENNSY L VANIA 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 PM2 I Finding s of Fact 1-1 I have been a greed to b y the p arties. Lehigh County, Penn s ylvania with Pin Numb e r 640566 6 43832-1 , Document ID own e rs of property located at 2 9 50 Beacon Ro a d , All e ntown , S ali s bury Town s hip, 6. At all tim es mat e rial hereto, the Defendant s , William S i mon and Car olyn Simon, are th e c o mmunic ations towe r with s pa ce l ea sed by AT&T

. s ubj e ct pr o perty contains approxim ately 19 acres of land, upon which there i s located a Recorder of D ee ds of Lehigh County at

. Deed Book Volume 1447 , Page 1088. The acquire d said p r operty by Deed date d January 10, 1990, recorded at th e office of the Bea c on Road , Allentown , Sali s bury Town s hip, L e high County, Penn sy lvani a , h av ing 5

. At all tim es m at e ri al her e to, th e Pl aintiff is th e own e r of the prop e rty kn own as 2911 3021 Beacon Ro a d , Allentown, L e high C ounty, P e nnsylvani a. 4. The Defe n dant s, Oscar J. Cri s t and Dorothy G. Cri s t, are a hu s band and wife resi d ing at . resid i ng at 2941 Beacon Road , All e ntown, Lehigh Cou n ty, Penn s ylvania. 3. T he Defendant s , Steven Schn e ider and Cheryl S. Schnei d er, are a husband and 

### wife 2950 Be a con Road, Allentown, L e high C ounty, Pe nn syl van i a . 2. Th e De fe ndant s , William Simon and C ar oly n Si m on , ar e a husb and and w ife r e sidin g at 640566079926~ 1

. Be a con Road , Allentown , L e high County, P e nnsylvania with Pin Number Pennsylv ania 18062, and is the true and lawful owner of real pro p erty known as 2911 pla c e of busin e ss lo c ate d at 7785 Spring Cre ek R o ad, Macungie, Lehigh County , 1

. Th e Pl aintiff

, J&D Br o thers , Inc. (J&D) , 

### i s a Penn s yl vania corp o ration w ith its prin c ip al FINDING S OF F ACT 1 J&D Brothers, In c . v . Os c ar J. Crist , Doro thy G. Crist, Wiii/am Sh11011 1 Carolyn Sim o n, Ste ven Schn e lder 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 Circulated 10/08/2015 03:41 PM3

tho property own e rs to the north. " from the eastern boundary line, providing access to W es t Rock Road , for th e benefit of l o cated on the eastern side of prop e rty 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 

### B e acon Road for access to th e ir respective prop erties for over twenty

- one ye ars. 10

. The Plai n tiff and Defend ants, their tenants , and their pr e dece s sors-in-intere s t have been ownership 

### as well as their predece s s o rs-in -i nterest. Road and identified above, and all hav e been using Beacon Road during their respective located in Salisbury Township, Lehigh County, Pennsylvania , having frontage on Beacon 9. The respective Plaintiff and Defendants, a s aforesaid, own tracts of l and or real property 1135, Page 842, by Deed d ated May 19, 1970

. Lehigh County, Pennsylvania with Pin Number 640576121462 - l, Deed Book Volume owners of property located at 3021 Bea c on Road, All e ntown , Salisbury Township , 8. At all times material hereto , the Defendants , Oscar J. Crist and Dorothy G. Crist , arc the Volume 1428, Page 0306, by De e d dated Decembe r 9, 1988. Township> Lehigh County, Pennsylvania with Pin Number 64 0566433369-l, Deed Book are the owners of property locate d at 2941 Beacon Road, All e ntown , Salisbury 7

. At aU times material hereto, the Defendants, Steven Schneider and Cheryl S. Schneider, in the Reco r der of Deeds for Lehigh County. 7334657 > and acqui red the subject real property by De e d dated Marc h l 7, 2006, re cord e d J&D Brothers, /11c, ,,. Oscar J, Crist, Dorothy G. Crist, Wiiiiam S/111011, Carolyn S/111011 1 Steven Schnelder a11d Cheryl S. Schn e lder; C a se No.: 2 013-C-0310 . FILED 11/6/2014 9:46:0R AM.Clerk of Judicial Records , Civil Qh 1 ision, Lehigh County , PA 2013-C-0310 3/S D Circulated 10/08/2015 03:41 PM4

