J-A35031-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JERRY DOUGLAS MOWERY AND HIS                    IN THE SUPERIOR COURT OF
WIFE, HOLLY A. MOWERY,                                PENNSYLVANIA

                            Appellees

                       v.

C. RICHARD CAYLOR (INDIVIDUALLY)
AND HIS WIFE, EVA A. CAYLOR,
(INDIVIDUALLY); C. RICHARD CAYLOR
(AS TRUSTEE) AND CARL R. CAYLOR (AS
TRUSTEE),

                            Appellants               No. 478 WDA 2014


                    Appeal from the Order February 24, 2014
               In the Court of Common Pleas of Jefferson County
                       Civil Division at No(s): 650-2012


BEFORE: BENDER, P.J.E., BOWES, and ALLEN, JJ.

MEMORANDUM BY BOWES, J.:                        FILED DECEMBER 30, 2014

       C. Richard Caylor, both individually and in his capacity as trustee, his

wife Eva A. Caylor, and Carl R. Caylor, in his capacity as trustee, appeal

from the equity court’s determination that Jerry Douglas and Holly A.

Mowery have a prescriptive easement over their property. We affirm.1


____________________________________________


1
  We note that Appellees filed a motion to quash because Appellants did not
enter judgment on the verdict. Appellants subsequently performed that
action. See Praecipe for Entry of Judgment, 4/8/14, at 1. Appellees also
ask for a remand in order to file a post-trial motion. They contend that they
did not receive a copy of Appellants’ post-trial motion and never had the
opportunity to file a cross post-trial motion. They continue that they were
unaware of the filing of the post-trial motion until they received a copy of
(Footnote Continued Next Page)
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        On July 9, 2012, Appellees instituted this action against Appellants.

The action pertained to real estate owned by Appellants in Jefferson County

and located adjacent to real estate possessed by Appellees.           Appellees

alleged the following.       They purchased the Jefferson County real estate in

1988.    Prior to that event, ingress and egress to the property in question

was obtained by means of an obvious right-of-way over the real property

owned by Appellants.         The road was blocked by a locked gate.   Appellees

were given a key to utilize the gate by the seller when they bought the

property. For the ensuing twenty-four years after 1988, Appellees continued

to consistently access their land by means of the right-of-way. The use was

open, notorious and continuous.

        Appellees’ use of the road was first questioned on September 21,

2011, after they had traversed the road to reach their property for purposes

of logging.    At that time, Appellants demanded that Appellees return the

right-of-way to its original condition, but attempted to obtain a windfall by

demanding that Appellees make repairs unrelated to the use of the right-of-

way for the 2011 logging.          When Appellees refused to make the changes,

Appellants began to harass Appellees and their visitors when they used the




                       _______________________
(Footnote Continued)

the order denying it. However, this contention should have been raised at
the trial court level. We do not have the power to grant such relief, as it
was not raised, in the first instance, with the trial court. Pa.R.A.P. 302(a).



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road. Eventually, Appellants blocked the road with a different locked gate.

Appellees were thus prevented from accessing their property.

        In their complaint, Appellees sought a declaration that they enjoyed

either a prescriptive easement or an easement by necessity.            In the

alternative, Appellees averred that Appellants were equitably estopped from

preventing Appellees from using the right-of-way. After a hearing held on

January 16, 2014, the equity court found in favor of Appellees with respect

to their claim that they acquired a prescriptive easement over Appellants’

land.

        The equity court’s conclusion was premised upon the following proof

adduced at the hearing in question. Norman R. Sunderland, a licensed land

surveyor, testified that the road in question runs from Weaver Road, a public

road, crosses Appellants’ land and then proceeds to the boundary of

Appellees’ property. The right-of-way is demarcated by fence posts located

along its boundaries.

        The following proof also was adduced. Appellees’ predecessor in title,

Gwendolyn Smith, obtained an express easement to access the property

now owned by Appellees.        That road was never built and so remained

undeveloped at the time of the hearing.       Jerry D. Mowery reported the

following. When he bought his property from Ms. Smith on July 25, 1988,

the road that crosses Appellants’ land, as well as property owned by an

uninvolved third party, was the sole means of ingress and egress to the




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property. At the time of the purchase, Ms. Smith gave him a key to a gate

that blocked the roadway where it began.

