J-A23043-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 MARK J. ROTH AND MICHELLE A.              :   IN THE SUPERIOR COURT OF
 ROTH, HUSBAND AND WIFE,                   :         PENNSYLVANIA
                                           :
                    Appellants             :
                                           :
                                           :
              v.                           :
                                           :
                                           :
 RICHARD B. MARSHALL, BRYCE C.             :
 MARSHALL AND RICHARD B.                   :
 MARSHALL, II                              :        No. 563 WDA 2019

               Appeal from the Judgment Entered April 3, 2019
                in the Court of Common Pleas of Blair County
                    Civil Division at No(s): 2017 GN 3490

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                      FILED NOVEMBER 21, 2019

      Mark J. Roth and Michelle A. Roth, husband and wife (collectively, “the

Roths”), appeal from the judgment entered against them and in favor of

Richard B. Marshall, Bryce C. Marshall and Richard B. Marshall, II (collectively,

the Marshalls”). We affirm.

      The trial court set forth the facts underlying the instant appeal in its

April 3, 2019, Opinion, which we adopt for the purpose of this appeal. See

Trial Court Opinion, 4/3/19, at 3-26.

      On December 15, 2017, the Roths filed a Complaint for Injunctive Relief,

alleging that the Marshalls had interfered with the flow of water, which ran

through a pipe, onto the Roths’ property. The Marshalls filed an Answer, New

Matter and Counterclaim. Following a non-jury trial, the trial court found in
J-A23043-19


favor of the Marshalls and against the Roths.        The Roths filed Post-Trial

Motions, which the trial court denied. After the entry of Judgment, the Roths

filed the instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b)

Concise Statement of matters complained of on appeal.

      The Roths present the following claims for our review:

      I.    Whether the [trial] court erred by failing to enforce [the
            Roths’] water rights under the deed of November 16, 1927,
            which prohibited the grantors, their successors and assigns,
            from diverting the stream of water flowing to the lands
            conveyed under the deed?

      II.   Whether the [trial] court erred by failing to find that [the
            Roths] were entitled to an injunction as a matter of law, as
            the enforcement of a restrictive covenant cannot be
            compensated by monetary damages[,] and the [Roths] had
            otherwise satisfied the requirements for injunctive relief?

See Brief for Appellant at 4.

      We keep in mind the applicable standard of review:

      In equity matters, appellate review is based on a determination
      by the appellate court of such questions as whether (1) sufficient
      evidence supports the findings of the judge; (2) the factual
      inferences and legal conclusions based on those findings are
      correct; and (3) there has been an abuse of discretion or an error
      of law. Generally, in an appeal from a trial court sitting in equity,
      the standard of review is rigorous. The function of this Court on
      an appeal from an adjudication in equity is not to substitute its
      view for that of the lower tribunal; our task is rather to determine
      whether a judicial mind, on due consideration of all of the
      evidence, as a whole, could reasonably have reached the
      conclusion of that tribunal.

Omicron Sys., Inc. v. Weiner, 860 A.2d 554, 557-58 (Pa. Super. 2004)

(citation and internal quotation marks omitted). Moreover, we are “bound by

the trial court’s determination concerning the credibility of witnesses and

                                      -2-
J-A23043-19


weight to be accorded the evidence.” Marchetti v. Karpowick, 667 A.2d

724, 726 (Pa. Super. 1995) (citation omitted).

      “[W]hen reviewing the grant or denial of a final or permanent injunction,

an appellate court’s review is limited to determining whether the trial court

committed an error of law.” Buffalo Twp. v. Jones, 813 A.2d 659, 663-64

(Pa. 2002).

      Ultimately, the grant or denial of a permanent injunction will turn
      on whether the trial court properly found that the party seeking
      the injunction established a clear right to relief as a matter of law.
      Accordingly, … appellate review in these cases is whether the
      lower court committed an error of law in granting or denying the
      permanent injunction. Our standard of review for a question of
      law is de novo. Our scope of review is plenary.

Id. at 664 n.4 (citations omitted).

      The Roths first claim that the trial court erred by failing to enforce their

water rights, as described under a November 16, 1927, deed (“the 1927

Deed”).   Brief for Appellant at 12.    The Roths assert that the 1927 Deed

prohibited the grantors, their successors and assigns from diverting a stream

of water flowing to the lands conveyed under the deed, including the property

that is now theirs. Id. The Roths argue that the lack of the covenant in their

own deed does not defeat their rights, as their rights were previously recorded

in the chain of title. Id. at 12-14. The Roths further contend that the lack of

a metes and bounds discription does not defeat their claim, as the Marshalls

have never disputed the location of the stream. Id. at 14. In addition, the

Roths take issue with the trial court’s differentiation between the natural flow


                                       -3-
J-A23043-19


of the stream, and the “manmade” portions, as the 1927 Deed made no such

differentiation. Id. at 15. The Roths also dispute the trial court’s conclusion

that they merely have a license to the water from the stream. Id. at 16.

      In its Opinion filed on October 29, 2018, the trial court determined that

the 1927 Deed reserved for the grantors, not the grantees, the perpetual use

of the water. See Trial Court Opinion, 10/29/18, at 21-23. The trial court

further concluded that, “[b]ecause no document of record in [the Roths’] chain

of title grants them any right to divert water from [the Marshalls’] property to

their own for personal uses, their claim is barred by the affirmative defense of

[the] Statute of Frauds, 33 P.S. § 1 ….” Id. at 23.

      In its Amended Opinion filed on April 3, 2019, the trial court additionally

analyzed the language set forth in the 1927 Deed, and the evidence presented

by the parties. See Trial Court Opinion, 4/3/19, at 26-30. Based upon this

analysis, the trial court ultimately concluded that the Roths were not entitled

to injunctive relief, as they “have not met their burden of establishing that

they are entitled to claim any rights in the water flowing through [the

Marshalls’] property and, as a result, their request for injunctive relief must

be denied.” See id. at 36. We agree with the sound reasoning of the trial

court, as set forth in its October 29, 2018, and April 3, 2019 Opinions, and

affirm on this basis with regard to the Roths’ first claim.     See Trial Court

Opinion, 10/29/18, at 21-23; Trial Court Opinion, 4/3/19, at 26-36.




                                      -4-
J-A23043-19


      The Roths next claim that the trial court improperly failed to enforce the

restrictive covenant contained in the 1927 Deed and denied them injunctive

relief. Brief for Appellant at 17. The Roths assert that the Marshalls’ act of

terminating the flow of water to their property constituted a violation of the

restrictive covenant.     Id.   However, as we agree with the trial court’s

determination that there was no violation of the restrictive covenant, the

Roths are not entitled to relief on this claim.

      Judgment affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/2019




                                      -5-
                                                                          Circulated 10/24/2019 02:47 PM




       IN THE COURT OF COMMON PLEAS OF BLAIR COUNTY, PENNSYLVANIA


MARK J. ROTH and MICHELLE A. ROTH,
husband and wife,
                     PLAINTIFFS                    2017 GN 3490



V.


