J. A30037/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

ALDER RUN, LLC                    :           IN THE SUPERIOR COURT OF
                                  :                 PENNSYLVANIA
                v.                :
                                  :
RICHARD E. LUTZ, TRUSTEE,         :
NANCY M. LUTZ, TRUSTEE RHCC, LLC, :
JAMES A. STRAWSER,                :
LESTER H. STRAWSER,               :
DANIEL D. STRAWSER,               :
EARL T. STRAWSER,                 :
PALMER E. STRAWSER,               :
AMOS T. STRAWSER,                 :
KEVIN O. STRAWSER,                :
SHANE A. STRAWSER,                :
KEITH A. STRAUSER,                :
ELROY D. STRAUSER,                :
JOSHUA E. STRAUSER,               :
DALE E. GOODLING,                 :
ANTHONY L. PORTZLINE,             :
TERRY L. ARNOLD,                  :
EDWARD P. VERES, JR.,             :
ANN F. VERES, RONALD R. SEILER,   :
DEBORAH L. CARNS, GARETH O. WICK, :
AND DURVIN Z. WICK                :
                                  :                No. 797 WDA 2017
APPEAL OF: RICHARD E. LUTZ,       :
TRUSTEE                           :

                    Appeal from the Judgment, May 10, 2017,
               in the Court of Common Pleas of Clearfield County
                         Civil Division at No. 15-309-CD

BEFORE: BOWES, J., STABILE, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED FEBRUARY 21, 2019

     Appellant, Richard E. Lutz, Trustee (“Lutz”), appeals from the May 10,

2017 judgment entered following the trial court’s February 21, 2017 order

granting appellee, Alder Run, LLC (“Alder Run”), an easement by prescription
J. A30037/17


across the respective properties of the defendants in the underlying action.1

After careful review, we affirm.

      This matter stems from a longstanding dispute over access to a dirt

roadway connected to Township Road 727 that intersects parcels of land

owned   by    neighboring   property   owners   in   rural   Clearfield   County,

Pennsylvania.    (Notes of testimony, 12/12/16 at 60-61.)        The trial court

summarized the relevant facts of this case as follows:

             Lutz purchased a parcel of land in Graham Township,
             Clearfield County, Pennsylvania by deed dated
             March 14, 2003 and recorded on March 19, 2003. The
             property was purchased from the Clearfield Bank and
             Trust Company at an auction held on November 29,
             2002. On the same date, [Alder Run] also purchased
             a parcel of land from the Clearfield Bank and Trust
             Company. The deed for this property, consisting of a
             parcel of land containing 487 acres, was dated
             February 25, 2003 and was recorded on February 28,
             2003. [Alder Run’s] predecessor in title[] was the
             Clearfield Bank and Trust Company who held the
             property in trust for the Thomas H. Forcey heirs
             [(hereinafter, “the Forceys”)]. Thomas H. Forcey
             became the owner of the land by deed dated
             November 15, 1880. Said deed is recorded in the
             Clearfield County Deed Book 11, page 380.
             [Alder Run’s] property, and the properties of the
             Defendants, are generally located to the north of
             Lutz’s property.

1 Although Lutz is the only named appellant in this matter, he makes several
arguments on behalf of the defendants in the underlying action, Nancy Lutz,
Trustee of RHCC, LLC, James A. Strawser, Lester H. Strawser, Earl T.
Strawser, Palmer E. Strawser, Amos T. Strawser, Kevin O. Strawser, Shane
A. Strawser, Keith A. Strauser, Elroy D. Strauser, Dale E. Goodling, Anthony
L. Portzline, and Terry L. Arnold, whom he collectively refers to as both
“Lutz and Strauser” and “Appellants” throughout the duration of his brief. It
is unclear from the record from what or whom Lutz is a trustee of as RHCC,
LLC has not been identified.


                                       -2-
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            Prior to Lutz[’s] purchasing the property in 2002, Lutz
            had inspected the property and observed that there
            was a road, which proceeded through the property to
            the north. Lutz acknowledged that he had been aware
            of this roadway. Lutz further admitted that he knew
            that the roadway was used by Defendants Seiler,
            Strawsers, Strausers, Veres, and other property
            owners owning property to the north of Lutz’s tract as
            a way of accessing their properties.

