J-A32010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    ARTHUR R. KRUSEN JR. AND                   :   IN THE SUPERIOR COURT OF
    VANESSA KRUSEN                             :        PENNSYLVANIA
                                               :
                       Appellants              :
                                               :
                                               :
                v.                             :
                                               :
                                               :   No. 859 MDA 2017
    PAUL W. WAGNER                             :

                Appeal from the Judgment Entered May 2, 2017
               In the Court of Common Pleas of Schuylkill County
                      Civil Division at No(s): S-1378-2013


BEFORE:      OTT, J., DUBOW, J., and STRASSBURGER, J.

MEMORANDUM BY OTT, J.:                                   FILED MARCH 09, 2018

        Arthur R. Krusen, Jr., and Vanessa Krusen (Krusens) appeal from the

judgment entered May 2, 2017, in the Court of Common Pleas of Schuylkill

County, in favor of Paul Wagner and against Krusens on all claims in Krusens’

complaint, following a non-jury trial. In the underlying action, Krusens sought

to access their landlocked property1 (the Property) by asserting an easement

by necessity, in the alternative, an easement by implication, over a road on

Wagner’s property. In this appeal, Krusens contend the trial court erred in

(1) failing to consider overwhelming, circumstantial evidence that leads to the

conclusion that the Property was always accessed by the private road on
____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1Krusens’ property is bordered on three sides by Wagner’s property and on
one side by land of Deep Run All Sports Club. See Trial Court Opinion,
11/7/2016, at 6. See also N.T., 10/14/2016, at 36.
J-A32010-17



Wagner’s property, (2) concluding that an undisputed, landlocked property

does not satisfy the element of “strict necessity” to establish an easement,

and (3) concluding that Krusens must prove the specific intent at the time of

severance of the Property in 1937. See Krusens’ Brief at 4. Based on the

following, we affirm on the basis of the trial court’s sound opinions.

       The parties are well acquainted with the history of this case and we need

not restate it here.2 By opinion and order of November 7, 2016, the trial court

entered judgment in favor of Wagner and against Krusens’ on all claims in

their complaint. Krusens filed post-trial motions, which the trial court denied

by opinion and order of January 18, 2017. Judgment was entered on May 2,

2017, and this appeal followed.3

       Our standard of review of this issue is well-settled:

       The trial judge, sitting in equity as a chancellor, is the ultimate
       fact-finder. The scope of review, therefore, is limited. The final
       decree will not be disturbed unless the chancellor committed an
       error of law or abused his or her discretion. The findings of fact
       made by the trial court will not be disturbed unless they are
       unsupported by competent evidence or are demonstrably
       capricious.

Daddona v. Thorpe, 749 A.2d 475, 480 (Pa. Super. 2000) (citation omitted).

____________________________________________


2 We simply mention that Krusens purchased their landlocked property in
2006. Krusens state in their brief that but for the Pennsylvania Supreme
Court’s decision in In the Matter of Private Road for the Benefit of
O’Reilly, 5 A.3d 246 (Pa. 2010) (holding the opening of a private road must
have a public purpose), this matter would have been resolved pursuant to the
Private Road Act. See Krusen’s Brief at 1, 4.

3 Krusens timely complied with the trial court’s order to file a Pa.R.A.P.
1925(b) concise statement.

                                           -2-
J-A32010-17



     Relevant to the issues raised in this appeal concerning an easement by

necessity and an easement by implication, we observe:

     The three fundamental requirements for an easement by necessity
     to arise are the following:

     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 necessity existing
     both at the time of the severance of title and at the time of the
     exercise of the easement.

     An easement by necessity is always of strict necessity. An
     easement by necessity never exists as a mere matter of
     convenience. . . .

Youst v. Keck's Food Service, Inc., 94 A.3d 1057, 1075 (Pa. Super. 2014)

(citations omitted). Furthermore,

     In deciding whether an easement has been created by implication,
     the Pennsylvania courts have used two different tests, the
     traditional test and the Restatement test.

     The traditional test has been described as follows: “Three things
     are regarded as essential to create an easement by implication on
     the severance of the unity of ownership in an estate; first, a
     separation of title; second, that, before the separation takes
     place, the use which gives rise to the easement, shall have been
     so long continued, and so obvious or manifest, as to show that it
     was meant to be permanent; and third, that the easement shall
     be necessary to the beneficial enjoyment of the land granted or
     retained. To these three, another essential element is sometimes
     added,--that the servitude shall be continuous and self-acting, as
     distinguished from discontinuous and used only from time to
     time.”



                                    -3-
J-A32010-17


      The view expressed in the RESTATEMENT OF PROPERTY § 474
      [sic] … “emphasizes a balancing approach, designed to ascertain
      the actual or implied intention of the parties. No single factor
      under the Restatement approach is dispositive. Thus, the
      Restatement approach and the more restrictive tests . . . co-exist
      in Pennsylvania.”

Daddona, supra, 749 A.2d at 481-82 (citations omitted).