RICHARD B. MARSHAL, BRYCE C.
MARSHALL and RICHARD B. MARSHALL, II,
                     DEFENDANTS


HON. TIMOTHY M. SULLIVAN                               PRESIDING JUDGE

STEPHEN D. WICKS, ESQUIRE                              COUNSEL FOR PLAINTIFFS

DANIELL. STANTS, ESQUIRE                               COUNSEL FOR DEFENDANTS

                                 OPINION AND ORDER


PROCEDURAL HISTORY:


      On December 15, 2017, the Plaintiffs, Mark J. Roth and Michelle A. Roth,

husband and wife, (hereinafter "Roth") filed a Civil Complaint seeking injunctive relief

against the Defendants, Richard 8. Marshall, Bryce C. Marshall and Richard 8.

Marshall, II, (hereinafter "Marshall"). The parties are owners of real property situated in

Tyrone Township, Blair County, Pennsylvania.       Roth acquired their property by deed

dated October 27, 1994, after which they built a residence, drilled a well and moved ln

during April of 1995. Roth claims that they continued to utilize the stream in question as

a joint source of water with their well and that the Defendants, acting individually or in


                                             1
concert, terminated the flow of water through a pipe to the Roth property on or about

November 5 or 6, 2016.          Roth seeks we permanently enjoin the Defendants from


interfering in any manner with the water rights the Plaintiffs' claim they have secured.

       The Defendants filed an Answer, New Matter and Counterclaim to the Plaintiffs'


Complaint on January 11, 2018.       In summary, Marshall denies that the Plaintiffs have


any right to obtain water from the Defendants' property for their personal use, and seek

their own order enjoining Mr. Roth from entering upon their land for any purpose, unless


he has first obtained written permission.

       On February 9, 2018, the Plaintiffs filed a Response to Answer, New Matter and

Counterclaim. The matter proceeded to a trial by court on August 22, 2018, at which time


the Plaintiffs presented the testimony of Harry I. Albright and Mark J. Roth.              The

Defendants presented the testimony of Richard B. Marshall and his son, Bryce C.

Marshall.    Several exhibits were admitted into the record on behalf of both parties.

Counsel have submitted proposed Findings of Fact and Conclusions of Law and we now


proceed to make the following:

FINDINGS OF FACT:

1.     The Plaintiffs are Mark J. Roth and Michelle A. Roth, husband and wife, who

reside at 254 Kurtz Drive, Altoona, Pennsylvania. [Complaint and Answer, 1l1, Admitted


and Trial Transcript, p. 27].



                                             2
2.    Defendant, Richard B Marshall, is an individual who resides at 122 N. Bedford

Street, #1, Carlisle, Pennsylvania. [Complaint and Answer, 112, Admitted and T., p. 76].

3.    Defendant, Bryce C. Marshall, is an individual who resides at 266 Labor Camp

Road, Gardners, Pennsylvania. [Complaint and Answer, 113, Admitted and T., p. 120].

4.    Defendant, Richard B. Marshall II, is an individual who resides at 84 Victory

Church Road, Gardners, Pennsylvania. [Compl and Answer 114, Admitted].

5.    The Plaintiffs are the owners of real property, which includes their residence

situated in Tyrone Township, Blair County, Pennsylvania. Said parcels of ground are

fully described in deed dated October 27, 1994 from Tracey D. Roth, widow, and Mark J.

Roth and Michelle A. Roth, husband and wife into Mark J. Roth and Michelle A. Roth,

husband and wife, as recorded in Blair County Deed Book 1246, Page 809. [Plaintiffs'

and Defendants' Exhibit 2].

6.    The first parcel described in Deed Book 1246, Page 809, contains 1.341 acres,

based upon a survey of Pellegrini Engineers dated April 11, 1990.          This ground is

described as Parcel #3 in said survey. The second deed description is for a parcel of




                                            3
land consisting of 2.6214 acres, based upon the same Pellegrini survey and identified as

Parcel #4.   [Plaintiffs' Exhibit 5 and Transcript, p. 28].


7.     The Defendants are owners of real property located on Kurtz Drive, Altoona, PA

as more specifically set forth in a deed dated February 14, 2006 (attached as Exhibit "A"


to Plaintiffs' Complaint), said parcel consisting of 57.078 acres, which is contiguous to

and upstream from the aforedescribed lands of Plaintiffs. [Complaint and Answer, ,I6,


Admitted].

8.     The respective chain of title for the Plaintiffs was set forth in Exhibit "C" attached


to Plaintiffs' Complaint, while the Defendants' predecessors in title are set forth in Exhibit


"D" attached to Plaintiffs' Complaint.     Those chains of title are incorporated herein and


are not in dispute.


9.     The land identified as Parcel #4 in the Pellegrini survey was originally acquired by


Plaintiffs' predecessors in title by deed of Gail Scott Kurtz and Charles K. Kurtz, her


husband, to Mary D. DeMatteis on November 16, 1927. [Plaintiffs' Exhibit 6].


10.    The Kurtz to DeMatteis deed referenced above contained the following provision


regarding water rights:




                                                4
               Excepting and reserving, however, from the force and operation
               of this deed, the perpetual right to the Grantors herein, their heirs
               and assigns, to use for the purpose of swimming, bathing and
               propagation of fish the water flowing through other lands of the
               Grantors, herein as well as through land herein surveyed, and by
               acceptance of this deed, the Grantee, for herself her heirs and
               assigns, release the said Grantors, their heirs and assigns from
               any and all liability for any contamination resulting directly or
               indirectly, from such usage of the stream. Grantors, their heirs
               and assigns, shall not divert the stream of water now flowing
               through lands herein conveyed.

[Complaint and Answer, ,r12, Admitted and Plaintiffs' Exhibit 6].


11.   In the Plaintiffs' chain of title, the "Excepting and reserving" language set

forth in the Kurtz to DeMatteis deed dated November 16, 1927 was also set forth

in the following conveyances:

      (a)    Mary D. DeMatteis and Guy DeMatteis, her husband to Walter B.
             Trout and Mary Susan Trout, his wife, deed dated April 10, 1931
             and recorded in Blair County Deed Book Volume 402, Page 8.

      (b)    Walter B. Trout and Mary Susan Trout, his wife, to Josephine C.
             DeMatteis, deed dated January 28, 1933 and recorded in Blair
             County Deed Book Volume 408, Page 698.

      (c)    Josephine DeMatteis to Frank A Riccio, deed dated July 6, 1944
             and recorded in Blair County Deed Book Volume 489, Page 435.

      (d)    Frank A Riccio and Lucy Riccio, his wife to Carl Roth, deed dated
             September 13, 1948 and recorded in Blair County Deed Book
             Volume 592, Page 464.