            In 2004 Lutz constructed a gate across the roadway,
            which has become the main point of contention in the
            instant litigation. After constructing the gate, Lutz
            provided keys to some property owners who used the
            roadway to access their properties, but denied keys to
            other landowners. The record in this case indicates
            that the parties who own land to the north of the Lutz
            tract, as well as their predecessors in title, used the
            roadway in question to access their properties for
            various purposes including accessing camps,
            accessing residences, hunting, hauling coal, and
            hauling timber.     The record also indicates that
            [Alder Run’s] predecessors in title used the roadway
            to access what is now [Alder Run’s] property for
            hunting purposes, and to haul timber from the
            property.

            After acquiring title to the property in 2002,
            [Alder Run] admittedly used the roadway in question
            very infrequently.     [Alder Run’s] property was
            accessed on the day of the sale by the owner, and it
            was accessed on two subsequent occasions by
            [Alder Run’s] property managers. Neither the owner
            of Alder Run, LLC, nor its property managers, have
            attempted to access [Alder Run’s] property f[ro]m the
            time Lutz constructed his gate, except for one
            occasion in 2014. During the 2014 occasion, it was
            [Alder Run’s] property manager, Robert Van Blargan,
            who accessed [Alder Run’s] property by walking
            around Lutz’s gate and using the roadway in question.

Trial court opinion and order, 2/21/17 at 2-4 (citations and footnotes omitted).



                                     -3-
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      On March 5, 2015, Alder Run filed a complaint requesting that the trial

court designate the access roadway in question as a private road pursuant to

36 P.S. § 2731 et seq., or grant Alder Run an easement by prescription.

Preliminary objections were filed by several of the defendants, and following

a June 8, 2015 hearing, the trial court ordered Alder Run to file an amended

complaint. On June 29, 2015, Alder Run filed an amended complaint, to which

additional preliminary objections were filed by Lutz and several of the

defendants.    The trial court dismissed these preliminary objections on

October 13, 2015. Thereafter, on December 12, 2016, this matter proceeded

to a non-jury trial. Following a non-jury trial, the trial court entered an order

on February 21, 2017, granting Alder Run an easement by prescription across

the properties in question “by use of the dirt roadway that is connected to

Township Road 727.”     (Trial court opinion and order, 2/21/17 at 10.)       On

March 3, 2017, Lutz filed post-trial motions that were denied by the trial court

on May 5, 2017. On May 10, 2017, the Clearfield County Prothonotary entered

judgment in this matter.

      On June 1, 2017, Lutz filed a timely notice of appeal. That same day,

the trial court directed Lutz to file a concise statement of errors complained of

on appeal, in accordance with Rule 1925(b), within 21 days.               Lutz’s

Rule 1925(b) statement, dated June 15, 2017, was time-stamped by the

Clearfield County Prothonotary as filed on June 26, 2017, four days after

expiration of the 21-day filing period. (See certified record at No. 71.) The



                                      -4-
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trial court did not file a Rule 1925(a) opinion addressing the issues presented

in Lutz’s Rule 1925(b) statement.       On July 27, 2018, this panel issued a

memorandum concluding that Lutz waived all his issues on appeal for failing

to file a timely Rule 1925(b) statement in accordance with the trial court’s

June 1, 2017 order.        On August 8, 2018, Lutz filed an application for

reargument wherein he attached copies of United States Postal Form 3817

evidencing that he had timely served a second copy of his Rule 1925(b)

statement on the Clearfield County Prothonotary and the trial judge on

June 22, 2017, in accordance with Pa.R.A.P. 1112(c).2 (See “Application for

Reargument,” 8/8/18 at Appendix B, Exhibits 1, 2.) On September 20, 2018,

we issued a per curiam order granting panel reconsideration and withdrawing

our July 27, 2018 memorandum.

      On appeal, Lutz raises the following issues for our review:

             A.      Did the trial court err when it granted
                     [Alder Run] a prescriptive easement over the
                     real property of the [defendants and Lutz]?

             B.      Did the trial court err in how it applied 68 P.S.
                     [§] 411, pertaining to prescriptive easements in
                     unenclosed woodlands and which was raised as
                     an affirmative defense by [defendants and Lutz]
                     in the instant case?

Lutz’s brief at 6.