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 Simo11 1 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 Circulated 10/08/2015 03:41 PM5

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 Circulated 10/08/2015 03:41 PM6

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 eas e ment 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 comm e rcial use r e lated to the J&D Brothers, Ille, v. Oscar J. Crist, Dorothy G. Crist, JJIJ/llam S/111011 1 Carolyn S/111011, Ste1 1 e11 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 2013-C-0310 /s/S D Circulated 10/08/2015 03:41 PM7

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 Schn e lder 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 Circulated 10/08/2015 03:41 PM8

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 u s es an easement whenever he sees fit, without asking leav e , 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 s ome 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 

### J 1 i11ision, Lehigh County, PA 2013-C-0310 /s/S D Circulated 10/08/2015 03:41 PM9 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&D 1 s 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/111011 1 Carolyn S/111011 1 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 Circulated 10/08/2015 03:41 PM10

parki ng areas, maint ained l awns, shrubs and b rush, and mature tree s . T he pi ctures d o not refle c t s urr o unding properties. Th e picture s d epic t a mac a d am ro a d s urround e d by homes , gar age s, In addition to t es tim o ny , Plainti ff p ro vided phot o graphs o f B e a c on Road and the Sim o n and Mr. Crist t es tifi e d that B e acon R oa d is surrounded by w o od s on both s id es . Cri s t drivew ay and 

### the Simon parking space which h a s tree s o n both s ides

. In contra s t, Mr. Oth e rwise , there i s a hom e on either side of B e acon Ro a d fo r all but a small portion b e tw ee n th e plac e wher e there ar e wood s on B eac on Road i s on th e J&D property at th e top of th e hill. principal of J&D, testified th at Bea c on Ro a d is not s u rr ound e d by w oo ds ; s he testifi e d the only sp e cifically wheth er Beacon Road was surr ounded by woods on both s ides. Judy Da d dona, a Th ere was conflicti n g te s tim o ny in th is matte r r e gard i ng th e c haracte r o f th e land and Sup e r. 433, 6 6 7 A. 2 <l 228 ( 1995)

. 

### Humbert, 267 Pa. Super. 518, 521 , 407 A.2d 31, 32 ( 1979) , 

### Matakttt s v . Woodman see , 446 Pa. of 1850.>' 

### S

prankl e v Burns, 450 P a. Sup e r . 319 , 675 A.2d 1287 (1 9 96) , citing 

### Humberston v . " It i s 

### the chara c te r o f the l and itsel f which is d e termin ative o f th e application of 

### the Act 68 P

. S. § 41 l. 

### No right of way 

### s hall b e hereafter acquired by u se r, where su c h way p as ses thr o ugh uninclosed woodl and; but o n c l earing s uc h woo d land, the own e r or o w n e rs ther e o f s h all be at lib erty to e nclo se th e sam e , as if no su c h way had b e en us e d through the sam e before such clearing or e nclosu r e . §411

. Non e through unincl o sed woodland s u c h eas e ment 

### i s precluded by statute

. Pu rs uan t to s tatute : Th e Defend ants c o nte nd that no p res criptiv e c asem en t exist s over B e ac on Ro a d b e c au s e pr es criptiv e e ase me nt. D e fendant s raised additi o n al issu es that mu st be e xamined before declaring that J&D hold s a J&D Broth e r

s, Inc

. v. O s car J

, Cri s t , Dorothy G

. Cri s t

, William S/111 0 11 , C

arolyn S /111011, Ste ven Sc/

mel<ler am! Ch e ryl S

. Sc hn e lder; Ca s e 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 Circulated 10/08/2015 03:41 PM11

u s e b y which it w as gen er ate d and i s thu s limited to th at of the pres c riptive p eriod