      (e)    Ethel A Roth, widow, et al. to Carl D. Roth and Tracey D. Roth, his
             wife, and MarkJ. Roth, deed dated March 14, 1983 andrecordedin
             Blair County Deed Bool Volume 1086, Page 150.



                                             5
12.     After the above conveyances, there was no further reference to the


"Excepting and reserving" language in any subsequent deeds within the Plaintiffs'

chain of title.


13.     The stream of water referenced in the above deed was the only source of water to


the Plaintiffs' lands when such lands were acquired by Carl Roth, the father of the


Plaintiff, Mark J. Roth, on September 13, 1948 by deed of Frank A Ricco and Lucy


Ricco, husband and wife, dated September 13, 1948 and recorded in Blair County Deed


Book Volume 592, page 464.       [Plaintiffs' Exhibit 3 and T., p. 12].

14.     On October 27, 1994, Tracey D. Roth (widow of Carl Roth), Mark J. Roth and


Michelle A Roth, husband and wife, deeded the subject parcels of land to Mark J. Roth


and Michelle A Roth, husband and wife, as set forth in Blair County Deed Book 1246,


page 809. [Plaintiffs' Exhibit 2 and Defendants' Exhibit 2].

15.    After acquiring the parcels of land in 1994, the Plaintiffs built a new home, drilled a


well and moved in during April of 1995.     The Plaintiffs continued to utilize the stream in


question as a supplemental source of water, with the well they drilled being their primary

source of water. [T., pp. 30, 40-41, 50-51 and 125].



                                              6
16.     During their case-in-chief, the Plaintiffs presented the testimony of Harry I.

Albright, who resides at 4540 Kettle Road, Altoona, Pennsylvania.             Mr. Albright has

lived on this property, which is a farm, since 1947. This property has been in his family

since the 1800's. Mr. Albright is 76 years of age, is a neighbor and personally knows the

parties. [T., pp. 7-8].

17.     Mr. Albright confirmed that he is familiar with the stream in question, which he

described as the "main stream".       Mr. Albright testified that the stream runs into Parcel #4

(Roth property), as well into Parcel #2 (Marshall property) as set forth in the Pellegrini

Engineers Survey of April 11, 1990. [Plaintiffs' Exhibit 5, T., pp. 10-12].

18.     Mr. Albright also recalled that Carl and Tracey Roth lived in the original house on

the Roth property. The stream was the only source of water to Carl and Tracey Roth's

home at that time.        The stream runs along the boundary of Parcel #5 (Roth property).

[T., pp. 12-13].

19.     Mr. Albright testified that for 50 years, the stream was and still is his main source

of water.       Often times during the summer, when the weather was dry, there was very

little water.    He confirmed that Carl and Tracey Roth would also run out of water at times

and would have to divert water from the stream to their property. [T., pp. 13-14].




                                                7
20.    Mr. Albright testified that it was his understanding that Richard B. Marshall

planned to build a pond. There was a meeting in 1997 at Mark Roth's house involving

Mark Roth, Richard B. Marshall and Mr. Albright, where they discussed putting in a

pipeline to divert the water from the main stream (from the pool on the Marshall property)

to the Roth property.      Mr. Marshall agreed to pay for one-half (1/2) of the pipe and Mr.

Albright paid for the other half. Mr. Albright confirmed that it was the parties' agreement

that the pipe "could run full bore 24-7." [T., pp. 14-15].

21.    In reliance upon said agreement, Mr. Albright and Cletus Steinbeiser, who had a

backhoe, actually laid the waterline in the spring or summer of 1997.        Most of the line

went through the Marshall property.        Mr. Albright and Mr. Steinbeiser buried the line

underground in the winter of 1997 so that it would not freeze. [T., pp. 15-16].

22.    Mr. Albright also said that they measured the amount of water that ran through the

pipe and that it averaged 5 gallons per minute. [T., p. 15].

23.     Mr. Albright testified that before this present dispute, that: "And from 1997 up until

five or six years ago, everything - - - everybody was satisfied.       Everything was going

okay. And now we're where we're at."         Mr. Albright later confirmed that the agreement

made in 1997 was fine, adding: "Everybody for a number of years seemed to be well

satisfied with it." [T., pp. 15-16].



                                               8
24.        Mr. Albright stated that the Marshall to Roth leg of the stream was "man-made"

and that the main stream dld not run naturally to the Roth parcel. [T., pp. 16-18].

25.       Mr. Albright confirmed that the water to the Roth property came from the man-

made stream, which originally had a pool under the waterfall on the Marshall property.

He said there was a holding tank that supplied water to the Roth property and that the

holding tank is not currently connected to the Plaintiffs' home, to his knowledge.

[Plaintiffs' Exhibit 8; Defendants' Exhibit 1 and T., pp. 19-20].

26.       Mr. Albright confirmed that the parties' agreement in 1997 was oral and never put

into writing. [T., pp. 20-21, 23].


27.       Mr. Albright also confirmed that the purpose in installing the pipe was to ensure

that Tracey Roth had an ample supply of water to her property year-round, however, he

also confirmed that an additional purpose was to benefit Mark & Michelle Roth, who had

moved into their new house. [T., pp. 24-25].

28.       The Plaintiff, Mark J. Roth, confirmed that he has lived on his property his entire

life.   He was born October 27, 1967. After he and his wife built their new home and

moved in during April 1995, the old family home was torn down in 1996 (which was

located on Parcel #4 on the survey by Pellegrini Engineers, Plaintiffs' Exhibit 5). [T., pp.

27-29].




                                               9
29.    Mr. Roth confirmed that when he built his new home, they had a well drilled to

satisfy the bank. The well serves as their primary source of water.     He also drew water

from the holding tank by connecting a garden hose with a shut off valve so as to not

waste water. He would use this water supply to fill his well when needed. [T., pp. 30-31 ].

30.    The stream was the only water source for the original home where Carl and

Tracey Roth lived. [T., pp. 30-31].

31.    Mr. Roth indicated that the stream came down off the mountain into the holding

tank and that there were three lines installed, one for the Marshall home, one for his

home and one for his sister, who lived on Parcel #5. [T., pp. 30-31].

32.    Mr. Roth also confirmed that the 1997 meeting occurred on the deck of his new

home. He indicated that he, Richard B. Marshall and Harry Albright were all present and

that they came up with the idea of putting in a waterline, with Mr. Marshall paying for

one-half and Mr. Albright paying for one-half.   The plan was to have all the water come

off the DiFolco's property, run into Marshall's pond, then back into a stream, and then

over to Albright's property. Mr. Roth did not contribute financially to installation of the

waterline.    Mr. Roth stated that Tracey Roth was not present for this meeting. [T., pp.

31-32, 47].



                                            10
33.      Mr. Roth also confirmed that the parties agreed that the waterline "could run 24


hours per day", and that the supply of water was measured at 4 to 5 gallons per minute.


There was never any agreement that Mr. Marshall could terminate the water supply. [T.,


pp. 32-33].