2 Curiously, the United State Postal Forms Lutz supplied in his application for
reargument, evidencing the timely filing of his Rule 1925(b) statement on
June 22, 2017, were not appended to his concise statement and do not
appear anywhere in the certified record.


                                        -5-
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     Our standard of review in non-jury cases is as follows:

           It is well-settled that our review of the trial court’s
           decision after a non-jury trial is limited to a
           determination of whether the findings of the trial court
           are supported by competent evidence and whether
           the trial court committed error in the application of
           law.
                 Findings of the trial judge in a non-jury
                 case must be given the same weight and
                 effect on appeal as a verdict of a jury and
                 will not be disturbed on appeal absent
                 error of law or abuse of discretion. When
                 this Court reviews the findings of the trial
                 judge, the evidence is viewed in the light
                 most favorable to the victorious party
                 below and all evidence and proper
                 inferences favorable to that party must be
                 taken as true and all unfavorable
                 inferences rejected.

                 The trial court’s findings are especially
                 binding on appeal, where they are based
                 upon the credibility of the witnesses,
                 unless it appears that the court abused its
                 discretion or that the court’s findings lack
                 evidentiary support or that the court
                 capriciously disbelieved the evidence.
                 Conclusions of law, however, are not
                 binding on an appellate court, whose duty
                 it is to determine whether there was a
                 proper application of law to fact by the
                 lower court. With regard to such matters,
                 our scope of review is plenary as it is with
                 any review of questions of law.

Leoni v. Leoni, 153 A.3d 1073, 1077-1078 (Pa.Super. 2017) (citations and

internal quotation marks omitted), appeal denied, 169 A.3d 583 (Pa. 2017).




                                    -6-
J. A30037/17


      We begin by addressing Lutz’s claims that the trial court erred when it

granted Alder Run an easement by prescription across his property. (Lutz’s

brief at 6.) Specifically, Lutz takes issue with the fact that:

             No evidence was presented at trial nor did the trial
             court make any findings as to the specific location of
             the alleged prescriptive easement. Also, no evidence
             was presented at trial nor did the trial court make any
             findings as to when the required twenty-one year time
             period of adverse usage of the alleged prescriptive
             easement occurred.         Finally, no evidence was
             presented at trial [that] would support the trial court’s
             finding as to continuous and adverse usage of the
             alleged prescriptive easement by Alder Run or its
             predecessors in title.

Id. at 13.

      “A prescriptive easement is a right to use another’s property which is

not inconsistent with the owner’s rights and which is acquired by a use that is

open, notorious, and uninterrupted for a period of 21 years.” McNaughton

Properties, LP v. Barr, 981 A.2d 222, 225 n.2 (Pa.Super. 2009).             “A

prescriptive easement differs from land acquired by adverse possession,

because an adverse possessor acquires the land in fee, whereas the

prescriptive easement holder is only entitled to an easement-like use.”

Soderberg v. Weisel, 687 A.2d 839, 843 (Pa.Super. 1997) (citation

omitted). In order to create a prescriptive easement, the user must show

“(1) adverse, (2) open, (3) notorious, (4) continuous and uninterrupted use

[of land] for a period of twenty-one (21) years.” Village of Four Seasons

Ass'n, Inc. v. Elk Mountain Ski Resort, Inc., 103 A.3d 814, 822 (Pa.Super.



                                       -7-
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2014), appeal denied, 125 A.3d 778 (Pa. 2015).          The burden of proving

these elements falls on “the party asserting the easement” by “clear and

positive proof.” Id. (citation omitted).



A.    Specific location of the prescriptive easement

      Lutz first argues that the trial court erred in granting Alder Run a

prescriptive easement over his property because “no evidence was presented

at trial nor did the trial court make any findings as to the specific location of

the alleged prescriptive easement.” (Lutz’s brief at 18.) In support of this

contention, Lutz avers that:

            Alder Run did not present a survey of the alleged right
            of way. Alder Run did not present an engineer’s
            drawing of the alleged right of way. Alder Run did not
            provide any evidence regarding the length of the
            alleged right of way nor did it present evidence as to
            the width of the alleged right of way at trial.

Id. at 18-19. Lutz avers that, “[g]iven the lack of any such evidence,” the

trial court should not have made any factual findings or drawn any legal

conclusions with respect to the location of the alleged right of way. (Id. at

19-20.) We disagree.

