J-A32015-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARK P. MATTHEWS AND BRENDA                       IN THE SUPERIOR COURT OF
MATTHEWS, HIS WIFE,                                     PENNSYLVANIA

      Appellees

                     v.

GEORGE TESLOVICH, JR.,

      Appellant                                       No. 54 WDA 2015


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


BEFORE: SHOGAN, OTT, and STABILE, JJ.

DISSENTING MEMORANDUM BY SHOGAN, J.:                   FILED JUNE 28, 2016

      After my review of the record, the briefs of the parties, the trial court

opinion, and relevant authority, I discern no abuse of discretion or error of

law in the trial court’s decision to grant an easement by necessity for

utilities. Accordingly, I respectfully dissent.

      In this Commonwealth “an easement may be created 1) expressly; 2)

by prescription; 3) by necessity; or 4) by implication.” Phillippi v. Knotter,

748 A.2d 757, 758 (Pa. Super. 2000) (citation omitted).            Here, it is

undisputed that the trial court’s order granted an easement by necessity.

An easement by necessity contemplates a situation in which a parcel of land

is landlocked. Id. at 760. “Landlocked” is defined as “surrounded by land,

often with the suggestion that there is little or no way to get in or out
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without crossing the land of another.” Id. (quoting Black’s Law Dictionary

883 (7th edition 1999)).    “It is a well-settled principle of law that, in the

event property is conveyed and is so situated that access to it from the

highway cannot be had except by passing over the remaining land of the

grantor, then the grantee is entitled to a way of necessity over the lands of

his grantor.”   Phillippi, 748 A.2d at 758 (citation omitted).       The three

fundamental requirements for an easement by necessity are as follows:

      1) The titles to the alleged dominant and servient properties
      must have been held by one person.

      2) This unity of title must have been severed by a conveyance of
      one of the tracts.

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

Id. (citation omitted). An easement by necessity is due to strict necessity,

and it never exists as a mere matter of convenience.             Id. (citations

omitted).

      In the case at bar, Appellant does not challenge the trial court’s finding

of an easement by necessity for ingress and egress; Appellant’s sole

challenge is to the trial court’s finding of an easement by necessity for

utilities. Appellant’s Brief at 7. There is a dearth of case law on the discrete

issue of easements by necessity for utilities.

      However, in PARC Holdings, Inc. v. Killian, 785 A.2d 106 (Pa.

Super. 2001), this Court was faced with a similar scenario.           In PARC


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Holdings, the issue was whether an express easement “for ingress and

egress to certain land now owned by Grantor” included an easement for

utilities.   Id. at 109.   While that case involved an express easement, I

conclude that the decision is instructive. The PARC Holdings Court relied

on Dowgiel v. Reid, 59 A.2d 115 (Pa. 1948), which held that “Pennsylvania

has adopted the rule that where a right of way is granted or reserved

without limit of use, it may be used for any purpose to which the land

accommodated thereby may naturally and reasonably be devoted.”             PARC

Holdings, 785 A.2d at 114 (citing Dowgiel, 59 A.2d at 118). This Court in

PARC Holdings reasoned as follows:

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

Id. at 112 (emphases added). Thus, this Court concluded that the express

easement was ambiguous, and the attendant circumstances weighed in favor

of PARC Holdings’ contention that the easement was reserved for future

land development; the intent was that the easement was not simply for

ingress and egress, but also included the right to install utilities. Id. at 116.


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       Here, I recognize that this Court is not assessing an express

easement.    However, because we are evaluating the import of the words

“ingress and egress” over a road that was originally referred to as a “public

road” in the deed of conveyance from Beal, and because the survey attached

to the deed depicted a “public road,” the rationale from PARC Holdings

persuades my decision that ingress and egress may include utilities.

Because the road was termed a “public road” without a limit on its usage at

the time of conveyance from Beal in 1972, a reservation was created at that

time for “any purpose to which the land accommodated thereby may

naturally and reasonably be devoted.”       PARC Holdings, 785 A.2d at 114

(citing Dowgiel, 59 A.2d at 118). I conclude that an easement for public

water, under the facts of this case, is both necessary and reasonable. In the

absence of contrary binding authority,1 I find no abuse of discretion or error

of law by the trial court in granting Appellees an easement by necessity for

utilities.

1
  Other jurisdictions similarly include access to utilities within the meaning of
ingress and egress pursuant to an easement by necessity. See Regan v.
Pomerleau, 107 A.3d 327, 338 (Vt. 2014) (citing Berge v. State, 915 A.2d
189 (Vt. 2006)); Brown v. Miller, 95 P.3d 57 (Id. 2004); Smith v.
Heissinger, 745 N.E.2d 666 (Ill. App. 2001); Morrell v. Rice, 622 A.2d
1156 (Me. 1993); Huggins v. Wright, 774 So.2d 408 (Miss. 2000); and 1
Restatement (Third) of Prop.: Servitudes § 2.15 comment d. (2000)
(observing that “increasing dependence” on access to utilities for reasonable
enjoyment of property supports recognition of easement by necessity).

     I am cognizant, however, of contrary holdings as well.            See
Albenberg v. Szalay, 774 S.E.2d 730, 735 (Ga. App. 2015) (stating that an
easement for ingress and egress does not include a utility easement, citing
Lanier v. Burnette, 538 S.E.2d 476 (Ga. App. 2000)).

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      For the reasons set forth above, I would affirm the judgment entered

in favor of Appellees.




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