      The Honorable Jacqueline L. Russell has fully addressed the issues raised

by Krusens in this appeal in two thorough opinions. See Trial Court Opinion,

1/18/2017 (finding: (1) Krusens did not present a complete chain of title

following what Krusens claimed was the property severance pertinent to their

case — namely, when the properties of the predecessors in title of Krusens

and Wagner were severed in 1937, (2) Krusens’ grantors (Joseph and Kathy

Pattay) received the 14.6034 acres (now owned by Krusens) in 1999;

however, the location of and access to the land retained by Pattays’ grantor

in what appeared to be the 1999 severance was never identified and

addressed, (3) Reliable testimony established the dirt farm road that Krusens

desire to utilize over Wagner’s land accessed a public roadway known as Valley

Road, but the dirt farm road has a terminus about 500 yards away from

Krusens’ property line, (4) Reliable proof did not establish that after 1937 any

owner of the land now titled in Krusens’ names traversed Wagner’s land via

the farm road without Wagner’s consent, (5) To establish an easement by

necessity over what Krusens have identified as the servient estate, Krusens

were required to prove the easement over that parcel was necessary both at

the time of severance of title in 1937 and now, (6) To do so the servient estate

                                     -4-
J-A32010-17


must be known, but Krusens never identified the location of that estate, (7)

Wagner owns more acreage than the parcel involved in the 1937 severance

and the evidence did not address whether access to the public roadway by

traversing the alleged servient property existed at any time; Arthur Krusen

testified during cross examination that access does not exist and Krusens do

not seek access across it, (8) Moreover, Krusens presented no proof about the

necessity of an easement over the servient estate in 1937 by the then-

predecessor in title to Krusens, (9) Krusens did not prove prior use by their

predecessors in title of any portion of any lands now owned by Wagner to

access a public road, and reliable evidence established no prior use; and (10)

rejecting the issues raised in post-trial motions on the grounds, inter alia, (a)

Krusens did not prove strict necessity because their evidence failed to address

whether other possible means of access existed at the time of the 1937

severance or the current time, (b) accepting that in 1937 the farm road on

Wagner’s property existed in the same location from the public road to the

terminus in the farm field as it does today does not establish the roadway

ended at Krusens’ property line or over any of the alleged servient tract, (c)

Krusens failed to establish an easement by implication by failing to prove prior

use of the alleged easement and did not address multiple factors under the

Restatement of Property test for an implied easement). See also Trial Court

Opinion, 11/7/2016 (issued following the non-jury trial).




                                      -5-
J-A32010-17


       In essence, the trial court found Krusens failed to prove by a

preponderance of the evidence that they were entitled to the specific relief

requested.

       Based on our review, we find no error of law or abuse of discretion by the

trial court.   Furthermore, in light of the trial court’s cogent discussions, no

further elaboration is warranted by this Court. Accordingly, we affirm, based

upon the sound reasoning of the trial court.4

       Judgment affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/09/2018




____________________________________________


4In the event of further proceedings, the parties are directed to attach Judge
Russell’s opinions of January 18, 2017, and November 7, 2016, to this
memorandum.

                                           -6-
                                                                             Circulated 02/27/2018 02:00 PM




      COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY-CIVIL ACTION-LAW


   ARTHUR R. KRUSEN, JR. and                     No. S-1378-2013
   VANESSA KRUSEN, husband and
   wife,
                  Plaintiffs                                                                                -,J
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  PAUL W. WAGNER,                                                                           --              . J'
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                 Defendant
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                           Sean E. Summers, Esquire - for Plaintiffs                        r-o                 ·1
                        John B. Lieberman, Ill, Esquire - for Defendant                     . '·,            -. r
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                                                                                            c:»             ; ll
                                          DECISION


  RUSSELL, J. ·

        Plaintiffs Arthur R. Krusen, Jr. and Vanessa Krusen filed this action against

 Defendant Paul W. Wagner on July 17, 2013. Per Plaintiffs' October 16, 2013 amended

 complaint, Plaintiffs request that the Court find they are entitled to an easement by

 necessity or an easement by impllcation over land owned by Defendant. Trial was held

 on October 14, 2016, after which Plaintiffs requested additional time beyond that

 provided in the trial order to file proposed findi�gs of fact and conclusions of law. The

 request was granted and both parties have presented their post-trial proposed

findings/conclusions.

       The testimony of Defendant's son, Cralg Paul Wagner, surveyor, Diane l.enick,

Defendant and Plaintiff Arthur R. Krusen, Jr. was presented at trial. Without objection,

Plaintiffs submitted into evidence what they identified as the relevant deeds in the

parties' chains of title together with a survey by Diane Lenick and both parties submitted

photographs of what was identified as the pertinent area.

                                             1



                                                                                                         116a
                                          Chains of Title

          The law applicable to both easement by necessity and by implication requires an

   examination of the history of the transactions by which feuding parties obtained their

   interests in the. respective parcels of real estate at issue. Plaintiffs Exhibit #41 being

   copies of the deeds in the parties' chains of title, includes the following information:

          Plaintiffs obtained title to their parcel of property in Walker Township, Schuylkill

  County, Pennsylvania, from Joseph Pattay and Kathy Pattay by deed dated September

  1, 2006. Briefly stated, the transferred property is described in the deed to be 357.55

  feet, by 2,300 feet, by 284.52 feet, by 21674.55 feet, consisting of 14.6034 acres. The

  copy of the deed in Plaintiffs' Exhibit #4 did not indicate the deed's recording date, or

  the book and page where filed.