34.      Mr. Roth indicated that they kept running into problems in that his line would be

taken out of the water.         He spoke to Richard Marshall, who told him it wasn't his


responsibility to maintain water for Mr. Roth.      Mr. Roth said that he extended the


waterline with Anthony DiFolco's permission up to his pond and installed a shutoff on the


other end of it. [T., p. 33].

35.      After Mr. Roth extended the waterline up to the DiFolco pond, Mr. Marshall cut off


the water supply at a pool of water below that is on the Marshall property.   It was at that


time that Mr. Roth contacted Attorney Wicks. [T., pp. 33-34].


36.      Mr. Roth claimed that the well on his property does not supply all the water he


needs.     For example, in the summer, they need additional water from the stream for


outside and inside activities, e.q., watering his lawn and shrubs, washing his vehicle,


power washing his house, doing dishes and laundry, taking showers, etc. [T., p. 36].




                                              11
37.    Mr. Roth confirmed that Mr. Marshall unilaterally cut off the waterline without his


prior knowledge or permission in or about October, 2016.       [Plaintiffs' Exhibit 10 and T.,


pp. 33-34, 37-38].

38.    Mr. Roth could not specifically refute that the tank on his property is fed by a pipe

that traveled through the Marshall property through a manmade ditch dug from a pool

below the waterfall that comes from the DiFolco property, onto the Marshall property, all

the way down to the tank. [T., pp. 42-43].

39.    Mr. Roth acknowledged that in order for the water to get from the pool on the

Marshall property over to the tank, it was necessary to have a pipe installed for the water

to flow under the road.   Mr. Roth was not involved in the installation of this pipe, nor was

he aware of when the pipe was put in. [T., p. 46].

40.    Mr. Roth admitted that without the pipe being put under the road, the water would

not have been able to get from the pool on the Marshall property over to his (Roth)


property. [T., p. 47].

41.    The deed into the Plaintiffs [Defendants' Exhibit 2] dated October 27, 1994 does

not reference anything concerning water rights. [T., pp. 51-52].

42.    Mr. Roth acknowledged that relative to the water rights referenced in the Kurtz to

DeMatteis deed from 1927 [Plaintiffs' Exhibit 6], that he has never bathed, nor swam in

the stream, nor raised any fish. [T., pp. 55-57].



                                              12
43.    Mr. Roth confirmed that the water that went into the tank was used for personal

consumption. [T., p. 57].

44.    Mr. Roth admitted that there have been a few occasions when he has gone on to

the Marshall property to clean the leaves off the screen, but denies that he did so without

Mr. Marshall's knowledge or permission. [T., pp. 60-62].

45.    Mr. Roth admitted that there is nothing in writing from Mr. Marshall conveying any

water rights from his property onto Plaintiffs; e.g., there was no easement recorded at

the courthouse. [T., p. 61].

46.    Richard B. Marshall acquired his property in Tyrone Township in 1967.

[Defendant's Exhibit 4 and T., p. 76].

47.    The deed dated November 24, 1967 and recorded at Blair County Deed Book

Volume 867, Page 395 wherein the Defendant, Richard B. Marshall and his then wife

became owners of the property in Tyrone Township, consisting of 57.08 acres, contained

the following language:

            ALSO, THE PERPETUAL right to grantees, their heirs and
            assigns to use without liability (as defined in deed from Gail Scott
            Kurt and Charles M. Kurtz, her husband, to Mary D. DeMatteis,
            dated November 16, 1927, and recorded in Blair County Deed
            Book 366, Page 265), the water flowing through lands conveyed
            by said deed as well as the lands herein conveyed for the
            purpose of swimming, bathing and propagation of fish.


[Defendants' Exhibit 4].




                                             13
48.     Mr. Marshall testified that the water comes off the pond on Mr. DiFalco's property

down their falls and into a pond.        The stream continues and flows away from the

Plaintiffs' property and ultimately ends up in a pond on the Albright property. [T., pp. 79-

80].


49.     Mr. Marshall acknowledged there was a ditch from the falls, under the road to the

other side, that ultimately went to Carl and Tracey Roth's property, feeding into the

holding tank. [T., pp. 88 and 91].

50.     Mr. Marshall has no idea as to when the holding tank was installed, nor by whom.

[T., p. 92].

51.     Mr. Marshall was aware that after Carl and Tracey Roth built their home, they

continued to get water from the holding tank. [T., pp. 94 and 98-99].

52.     Mr. Marshall agreed that Carl and Tracey Roth had problems with the lack of

water flow from the ditch into the holding tank, which led to the installation of a pipe. [T.,


pp. 99-100].

53.     Mr. Marshall indicated that Carl and Tracey Roth "were very good friends" and

that he agreed to put the pipe in "as a friend." [T., p. 100].




                                               14
54.    Mr. Marshall recalled an agreement being made in 1997, however, it is his

recollection that the agreement was for the benefit of Tracey Roth.        Mr. Marshall claims

that he knew Mark Roth had his own well and that he felt no obligation to Mr. Roth. He

also denied that Mr. Roth was part of this conversation.        It was also Mr. Marshall's

recollection that he paid the entire amount for the pipe, although he acknowledged that

he may have only paid one-half of the cost. [T., pp. 100-102; 112-113].

55.    Relative to the discrepancies as to who was present and what the exact nature of

the discussion and agreement was during this 1997 meeting, we find Harry Albright's


testimony to be more credible. In fact, Mr. Marshall acknowledged that Mr. Albright is a

friend and a good neighbor. [T., p. 111].

56.    Mr. Marshall confirmed that Harry Albright and Cletus Steinbeiser installed the


pipe and agreed that the pipe also benefited Mr. Albright. [T., p. 102].

57.    A dispute arose with Mark Roth, and Mr. Marshall did not want Mr. Roth to

continue entering upon his property. Therefore, he had Attorney Traci Naugle send a

letter to Mr. Roth dated October 26, 2016 [Defendants' Exhibit 9].               Mr. Marshall


acknowledged that after the letter was sent, he shut off the water by cutting the pipe. He




                                             15
then engaged the services of Attorney Stants, who sent a letter to Plaintiffs' counsel,

Attorney Wicks, dated February 13, 2017. [Defendants' Exhibit 10 and T., pp. 106-110].

58.    Mr. Marshall agreed that there was a water flow of 5 gallons per minute from the

installed pipe, as measured by Mr. Albright and Mr. Steinbeiser. [T., p. 113].

59.    Mr. Marshall acknowledged that periodically, individuals would have to clear

leaves from the ditch to get the water flowing again, requiring such individuals to enter

upon his property. [T., pp. 117-118].

60.    Mr. Marshall stated that the "no trespassing" signs situated on his property are

mostly for hunters, with whom he has had problems in the past. He has never sought to

have anyone prosecuted who entered upon his property for the purpose of clearing

leaves out. [T., pp. 117-118].

