J-A31005-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

REYNOLDS E. JENKINS, JR. AND                   IN THE SUPERIOR COURT OF
KIMBERLY A. JENKINS,                                 PENNSYLVANIA

                         Appellees

                    v.

THOMAS D. GRUVER AND JACQUELINE
K. GRUVER,

                         Appellants                 No. 673 MDA 2014


                Appeal from the Order Entered March 25, 2014
              In the Court of Common Pleas of Schuylkill County
                     Civil Division at No(s): S-1934-2006


BEFORE: BOWES, OTT, and STABILE, JJ.

MEMORANDUM BY BOWES, J.:                       FILED DECEMBER 08, 2014

     Thomas D. and Jacqueline K. Gruver contest the propriety of the

equity court’s determination that a prescriptive easement owned by

Appellees Reynolds E. and Kimberly A. Jenkins over Appellants’ land is

twenty-two feet wide. We affirm.

     The present matter has an extensive procedural history.       Appellees

instituted this declaratory judgment action in 2006 against Appellants and

Nicholas Snitzer, seeking a declaration that Appellees enjoyed a prescriptive

easement over property owned by those defendants.       The parties are title

holders of adjacent land in West Brunswick Township, Schuylkill County.

Appellees have 16.5 acres of unimproved real estate that they acquired in

1997 from relatives, and the land in question was in Ms. Jenkins’ family
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since 1939.      Appellants own a parcel consisting of 2.5 acres that they

purchased in 1999, and, in 2012, while this case was pending, Appellants

bought Mr. Snitzer’s lot.

      When they instituted the present lawsuit, Appellees averred that they

acquired a prescriptive easement over a dirt road that traversed the two

parcels now owned by Appellants.        Appellees cannot access their acreage

without utilizing the roadway in question. This action was necessitated by

the fact that Appellants prevented Appellees from reaching their property by

installing a chain across the road.

      At the first trial in this case, Appellees established the following.

Ms. Jenkins’ grandparents bought Appellees’ 16.5 acre lot in 1939, and it

was used as a Christmas tree and wreath farm that was opened in

approximately 1962 and did not close until the late 1970s. When the land

was utilized commercially, large trucks and machinery would reach it by

using the easement in question, which retained the same size into the

1980s. Ms. Jenkins and her family also used the road from the mid-1960s

until 2002 to access their real estate for recreational purposes. They hiked

and hunted on their acreage and cut firewood for personal use. Appellees’

witnesses reported that no one ever gave them permission, which they

never sought, to use the road. They also established that their use of the

road was actual, continuous, adverse, visible, notorious and hostile from

1962 until 2002.       Appellees’ position was that they had acquired an

easement    by    prescription   over   the   roadway   since   they   and   their

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relatives/predecessors in title had continuously used it without permission

from the 1960s to 2002.

      After a nonjury trial, the equity court found in favor of Appellants. It

concluded that Appellees had established all the elements of a prescriptive

easement except use without consent and use for the required period of

twenty-one years.   The court concluded that Appellees could not tack the

use of the roadway by their predecessors in title/family members to satisfy

the twenty-one-year period required to prove the existence of a prescriptive

easement. It also inferred that the use was permissive based solely upon

the fact that Ms. Jenkins’ family was friendly with the former owners of

Appellants’ land.

      On appeal, we reversed. Jenkins v. Gruver, 48 A.3d 490 (Pa.Super.

2012) (unpublished memorandum).         We noted that tacking of a prior

owner’s use of a prescriptive easement is allowed under the applicable law

and that the testimony of Appellees’ witnesses was legally sufficient to prove

that the use was non-permissive. We remanded for a determination of the

width of the prescriptive easement.

      To comply with our directive, the court conducted a second trial on

December 20, 2013.        After hearing testimony, it ruled that Appellees’

easement was twenty-two feet wide. We outline the evidence utilized by the

equity court in making this determination.

      Kimberly Jenkins testified that during the time of her use of the
      driveway, she traversed the driveway in various vehicles which
      ranged from twelve (12), to may be fifteen (15) feet wide.

