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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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: 2593 of 2011 GD


BEFORE: SHOGAN, OTT, and STABILE, JJ.

DISSENTING MEMORANDUM BY STABILE, J.:                 FILED MARCH 8, 2016

      I respectfully dissent. I believe the Majority’s decision is contrary to

the settled law governing easements in this Commonwealth. Relying upon

PARC Holdings, Inc. v. Killian, 785 A.2d 106 (Pa. Super. 2001), the

Majority impermissibly attempts to use law relevant to express easements to

find an easement by necessity in this case.

      The facts and procedural history sub judice are undisputed and

recounted aptly by the Majority. Appellee Brenda Matthews suffered adverse

physical reactions to well water and, as a result, Appellee Brenda and her

husband Appellee Mark Matthews sought public water from Pennsylvania

Water Company.      To receive public water, however, Appellees wished to

install a water line along or under Maple Hill Lane, which the parties agree is

a private road.    The trial court ultimately concluded Appellees had an
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easement by necessity for ingress and egress over Maple Hill Lane and that

the easement also included a right for installation of utilities.1

       As this Court noted in Youst v. Keck’s Food Service, Inc., 94 A.3d

1057 (Pa. Super. 2014), I too am unable to locate and am unaware of any

decision where a court in this Commonwealth has granted an easement by

necessity for anything other than a landlocked property owner’s need for

ingress, egress or regress. Indeed, as we observed in Youst, an easement

by necessity has not been recognized in this Commonwealth “for any other

purpose than for ingress to a piece of land and egress from the piece of

land” and no intervening case has altered that observation. Youst, 94 A.3d

at 1076. The Majority has attempted to borrow logic from PARC Holdings

to find a utility easement by necessity in this case. I find the use of PARC

Holdings and the express easement cases it relies upon to be completely

inapposite given the fundamental difference between express easements and

those by necessity.

       An express easement is premised upon an agreement between parties

whereby a property owner is granted a right to use the land of another for a

specific purpose. See generally Clements v. Sannuti, 51 A.2d 697, 698

(Pa. 1947) (citation and emphasis omitted). Generally, to be effective, an

easement must be recorded. Amerikohl Mining Co. v. Peoples Nat. Gas

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1
  Appellees’ right to ingress, egress, or regress Maple Hill Lane is not at
dispute here.



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Co., 860 A.2d 547, 549 n.4 (Pa. Super. 2004), appeal denied, 876 A.2d

392 (Pa. 2005). In contrast, an easement by necessity is not based upon an

agreement, but contemplates a situation in which a parcel of land is

landlocked.   Phillippi v. Knotter, 748 A.2d 757, 760 (Pa. Super. 2000).

Reliance upon case law that divines the parties’ intentions with respect to

the scope of the rights granted under an express easement has no

application when considering an easement by necessity where no agreement

exists between the parties. An easement by necessity requires no proof of

the parties’ intent. 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. at 760 (citation omitted) (emphasis added).

      As is apparent, express easements and easements by necessity are

vastly different.   This difference is amplified rather than mitigated by the

decision in PARC Holdings.      In PARC Holdings, this Court was asked to

interpret the language of an express easement to determine whether it

encompassed installation of utilities. Id. at 110-11. As with any contract,

the rights conferred by the grant of the express easement had to be

ascertained solely from the language of the deed, provided the deed

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language was unambiguous. Id. (citing Dowgiel v. Reid, 59 A.2d 115 (Pa.

1948); Hutchison v. Sunbeam Coal Corp., 519 A.2d 385 (Pa. 1986)).

This Court however, found the language to be ambiguous in that it did not

specify a limited purpose for the access granted and therefore, we

determined the focal point of inquiry was the intention of the parties who

created the easement. Ultimately, this Court held that the evidence found

credible by the trial court was sufficient to find that the easement agreed to

between the parties permitted an extension of the public road with utilities

to the remaining property.   Since utilities already were installed along the

public road, the logical implication was that the parties intended to extend

the utilities along with the road.    The decision in PARC Holdings was a

matter of contract interpretation, an irrelevant consideration to determining

if an easement by necessity exists.