61.    The Defendant, Bryce Marshall, is the son of Richard G. Marshall. [T., p. 120].

62.    Bryce Marshall owns real property in Tyrone Towns hip which is adjacent to the

Plaintiffs' property.   The deed into Bryce Marshall is dated February 1, 2006.

[Defendants' Exhibit 11]. This property formerly belonged to Tracey Roth and had a

house situate on it. [T., pp. 120-121].




                                            16
63.    When Richard G. Marshall sold the property to Carl and Tracey Roth, he retained

a right of first refusal. [T., p. 121].

64.     Bryce Marshall was aware that his father allowed a pipe to be installed to ensure

that Tracey Roth received water at her home. The conditions of the ditch drying up and

the leaves clogging the drain had gone on for years. Once the pipe was installed, it

improved the flow of water. [T., p. 123].

65.    When Bryce Marshall purchased the property, his water source was originally

from the holding tank. They had a well drilled, at which time the well driller shut off the

line coming from the holding tank to the house. [T., pp. 123-124].

66.    Bryce Marshall had no knowledge that the Plaintiffs had a line running from the

holding tank to their home. On one occasion, when he inquired of Mark Roth as to what

purpose he used the water, Mr. Roth explained that he had an insufficient supply of

water from his well and that he would occasionally attach a garden hose to the tank. [T.,


pp. 124-125].

67.    Bryce Marshall testified that on one weekend, they discovered a new, long,

spiraling black line running from the existing water pool up through the waterfalls and into

Mr. DiFalco's pond.       This line was put in by Mark Roth without permission from the

Marshall family. The Marshall family contacted Attorney Tracey Naugle and upon



                                             17
receiving a response from her, Richard G. Marshall disconnected the line. [T., pp. 125-

126].

68.     Bryce Marshall indicated that Mark Roth and his father had previously argued

about the water issues.    As Bryce Marshall explained:      "That was always an ongoing

thing". [T., p. 127].

69.     Bryce Marshall personally spoke to Mark Roth in 2010 or 2011. He confirmed that

thereafter, Mr. Roth still came upon the Marshall property to talk to his father.   Bryce

Marshall explained that there were times when they would give Mr. Roth permission to

clean out the ditch, and other times they would clean it out themselves. Bryce Marshall

also acknowledged that Mr. Roth would seek permission to enter upon their land, but

that such would result in an argument between Mr. Roth and Bryce's father. [T., p. 128].

70.     Bryce Marshall confirmed that a deed was conveyed in 2006 from his father into

his father and he and his brother, so that all three are the joint owners of the real

property where the water supply was cut off. [T., p. 129].




                                            18
DISCUSSION:

      One of the first contested issues we must decide is who was present for the 1997

conversation when an agreement was made to install a pipeline to direct water from the

main stream (from a pond on the Marshall property) to the Roth property?               In this

regard, we rely upon and accept as credible the testimony of Harry I. Albright.

        First of all, Mr. Albright is not a party to this lawsuit, and testified that he is a

neighbor and personally knows all the parties. Therefore, he is truly a disinterested and

unbiased witness. Mr. Albright's recollection as to the details of the meeting were more

positive and convincing, as compared to Mr. Marshall's recollection. Further, we also find

that Mr. Richard Marshall's testimony was affected by certain prior incidents involving

Mark Roth.   Mr. Marshall testified that the road (Kurtz Road) had potholes and was in

need of repair.     He indicated that his son used a front-end loader to fill in all the

potholes and that he (Richard Marshall) paid for all the repairs.   Mr. Marshall pointed out

that quite a few neighbors (which included Mark Roth) did not contribute to the road's

repairs or even thank them.      It was evident to us in listening to and observing Mr.

Marshall during his testimony that this was and remains upsetting to him.         Finally, Mr.

Marshall also was bothered by Mark Roth entering upon his land to clear leaves from the

ditch without seeking his permission. Such is supported by the fact that he sought legal



                                             19
representation (Attorney Naugle) and had a letter sent to Mark Roth, after which he cut

the pipe and shut off the water supply.    The pipe was installed in 1997 and utilized by

the Plaintiffs for nineteen (19) years until unilaterally cut off by Mr. Marshall in or about

October 2016. Furthermore, during that period of time, there does not appear to have

been any major issues with Mr. Roth (and others) entering upon the Marshall property to

clear leaves from the ditch.

      The above findings do not end our inquiry, however.           First of all, there is no

dispute that the agreement made in 1997 was oral in nature.           It was never put into

writing. As Mr. Roth acknowledged, there is no easement agreement from Mr. Marshall

recorded at the courthouse.

       In addition, although the Plaintiffs benefited from installation of the pipe, they did

not contribute to the installation of same in any manner.        They did not perform the

physical labor (which was done by Mr. Albright and Mr. Steinbeiser), nor make any

financial contributions to its installation and subsequent burial underground (Mr. Albright

and Mr. Marshall each paid one-half).       Thus, there was no consideration from the

Plaintiffs relative to the oral agreement made in 1997.




                                             20
       It is evident from the testimony that the natural stream on the Defendants'

property does not flow toward and upon the Plaintiffs' property.        The water that the

Plaintiffs have obtained over the years has been through a manmade ditch dug at some

point prior to the Defendants acquiring their property.

       We next turn to the deeds in question. There is no provision in the Plaintiffs' deed

[Plaintiffs' Exhibit 2 and Defendants' Exhibit 2] which grants to them any right to obtain

water via a diversion of the naturally occurring stream which passes through the

Defendants' property.

       lt is also important to note that even if we agreed with the Plaintiffs that the Kurtz

to DeMatteis deed granted them water rights, such would be limited to the clear and

exact language of the deed, i.e., limited to swimming, bathing and propagation

(breeding) of fish. There is nothing in the Kurtz to DeMatteis deed that states, or could

even be construed to state, that the Plaintiffs have a right to the diversion of water from

the naturally flowing stream to their property.

       Based upon the above, we make the following:

CONCLUSIONS OF LAW:


       1.     The same principles that apply to the interpretation of a contract apply to

the interpretation of a deed. See New Charter Coal Co. v. McKee, 191 A.2d 830, 834


(Pa. 1963).    The nature and quantity of the interest conveyed by a deed "must be



                                             21
ascertained from the instrument itself." In re Property of W. R. Covert, 186 A.2d 20,

23 (Pa. 1962) (quoting Yuscavage v. Hamlin, 137 A.2d 242, 244 (Pa. 1958)). Thus,

"the language of the deed shall be interpreted in the light of the subject matter, the

apparent object or purpose of the parties and the conditions existing when · it was

executed." Highland v. Commonwealth, 161 A.2d 390, 402 (Pa. 1960).

