J-S08032-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    BARRY O. KUHSTOSS,                         :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    DONALD R. STEELE, SARA JANE                :
    STEELE, AND JAMES K. STEELE T/A            :
    STEELE'S LUMBER COMPANY AND                :
    RICHARD STEELE A/K/A RICK                  :      No. 1092 WDA 2019
    STEELE

                  Appeal from the Order Entered June 27, 2019
                in the Court of Common Pleas of Bedford County
                       Civil Division at No(s): 120 for 2013

BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                               FILED MAY 27, 2020

       Barry O. Kuhstoss (“Kuhstoss”) appeals from the Order granting the

Motion for Injunctive Order filed by Donald R. Steele, Sara Jane Steele, and

James K. Steele, T/A Steele’s Lumber Company, and Richard Steele, a/k/a

Rick Steele (collectively, “the Steeles”), regarding a prescriptive easement

over Kuhstoss’s property. We reverse and remand for further proceedings.1

       This case involves a years-long dispute over the use of a private dirt

right-of-way (the “Hunting Road”) that runs through real property owned by

the parties, who own adjacent parcels in rural Bedford County.


____________________________________________


1We note that we exercise jurisdiction over this case pursuant to Pa.R.A.P.
311(a)(4), which provides that a direct appeal may be taken by a party
aggrieved by the entry of an order granting an injunction.
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       Kuhstoss acquired his property (the “Kuhstoss Property”) from his

parents in October 1987. Kuhstoss primarily uses the Kuhstoss Property for

residential purposes. The Kuhstoss Property contains various residential and

agricultural buildings, and includes a mixture of open fields and woodlands.

The Steeles have owned their property (the “Steele Property”) since 1963,

which is located roughly north of the Kuhstoss Property. The Steeles currently

use the Steele Property exclusively for hunting and recreational use.       The

Steele Property is primarily woodlands, and contains no buildings or other

improvements.

       The Hunting Road is accessed from Sherman’s Valley Road in Broad Top

Township, Bedford County, and traverses several thousand feet north,

through woodlands on the Kuhstoss Property, before reaching the Steele

Property. Though the deed history for the Kuhstoss Property does not contain

express written permission for the Steeles to use the Hunting Road, the

Steeles have used the Hunting Road as their primary means to access the

Steele Property for more than fifty years.2      The Steeles typically use the

Hunting Road several times throughout the year to hunt on the Steele

Property, and primarily drive on the Hunting Road using their personal

____________________________________________


2  An alternative right-of-way exists to access the Steele Property. The
alternative right-of-way, which is expressly provided for in the Steele Property
deed history, is accessed from Sherman’s Valley Road, and crosses a stream
before accessing the Steele Property. Although a bridge existed over the
stream at one point, it washed out several decades ago. The Steeles testified
that acquiring a permit for and constructing a new bridge over the stream
would be difficult, if not impossible. N.T., 6/26/19, at 13-15, 24.

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vehicles. On occasion, the Steeles have performed maintenance and repairs

to the Hunting Road.

       In 1992, Kuhstoss erected and placed a cable across the Hunting Road

to block outside vehicular access. The cable was not locked, and the Steeles

were able to remove the cable from the Hunting Road to access the Steele

Property with their vehicles. In July 2012, Kuhstoss installed a gate, locked

with a chain, blocking vehicular access to the Hunting Road. However, the

Steeles would cut the chain and open the gate in order to use their vehicles

to access the Steele Property. In the years that followed, the Steeles sought

to reach an amicable solution with Kuhstoss, so that the Steeles could access

the Steele Property with their vehicles via the Hunting Road. However, the

parties could not come to an agreement.

       On December 1, 2014, Kuhstoss filed a Complaint to Quiet Title. In the

Complaint, Kuhstoss argued that the Steeles did not possess a right-of-way

over the Hunting Road because the Steeles were not expressly granted a right-

of-way for the Hunting Road; an alternative right-of-way existed for the

Steeles to access the Steele Property; and the Pennsylvania Unenclosed

Woodlands Act3 precluded the Steeles from acquiring a prescriptive easement.

Complaint, 12/1/14, at ¶¶ 38-57. The Steeles filed an Answer, arguing that

____________________________________________


3 Act 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. We note that the statute uses the term “uninclosed.” Throughout
this Opinion, we edit that spelling to use the modern form, “unenclosed.”