         Joseph Pattay and Kathy Pattay transferred the 14.6034 acres to Joseph Pattay

 and Kathy Pattay by deed dated May 14, 1999 and recorded in Record Book 631, page

 282 on June 3, 1999. The deed indicated that the transferred property was part of the

 same premises which Mary Frances Pattay by deed dated October 121 1995 and

 recorded in Deed Book 1689, page 97 conveyed to Joseph Pattay.

        Mary Frances Pattay transferred land to Joseph Pattay on October 12, 1995 by

deed recorded in Deed Book 1689, page 97 on November 18, 1996. The property

transferred is described as consisting of thirty-seven and seven-tenths acres, less

approximately ten acres which Margaret Mclaughlin by deed dated April 30, 1937 and

recorded in Deed Book 598, page 85, granted and conveyed to Webster J. Wagner and

Irene Wagner. The parcel transferred to Joseph Pattay by Mary Frances Pattay is

described as being three hundred and ninety-five and two-tenths perches, by twenty-six


                                              2



                                                                                                117a
  and three-tenths perches, by four hundred and ten perches, by fifteen and four-tenths

  perches.

         The land transferred by McLaughlin excepted in the deed to Joseph Pattay by

  Mary Frances Pattay was alleged by Plaintiffs to be approximately ten acres and is

  described in the deed to the Wagners as being about 1,509 feet by 290 feet and as

  having been part of the same property which M.A. Kilker and wife by deed dated April

  17, 1923 transferred to Margaret Mclaughlin by deed recorded in Deed Book 466, page

 424. At trial, Defendant objected to the entry of the copy of the amended complaint,

 which was appended to the copies of the deeds in Plaintiffs' Exhibit #4,    as part of the
 record. Plaintiffs then requested that only the copies of the deeds in that exhibit be

 made part of the record. The Court notes the averment made by Plaintiffs in the

 amended complaint about the Mclaughlin land transfer to Wagners - which averment

 was denied by Defendant in his answer - simply for purposes of indicating why Plaintiffs

 had included the deed in their chain of title exhibit.

       The final deed in Plaintiffs' chain of title exhibit is one dated April 17, 1923 by

M.A. Kilker and Catherine L. Kilker which transferred property described as being 395.2

perches, by 26.3 perches, by 410 perches, by 15.4 perches, containing thirty-seven and

seven-tenths acres to Margaret Mclaughlln. The property was identified as the same

property that John R. Mclaughlin and Margaret Mclaughlin, by deed dated the same

day as the Kilker deed to Mclaughlin, had conveyed to M.A. Kilker.

       Notably, no deed to Mary Frances Pattay is included in Plaintiffs' chain of title

exhibit. The deed from Mary Frances Pattay to Joseph Pattay indicates that she

received the land from Patrick M. Canfield and Rose T. Canfield by deed dated October



                                              3


                                                                                              118a
   12, 1995. Similarly, no deed into the Canfields is in Pla'intiffs' Exhibit #4. Consequently,

   Plaintiffs' chain of title followlng the transfer into Mclaughlin is not complete.

         Per Plaintiffs' Exhibit #4, Defendant's chain of title conslsts of the following:

         By deed dated February 10, 2005, Berk-Wagner Real Estate, LLC and Paul W.

  Wagner and Mifdred M. Wagner transferred various tracts of land to Paul W. Wagner

  and Mildred M. Wagner. The deed was recorded on February 14, 2005 in Record Book

  2137, page 125. Tract one is described as containing thirty-one and five-tenths acres.

  Tract two is described as a parcel being 1,509 feet long and 290 feet wide. Tract three

  is described as consisting of three parcels with parcel one containing 97 acres and 111

  perches, parcel two containing 21 perches, and parcel three containing 200 acres, the

 latter, however, excepting certain land conveyed by Webster J. Wagner and Irene

 Wagner to Ralph Peters by deed of August 29, 1948. Tract four is described as

 including a ten-acre farm, five and two-fifth acres sprout and twenty-two and two-fifth

 acres barren, excepting land conveyed by Webster J. Wagner to Wayne Bensinger by

 deed dated November 29, 1973. Tract five is described as 1,509 feet in length by 888

 feet In depth, excepting land conveyed by Webster J. and Irene Wagner to Joseph

Malay by deed of May 25, 1971. Additionally, the deed excepts seven other parcels

previously conveyed by Executors of the Will of Webster J. Wagner, or, by Webster J.

Wagner, or, by Webster J. Wagner and his wife, or, by Paul W. Wagner and others.

       The five above tracts are further described as being part of the same premises

that Paul W. Wagner and Mildred M. Wagner by deed dated October 19, 1990 recorded

in Deed Book 1454, page 524, conveyed to Paul W. Wagner and Mildred M. Wagner,

and, as also being part of the same premises that Joan B. Wagner by deed of August



                                              4


                                                                                             119a
   24, 2004 recorded in Record Book 2112, page 1965 conveyed to Berk-Wagner Real

   Estate, LLC.