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     Ms. Jenkins stated that it was not tight to get vehicles through
     the driveway and you did not have to maneuver around any
     rocks or other debris and that there was plenty of room on either
     side for maintenance and/or plowing when utilizing driveway
     over the course of the prescriptive period. Ms. Jenkins testified
     that she was aware that family members of hers used larger
     vehicles over the driveway for commercial uses of harvesting
     tree branches and Christmas trees. She further testified that the
     truck displayed in Plaintiff’s Exhibit 8 was an example of a type
     of stake body truck that was regularly used for access on the
     driveway during the prescriptive period. Ms. Jenkins noted that
     the pictures of the driveway taken in September 2009 do not
     look the way the driveway looked throughout the height of the
     commercial operation and that in 2009 the driveway was much
     narrower and more grown-up than during the prescriptive
     period. Reynolds E. Jenkins, Jr. testified that he has been using
     the driveway to access the Jenkins’ property since approximately
     1984, when he began dating Kimberly A. Jenkins. Mr. Jenkins
     testified that when he started using the driveway in 1984, it was
     approximately between eighteen (18) and twenty-two (22) feet
     wide. Mr. Jenkins testified that at first he used a Nissan car to
     access to the property. He further testified that he subsequently
     used a pickup truck to go hunting and to cut firewood. Later on
     Mr. Jenkins operated a Christmas tree business with his brother-
     in-[l]aw and used a stake body truck for ingress and egress over
     the driveway.      At the time of the tree/wreath business,
     Mr. Jenkins believed that the driveway remained eighteen (18)
     to twenty-two (22) feet wide and believed so because the stake
     body truck could easily get through and there was an ability for
     two (2) cars to pass each other on the driveway. Paul Alan
     Shealer, Kimberly A. Jenkins' brother, was actively involved in
     the tree operations on the Jenkins property. He testified that
     the equipment used included a 1978 Chevy Silverado, which was
     used from 1979 through the early 1990s at the farm and prior to
     the Chevy Silverado, a 1952 Dodge stake body truck was used.
     In the Christmas tree operation, an Asplundh chipper was used.
     Testimony revealed that this chipper was approximately nine (9)
     feet wide and would stick out beyond the wheels of a regular
     truck.

           Testimony further revealed that a Ford 4000 backhoe and
     loader with Caretree 28 inch tree spade on the front was taken
     in and out of the property on the driveway and was used on the
     property starting between 1978 and 1982, and was about eight

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        (8) feet in width, similar to the stake body truck. Also used on
        the property was a John Deere tractor, [s]aid tractor was used
        from the mid-1960s through the early 1990s and was
        approximately seven (7) and eight (8) feet wide. Mr. Shealer
        also testified that they used a Ford 6610 with a twelve (12) foot
        disc that was purchased in 1982 (disc purchased in 1983 or
        1984) which equipment was used throughout the 1980s and 90s
        at the property and was accessed through the driveway.
        Mr. Shealer testified that he measured the disc, which is the
        actual disc that was taken up and down the driveway for use on
        the Christmas tree farm and that using a surveyor's pole, the
        disc measured eleven (11) feet, six (6) inches to the outside tire,
        as depicted in Plaintiffs’ Exhibit 15. Mr. Shealer testified that
        when taking the 11 ½ foot disc through the driveway, he had
        some room on both sides and no difficulty, except early on when
        there was still a bridge instead of the pipe and the disc would
        hang off the bridge. He noted that all the equipment shown in
        Plaintiffs' Exhibits 8 - 15, he had taken up and down the
        driveway for use on the Christmas tree farm. Mr. Shealer stated
        that when he was using the driveway for a Christmas tree
        operation, using the equipment shown in the pictures, the
        driveway was approximately twenty (20) feet wide.

Trial Court Opinion, 3/3/14, at 4-7 (citations to record omitted). Appellees

submitted into evidence various photographs of the actual equipment used

to harvest the Christmas trees, and the photographs were taken on their

land.