      Our review reveals no case law in this Commonwealth indicating that

the boundaries of a prescriptive easement need be supported by a survey or

engineer’s drawing, nor set forth with sufficient precision in a metes and

bounds description, in order to be enforceable.        This court’s decision in

McNaughton, however, which involved an express easement, is particularly


                                      -8-
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enlightening. In McNaughton, a panel of this court concluded that the trial

court lacked the authority to order the relocation of an express easement in

order to permit the owner of the servient estate to develop its property.

McNaughton, 981 A.2d at 223. In reaching this decision, the McNaughton

court emphasized that, “unlike with express easements, the location of a

prescriptive easement is not fixed by agreement between the parties or

their predecessors in interest.” Id. at 226 (citation omitted; emphasis added).

The McNaughton court further rejected the servient estate holder’s claim

that the location of the express easement was ambiguous because the deed

granting the easement failed to include a specific metes and bounds

description. Id. at 229. The McNaughton court reasoned that the easement

existed based on the obvious nature and use of the easement, which was a

clearly visible “right of passage over the Two Lanes across the Failor Farm.”

Id.

      Similarly, in the instant matter, multiple parties at trial testified with

regard to the nature and use of the roadway by the defendants and

Alder Run’s predecessors in title, the Forceys, such that its general boundaries

and location were self-evident. (See notes of testimony, 12/12/16 at 8-19,

40-44, 50-51.)    Under McNaughton, it follows that a survey, engineer’s

drawing, and/or metes and bounds description was unnecessary in order to

establish the existence of a prescriptive easement in this matter. Lutz’s first

claim of trial court error, therefore, warrants no relief.



                                      -9-
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      Although not binding on this court, we find the holdings of a number of

our sister jurisdictions that have addressed this issue particularly persuasive.

For example, in Oshita v. Hill, 308 S.E.2d 923 (N.C.App. 1983), the Court of

Appeals of North Carolina concluded that:

            Substantial identity of the easement simply means
            that the way used followed a reasonably definite and
            specific line during the period involved. While there
            may be slight deviations in the line of travel there
            must be a substantial identity of the thing enjoyed.
            But since prescriptive ways are established by
            custom and usage, rather than by road builders
            and engineers, a metes and bounds description
            is not required; that the way can be identified
            and located from the testimony given is
            sufficient. The testimony of plaintiffs’ chief witness
            as to the course and location of the road, that it was
            there before 1932, and has not changed since then,
            was sufficient to establish this element.

Id. at 926 (citation and internal quotation marks omitted; emphasis added);

see also Ventres v. Goodspeed Airport, LLC, 881 A.2d 937, 952 (Conn.

2005), cert. denied, 547 U.S. 1111 (2006) (the Supreme Court of

Connecticut held that “[t]he boundaries of a prescriptive easement need not

be described by metes and bounds if the character of the land makes such

precise description impossible.” (citation omitted)); Johnston v. Bates, 778

S.W.2d 357, 365 (Mo.Ct.App. 1989) (the Missouri Court of Appeals held that

“[t]he fact that [the prescriptive easement] is not described by metes and

bounds, either by plaintiffs or the court, does not invalidate the easement.”).




                                     - 10 -
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B.    Time-period of adverse usage of the prescriptive easement

      Lutz next argues that the trial court erred in granting Alder Run a

prescriptive easement over his property because Alder Run “failed to present

any evidence as to when the twenty-one year time period of adverse usage

occurred.” (Lutz’s brief at 23.) The record belies this contention.

      This court has long recognized that it is unnecessary to establish the

exact date of the beginning of the adverse use “where adverse, uninterrupted,

and continuous user is shown covering the twenty-one year period[,]” because

the prescriptive right is based upon the presumption of a lost grant. Steel v.

Yocum, 151 A.2d 815, 816 (Pa.Super. 1959) (citation omitted). Moreover,

unlike the doctrine of adverse possession, “one claiming an easement by

prescription need not show an exclusive and distinct use.” Newell Rod and

Gun Club, Inc. v. Bauer, 597 A.2d 667, 670 (Pa.Super. 1991). Direct use

by predecessors in title for 21 years is sufficient to establish open, notorious,

continuous, uninterrupted, adverse, and hostile use. Keefer v. Jones, 359

A.2d 735, 737-738 (Pa. 1976). It is well settled that the adverse use of a

right-of-way by a prior owner may be tacked to the use of a subsequent

owner. See Matakitis v. Woodmansee, 667 A.2d 228, 232 n.1 (Pa.Super.