          By deed of August 24, 2004, recorded in Deed Book 2112, page 1965 on August

   25, 2004, Joan B. Wagner transferred land to Berk-Wagner Real Estate, LLC consisting

  of six tracts of land with numerous exceptlons noted. The property transferred includes

  land in Walker Township and a parcel In Blythe Township. The transfer was described

  as being a one-half interest in the premises that Kenneth E. Wagner by deed of

  February 5, 1993, recorded February 10, 1993 in Deed Book 1494, page 61, conveyed

  to Kenneth E. Wagner and Joan Wagner, his wife, with Kenneth having thereafter died.

         By deed dated February 51 1993, Kenneth E. Wagner transferred to Kenneth E.

 Wagner and Joan B. Wagner an undivided one-halt interest in five tracts of land in

 Walker Township and one in Blythe Township, after numerous exceptions, described as

 being the same premises that Webster J. Wagner by deed of September 231 1976

 recorded in Deed Book 1230, page 216 conveyed to Webster J. Wagner, Paul W,

 Wagner and Kenneth E. Wagner. Webster J. Wagner thereafter died and his 1/3

 Interest was awarded to Paul W. Wagner and Kenneth E. Wagner. The purpose of the

 deed was to transfer the one-half interest of Kenneth into his and his wife's (Joan)

names.

       By deed of September 23, 1976 recorded in Deed Book 1230 page 216 on
                                                                       1




September 27, 1976, Webster J. Wagner transferred land to Webster J. Wagner, Paul

W. Wagner and Kenneth E. Wagner described as five parcels in Walker Township and

one In Blythe Township. Plaintiffs alleged in their complaint that Tract two In the above

deed is the same property that Margaret Mclaughlin by deed of April 30, 1937


                                            5


                                                                                            120a
  conveyed to Webster J. Wagner and Irene Wagner in Record Book 598, page 85, being

  the approximate ten acres excepted from the transfer of the thirty-seven and seven-

  tenths acres. of land from Mary Frances Pattay to Joseph Pattay in Plaintiffs chain of
                                                                                  1




  title.



                                            Testimony

            Plaintiff Arthur Krusen testified that about ten years ago he purchased a 14.9

 acre tract of land (which he originally understood was to be 17 .6 acres) after having

 viewed the property. To do so, he drove from a public roadway known as Valley Road,

 travelled over a dirt road until it ended and then drove across grass until he reached

 what he understood to be the property. Although Arthur Krusen learned that the

 property had no access to a public road prior to his purchase, he though.t he could

 eventually obtain access. Plaintiffs' land is bordered on three sides by property owned

 by Defendant and on one side by land of Deep Run All Sports Club. After purchasing

the land, Plaintiff Arthur Krusen offered $2,500.00 to Defendant's son -who was In

charge of Defendant's land for his father - to obtain access to the property. The offer

was not accepted.

           Defendant Paul Wagner testified credibly that the dirt road on his property -

utilized for farming - is and has been for access by farm equipment and occasional

hunters. To Defendant's knowledge, the dirt roadway was never traversed by anyone

for any purpose, including Plalntltfs' predecessors in title, except for Defendant's

farming, those he allowed on the property to farm the land, and by occasional hunters




                                                6


                                                                                             121a
     whom he allowed to hunt the land.1 Defendant is 94 years old and was able to recall

     events since the time his father owned what is now his land. Defendant's son, Craig

     Paul Wagner, and some workers placed posts and a cable across the dirt farm road

     near its exit onto the public road about thirty years ago to prevent unperrnitted use of

     the roadway by others after    a boy rode over Defendant's oat fields with a four-wheeler
     or motorcycle. Plaintiffs' counsel was provided a key to obtain limited access to the

     roadway after Plaintiffs had initiated a proceeding against Defendant under the Private

     Road Act. That case was eventually terminated and the lock to the gate was changed

    by Defendant.



            Plaintiffs have alleged that they are entitled to an easement over Defendant's

    land by necessity. The Pennsylvania Commonwealth Court stated in Qraff v, Scanlan,

    673 A.2d 1028 (Pa. Cmwlth. 1996):

                   The three fundamental requirements for an easement
                   by necessity to arise are the following:

                     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 conveyance of one of the tracts.
                    a

                      3) The easement must be necessary in
                  order for the owner of the dominant tenement
                  to use his land, with the necessity existing
                  both at the time of the severance of title
                  and at the time of the exercise of the easement.

                  Id. at 1032.



1
    The roadway was accessed for purposes of The Private Road Act proceedings.

                                                   7


                                                                                                 122a
          In analyzing Plalntlffs' claims, it must be noted that Plaintiffs dld not enter Into the

  record a complete chain of title from the alleged common owner- McLaughlin. No

  transfer by Mclaughlin after the 1923 deed Into her from the Kilkers is i� the record

  relative to Plalntlffs' chain of title. Consequently, the history of the title into Mary

  Frances Pattay is not evident. Despite the failure of pertinent proof on ownership via a

  complete chain of title into Plaintiffs, the Court will hereafter identify the 14.6034 tract as

 being owned by Plaintiffs as Defendant did not argue or contest the matter. Importantly,

 the chain of title issue does not impact the final determination on the matters under

 consideration. Consequently, Plaintiffs' contention that their property and Defendant's

 property were previously held by one owner wilt be accepted for purposes of evaluating

 Plaintiffs' right to an easement.