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they were entitled to a prescriptive easement based on their long history of

using the Hunting Road with Kuhstoss’s knowledge, and the unavailability of

the alternative right-of-way due to the bridge washing out several decades

ago, where the construction of a new bridge would be impracticable. Answer

and New Matter, 6/23/15, at ¶¶ 31, 46-57. The Steeles also filed an Ejectment

Counterclaim, seeking to formally recognize a prescriptive easement based on

the lack of a viable alternative right-of-way; their continuous, visible, open,

and notorious usage of the Hunting Road for more than 21 years; and their

occasional improvement of the Hunting Road.           Ejectment Counterclaim,

6/23/15, at ¶¶ 3-5. Kuhstoss filed an Answer with New Matter. The Steeles

filed an Answer to the New Matter, and, on May 28, 2019, the Steeles filed a

Motion for Injunctive Order for Special Relief Pending Litigation.4 The Motion

sought to remove the felled trees, and permit the Steeles to access the

Hunting Road until the underlying issues were resolved.

       The trial court conducted a hearing on the Motion for Injunctive Order

on June 26, 2019. At the hearing, Richard and James Steele testified as to

the character of the two properties, the history of the relationship between

the two families, and their account of the dispute over the Hunting Road. See

N.T., 6/26/19, at 7-51. Kuhstoss did not testify, but presented a series of

exhibits purporting to demonstrate that the Hunting Road passed through

____________________________________________


4 The Steeles’ Motion followed their discovery in the spring of 2019 that several
large trees had been cut down across various points of the Hunting Road,
which made it impassable.

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unenclosed woodlands. Following the hearing, the trial court entered an Order

granting the Steeles’ Motion for Injunctive Relief, prohibiting Kuhstoss from

infringing on the Steeles’ use of the Hunting Road, with limitations, and

requiring the Steeles to be responsible for removing the felled trees that were

blocking the Hunting Road. Trial Court Order, 6/26/19, at 1-2.         Kuhstoss

timely filed a Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise

Statement of Matters Complained of on Appeal.

      Kuhstoss raises the following questions for our review:

      1. Whether the trial court erred in granting a preliminary
      injunction based on a prescriptive easement, where the purported
      right[-]of[-]way sought by prescription passes through
      unenclosed woodlands, which is a bar to the acquisition of a
      prescriptive easement under [the Pennsylvania Unenclosed
      Woodlands Act,] and where an unlocked cable across a road, and
      a seven-year[-]old locked gate do constitute an “[e]nclosure”
      within the meaning of the statute[?]

      2. Whether the trial court erred in using equitable principles alone
      when granting [the Steeles] a preliminary injunction, where the
      [the Steeles] failed to show that their right of relief was clear and
      where [they] were not likely to prevail on the merits[?]

Brief for Appellant at 4.

      Our standard of review over a trial court’s grant of a preliminary

injunction is well settled.

      [I]n general, appellate inquiry is limited to a determination of
      whether an examination of the record reveals that any apparently
      reasonable grounds support the trial court’s disposition of the
      preliminary injunction request.      In ruling on a preliminary
      injunction request, a trial court has “apparently reasonable
      grounds” for its denial of relief where it properly finds that any
      one of the following “essential prerequisites” for a preliminary
      injunction is not satisfied. First, a party seeking a preliminary

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J-S08032-20


      injunction must show that an injunction is necessary to prevent
      immediate and irreparable harm that cannot be adequately
      compensated by damages. Second, the party must show that
      greater injury would result from refusing an injunction than from
      granting it and, concomitantly, that issuance of an injunction will
      not substantially harm other interested parties in the proceedings.
      Third, the party must show that a preliminary injunction will
      properly restore the parties to their status as it existed
      immediately prior to the alleged wrongful conduct. Fourth, the
      party seeking the injunction must show that the activity it seeks
      to restrain is actionable, that its right to relief is clear, and that
      the wrong is manifest, or, in other words, must show that it is
      likely to prevail on the merits. Fifth, the party must show that the
      injunction it seeks is reasonably suited to abate the offending
      activity. Sixth and finally, the party seeking an injunction must
      show that a preliminary injunction will not adversely affect the
      public interest.

Summit Towne Ctr., Inc. v. Shoe Show of Rocky Mount, Inc., 828 A.2d

995, 1001 (Pa. 2003) (paragraph breaks, citations, footnote, and some

quotation marks omitted).