1995) (stating, “[u]nder Pennsylvania law, landowner who is in privity with

the prior adverse possessor may tack prior use of an easement onto his or her

own period of use to establish continuous possession for the required




                                     - 11 -
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twenty-one years” (citation omitted)), appeal denied, 682 A.2d 311 (Pa.

1996).

      Turning to the instant case, the testimony presented at trial established

that the roadway in question has been in existence for over 100 years and

had been utilized as a means of both access and timber removal by Alder Run’s

predecessors in title, the Forceys, for decades. As noted by the trial court,

Alder Run’s predecessor in title was Clearfield Bank and Trust Company, who

held the property in trust for the Thomas H. Forcey heirs until it was sold to

Alder Run at auction in 2003; Thomas H. Forcey became the owner of the land

by deed dated November 15, 1880.         (See trial court opinion and order,

2/21/17 at 3.) At trial, Durvin Z. Wick testified that his grandmother was born

on what is now defendant Seilers’ property and that his family has utilized the

roadway in question since 1898, “[a]nd before that probably.”        (Notes of

testimony, 12/12/16 at 32.)        Wick further testified that Alder Run’s

predecessors in title, the Forceys, used the roadway to haul timber and gain

access to their property to hunt. (Id. at 36-37). Likewise, Edward Veres, Jr.,

testified that he has lived on the farm next to the Lutz property nearly his

entire life and that the Forceys were in the timber business and utilized the

roadway in question to haul timber off their property.      (Id. at 6-7, 16.)

Alan Larson, whose family has utilized the roadway in question in connection

with their strip mining business since 1947, further corroborated Veres’

testimony. (Id. at 40-41.) Larson testified that the Forceys were involved in



                                    - 12 -
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the timber business and hauled timber out of what is now Alder Run’s property

via the roadway. (Id. at 43-44.)

      The record further reflects that the majority of witnesses who testified

during the December 12, 2016 jury trial confirmed that, in addition to

Alder Run’s predecessors in title, the surrounding property owners to the north

of Lutz’s property have historically used the roadway in question to access

their properties.   At trial, Lutz acknowledged:    that he was aware of this

roadway immediately prior to or just after purchasing his property in 2002;

that he knew that the roadway was utilized by a number of the aforementioned

defendants to gain access to their properties; and that, in fact, he provided

keys to some of them after constructing the gate in 2004.        (Id. at 50-51,

65-67.)



C.    Continuity of adverse use of the prescriptive easement

      Lutz next argues that the trial court erred in granting Alder Run a

prescriptive easement over his property because “[n]o evidence was

presented at trial which would support the trial court’s finding as to continuous

and adverse usage of the alleged prescriptive easement by Alder Run or its

predecessors in title.” (Lutz’s brief at 24.) This claim is meritless.

      Continuity for purposes of an easement by prescription does not

necessarily mean daily, weekly, or even monthly use.            “To establish a

prescriptive easement, the proponent of the easement need not prove



                                     - 13 -
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constant use of the property.”         Moore v. Duran, 687 A.2d 822, 826

(Pa.Super. 1996) (citation omitted; emphasis added), appeal denied, 700

A.2d 442 (Pa. 1997). “Rather, continuity is established if the evidence shows

a settled course of conduct indicating an attitude of mind on the part of the

user or users that the use is the exercise of a property right.” Thomas A.

Robinson Family Ltd. P’ship v. Bioni, 178 A.3d 839, 848 (Pa.Super. 2017)

(citations omitted), appeal denied, 194 A.3d 560 (Pa. 2018). Instantly, we

agree with the trial court that the evidence at trial demonstrated that the

Forceys’ course of conduct in utilizing this rural roadway clearly satisfied this

element. It is well settled that “the nature of the easement,” including its

frequency of use and whether it is located in a city or rural countryside, are

important factors “in a determination of whether an easement exists and

exactly what rights have been acquired thereunder.” Minteer v. Wolfe, 446

A.2d 316, 318-319 (Pa.Super. 1982).