        Plaintiffs alleged in their amended complaint that "The Landlocked Properly and

 Accessible Property were previously owned by pursuant as one parcel." (Amendeq

 Complaint, paragraph 18). Although the allegation is unclear, Plaintiffs contend that

their property became landlocked in 1937 when Margaret McLaughlin transferred a

portion of her property to Webster and Irene Wagner. However, the precise locations of

the parcel of land which McLaughlin originally received from Kilkers and the land she

transferred in 1937 to Wagners were never identified at trial. Although Plaintiffs

presented testimony from and a survey by Diane Lenick, the survey was prepared for

the prior Private Road Act proceedings. As such, the surveyor depicted all land owned

by Defendant in the survey map without, however, delineating the location of the tract

involved in the former Mclaughlin transfer. Consequently, whether the farm road

depicted on the survey map Is located on any portion of the property at one tlme held by


                                                8


                                                                                                123a
  Mclaughlin is not known. The likelihood of the· entire roadway being within the

  Mclaughlin transfer appears unlikely, however, simply based on the description of the

  land transferred and the road's length and its route as shown on the survey map.

  Consequentfy, no proof of "strict necessity" of access over the property Mclaughlin

  transferred to Defendant's predecessors in title (described as a 11509 feet by 290 feet

  parcel) either in 1937, or, as of the date of the trial was presented. (Graff. supra. at

  1032).

           Additionally, Plaintiffs failed to identify the location of the approximate twenty-

 seven and seven-tenths acre tract of land held by Mary Frances Pattay, identified as

 one of Plaintiffs' predecessors in title, who transferred her land to Joseph Pattay, the

 latter who transferred only the 14.6034 acre lot to Plaintiffs. The location of the

 approximate thirteen acres of Pattay's remaining land is unknown as is its impact on

 Plaintiffs' easement claim. Likewise, Plaintiffs failed to address whether access was or

 is available to their tract via the Deep Run All Sports Club land. Consequently, on a

 number of grounds, no easement by necessity has been proven.

       An easement by implication may be imposed upon a subservient estate where

such finding supports the intent of the parties to the conveyance which resulted in the

severance of the dominant and servient estates. That intent may be found by

examining the properties' surroundings, the terms of the original conveyance resulting in

the severance, and, the res gestae of the transaction. See, Nord v. De"t,au/t ContracUng

Companv, Inc., 334 A.2d 276 (Pa. 1975); Thomas v. Deliere, 359 A.2d 398 (Pa. Super.

1976). Under the traditional test for establishing an easement by implication, it must be

proven that at the time of severance an open, visible, continuous and permanent use


                                                9


                                                                                                 124a
 . existed of the easement which was necessary for the beneficial enjoyment of the

  dominant estate. Possessky v. Diem, 655 A.2d 1004 (Pa. Super. 1995).

         Plaintiffs did not present evidence surrounding the time the property of

  Mclaughlin was severed or about the actions of any former owner of Plaintiffs' property.

  Defendant's testimony established that since his father Webster owned his farm many

  decades ago, the property now claimed to be owned by Pf alntiffs was not accessed by

  third parties traveling over Defendant's land. (Again, it must be noted, Plaintiffs' chain

  of title evidence after the deeds into McLaughlin and Joseph Pattay is incomplete.)

  Further, the balance of the evidence did not prove that any roadway ever existed which

 extended to Plaintiffs' property from the public roadway. Although a dirt farm road

 traverses Defendant's property, the farm road did not and does not extend to the

 property of Plaintiffs. Moreover, the evidence did not show that the farm road was

 located on the ten acre parcel which Plaintiffs contend was the portion of land

 (described as 1,509 feet by 290 feet rectangular) that McLaughlin severed in 1939 from

 the thirty-seven and seven-tenths acre tract she had received in the 1923 Kilker deed.

 In fact, Plaintiffs did not prove that any access to the 14.6034 acre tract when held by

any of Plaintiffs' predecessors in title existed across the property that Defendant's

predecessors in title received from Mclaughlin. Similarly, Plaintiffs did not prove that

any access over the parcel which Plaintiffs claim is the subservient estate - or, in fact,

any land of Defendant's - had been permanent, continuous and apparent at any time,

or, had ever been utilized by Plaintiffs' predecessors in title.

      The Restatement of Property test - an alternative to that of the traditional test - to

determine both the actual or implied intention of parties when land is severed and


                                              10


                                                                                               125a
      whether an easement should be implied from the circumstances provides for a

      balancing approach with the followlng factors to be considered:

                     (a) whether the claimant is the conveyor or the conveyee,

                     (b) the terms of the conveyance,

                     (c) the consideration given for     it,
                     (d) whether the claim is made against a simultaneous
                     conveyance,

                    (e) the extent of necessity of the easement to the
                    claimant,

                    (f) whether reciprocal benefits result to the conveyor
                    and the conveyee I

                    (g) the manner on which the land was used prior to
                    Its conveyance, and

                    (h) the extent to which the manner of prior use was or
                    might have been known to the parties.