      I further disagree with the Majority’s attempt to equate our decision in

PARC Holdings to this case based upon the rationale that we are evaluating

the words “ingress and egress” over a road originally referred to as a “public

road” in the conveyance from Beal.      Maj. Mem. At 6.   The words “ingress

and egress” do not appear anywhere in the 1972 Beal conveyance to the

grantee Rhodes, who subsequently conveyed the property to Appellees in

2007. The reference to a “public road” in the conveyance appears solely to

delineate the boundaries of the property conveyed. Although Maple Hill Lane




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was initially intended to be dedicated as a public road, this never occurred

and it is undisputed the road then and now exists as a private road.2

Without a conveyance providing for ingress and egress, the rationale in

PARC Holdings is of little assistance to resolving the instant appeal. To hold

otherwise, would vastly change our law relating to easements by necessity.

       Even were we to assume for the moment that easements by necessity

could be claimed for utilities, Appellees still are not entitled to relief.   To

establish an easement by necessity, Appellees have to demonstrate that the

necessity giving rise to the easement existed both “at the time of the

severance of title and at the time of the exercise of the easement.”

Phillippi, supra, see also Possessky v. Diem, 399, 655 A.2d 1004, 1010

(Pa. Super. 1995) (noting that “the necessity must exist at the time of

severance of the land.”) (citation omitted). The Appellees’ property first was

deeded from Beal to Frank and Editha Rhodes in 1972 when Beal began to

subdivide land and severed the subject property from a larger parcel.

Complaint ¶’s 4-5. The Rhodes deeded the property to Appellees in 2007.

The record before us does not indicate that any necessity existed at the time

title was severed in 1972 to create Appellees’ parcel. To claim an easement

by necessity Appellees had to show that the necessity for water existed in


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2
  In order for a road to gain public status in a second class township like
South Union Township where the Appellees’ property is located, it first must
be accepted for dedication by the township. See 53 P.S. § 67316.



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1972 and was claimed as of that time. It is undisputed that Appellees were

aware of the lack of public water when they purchased the property in 2007,

some 35 years after the severance in title.      The property had well water.

The necessity raised here did not involve a lack of water or access to water

necessary for the use and enjoyment of the property at the time title was

severed in 1972.       The necessity claimed is predicated solely on Appellee

Brenda Matthews’ personal reaction to well water in 2010 some three years

after the Appellees acquired the property.3 Appellees’ Complaint, 11/21/11,

at ¶ 3.     Since the necessity claimed arises more than 40 years after

severance of title, an easement by necessity cannot be found to exist.

       Finally, to the extent Appellant also argues that the trial court abused

its discretion in granting Appellees an easement by implication for utilities, I

agree. It is settled that an easement by implication:

       rest[s] upon the principle that, where the owner of two or more
       adjacent lots sells a part thereof, he grants by implication to the
       grantee all those apparent and visible easements which are
       necessary for the reasonable use of the property granted,
       which at the time of the grant are used by the owner of the
       entirety for the benefit of the part granted.

Sentz v. Crabbs, 630 A.2d 894, 895 (Pa. Super. 1993) (citation omitted)

(emphasis added). Instantly, the record before us is devoid of any evidence
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3
  I would note that the grant of an easement by necessity for installation of
a public water line may have an adverse consequence for not only Appellant,
but also neighboring landowners who use well water. Many municipalities in
this Commonwealth have ordinances requiring landowners to connect to a
public water system if their primary residence is located within 150 feet of
the system, regardless of the availability of well water. See 53 P.S. § 67603.



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that Maple Hill Lane ever was ever for any purpose other than ingress,

egress or regress.     In my opinion, the trial court likewise abused its

discretion in finding an easement by implication for utilities.

      Accordingly, I would reverse the judgment entered in this case.




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