      2.     When it comes to water rights, the construction of those rights is to be

"most liberal" and "most advantageous" to the grantee without being onerous to the

grantor. Eastern Pennsylvania Power Company v. Lehigh Coal and Navigation Co.,

246 Pa. 72, 74 (Pa. 1914).

      3.     In interpreting the "Excepting and reserving" language of the Kurtz to

DeMatteis deed dated November 16, 1927 [Plaintiffs' Exhibit 6], it was the Grantors who

reserved the perpetual right to use for the purpose of swimming, bathing, and

propagation of fish (emphasis added) the water flowing through other land of the

Grantors herein, as well as through land herein surveyed, for themselves, their heirs and

assigns.

      4.     In interpreting the relevant language of the Kurtz to Marshall deed dated

November 11, 1967 [Defendants' Exhibit 4], the perpetual right to use the water flowing

through lands conveyed by said deed as well as the lands herein conveyed for the




                                           22
purpose of swimming, bathing and propagation of fish ( emphasis added) was conveyed

to the Grantees (Marshall) and their heirs and assigns.

      5.      In order to be entitled to reasonable use of water flowing from the property

of another, the party claiming such a right has the burden of proving the water in

question is flowing or tributary.   Village of Four Seasons Association, Inc. v. Elk

Mountain Ski Resort, lnc., 103 A.3d 814, 820-22 (Pa. Super. 2014).

      6.      Because no document of record in Plaintiffs' chain of title grants them any

right to divert water from Defendants' property to their own for personal uses, their claim

is barred by the affirmative defense of Statute of Frauds, 33 P.S. §1, which has been the

law of this Commonwealth since March 21, 1772.

      7.      Plaintiffs may not claim any prescriptive rights in the water as there was no

evidence presented at trial which established that there use of the water was adverse,

open, notorious, continuous and uninterrupted use for a period of twenty-one (21) years.

Walley v. lraca, 520 A.2d 886, 889 (Pa. Super. 1987).

      8.     The party asserting a prescriptive easement must demonstrate "clear and

positive" proof. Wally, 520 A.2d at 889.

      9.      Evidence presented at trial indicated that Plaintiffs' use of the water from

the holding tank was a matter of personal convenience and did not establish that they

required such water as a strict necessity.



                                             23
       10.    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. 2000).

       11.    The installation of the pipe by Defendant, Richard B. Marshall, established

that the use of the water which flowed from the stream on Defendants' property to the

holding tank on Plaintiffs' property was entirely permissive and could be terminated at

any time, thus creating nothing more than a license. Thompson v. McElarney, 82 Pa.

174, 177-78 (1876).]

       12.    In general, a license is a mere personal or revocable privilege to perform

an act or series of acts on the land of another, which conveys no interest or estate; a

licensee is simply given permission by the occupant of the land to do something that

otherwise would be a trespass. Morning Call, Inc., v. Bell Atlantic-Pennsylvania, Inc.,

761 A.2d 139, 144 (Pa. Super. 2000).

       13.    A license is distinguishable from an easement because it is usually

created orally, is revocable at the will of the licensee, and is automatically revoked by the

sale of the burdened property. Id. at 144.

       14.    A license is generally considered a "mere personal privilege to perform an

act or series of acts on the land of another." Kovach v. General Telephone Co. of

Pennsylvania, 489 A.2d 883, 885 (Pa. Super. 1985).



                                             24
         15.   Licenses are freely revocable and only become irrevocable when a

licensee relies to its detriment upon it. Zivari v. Willis, 611 A.2d 293, 296 (Pa. Super.

1992).

         16.   An injunction is a court order that can prohibit or command virtually any

type of action. It is an extraordinary remedy that should be issued with caution and "only

where the rights and equity of the plaintiff are clear and free from doubt, and where the

harm to be remedied is great and irreparable." 15 Standard Pennsylvania Practice 2d

§83:2 (2005). Big Bass Lake Community Assn. v. Warren, 950 A.2d 1137, 1144 (Pa.

Cmwlth. 2008).

         17.   The required elements of injunctive relief are: a clear right to relief; an

urgent necessity to avoid an injury that cannot be compensated in damages; and a

finding that greater injury will result from refusing, rather than granting, the relief

requested. Id.

         18.   Plaintiffs have failed to establish a clear right to relief, an urgent necessity

to avoid an injury that cannot be compensated in damages, or that a greater injury will

result from refusing the relief they have requested.




                                              25
       19.    Based on the factors stated herein, Plaintiffs have not met their burden of

establishing that they are entitled to claim any rights in the water flowing through

Defendants' property and, as a result, their request for injunctive relief must be denied.

      In light of the foregoing, we now enter the following:

0




             R




                            D




                                          E




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                                              26
                                                                            Circulated 10/24/2019 02:47 PM




'
           IN THE COURT OF COMMON PLEAS OF BLAIR COUNTY, PENNSYLVANIA


    MARK J. ROTH and MICHELLE A. ROTH,                                          (")                 .......
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    RICHARD B. MARSHALL, BRYCE C.                                            -;                     0
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    MARSHALL and RICHARD B. MARSHALL, II,
                         DEFENDANTS


    HON. TIMOTHY M. SULLIVAN                                PRESIDING JUDGE

    STEPHEN D. WICKS, ESQUIRE                               COUNSEL FOR PLAINTIFFS
    DANIELL. STANTS, ESQUIRE                                COUNSEL FOR DEFENDANTS


                               AMENDED OPINION AND ORDER               {R{ �· {' ((); ,� l
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    PROCEDURAL HISTORY:
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           On December 15, 2017, the Plaintiffs, Mark J. Roth and Michelle A. Rot,...-;.


    husband and wife, (hereinafter "Roth") filed a Civil Complaint seeking injunctive relief

    against the Defendants, Richard B. Marshall, Bryce C. Marshall and Richard B.

    Marshall, II, (hereinafter "Marshall").   The parties are owners of real property situated


    in Tyrone Township, Blair County, Pennsylvania.      Roth acquired their property by deed

    dated October 27, 1994, after which they built a residence, drilled a well and moved in

    during April of 1995. Roth claims that they continued to utilize the stream in question as

    a joint source of water with their well and that the Defendants, acting individually or in


                                                  1

                                                                                                                                       -
concert, terminated the flow of water through a pipe to the Roth property on or about

November 5 or 6, 2016.         Roth seeks to permanently enjoin the Defendants from

interfering in any manner with the water rights the Plaintiffs' claim they have secured.

          The Defendants filed an Answer, New Matter and Counterclaim to the Plaintiffs'

Complaint on January 11, 2018.       In summary, Marshall denies that the Plaintiffs have

any right to obtain water from the Defendants' property for their personal use, and seek

their own order enjoining Mr. Roth from entering upon their land for any purpose, unless

he has first obtained written permission.

          On February 9, 2018, the Plaintiffs filed a Response to Answer, New Matter and

Counterclaim. The matter proceeded to a trial by court on August 22, 2018, at which

time the Plaintiffs presented the testimony of Harry I. Albright and Mark J. Roth. The

Defendants presented the testimony of Richard B. Marshall and his son, Bryce C.