                    Mann-Hoff v. Boyer, 604 A.2d 703, 707 (Pa. Super. 1992).



           At trial, Plaintiffs' evidence did not address most of the above factors.

    Consequently, little is known about the intent surrounding the 1937 severance besides

    what is contained in the Mclaughlin deed. The location of the tract Mclaughlin

    received in 1923 relative to land held by Defendant was never specified and it Is

    unknown whether Mclaughlin needed or desired access to the property she retained in

    1937. 2 Further, Plaintiffs did not present proof establishing whether access has been or

is available to their tract over the property identified as being owned by Deep Run AU

Sports Club. In addition to having failed to identify where the property transferred in


2
    The deed description indicates adjoining land may have then been held by the McLaughlin family.

                                                    11


                                                                                                      126a
 1937 is located, Plaintiffs failed to identify where the land retained by Joseph Pattay

 following his 1999 deed is located and whether access to Plaintiffs was/ls available over

that land.

       Plaintiffs• proof simply was deficient to support granting the relief they seek.

Importantly. the Court cannot base Its determination on speculation.

       Consequently, as Plaintiffs failed to meet their burden of proving by a

preponderance of the evidence that they are entitled to either an easement by necessity

or by implication over the parcel of land of Defendant which his predecessors In title had

received from Mclaughlin, judgment must be rendered in favor of Defendant.




                                          12


                                                                                           127a
     COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY-CIVIL ACTION-LAW


  ARTHUR R. KRUSEN, JR. and                   No. S-1378-2013
  VANESSA KRUSEN, husband and
 wife,
                      Plaintiffs
                                                                                                            ..
          vs.                                                                                . ·--�.,
                                                                                             •.:, )
                                                                                                            ..,::i:;
                                                                                                               ,,
                                                                                             :�:·r               -l
 PAUL W. WAGNER,                                                                             c.:»
                                                                                             ,:...:.....:
                                                                                                                 ..
                                                                                                                  '
                Defendant
                                                                               .:             -..     )           '

                         Sean E. Summers, Esquire - for Plaintiffs                           -·n
                      John B. Lieberman, Ill, Esquire - for Defendant                        =-�\
                                                                                             r-o                  l
                                                                                                                 .,
                                          DECREE
                                                                                      ..
                                                                                 .... j ..    ('·.·I         \a�"
                                                                                 ��           0)             r :1
 RUSSELL, J.

         AND NOW, this             7�     day of November, 2016, following trial, it is

determined that Plaintiffs Arthur R. Krusen, Jr. and Vanessa Krusen failed to meet their

burden of proof in establishing any right to the relief requested.

         Accordingly, Judgment is entered in favor of Defendant Paul W. Wagner and

against Plaintiffs Arthur R. Krusen, Jr. and Vanessa Krusen on all claims in Plaintiffs'

complaint.




                                          BY THE COURT,




                                                                                             128a
                                                                                       Circulated 02/27/2018 02:00 PM




         COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY-CIVIL ACTION-LAW                                                   -
                                                                                                                           . ;.
                                                                                                                           "\

                                                                                                        -1
                                                                                                                                l


     ARTHUR R. KRUSEN, JR. and                           No. S-1378-2013
     VANESSA KRUSEN, husband and                                                                             \-'
                                                                                                             c:.)
     wife,
                                                                                                              ··"1;!
                    Plaintiffs                                                                                :..:.J
                                                                                                                                      :
                                                                                                               r-o
            vs.                                                                                                                      ..I
                                                                                                                c ')                -pl·'
                                                                                                                   c.o
     PAUL W. WAGNER,
                    Defendant

                              Sean E. Summers, Esquire - for Plaintiffs
                           John B. Lieberman, Ill, Esquire - for Defendant

                                                 DECIS!_ON

     RUSSELL, J.

            Plaintiffs Arthur R. Krusen, Jr. and Vanessa Krusen filed a post-trial motion to the

    November 7, 2016 Decision of this Court determining that Plaintiffs had not proven a

    right to an easement by necessity or by implication to gain access to their parcel of

    woodland by traversing over farm land owned by Defendant Paul W. Wagner. The

    Court will address the alleged errors identified by Plaintiffs in their post-trial motion,

    which requests that the Court "reverse its decision" or "grant a new trial," following a

    brief discussion of a few examples of the Court's concerns about the proof at trial.

           As noted in the November 7, 2016 Decision, Plaintiffs did not present a complete

    chain of title following what Plaintiffs claimed was the property severance pertinent to

their case - namely, when the properties of the predecessors in title of Plaintiffs and of

Defendant were severed in 1937.1 Plaintiffs acquired 14.6034 acres of land by deed

dated September 1, 2006. Plaintiffs' land is purportedly a portion of the property


1
 Plaintiffs never established how, if at all, the owner of the property involved in the 1937 severance had
access to their land prior to severance.

                                                     1

                                                                                                       343a
     acquired by a predecessor in title in 1995. Plaintiffs' grantors Joseph and Kathy Pattay

     received the 14.6034 acres of land in 1999 via deed which described the land as a part

     of the same premises that Mary Frances Pattay transferred to Joseph Pattay in 1995.