. " Hash v. The sc op e of a pre sc ripti ve ea s ement "mu s t necess aril y be a fun c tion o f th e c o ntinued , a dv ers e W e now addres s D e fend ants ' alternative ar g ument re garding the e xtent of the e as ement. Crist, Simon 

### and Schne i der propertie s . ea s ement , w e find that J&D holds a pres c ripti v e e as em e nt o ver B e a c on R oa d as i t c ro s s e s th e Havin g found th at none o f D e fend ant s' ar g uments re fute the e xi s te nce of a pre sc riptive and eg re s s, the blockin g of that road doe s not imp a ct J&D' s right to a prescriptive ea s ement. over priv ate l and s b e longin g to other s. Since that road wa s not an autho riz ed source of ingr e ss Street. In 1991 , J&D fe nc e d off the log gi ng r oad to pr o hib i t any trav e l o n that logging road an d o ver the logging road that c ros s ed the private prop e rti e s betwe en the J&D p ro perty and Erney ingress an d egress ; howev e r, Mr s . Daddona t e stified th at J&D di d not h ave authori z ed ac c e s s prop e rty and continued through other private l and t o a ccess Erney Stre e t a s anoth e r means of the prop erty

. Defend ants attempted to establish th at B e ac o n Road continued across the J&D at trial e s tablished that Be a con Road wa s th e only acc es s road J&D us e d during its o w ner s hip of ease ment by necessi ty , not 

### a pr es cripti v e e a s em e nt as a s s erte d by Pl ai n tiff

. S e cond, the e vi d e nce without merit. F i r s t , the ca s e c ited b y D e fendants in s upport of their po si tion relat e s to an bec ause J&D blo c ked the o the r me ans o f access to its property

. W e find Defend ants ' argument F inally , Defend ants ar g ue th at J & D is not e ntitled to an ea se m e n t ov e r B ea con Ro a d statute ex cluding a p r escri p tiv e ea se m e nt doe s not apply

. Daddon a co n vinc e us that Bea c on Road docs not trave l throu g h w oo dl and s , and , therefore, th e Road more c r e dible than that of Ml'. Simon and Mr. C rist. The pi c ture s and t e sti mony of Mr s . tes timo ny. We find Mrs. D a dd o na 's de s cription of the chara c t er of th e are a s u rr ou n ding Bea co n an are a that would be chara cterize d as woodl and s. The picture s corr ob o rate Mrs. Daddona's J&J> Brothers, Inc. v. Os c ar J , Cri s t , Doro thy G. Cris t

, Wiiiiam Simon, Carol

y n S/111011 1 Stev e n Sc hneider ((/UI Cheryl S

. Schn e tder; Cas e No .: 2013·C -03 IO FILED 11/6/2014 9 : 46 : 0~ AM.Clerk of Judicial Records , Civ i l [)iv_i sion , Lehigh County, PA

. 2013-C-0310 ' /s/S D Circulated 10/08/2015 03:41 PM12

time to maintain Beacon Road and because a Road Maintenance Agreement was entered in 1998 individuals owning property adjacent to B e acon 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 y e ars. 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/111011 1 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 2013-C-0310 /s/S D Circulated 10/08/2015 03:41 PM13 The Restatement of Properly test "emphasizes a balancing app r oach, 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 p arties 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 Circulated 10/08/2015 03:41 PM14

, We n o te th at J &D di d n o t c ite an y c as e law to s up po rt i ts conte nti o n th at it is e n titl e d t o an ca s e m e nt by implicatio n or di sc u s s eith er of th e two te s t s nec essary for s uch a fi nding t o b e made

. Se e P lainti ff , J &D B ro thers, Inc .t s , M e morandum of L aw filed w i th the C lerk of Judici al Rec o r ds

- Civil D iv is io n on August 5 , 2 014. th e other l and l oc ated on B e a c on Ro a d, and , it i s , the refo re, impo ssi ble for u s to d e t ermine or in fe r any po ss ible e ase m e nt b y impli c ation u nd e r e ither of th e t es ts di sc u ssed abov e . 3 Furth e r , the J & D did not p ro vid e any e v idenc e r e garding th e o rigin al sev eranc e of its p ro p erty from P hillippi v. Knotter, 748 A2d 757, 761-7 6 2 (Pa