      Mr. Mowery stated that, in 1988, the roadway in question was used by

both vehicles and pedestrians. Since 1988, he traveled to his land over the

right-of-way about twice a month to hunt and for other recreational

purposes. The road was used twice by vehicles to access Appellees’ property

in order to log it.   Additionally, it was used by Kriebel Resource Co., LLC

(“Kriebel”), in 1994 in order to drill wells on both Appellees’ land and

Appellants’ real estate. Mr. Mowery indicated that he observed Carl Caylor

(Mr. Caylor) occasionally as he drove across the road.

      Mr. Mowery testified that he thought that he had been given

permission to use the roadway. He also said that, when he saw Mr. Caylor,

Mr. Caylor would confront him. Mr. Caylor would express displeasure with

Mr. Mowery’s use of the road.       Mr. Mowery’s testimony nevertheless was

that he believed that he had the imprimatur of Appellants to utilize the road,

especially since Kriebel used industrial equipment to transverse it to drill the

well located on Mr. Mowery’s land.

      Mr. Mowery continued that Mr. Caylor first demanded that he cease

using the right-of-way in 2011, twenty-three years after Mr. Mowery, his

friends, and his family had started to use it to access Appellees’ land.     At

that time, Mr. Caylor informed Mr. Mowery that he could no longer use the

right-of-way, Mr. Caylor changed the locks on the gate, and Mr. Mowery lost

his ability to access his real estate.

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        Mr. Caylor, who resided in Ohio, testified that his property was owned

by a trust for the benefit of the Caylor family. The Caylors also utilized their

land primarily for recreational purposes. In addition, a former family home

was located on the land, and his parents resided there six months of the

year.    Mr. Caylor, in direct opposition to the testimony of Mr. Mowery,

adamantly insisted that he never gave Mr. Mowery permission to use the

road.    Mr. Caylor further stated that he never observed Mr. Mowery on a

road located on his property.     N.T. Hearing, 1/16/14, at 80 (“I have not

personally seen him on the road.”).        In contradiction to this testimony,

Mr. Caylor later implicitly admitted that he had observed Mr. Mowery use his

property to access the land in that Mr. Caylor testified that there had been

“confrontations, several, between me and [Mr. Mowery].          And he always

said, well, I’ve got other ways to get in.”      Id. at 93.     This statement

indicates that Mr. Caylor observed Mr. Mowery accessing Appellees’ property

over Appellants’ land. Even though the right-of-way was the sole means by

which Mr. Mowery could get to his property after 1988, Mr. Caylor insisted

that there was not even an observable road that led to Appellees’ land until

Kriebel developed it in 1994 to place wells on Appellants’ and Appellees’ real

estate. He speculated that Appellees accessed their land from 1988 to 1994

by using ATVs or trails or other people’s property.

        Mr. Caylor informed the equity court that, with the exception of a

right-of-way given to Kriebel to access its wells, he never gave anyone

permission to use any portion of his property, which would thus include the

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right-of-way   over   which   Appellees   claimed   a     prescriptive   easement.

Mr. Caylor reported that he acted aggressively to keep anyone from using

any part of his real estate in any manner. Mr. Caylor posted it with 400 no

trespassing signs, placed barbed wire fence to keep recreational vehicles

from using it, and blocked any path on the property with logs. Id. at 91-92.

Mr. Caylor specifically stated at the hearing that he never authorized use of

the road by Appellees. Mr. Caylor testified that Mr. Mowery “shouldn’t have

had a key to the gate, because we never authorized anybody to give him a

key.” Id. at 117. Mr. Caylor repeated that Mr. Mowery “shouldn’t have the

keys [to the gate at the beginning of the road]. We didn’t authorize it.” Id.

at 117.

     Based upon this evidence, the equity court found that Appellees

acquired   a   prescriptive   easement     over     the     road   described   by

Mr. Sunderland. This appeal followed denial of Appellants’ post-trial motion.

These issues are presented on appeal:

     [1.] Whether the trial court committed an error of law as the
     clear and positive evidence presented by the Plaintiffs below was
     insufficient to prove the elements necessary to establish an
     easement by prescription.

     [2.] Whether the trial court committed an error of law in
     rejecting the Plaintiffs' evidence of permissive use and
     determining that a prescriptive easement was created over the
     Defendants’ property.


     [3.] Whether the trial court erred as a matter of law in finding
     that the Plaintiffs' evidence of permissive use ripened into an



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      adverse claim sufficient to establish a prescriptive easement
      simply by the fact that said use occurred over a period of years.