Marshall.     Several exhibits were admitted into the record on behalf of both parties.

Counsel submitted proposed Findings of Fact and Conclusions of Law. We entered an

Opinion and Order dated October 29, 2018, denying the Plaintiffs' Request for Injunctive

Relief.




                                            2
       On November 8, 2019, Plaintiffs filed Post Trial Motions.        On November 15,

2018, the Defendants filed a Response to Plaintiffs' Post Trial Motions. Oral argument

was held on January 23, 2019.        Since oral argument, we have conducted a "fresh"

review of the entire transcript from the August 22, 2018 trial, as well as all exhibits that

were admitted into the record. As a result, we make the following:

AMENDED FINDINGS OF FACT:

1.     The Plaintiffs are Mark J. Roth and Michelle A. Roth, husband and wife, who

reside at 254 Kurtz Drive, Altoona, Pennsylvania. [Complaint and Answer, 111, Admitted

and Trial Transcript, p. 27].

2.     Defendant, Richard B. Marshall, resides at 122 N. Bedford Street, #1, Carlisle,

Pennsylvania. [Complaint and Answer, 112, Admitted and T., p. 76].

3.     Defendant, Bryce C. Marshall, resides at 266 Labor Camp Road, Gardners,

Pennsylvania. [Complaint and Answer, 1J3, Admitted and T., p. 120].

4.     Defendant, Richard B. Marshall II, resides at 84 Victory Church Road, Gardners,

Pennsylvania. [Com pl and Answer 114, Admitted).




                                             3
5.     The Plaintiffs are the owners of real property, which includes their residence,


situated in Tyrone Township, Blair County, Pennsylvania. Said parcels of ground are


fully described in deed dated October 27, 1994 from Tracey D. Roth, widow, and Mark

J. Roth and Michelle A. Roth, husband and wife into Mark J. Roth and Michelle A. Roth,

husband and wife, as recorded in Blair County Deed Book 1246, Page 809. [Plaintiffs'

and Defendants' Exhibit 2].

6.     As set forth in the deed dated October 27, 1994 into Mark J. Roth and Michelle

A. Roth, husband and wife (DBV 1246 - 809), the subject parcels are described as

follows:

           ALL THOSE CERTAIN pieces or parcels of land situate in Tyrone Township,
           Blair County, Pennsylvania, being bounded and described as follows:

           BEGINNING at an existing iron pin being a common point of other lands
           now or formerly of Carl D. Roth, et al and lands of Mathilda H. Demuth;
           thence north 26 degrees 00 minutes 00 seconds east a distance of 305.50
           feet to an existing iron pin; thence south 57 degrees 45 minutes 00
           seconds east a distance of 164.36 feet to an iron pin; thence south 26
           degrees 00 minutes 00 seconds west a distance of 515.28 feet to appoint
           on said road; thence north 56 degrees 41 minutes 38 seconds west a
           distance of 20.07 feet a point; thence north 26 degrees 00 minutes 00
           seconds east a distance of 148.83 feet to a point; thence north 36 degrees
           00 minutes 00 seconds west a distance of 162.50 feet to the point of
           beginning. CONTAl NING 1.3414 acres based upon survey of Pellegrini
           Engineers dated April 11, 1990.




                                              4
       ALSO BEGINNING at an iron pin being a point on the northern side of a 33
       foot access road from Legislative Route 07053 known as Sinking Valley
       Road and being a point at the bend of an existing stone wall; thence south
       75 degrees 21 minutes 51 seconds west a distance of 155.38 feet to an
       iron pin; thence north 56 degrees 41 minutes 38 seconds west a distance
       of 131.37 feet to a point; thence north 26 degrees 00 minutes 00 seconds
       east a distance of 515.28 feet to an iron pin; thence south 57 degrees 45
       minutes 00 seconds east a distance of 213.25 feet to an iron pin; thence
       south 20 degrees 55 minutes 11 seconds west a distance of 409.18 feet to
       the point of beginning. CONTAINING 2.6214 acres based upon survey of
       Pellegrini Engineers dated April 11, 1990.

        BEING A PORTION OF THE SAME PREMISES title to which became
        vested in Carl D. Roth and Tracey D. Roth, husband and wife, and Mark J.
        Roth, by deed of Carl D. Roth, et al, dated April 27, 1990 and recorded in
        Blair County Deed Book Volume 1183, Page 536. The said Carl D. Roth
        died the 22nd day of November, 1991, thereby vesting their interest solely in
        Tracey D. Roth, as surviving tenant by the entireties. Mark J. Roth has
        since intermarried with Michelle A. Roth, who joins in the within
        conveyance.

7.     The first parcel described in Deed Book 1246, Page 809, contains 1.341 acres,

based upon a survey of Pellegrini Engineers dated April 11, 1990.         This ground is

described as Parcel #3 in said survey. The second deed description is for a parcel of

land consisting of 2.6214 acres, based upon the same Pellegrini survey and identified

as Parcel #4. [Plaintiffs' Exhibit 5 and Transcript, p. 28].




                                              5
8.     The Defendants are owners of real property located on Kurtz Drive, Altoona, PA

as more specifically set forth in a deed dated February 14, 2006, Instrument No.


200603242 (attached as Exhibit "A" to Plaintiffs' Complaint), said parcel consisting of

57.078 acres, which is contiguous to and upstream from the aforedescribed lands of

Plaintiffs. [Complaint and Answer, 1J6, Admitted].

9.     The respective chain of title for the Plaintiffs was set forth in Exhibit "C" attached

to Plaintiffs' Complaint, while the Defendants' predecessors in title are set forth in

Exhibit "D" attached to Plaintiffs' Complaint.       Those chains of title are incorporated

herein and are not in dispute.

10.    The land identified as Parcel #4 in the Pellegrini survey was originally acquired

by Plaintiffs' predecessors in title by deed of Gail Scott Kurtz and Charles K. Kurtz, her

husband, to Mary D. DeMatteis on November 16, 1927. [Plaintiffs' Exhibit 6].