        The trial court credited Appellees’ proof. It based its ruling “upon the

width at the time the prescriptive period had run, that is approximately

1962-1983.” Id. at 7. In light of the three eyewitnesses’ reports about the

type of vehicles, as confirmed by the pictures, used to traverse the

easement when it was used to access the commercial Christmas tree

operation, as well as the testimony of Mr. Jenkins and Mr. Shealer about its

size during that period, the trial court found that the easement in question



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was twenty-two feet wide. This appeal followed denial of Appellants’ post-

trial motion. On appeal, Appellants raise these issues for our review:

      A. Did the Trial Court abuse its discretion in finding that the
         prescriptive easement over the Appellants’ driveway is
         twenty-two (22) feet wide?

      B. Did the Appellees/Plaintiffs meet their burden of proof to
         establish that the prescriptive easement was twenty-two
         (22') feet wide during the period of the alleged prescription?

      C. Did the Trial Court abuse its discretion and/or commit an
         error of law [by] failing to allow testimony and the admission
         of certified copies of historical aerial maps obtained from the
         United States Department of Agriculture and the National
         Archives?

Appellants’ brief at 4. Initially, we outline the applicable standard of review:

      [W]e have stated that our standard of review of a decree in
      equity is particularly limited and that such a decree will not be
      disturbed unless it is unsupported by the evidence or
      demonstrably capricious. The findings of the chancellor will not
      be reversed unless it appears the chancellor clearly abused the
      court's discretion or committed an error of law. The test is not
      whether we would have reached the same result on the evidence
      presented, but whether the chancellor's conclusion can
      reasonably be drawn from the evidence.

Mid Penn Bank v. Farhat, 74 A.3d 149, 153 (Pa.Super. 2013) (citation

omitted). As a matter of course, “we are bound by the chancellor's findings

of fact, including findings regarding the credibility of witnesses, because the

chancellor has the opportunity to hear the witnesses and observe their

demeanor on the stand.”        Makozy v. Makozy, 874 A.2d 1160, 1168

(Pa.Super. 2005) (citation omitted).




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J-A31005-14


      Next, we observe that the equity court correctly concluded that the

width of the easement was to be ascertained by examining its use when the

prescriptive easement was created. In Hash v. Sofinowski, 487 A.2d 32,

34 (Pa.Super. 1985), we noted that a prescriptive easement is established

“by actual, continuous, adverse, visible, notorious and hostile possession of

the property in question for a period of 21 years.” We continued, “It stands

to reason that the scope of such an easement must necessarily be a function

of the continued, adverse use by which it was generated and is thus limited

to that of the prescriptive period.”       Id.   We specifically held that a

prescriptive easement is set by its location and size that arose during the

prescriptive period.   Id. at 36; see also Bodman v. Bodman, 321 A.2d

910, 912 (Pa. 1974) (“Because it is created by adverse use, an easement by

prescription is limited by the use made during the prescriptive period.”).

      Appellants present a consolidated position as to their first two claims.

They suggest that there was no competent evidence to support the trial

court’s finding that the easement was twenty-two feet wide.        Appellants’

brief at 20.    They insist that their proof should have been credited.

Appellants presented pictures of the present size of their driveway, which

varied between eight to twelve feet in width. Additionally, they offered the

testimony of a forester who claimed to know that the width of the 1962-

1984 easement based upon the condition of the trees presently surrounding

it. Appellants invite us to declare that the width of Appellees’ easement is to


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J-A31005-14


be “set at eight (8’) to twelve (12’) feet, which is the current width of [the]

driveway[.]” Appellants’ brief at 27.