. Super

. 2000). An e aseme n t by implic ati on c ould h ave arisen
· only at the time at whi c h o wner s hip o f the two parc e ls in qu estion fir s t b ecam e s ep arated

. Possessky, 65 5 A.2d at 1009. Thus, th e primary focus under e ither of the tw o t e st s is on the tim e of the original s everance o f the property .... Id

. (citing Man n -Hoff v . Boyer, 4 1 3 Pa

. Super

. I, 604 A.2d 703, 706-707 (1992))

. In additi on , this c ourt h as noted th at " [t]he ex t e nt t o which an ea s em e nt i s necess ary un d er th e circumstanc e s is a factor heavily wei g hed in det ermining wheth e r an e as emen t s h ould be i mpli e d

. " 

### Id

. (quoti n g 

### Tomlins o n v . Jon es, 384 P a.Sup e r. 176, 557 A

. 2d 1103, I l 04 (] 9 8 9)). (h) the extent to whi c h the mann er of prior use was or might hav e b e en kn o wn to the p arties. (g) the manner on wh i ch th e land w a s u s ed prior to its conveyance, and (f) wh e ther r e ciprocal benefits result to th e conv e y or and the c o nveye e, ( e ) the e x tent of nec ess ity of the ea se men t t o the c laimant , (d) whether the claim i s ma d e ag ai ns t a s imu lt an eo us c onvey an ce , (c) the c onsid e ration g i ve n fo r it , (b) th e term s of the co nv e y an ce, (a) wh e ther th e c laim ant is th e conv e yor o r the con v ey ee , · 1008

. "No single f

actor under the R es tatem e nt appro a ch is dispo s i tive." Id. S ec tion 47 6 of the Rest at e m en t of Prop e rty d esi gn at es th e foll o wing fac tor s as i mport ant in d e termining wh e ther an e ase men t by implication exist s : J& D Brother

s, Inc, v. O s car J, Crist, Dorothy G. Cri s t , William S/111011 1 Carolyn S/111 0 11, Ste v en Schn e lde r am/ Chery! S

. Sclm e lder; C a se No. : 2013-C

- 0310 FILED 11/6/2 014 9 : 46:0 !3 AM , Clerk of Judicial Records, Civil [)ivision, Lehigh County , PA

. 2013 -C -0310 i /s/S D Circulated 10/08/2015 03:41 PM15 

# t!rl,4/z{~
CAROL K. McGINLEY, P.J

. - · - · 

# '-J BY THE COURT: DA TE: 

## ;t;~ij.e,,- ?_ 

## 20 / 

# 7' communications tower or for recreation al activities two times per month. Road as it traverses over th e Crist, Simon and Schneider properties for any purpose related to the After examining all of the issu e s, J&D is entitled to a prescriptive easement over Be a con 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. suffi c ient 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 prov i de opportunity to comply. this time

. Now that the r e spective rights have been delineated, the parties will be given the upon J&D ' s unfettered and unobstru c ted 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 d e claration 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 ea s ement by J&D Brothers, Inc. v. Oscar J

. Crist, Dorothy G. Crist, Wiiiiam S/111011, Carolyn S/111011, Steven Sehneider am/ Cheryl S. Schneld

e r; Ca s e 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 Circulated 10/08/2015 03:41 PMC V J:- b Andrea E. Naugle Clerk of Judicial Recor d s the abov e captioned matter h a s been entere d. 

### Pursuant to Pa

. R.C

. P

. § 

### 236, notice is h e reby given th at an order , decree, or judgment in 236NOTICE Snyder & Wiles PC 7731 Main Street Fogelsville PA 18051 Gladys E Wiles , E sq 

# J Gross McGinley LLP 33 South Seventh Street 

### PO Box 4060 All e ntown PA 18105

- 4060 Christopher W Gittinger , Esq 

# J ~ 11/6/201 4 File No.: 2013-C-0310 

### Docum e nt Distribution List IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA CIVIL COURT DIVISION Circulated 10/08/2015 03:41 PM