      We will address Kuhstoss’s issues together, as they both challenge the

trial court’s determination that the Steeles are likely to succeed on the merits

of their claim of a prescriptive easement. Brief for Appellant at 8. Kuhstoss

argues that the Unenclosed Woodlands Act bars the Steeles from acquiring a

prescriptive easement, because the Hunting Road travels through “unenclosed

woodlands.” Id. at 11-12. Kuhstoss argues that the trial court improperly

determined that the gate restricting access to the Hunting Road could

constitute an “enclosure” under the statute. Id. at 10-12. Finally, Kuhstoss

argues that equitable considerations are not sufficient to grant a prescriptive

easement without the moving party fulfilling all of the factors necessary for

acquiring the easement. Id. at 13. In support of this contention, Kuhstoss


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J-S08032-20



points to the trial court’s statement that the Steeles’ argument on the merits

was “highly questionable” but, regardless, the court entered the Order

granting the Steeles’ request. Id. at 14-15.

      Under common law, a party may generally acquire a prescriptive

easement through the property of another party by proving adverse, open,

notorious, continuous, and uninterrupted use of the easement for a period of

21 years. Williams v. Taylor, 188 A.3d 447, 451 (Pa. Super. 2018) (citing

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

(Pa. Super. 2015)). In 1850, the General Assembly passed the Unenclosed

Woodlands Act, which barred the acquisition of prescriptive easements that

pass through “unenclosed woodlands.”        The Unenclosed Woodlands Act

provides that

      [n]o right of way shall be hereafter acquired by user, where such
      way passes through un[e]nclosed 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.

      Here, the trial judge determined that a preliminary injunction was

warranted, and stated the following on the record:

      I think what we are talking about here is the prescriptive
      easement. Now, I haven’t really dealt with the … [Unenclosed
      Woodlands Act,] really. So, I did go back through and look at
      some of the notes, a decision, some of the case law on … that
      statute. It looks to be highly questionable here, well highly
      questionable on whether or not the [Steeles] can succeed in their
      claim. The only reason that I think I am [] going to grant the
      preliminary injunction for now is that it may be arguable that the

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J-S08032-20


      road itself is enclosed due to [Richard] Steele’s testimony
      regarding the cable that was put across the road and then the
      gate that was erected against the road. Now, I certainly may be
      wrong on any interpretation on that because under the statutes,
      it’s an unenclosed woodland.

             Now, the other thing that I think is arguable[,] I guess[,] is
      that the road does begin in not a woodland area. It appears to be
      the out buildings there of [Kuhstoss] that can be seen right there.
      But I agree with [Kuhstoss’s counsel] that the case law is pretty
      clear that regardless if it travels through a field at one point, if it
      travels through woodland[s] [then] that statute applies.
      However, the preliminary injunction at this point is an equitable
      remedy. And I think … the [Steeles] have met all the other
      elements clearly for the preliminary injunction. I’m not willing[,]
      at this point[,] to [] deny the injunction just due to that. I think
      that it is arguable that the road has been enclosed. Now, it may
      not be a strong argument. But[,] given that I take it as genuine[,]
      that they cannot access the property at this point except for this
      road, I am going to grant the injunction.

N.T., 6/26/19, at 65-66 (some paragraphs combined).

      In order for the Steeles to be barred from a prescriptive easement

pursuant to the Unenclosed Woodlands Act, the easement at issue must travel

through “unenclosed woodlands.” 86 P.S. § 411. Our review of the record

confirms that the Hunting Road primarily crosses woodlands. See Williams,

188 A.3d at 454 (Pa. Super. 2018) (explaining that “[a] ‘woodland’ is an area

of land that trees and bushy undergrowth cover, synonymous with a

‘forest.’”); see also N.T., 6/26/19, at 27 (wherein Richard Steele testified that

the land at issue is “pretty typical Bedford County forest.”). While the Hunting

Road is accessed by a public road, and occasionally traverses in close

proximity to open fields on the Kuhstoss Property, the documentation

submitted to the trial court by the Steeles indicates that the majority of the



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Hunting Road passes through woodlands.            See Defendants’ Exhibit #1

(depicting, by dotted line, the route of the Hunting Road through the Kuhstoss

Property to its terminus on the Steele Property); see also N.T., 6/26/19, at

12 (wherein Defendants’ Exhibit #1 was introduced into evidence at the

hearing). Thus, if the Unenclosed Woodlands Act applies, it would apply to

the entirety of the Hunting Road. Trexler v. Lutz, 118 A.2d 210, 211 (Pa.

Super. 1955) (holding that when a right-of-way passes through both fields

and unenclosed woodlands, the entirety of the right-of-way falls under the

Unenclosed Woodlands Act).

