J-A32015-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 MARK P. MATTHEWS AND BRENDA MATTHEWS, HIS WIFE, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellees

v. GEORGE TESLOVICH, JR., Appellant No. 54 WDA 2015

Appeal from the Judgment Entered January 7, 2015 In the Court of Common Pleas of Fayette County Civil Division at No(s): 2593 of 2011 GD

BEFORE: SHOGAN, OTT, and STABILE, JJ. DISSENTING MEMORANDUM BY SHOGAN, J.: FILED JUNE 28, 2016 After my review of the record, the briefs of the p arties, the trial court opinion, and relevant authority, I discern no abuse of discretion or error of law in the trial court’s decision to grant an easem ent by necessity for utilities. Accordingly, I respectfully dissent. In this Commonwealth “an easement may be created 1) expressly; 2) by prescription; 3) by necessity; or 4) by implicat ion.” Phillippi v. Knotter , 748 A.2d 757, 758 (Pa. Super. 2000) (citation omitt ed). Here, it is undisputed that the trial court’s order granted an easement by necessity. An easement by necessity contemplates a situation i n which a parcel of land

is landlocked. Id . at 760. “Landlocked” is defined as “surrounded b y land, often with the suggestion that there is little or n o way to get in or outJ-A32015-15

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without crossing the land of another.” Id . (quoting Black’s Law Dictionary 883 (7 th edition 1999)). “It is a well-settled principle of law that, in the event property is conveyed and is so situated that access to it from the highway cannot be had except by passing over the re maining land of the grantor, then the grantee is entitled to a way of n ecessity over the lands of his grantor.” Phillippi , 748 A.2d at 758 (citation omitted). The three fundamental requirements for an easement by necessi ty are as follows: 1) The titles to the alleged dominant and servient properties must have been held by one person. 2) This unity of title must have been severed by a conveyance of one of the tracts. 3) The easement must be necessary in order for the owner of the dominant tenement to use his land, with the nec essity existing both at the time of the severance of title and at the time of the exercise of the easement.

Id . (citation omitted). An easement by necessity is due to strict necessity, and it never exists as a mere matter of convenience

. Id . (citations omitted). In the case at bar, Appellant does not challenge th e trial court’s finding of an easement by necessity for ingress and egress; Appellant’s sole challenge is to the trial court’s finding of an eas ement by necessity for utilities. Appellant’s Brief at 7. There is a dea rth of case law on the discrete issue of easements by necessity for utilities. However, in PARC Holdings, Inc. v. Killian , 785 A.2d 106 (Pa. Super. 2001), this Court was faced with a similar s cenario. In PARCJ-A32015-15

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Holdings , the issue was whether an express easement “ for ingress and egress to certain land now owned by Grantor ” included an easement for

utilities. Id . at 109. While that case involved an express ease ment, I conclude that the decision is instructive. The PARC Holdings Court relied

on Dowgiel v. Reid , 59 A.2d 115 (Pa. 1948), which held that “Pennsylv ania has adopted the rule that where a right of way is g ranted or reserved without limit of use, it may be used for any purpos e to which the land accommodated thereby may naturally and reasonably b e devoted.” PARC Holdings , 785 A.2d at 114 (citing Dowgiel , 59 A.2d at 118). This Court in PARC Holdings reasoned as follows:

The deed reserving the easement in the present case provided in pertinent part as follows: “a non-exclu sive fifty (50) foot wide right-of-way, with Grantee, their heirs a nd assigns, for ingress and egress to certain land now owned by Gra ntor.” We find the wording of the reservation as to its purpo se ambiguous, as it generally defines its purpose in terms of pro viding mere access to the dominant estate by extension of a public road . The language does not specify a limited purpose t o the access, such as “for the purpose of maintaining a water system” or “for pedestrian and vehicular travel onl y.” Since we are dealing with the reservation of an easement or right of way in general terms without a specific statement of purpose, case law clearly expresses that the focal point of inquiry is the intention of the parties who created the easement.

Id . at 112 (emphases added). Thus, this Court conclu ded that the express easement was ambiguous, and the attendant circumsta nces weighed in favor of PARC Holdings ’ contention that the easement was reserved for fut ure land development; the intent was that the easement was not simply for ingress and egress, but also included the right to install utilities. Id . at 116.J-A32015-15

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Here, I recognize that this Court is not assessing an express easement. However, because we are evaluating the i mport of the words “ingress and egress” over a road that was originall y referred to as a “public road” in the deed of conveyance from Beal, and beca use the survey attached to the deed depicted a “public road,” the rationale from PARC Holdings persuades my decision that ingress and egress may i nclude utilities. Because the road was termed a “public road” without a limit on its usage at the time of conveyance from Beal in 1972, a reserva tion was created at that time for “any purpose to which the land accommodate d thereby may naturally and reasonably be devoted.” PARC Holdings , 785 A.2d at 114 (citing Dowgiel , 59 A.2d at 118). I conclude that an easement for public water, under the facts of this case, is both necess ary and reasonable. In the absence of contrary binding authority, 1 I find no abuse of discretion or error of law by the trial court in granting Appellees an easement by necessity for

utilities.

1 Other jurisdictions similarly include access to ut ilities within the meaning of ingress and egress pursuant to an easement by neces sity. See Regan v. Pomerleau , 107 A.3d 327, 338 (Vt. 2014) (citing Berge v. State , 915 A.2d 189 (Vt. 2006)); Brown v. Miller , 95 P.3d 57 (Id. 2004); Smith v. Heissinger , 745 N.E.2d 666 (Ill. App. 2001); Morrell v. Rice , 622 A.2d 1156 (Me. 1993); Huggins v. Wright , 774 So.2d 408 (Miss. 2000); and 1 Restatement (Third) of Prop.: Servitudes § 2.15 com ment d. (2000) (observing that “increasing dependence” on access t o utilities for reasonable enjoyment of property supports recognition of easem ent by necessity). I am cognizant, however, of contrary holdings as we ll. See Albenberg v. Szalay , 774 S.E.2d 730, 735 (Ga. App. 2015) (stating that an easement for ingress and egress does not include a utility easement, citing Lanier v. Burnette , 538 S.E.2d 476 (Ga. App. 2000)).J-A32015-15

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For the reasons set forth above, I would affirm th e judgment entered in favor of Appellees.