      We decline this request to re-weigh the evidence. Appellees presented

three eyewitnesses as to the width of the easement during the prescriptive

period. Two witnesses stated outright that it was approximately twenty feet

in width. Contrary to Appellants’ assertion on appeal, this testimony was not

impermissibly speculative and unreliable. Mr. Shealer and Mr. Jenkins were

permitted to offer estimates about the width of the easement since they

personally observed it during the time the easement arose. Pa.R.E. 701 (a)

(a non-expert can offer testimony in the form of an opinion if the opinion is

“rationally based on the witness’s perception”). Ms. Jenkins confirmed that

two cars could pass each other easily on the roadway in question, which

means that the easement must have been significantly wider than it is

presently. As admitted by Appellants’ own witness, the forestry expert, two

cars could not pass each other on the present driveway.

      Additionally, the equity court’s conclusion was not merely premised

upon the estimates proffered by Mr. Shealer and Mr. Jenkins, but also on the

size of the vehicles depicted in the photographs that traversed the

easement.     When the land was used as a Christmas tree farm, it was

accessed by commercial vehicles that were well in excess of the present size

of the driveway, which Appellants now insist is the scope of the easement in

question.   Additionally, Ms. Jenkins reported that the present width of the


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easement did not reflect its width from 1962 to 1984, and Mr. Gruver

admitted that he was not aware of the use made of the driveway prior to

1999.    The equity court was free to accept Appellees’ evidence and reject

that offered by Appellants.        Hence, we reject the first and second

contentions raised by Appellants and decline to award them their requested

relief, which is a declaration that their present driveway reflects the contours

of the easement enjoyed by Appellees.

        Appellant’s final position is that the equity court erred in failing to

admit into evidence aerial photographs of the area taken by the United

States Department of Agriculture during the time that the easement was

being created.    This contention is subject to a well-ensconced standard of

review. “When we review a trial court ruling on admission of evidence, we

must acknowledge that decisions on admissibility are within the sound

discretion of the trial court and will not be overturned absent an abuse of

discretion or misapplication of law.”    Phillips v. Lock, 86 A.3d 906, 920

(Pa.Super. 2014) (citation omitted). “An abuse of discretion is not merely

an error of judgment, but if in reaching a conclusion the law is overridden or

misapplied, or the judgment exercised is manifestly unreasonable, or the

result of partiality, prejudice, bias or ill-will, as shown by the evidence or the

record, discretion is abused.” Id.

        On appeal, Appellants claim that the photographs were admissible

because they established that the easement did not exist.            Specifically,


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Appellants contend that the aerial pictures, which were taken at a great

distance, “showed no evidence of the vast majority of the alleged driveway.”

Appellants’ brief at 24.       Appellants note that one “photograph shows the

driveway going in a different direction and does not even depict the vast

majority of [the] driveway[.]”          Id. at 25.   Appellants continue with the

rhetorical question, “Why, didn’t the certified copy of the 1971 aerial

photograph from the United States Department of Agricultural [sic] no[t]

show the vast majority of the driveway?”             Id.   They then answer this

question with the declaration, “Because it simply did not exist as claimed by

the Appellees.” Id. Appellants assert that the “aerial photographs would be

evidence to show that the driveway did not exist in its present location

during the alleged period of prescription as alleged by the Plaintiffs and their

witnesses.” Id. at 26.1 In closing, they aver that, “based on the historical

aerial photographs, . . . it is clear that only a small portion of the driveway

that currently exists served as access to [Appellees’] property and therefore

the Superior Court should set the prescriptive easement aside.” Id. at 27.

       Based upon these assertions, it is clear that Appellants sought to

introduce the pictures taken by the United States Department of Agriculture

to demonstrate that there was no easement at all and to re-litigate the issue

that was decided adversely to them on direct appeal, where we held that
____________________________________________


1
    As noted by Appellees, the aerial photographs were taken at such a
distance that the trees covered certain portions of the road.



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Appellees enjoyed an easement over Appellants’ driveway.      That ruling is

now the law of the case and cannot be disturbed. In re Estate of Elkins, 32

A.3d 768, 776 (Pa.Super. 2011). At trial, Appellants impermissibly sought

to use the photographs to establish that there was no easement.         The

pictures were inadmissible for that purpose.   Hence, we find that the trial

court did not abuse its discretion in refusing to consider those photographs

during its deliberative process.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2014




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