      Based upon our review of the evidence in the light most favorable to

Alder Run, the verdict winner, we discern no error on the part of the trial court

in concluding that Alder Run, through its predecessors in title, have

demonstrated “open, notorious, and uninterrupted [use] for a period of

21 years[,]” sufficient to obtain an easement by prescription. McNaughton,

981 A.2d at 225 n.2; see also Matakitis, 667 A.2d at 232 n.1 (holding that

the adverse use of a right-of-way by a prior owner may be tacked to the use

of a subsequent owner).      Accordingly, we agree with the trial court that



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Alder Run “should not be barred from exercising such [prescriptive] rights due

to a gate or any other obstruction placed across the roadway” by Lutz. (See

trial court opinion and order, 2/21/17 at 8.)



D.    Trial court’s application of the Unenclosed Woodlands Act

      We now turn to Lutz’s claim that “[t]he trial court erred in its application

of 68 P.S. [§] 411[,]” commonly known as the Pennsylvania Unenclosed

Woodlands Act.3 (Lutz’s brief at 32.)

      As discussed, the general rule is that a user can acquire a prescriptive

easement    by   demonstrating    “(1)   adverse,   (2)   open,   (3)   notorious,

(4) continuous and uninterrupted use [of land] for a period of 21 years.”

PA Energy Vision, LLC v. South Avis Realty, Inc., 120 A.3d 1008, 1014

(Pa.Super. 2015) (citation omitted), appeal denied, 138 A.3d 6 (Pa. 2016).

However, in 1850, the General Assembly carved out an exception to this

general rule by forbidding the acquisition of prescriptive easements through

unenclosed woodlands. See 68 P.S. § 411. Thus, even where the factors

necessary to obtain a prescriptive easement have been established, an

adverse user is prohibited from acquiring a prescriptive easement through an

unenclosed woodland. Martin v. Sun Pipe Line Co., 666 A.2d 637, 288 (Pa.

1995).


3Act of April 25, 1850, P.L. 569, § 21, repealed, Act of December 10, 1974,
P.L. 867, No. 293, § 19, reenacted and amended, Act of July 1, 1981,
P.L. 198, No. 61.


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      Section 411 provides as follows:

            No right of way shall be hereafter acquired by user,
            where such way passes through uninclosed[4]
            woodland; but on clearing such woodland, the owner
            or owners thereof shall be at liberty to enclose the
            same, as if no such way had been used through the
            same before such clearing or enclosure.

68 P.S. § 411.

      The crux of Lutz’s claim is that Alder Run is strictly prohibited from

obtaining a prescriptive easement over his property because the roadway

passes through an “unenclosed woodland.” (Lutz’s brief at 32-33.) Although

the Legislature failed to define the term “unenclosed woodland” in

Section 411, this court has repeatedly recognized that “[i]t is the character of

the land itself which is determinative.” Sprankle v. Burns, 675 A.2d 1287,

1289 (Pa.Super. 1996) (citations omitted), appeal denied, 686 A.2d 1312

(Pa. 1996); see also Martin, 666 A.2d at 641.

      In Williams v. Taylor, 188 A.3d 447 (Pa.Super. 2018), a panel of this

court recently summarized the history of cases in this Commonwealth that

have addressed unenclosed woodlands:

            Beginning in 1896, for example, in Kurtz v. Hoke,
            [33 A. 549 (Pa. 1896)], no one questioned that the
            alleged easement “extended for about 100 yards
            through the improved part” of the land “and then over
            the woodland of plaintiff.” Thus, no easement was
            permitted. The alleged easement was also barred in
            Trexler [v. Lutz, 118 A.2d 210, 210 (Pa.Super.
            1955)], where it extended “through a tract of

4 This statute uses “uninclosed.” We have edited that spelling to the modern
form of “unenclosed” throughout this memorandum.


                                     - 16 -
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           110 acres of woodland of defendants to contiguous
           woodland of plaintiff.” Similarly, in [Martin, 666 A.2d
           at 641], the court granted summary judgment for the
           landowners and rejected an easement when affidavits
           and aerial photographs showed that “the premises
           were in fact heavily forested.”             See also
           Humberston v. Humbert, [407 A.2d 31, 32
           (Pa.Super. 1979)] (where for most of the 21 years,
           the easement went through unimproved and
           unenclosed woods), and [Sprankle, 675 A.2d at
           1288] (where the record revealed that the dirt road
           crossed through unenclosed woodland, and a
           prescriptive easement could not be granted for
           timbering purposes).