      [4.] Whether the trial court erred as a matter of law in finding an
      easement by prescription over the Defendants' property where
      evidence was admitted that Plaintiffs had access to their
      property via a separate, recorded right-of-way.

      [5.] Whether the trial court erred as a matter of law in finding an
      easement by prescription through the Defendants’ property,
      which is unenclosed woodlands, in contravention of the
      Unenclosed Woodlands Act, 68 P.S. §411 et seq.


Appellants’ brief at 5-6.   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).

      We first outline the elements that are needed to establish the

existence of a prescriptive easement. “It is well-settled that a prescriptive

easement is created by (1) adverse, (2) open, (3) notorious, (4) continuous

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and uninterrupted use for a period of 21 years.” Burkett v. Smyder, 535

A.2d 671, 673 (Pa.Super. 1988).         Appellants first maintain that the

easement’s use was not adverse since Mr. Mowery testified that he thought

he was using the roadway with permission.           Appellants’ brief at 19.

However, in this respect, the equity court relied upon the clear and

unequivocal testimony of Mr. Caylor himself, who repeatedly testified that no

permission was ever given to Appellees to use the road.

       The equity court stated specifically that it found that Appellants

proffered “credible evidence that they never authorized the plaintiffs to use

the road and, in fact, repeatedly told them not to.”      Trial Court Opinion,

2/24/14, at 1. Appellants suggest that the equity court was not permitted to

rely upon Mr. Caylor’s testimony regarding the non-permissive nature of the

use.    However, under our standard of review, we do not disturb the

credibility determinations of the equity court, which found Mr. Caylor

believable and which did not credit Mr. Mowery’s mistaken conclusion that

his use was with permission offered by Appellees. As we noted in Sutton v.

Miller, 592 A.2d 83, 89 (Pa.Super. 1991), “regardless of the subjective

state of mind of the trespasser,” a presumption of hostility will exist if the

use is open, notorious, continuous, and uninterrupted. See Tioga Coal v.

Supermarkets Gen. Corp., 546 A.2d 1, 5 (Pa. 1988) (“It is inconceivable

that if an adverse possessor actually takes possession of land in a manner

that is open, notorious, exclusive and continuous, his action will not be


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hostile to the true owner of the land[.]”). While it is unusual for the parties

to offer evidence that is detrimental to their legal position, we are aware of

no precedent that prohibits a court from using a party’s own testimony

against him or her.

      Additionally, contrary to Appellants’ rather confusing portrayal of

Mr. Caylor’s testimony, Mr. Caylor was consistent and adamant that he did

not give Appellees permission to use the road. He reported that, other than

Kriebel, no entity or person had been given consent to use any part of

Appellants’ land to any extent and that he aggressively kept people from

using the property in question.    Mr. Caylor reported that he scouted for

trespassers, placed 400 no trespassing signs on his property and would build

obstructions to prevent use of the land by motorized vehicles. He insisted

that he confronted anyone whom he saw on his property, including

Mr. Mowery. Mr. Caylor testified unequivocally that Mr. Mowery should not

have had a key to the gate blocking the right-of-way since Mr. Mowery had

never been given permission to use the road in question. Hence, the equity

court’s determination that Appellees’ use was hostile was amply supported

by the record, and Appellants’ first contention must be rejected.

      Appellants next maintain that there was no clearly delineated road

over their land for Appellees to use. They rely upon aerial photographs that

they introduced into evidence. Nevertheless, the equity court credited the

testimony of Mr. Mowery, who reported that he had used a marked road


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since 1988 to access his land. Additionally, the equity court relied upon the

testimony of Appellees’ surveyor, Mr. Sunderland, who stated that the road

was marked along its border by a series of fence posts.       In addition, a

representative of Kriebel, James V. Brant, testified for Appellees. He stated

that, even though it was dirt and grass, the road was visible and that there

were tire tracks to mark its location. Indeed, Appellees’ evidence was that

the right-of-way in question was the sole means by which they could even

access their land from 1988 to 2011. Hence, we reject Appellants’ position

that there was not a road through their property over which Appellees could

travel until 1994.   The equity court’s finding to the contrary is amply

supported by the proof adduced at the hearing.

     Appellants’ third position is that the equity court erred when it found

that the permissive use had ripened into adverse use due to the passage of

time. However, the equity court did not render such a finding. It concluded

that Appellants “never authorized the plaintiffs to use the road[.]”    Trial

Court Opinion, 2/24/14, at 1 (emphasis added). Therefore, it did not find

that permissive use had evolved into adverse use, and this position lacks

merit.