     The 1995 deed described the land transferred to Joseph Pattay as 37.7 acres. The

     location of and any access to the land retained in what appeared to be the 1999

    severance were never identified and addressed. 2

           Additionally, the reliable testimony established that the dirt farm road which

    Plaintiffs desire to utilize over Defendant's land - the latter which clearly consists of

    much more acreage beyond the parcel received by Defendant's predecessor in the

    1937 severance - accessed a public roadway known as Valley Road. The dirt farm

    road's terminus, however, is about 500 yards away from Plaintiffs' property line.

    Defendant, a man of advanced age and the only witness knowledgeable of early events,

    recalled that the farm road never extended to the location of Plaintiffs' land in 1937 or

    any time thereafter. To Defendant's knowledqe, since 1937 the dirt roadway was only

    utilized by Defendant and his predecessors for farming and by hunters whom Defendant

    allowed on the farmland. About thirty years ago, after his fields had been damaged by a

minor operating a four-wheeler, Defendant had posts and a locked cable installed near

the intersection of the farm road with the public roadway to prevent third parties from

accessing his farmland. The reliable proof did not establish that after 1937 any owner




2
  Without elaboration provided, Plaintiffs entered deeds into evidence to establish their chain of title. The
Court examined the language of the deeds which may or may not have constituted accurate recitations of
the descriptions of the lands received and transferred. Consequently, the possible 1999 severance is
noted simply as an issue which was unexplained via the proof presented al trial as ii is not known
whether any severance actually occurred at that time.

                                                      2

                                                                                                       344a
     of the land now titled in Plaintiffs' names traversed Defendant's land via the farm road

     without Defendant's consent. 3

            To establish an easement by necessity over what Plaintiffs have identified as the

     servient estate, Plaintiffs were required to prove that the easement over that parcel was

     necessary both at the time of severance of title in 1937 and now. To do so, the servient

    estate's location must be known. However, Plaintiffs never identified the location of that

    estate. As noted, Defendant owns much more acreage than the parcel involved in the

    1937 severance and the evidence did not even address whether access to a public

    roadway by traversing the alleged servient property existed at any time. In fact, it

    appeared to the Court based upon questions posed during cross-examination of Plaintiff

    Arthur Krusen that access does not exist over the unidentified servient estate and

    Plaintiffs do not seek access across it. Moreover, Plaintiffs presented no proof about

    the necessity of an easement over the alleged servient parcel in 1937 by the then-

    predecessor in title to Plaintiffs. Without identification of what became the alleged

    servient estate in 1937, it is unknown whether any access was then or is now even

    feasible over that property .. Further, the manner, if any, by which any predecessor in

    title of Plaintiffs allegedly accessed what Plaintiffs now own or any portion of the land

    prior to the 1937 severance, and what impact the apparent 1999 severance had on

access to Plaintiffs' property were left unexplained.

           Prior use is one of several factors to be considered when determining if a right to

an easement by implication exists. Plaintiffs, however, did not prove prior use by their

predecessors in title of any portion of any lands now owned by Defendant to access a

public road. In fact, the reliable evidence established no prior use.
3
    Access was provided during and limited to the Private Road Act proceedings.

                                                     3

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            The Court hereafter addresses the specific issues set forth in Plaintiffs' post-trial

     motion in the order raised therein.

            First, contrary to Plaintiffs' position, the Court found that the evidence did not

     prove that a private road existed at all relevant times from a public road to Plaintiffs'

     land. The Court accepted as credible and reliable the testimony of Defendant and his

     son which did not support such claim of Plaintiffs. Notably, Plaintiffs presented no

     testimony from their immediate, or any, predecessor in title. The photographic evidence

    presented by both parties did not indicate that a private roadway traversed Defendant's

    land all the way to the land of Plaintiffs. Although Plaintiffs' surveyor prepared a map for

    use in a prior action which Plaintiffs initiated under the Private Road Act, according to

    the surveyor that map did not depict the private road as it actually existed. Rather, the

    map depicted not only the farm road on Defendant's land but also a proposed extension

    of that road so to indicate what the surveyor believed would be the most appropriate

    location for a roadway to be placed for purposes of the Private Road Act proceeding.4

    Moreover, as noted previously, no evidence indicated that the farm road or any portion

    of it was ever located on the land which Plaintiffs have called - but never specifically

    identified by, for example, locating it on a map, depicting it via photographs or by other

    means - as the servient estate.

          With regard to Plaintiffs' second issue, the Court did not determine that the

element of "strict necessity" required a "heiqhtened level of proof." Plaintiffs were

required to prove they possessed a right to an easement by necessity by a

preponderance of the evidence. However, to do so, they needed to prove all elements

4
  Plaintiff Arthur Krusen testified on cross-examination that he did not know of any evidence existing
which indicated that the roadway depicted on the survey map existed in 1937 at the time of the property
severance.

                                                   4

                                                                                                    346a
    the law requires for one to establish a right to an easement by necessity. Although

    Plaintiffs did not identify a current means of access to their property, that does not mean

    that they, nevertheless, were entitled to an easement over Defendant's land despite

    their not having proven all of the necessary elements of their possessing such right.