           At the other end of the spectrum, this Court allowed a
           prescriptive easement in Eble v. Jones, [44 A.2d
           761, 762 (Pa.Super 1945)], where the facts of record
           clearly showed that the “premise never contained
           woodland;” only sparse underbrush and two or three
           trees, and in [Minteer, 446 A.2d at 321], where the
           growth alleged to be woodland consisted merely of “a
           fence row of trees and brush as is commonly found to
           exist on the boundary lines of land located in rural
           areas.”

           In sum, our review of the cases from nearly two
           centuries found only two instances where an
           easement was permitted because it definitely did not
           pass through woodlands (Eble and Minteer), and five
           where an easement was barred because it definitely
           did pass through unenclosed woodlands (Kurtz,
           Trexler, Humberston, Martin, and Sprankle).

Williams, 188 A.3d at 451-452 (citation formatting amended).

     Williams involved a property owner who brought a quiet title action

against three logging companies, seeking to prohibit them from driving over

a private lane on his property. Id. at 448. Following a non-jury trial, the

Court of Common Pleas of Adams County held that the logging companies



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could not obtain a prescriptive easement under Section 411, and the logging

companies appealed.         Id.   The Williams court concluded, based upon its

review of the aerial and ground level photographs of the property in question,

that the trial court properly determined that Williams’ property constituted an

unenclosed woodland under Section 411, and thus, the logging companies

were precluded from obtaining a prescriptive easement over his property. Id.

at 454.    In reaching this conclusion, the Williams court found that a

“woodland,” for purposes of the Unenclosed Woodlands Act, “is an area of land

that trees and bushy undergrowth cover, synonymous with a ‘forest.’” Id.

      Instantly, our exhaustive review of exhibits presented in this case,

including the numerous ground-level photographs of the property and the

4’ x 3’ aerial map depicting the easement, reveals that the trial court properly

determined     that   the     land   surrounding   the   roadway   was   not   an

“unenclosed woodland” within the meaning contemplated by Section 411.

Rather, the aerial map reveals that the land through which the roadway in

question passes, although quite rural, is not “heavily forested” nor entirely

“unimproved.”    We further note that the application of Section 411 to the

instant matter would not serve “the statute’s apparent purpose to protect

woodland property owners against unknown and undesired encroachment

upon their property rights,” Tomlinson v. Jones, 557 A.2d 1103, 1106

(Pa.Super. 1989), as the evidence at trial established that Lutz was fully aware

that the roadway was utilized by a number of the aforementioned defendants



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to gain access to their properties, and in fact, he acknowledged providing keys

to some of the property owners following construction of the gate. (See notes

of testimony, 12/12/16 at 50-51, 65-67.) Accordingly, we discern no abuse

of discretion on the part of the trial court in concluding that Section 411 did

not operate to bar Alder Run’s acquisition of prescriptive right to use the

roadway.



E.    Burden of proof under the Unenclosed Woodlands Act

      In his final claim, Lutz argues that the trial court erred in shifting the

burden to him to prove that the right-of-way in question passed through an

unenclosed woodland. (Lutz’s brief at 34-35.) We disagree. This court has

recognized that, once the alleged easement holder has met its burden of proof

that its use was adverse, open, notorious, continuous, and uninterrupted for

a period of 21 years, as Alder Run did in the case sub judice, a landowner

has the burden of proving that the alleged easement was being utilized

pursuant to a grant of permission, contract, or special license. See Walley

v. Iraca, 520 A.2d 886, 890 (Pa.Super. 1987). Likewise, it follows that as

the landowner raising an affirmative defense under Section 411, it was Lutz’s

burden to establish that Alder Run’s right-of-way passed through an

unenclosed woodland. See Sabella v. Appalachian Dev. Corp., 103 A.3d

83, 93 (Pa.Super. 2014) (stating, “a defendant asserting an affirmative




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defense has the burden of proof as to that affirmative defense.”). Accordingly,

Lutz’s final claim of error fails.

         Based on the foregoing, we discern no abuse of the trial court’s

discretion in concluding that Alder Run was entitled to an easement by

prescription. Accordingly, we affirm the May 10, 2017 judgment of the trial

court.

         Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/21/2019




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