     Appellants’ next complaint is that the equity court erred in finding a

prescriptive easement “where evidence was admitted that plaintiffs had

access to their property via a separate, recorded right-of-way.” Appellants’

brief at 35.   This issue pertains to Appellees’ claim for an easement by


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necessity.      It is irrelevant, for purposes of establishing a prescriptive

easement, whether the easement holder can access his property by other

means.       The elements of a prescriptive easement are that the use be

adverse, open, notorious, continuous, and uninterrupted for a period of

twenty-one years.        A party claiming that he acquired a prescriptive

easement does not have to establish that he needs the right-of-way to

access his property. Therefore, this position is not pertinent to ruling of the

equity court.

      Finally, Appellants maintain that Appellees could not acquire an

easement over their property, even though it contained a home and was

posted, since it was unenclosed woodland. This position involves application

of 68 P.S. § 411, which states: “No right-of-way shall be hereafter acquired

by user, where such way passes through uninclosed woodland; but on

clearing such woodland, the owner or owners thereof shall be at liberty to

enclose the same, as if no such way had been used through the same before

such clearing or enclosure.”

      Appellees counter that application of the statute was waived. At the

hearing, Appellants raised the issue of whether Appellees could assert an

easement over Appellants’ land since it was unenclosed woodland. Appellees

objected since application of 68 P.S. § 411 was “not in the pleadings.” N.T.

Hearing, 1/16/14, at 8.     Our review of the record confirms that the issue

was not raised in the pleadings. Appellees filed a complaint on July 9, 2012.


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Appellants filed preliminary objections to that complaint that did raise the

position that Appellees could not acquire an easement over their property

since it consisted of unenclosed woodlands as their third preliminary

objection.   Appellees filed an amended complaint on September 4, 2012,

and Appellants responded with preliminary objections that raised 68 P.S.

§ 411 as their second preliminary objection.

      On October 22, 2012, Appellants filed a brief in support of their

preliminary objections, and in that document, specifically withdrew the

preliminary objection raising 68 P.S. § 411.     Appellees responded with a

brief in opposition to the preliminary objections. The remaining preliminary

objection was denied on December 18, 2012.           On February 13, 2013,

Appellants filed an answer and counterclaim. There is no new matter raised

in that pleading.

      We conclude that the defense that no easement could be acquired over

the property in question should have been raised as new matter. Pa.R.C.P.

No. 1030 provides:

      (a)    Except as provided by subdivision (b), all affirmative
             defenses including but not limited to the defenses of
             accord and satisfaction, arbitration and award, consent,
             discharge in bankruptcy, duress, estoppel, failure of
             consideration, fair comment, fraud, illegality, immunity
             from suit, impossibility of performance, justification,
             laches, license, payment, privilege, release, res judicata,
             statute of frauds, statute of limitations, truth and waiver
             shall be pleaded in a responsive pleading under the
             heading “New Matter”. A party may set forth as new
             matter any other material facts which are not merely
             denials of the averments of the preceding pleading.

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      (b)   The affirmative defenses of assumption of the risk,
            comparative negligence and contributory negligence need
            not be pleaded.

      Our case law holds that this list is not exhaustive and that any

affirmative defense must be raised in new matter:

      Rescission is not among the affirmative defenses specifically
      enumerated in Pa.R.C.P. 1030.           However, the rule clearly
      indicates that its listing of affirmative defenses is not exclusive.
      An affirmative defense is distinguished from a denial of facts
      which make up the plaintiff's cause of action in that a defense
      will require the averment of facts extrinsic to the plaintiff's claim
      for relief. Lewis v. Spitler, 266 Pa.Super. 201, 403 A.2d 994
      (1979). Applying this principle, we hold that rescission is an
      affirmative defense which must be raised by the defendant under
      the heading new matter in its responsive pleading. Where the
      defendant is silent as to this defense, he cannot avail himself of
      its protection.

Falcione v. Cornell School Dist., 557 A.2d 425, 428 (Pa.Super. 1989).

      In this case, the unenclosed woodlands defense required Appellants to

prove facts extrinsic to Appellees’ cause of action for a prescriptive

easement, which is wholly unrelated to the character of the land.             The

“facts” were that the land in question was both woodlands and unenclosed.

Hence, application of 68 P.S. § 411 was an affirmative defense and waived

due to Appellants’ failure to plead it as new matter.

      Application to quash denied. Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/30/2014




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