      As a result, the primary dispute focuses on the trial court’s interpretation

of “unenclosed.”    In determining whether the gate and chain across the

Hunting Road constituted an “enclosure” under the Unenclosed Woodlands

Act, the trial court stated the following:

      I’m ruling based on the fact that [] the statute[,] I don’t think is
      that well-written as to what is an enclosed – unenclosed woodland
      is. The case law does really specify that you’re not to look at the
      nature of the ground. You’re to look at the nature of the
      easement. Now[,] if you take that analysis into the wording of
      the statute, I think the plain language of the statute is
      [“]unenclosed woodland[,”] which kind of means that the
      enclosure would go around the property, or some way of the
      property.

      I’m looking at an easement. And the testimony here was that
      there was a cable put across the easement and a gate put across
      the easement. So, that’s the way I’m saying that this could be
      exempted from that statute saying that this is an enclosed
      easement.

N.T., 6/26/19, at 76.



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     This Court has recently reviewed the history of cases in this

Commonwealth that have addressed the nature of “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,
     118 A.2d at 210, where it extended “through a tract of 110 acres
     of woodland of defendants to contiguous woodland of plaintiff.”
     Similarly, in Martin v. Sun Pipe Line Co., [666 A.2d 637, 641
     (Pa. 1995)], 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)[;] Sprankle v.
     Burns, [675 A.2d 1287, 1288 (Pa. Super. 1996)] (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 v. Wolfe, [446 A.2d 316, 321
     (Pa. Super. 1982)], 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 451-52 (citation formatting amended).




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      In Williams, a property owner brought a quiet title action against

several logging companies, seeking to prohibit them from driving over a

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

court concluded that the logging companies were barred from acquiring a

prescriptive easement, pursuant to the Unenclosed Woodlands Act, because

the private road passed through unenclosed woodlands. Id. This Court, on

appeal, concluded that the property through which the easement ran

constituted an “unenclosed woodland” under the statute. Id. at 454. The

Williams Court then determined that, as a result of the Unenclosed

Woodlands Act’s prohibition on prescriptive easements, when the easement

runs through unenclosed woodlands, the logging companies were barred from

obtaining a prescriptive easement. Id.; see also Martin, 666 A.2d at 641

(stating that the woodlands at issue were unenclosed because, “the premises

were in fact heavily forested, that appellants intended to preserve the natural

setting of the premises, and that the premises were not enclosed by a fence

or any other artificial barrier.”).

      Here, our review of the evidence presented at the hearing confirms that

the Hunting Road runs through woodlands that are considered to be

“unenclosed woodlands” under the Unenclosed Woodlands Act, and the

provisions of the statute barring a prescriptive easement through those

woodlands apply. See Williams, 188 A.3d at 454. Though the trial court will

have the opportunity to more fully evaluate the merits of the Steeles’

underlying claim for a prescriptive easement, our case law reflects that the

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Steeles are not more likely to succeed on their claim for a prescriptive

easement, because the Hunting Road runs through unenclosed woodlands.

See Trexler, 118 A.2d at 211 (holding that a property owner’s act of blocking

an easement was permissible pursuant to the Unenclosed Woodlands Act);

see also Martin, 666 A.2d at 641 (holding that the “land itself” is

determinative as to whether woodlands are “unenclosed,” and that the

woodlands at issue were “unenclosed,” in part, because they “were not

enclosed by a fence or any other artificial barrier.”).

      Following our review of the facts presented at the hearing, we conclude

that no apparently reasonable grounds support the trial court’s determination

that the Steeles were “likely to prevail on the merits” of their underlying claim

for a prescriptive easement.    See Summit Towne Ctr., 828 A.2d at 1001.

Though the trial court’s determination appears to be predicated on the nature

of the easement, our case law makes plain that the nature of the woodlands

through which the easement runs controls. See Williams, supra; see also

N.T. 6/26/19, at 65 (wherein the trial court indicates that, under the

Unenclosed Woodlands Act, the woodlands at issue constitute “unenclosed

woodlands”). As a result, because the Steeles have failed to set forth all six

elements necessary to secure a preliminary injunction, the trial court abused

its discretion in granting their Motion for Injunctive Order. Consequently, we

reverse the trial court’s Order granting a preliminary injunction.

      Order reversed. Jurisdiction relinquished.

      Judge Olson joins the memorandum.

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     Judge McCaffery files a dissenting memorandum.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/27/2020




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