           The Court does not understand what Plaintiffs mean by their third issue that the

    Court "faulted" them for purchasing their property. The Court observed that Plaintiffs

    purchased the property knowing that no right of way to it existed" and that Plaintiff

    Arthur Krusen had offered Defendant money to obtain access to the property. Those

    are the facts. To the extent Plaintiffs perceive the Court's factual findings as indicating

    that blame was being placed on them, they have read something into the Court's

    analysis which was not meant to and does not appear in its Decision.

           As to Plaintiffs' fourth issue about the element of strict necessity, the Court noted

    that Plaintiffs' evidence did not specifically address whether other possible means of

    access - such as through the adjoining Deep Run Sports Club woodland property -

    existed at the time of the 1937 severance or the current time. The finding related to a

    lack of proof. Again, the incomplete chain of title evidence, the lack of identification of

the alleged servient estate, the failures to indicate the existence of any potential at any

time for real access over the parcel denominated, but never identified a� the alleged

servient estate, and, whether access had ever been or was available over the Deep

Run Sports Club woodland property which abutted Plaintiffs' woodland property are

some issues left unanswered by Plaintiffs.6


5
   Defendant's son testified that Plaintiff Arthur Krusen had stated that the realtor and seller advised him
 that no access existed to the property. Plaintiff Arthur Krusen also testified he knew the property was
landlocked prior to purchasing it.
6
   Evidence indicated the Deep Run Sports Club property accessed a public road.

                                                      5

                                                                                                         347a
         Although Plaintiffs' fifth complaint is that the Court required "heightened" proof

 that the roadway existed in the "exact same state" in 1937, Plaintiffs do not identify

 where the Court indicated the alleged heightened proof requirement or made any

 comment about their having to prove the exact state of the roadway in 1937. No proof

 existed in the record about any roadway leading to Plaintiffs' property in 1937, in 1938,

 or thereafter. Accepting that in 1937 the farm road existed in the same location from its

 starting point at the intersection with the public road to the terminus in the farm field as it

 does today does not establish that the roadway ended at Plaintiffs' property line or that

 it extended over any portion of the alleged servient estate. Again, the latter finding had

 to be made because Plaintiffs never identified where the alleged servient estate was

 located.

        To establish that they were entitled to an easement by implication under the

 traditional test, Plaintiffs needed to prove prior use of the alleged easement area.

 Plaintiffs appear to argue that because they could drive over a farm road located on

lands of Defendant and then, after it ended, walk to or drive over the farmland of

Defendant to reach their property, they are entitled to an easement over Defendant's

property whether or not that route had anything to do with the severance of 1937,

whether or not any part of that route was located on land involved in the 1937

severance, whether or not such route was evident on the ground at any time, and,

whether or not prior use of any alleged access way over Defendant's property ever took

place by Plaintiffs' predecessors in title. However, for the Court to make such a finding,

the element of prior use, necessary to establish an easement by implication under the

traditional test, would have to be disregarded. Similarly, Plaintiffs did not address the



                                              6

                                                                                          348a
    multiple factors under the alternative Restatement test beyond claiming that an

    easement was necessary to get to their land.

           As their sixth issue, Plaintiffs claim that the Court erred by not considering any

    public policy related to landlocked property. Plaintiffs never previously raised this issue

    and do not cite any legal authority for the contention. Plaintiffs appear to argue that

    because they were unable to obtain or otherwise did not fully pursue securing access

    over Defendant's lands via their litigation under the Private Road Act, they should

    nevertheless be allowed to receive the same relief they were seeking in that prior

    litigation via this case without, however, being required to pay the compensation

    contemplated by a Private Road Act proceeding or being required to present the proof
                                                 7



    necessary to establish the requisite elements of an easement by necessity or

    implication. The Court, however, is bound to apply the law as developed by the

    appellate courts to the facts as it finds them to have been or not to have been

    established. Consequently, it cannot simply find Plaintiffs are entitled to relief in this

action solely because their property is landlocked and eliminate the requirement that

Plaintiffs present proof of the requisite elements delineated by law for an easement

award. That was the basis for the Court's November 7, 2016 determlnation - a lack of

the proof mandated by law.




7                                          '
  Plaintiffs claim the Private Road Act was determined to be unconstitutional. Although their categorization
of the ruling in In the Matter of Opening a Private Road for Benefit of O'Reilly, 5 A. 3d 246 (Pa. 2010),
would appear to be too broad, as the Pennsylvania Supreme Court, nevertheless, determined that the
United States and Pennsylvania constitutions "mandate that private property can only be taken to serve a
public purpose," (12..a at 258), it would also appear that the same rationale would apply to a case such as
herein - namely, "public policy" would not trump the constitutional mandate - i.e., a property owner would
not be entitled to relief simply because his land is landlocked. Rather, public policy would require that the
constitution be followed and that the elements to establish an easement by necessity or implication be
proven.

                                                     7

                                                                                                       349a
       Plaintiffs' seventh issue - that the Court misapplied the law - is vague. Without

specifics, the Court is unable to address the matter.

       As Plaintiffs' issues identified in their post-trial motion are not found to merit

relief, the motion is being denied.




                                             8

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