11.    In the deed dated November 16, 1927 from Gail Scott Kurtz and Charles K.

Kurtz, her husband, to Mary P. DeMatteis (DBV 366-265), the property description was

as follows:




                                             6
ALL that certain lot or piece of ground situate, lying and being in
the Township of Tyrone, County of Blair and State of
Pennsylvania, bounded and described as follows: - - -

BEGINNING on a private road, corner of the Frederick farm
and farm of George F. Kidd; thence in a Westerly direction,
along line of Frederick farm, ten hundred and twenty-seven
(1027) feet to a Maple tree; thence in a Northerly direction,
along line fence, seven hundred and sixty-two (762) feet to a
post; thence in an Easterly direction, three hundred and thirty-
eight (338) feet to a post on line of private road aforesaid;
thence in a Southeasterly direction, along line of said private
road, five hundred and fifty-six (556) feet to an apple tree; and
thence in a Southerly direction, along said road, three hundred
and ten (310) feet to the place of beginning. - - -

ALSO, all that certain lot or piece of ground situate, lying and
being in the Township of Tyrone, County of Blair and State of
Pennsylvania, bounded and described as follows: - - -

BEGINNING at a stone; thence North twenty-one and one-
fourth (21 %) degrees East twenty-six (26) perches to a stone;
thence North sixty-six (66) degrees West twelve (12) perches to
a stone; thence South twenty-two (22) degrees East twenty-nine
(29) and one-half (29 %) perches to a post; thence South fifty-
one (51) degrees East four (4) perches to a post; thence North
sixty-six (66) degrees East six and one-half (6 %) perches to a
stone, the place of beginning, containing one acre and one
hundred thirty-five (135) perches. - - -

BEING the same property the title to which became vested in
Gail Scott Kurtz, one of the granters herein, by deed of A.C.
Myton, widower, dated the 13th day of September, 1927, and
recorded in the office for the recording of deeds, etc., in and for
Blair County in Deed Book, Vol. 363, Page 699. - - -

Excepting and reserving, however, from the force and operation
of this deed. the perpetual right to the granters herein, their
heirs and assigns, to use for the purposes of swimming, bathing
and propagation of fish the water flowing through other lands of
the granters herein as well as through land herein conveyed,
and by acceptance of this deed the grantee, for herself, their
heirs and assigns, release the said granters, their heirs and
assigns, from any and all liability for any contamination
resulting, directly or indirectly, from such usage of the stream.




                                  7
              Grantors, their heirs and assigns, shall not divert the stream of
              water now flowing through lands herein conveyed. - - -

              [Plaintiffs' Exhibit 6].


12.    The "Excepting and reserving" paragraph set forth in the Kurtz to DeMatteis deed


above is at issue herein.


13.     In the Plaintiffs' chain of title, the "Excepting and reserving" language set

forth in the Kurtz to DeMatteis deed dated November 16, 1927 was also set

forth in the following conveyances:

       (a)        Mary D. DeMatteis and Guy DeMatteis, her husband to Walter B.
                  Trout and Mary Susan Trout, his wife, deed dated April 10, 1931
                  and recorded in Blair County Deed Book Volume 402, Page 8.

        (b)       Walter B. Trout and Mary Susan Trout, his wife, to Josephine C.
                  DeMatteis, deed dated January 28, 1933 and recorded in Blair
                  County Deed Book Volume 408, Page 698.

        (c)       Josephine DeMatteis to Frank A. Riccio, deed dated July 6, 1944
                  and recorded in Blair County Deed Book Volume 489, Page 435.

        (d)       Frank A. Riccio and Lucy Riccio, his wife to Carl Roth, deed dated
                  September 13, 1948 and recorded in Blair County Deed Book
                  Volume 592, Page 464.

        (e)       Ethel A. Roth, widow, et at. to Carl D. Roth and Tracey D. Roth, his
                  wife, and Mark J. Roth, deed dated March 14, 1983 and recorded
                  in Blair County Deed Bool Volume 1086, Page 150.



14.    After the above conveyances, there was no further reference to the


"Excepting and reserving" language in any subsequent deeds within the

Plaintiffs' chain of title.




                                                8
15.    The Plaintiffs' lands were acquired by Carl Roth, the father of the Plaintiff, Mark

J. Roth, on September 13, 1948 by deed of Frank A. Ricco and Lucy Ricco, husband

and wife, dated September 13, 1948 and recorded in Blair County Deed Book Volume


592, page 464.    [Plaintiffs' Exhibit 3].

16.    The property description set forth in the deed dated September 13, 1948 from

Frank A. Ricco and Lucy Ricco into Carl Roth (DBV 592-464) is the same property

description set forth in the deed dated November 16, 1927 between Gail Scott Kurtz

and Charles M. Kurtz into Mary D. DeMatteis. (DBV 366-265). [Plaintiffs' Exhibit 3].

17.   The above deed description remained the same in the subsequent conveyance

into Carl D. Roth and Tracey D. Roth, his wife, and Mark J. Roth, deed dated March 14,

1983. (DBV 1086-150) [Plaintiff's Exhibit 3].

18.   After the above conveyance, a survey was performed by Pellegrini Engineers

dated April 11, 1990. Per the Pellegrini survey, the land was divided into three parcels.




                                                9
The first parcel consists of 1.3414 acres (Parcel 3); the second parcel consists of


2.6214 acres (Parcel 4); and the third parcel consists of 12.7293 acres (Parcel 5).


[Plaintiffs' Exhibit 5].

19.    The description of the three parcels of land from the Pellegrini survey were

utilized in the deed dated April 27, 1990 from Carl D. Roth and Tracey D. Roth, husband

and wife and Mark J. Roth into themselves (DBV 1183-536) and then in the deed dated


October 27, 1994 from Tracey D. Roth, widow and Mark J. Roth and Michelle A. Roth,

husband and wife, into the Plaintiffs herein. (DBV 1246-809). [Plaintiffs' Exhibit 3 and

Defendants' Exhibit 2].

20.    After acquiring the parcels of land in 1994, the Plaintiffs built a new home, drilled


a well and moved in during April of 1995.     The Plaintiffs continued to utilize the stream

in question as a supplemental source of water, with the well they drilled being their

primary source of water. [T., pp. 30, 40-41, 50-51 and 125].

21.    During their case-in-chief, the Plaintiffs presented Harry I. Albright, who resides

at 4540 Kettle Road, Altoona, Pennsylvania.       Mr. Albright has lived on this property,

which is a farm, since 1947. This property has been in his family since the 1800's. Mr.

Albright is 76 years of age, is a neighbor and personally knows the parties. [T., pp. 7-8].




                                             10
22.     Mr. Albright confirmed that he is familiar with the stream in question, which he


described as "a main stream". He indicated that the stream begins up in the flat of the


mountain on state game land. It runs on the edge of the state game land and goes onto


his land, then comes down through the Frankel/Reese property, then onto Anthony


Difolco's property, then the Marshall property, then the Priddy property and back onto


the Albright property. He indicated that he built a pond there and ultimately, the stream


runs into a sink hole at the edge of his field and goes underground. [Plaintiffs' Exhibit 5,

T., p. 10].


23.    At the Difolco property, there is another branch to the stream.       Such branch of


the stream comes off of the Marshall property and runs into the Roth property (Parcel


#4) [T., pp. 11-12].


24.     Mr. Albright recalled that Carl and Tracey Roth lived in the original house on the


Roth property. (Parcel #4). He indicated that as far as he knew, the stream was the only


source of water to Carl and Tracey Roth's home at that time. [T., p. 12].


25.     Relative to the other branch of the stream that comes down to his property, Mr.


Albright testified that it comes down at the "upper side" of Parcel #5 and runs "along the

edge" of Parcel #5, but it does not go through it.   Mr. Albright said this branch of the




                                             11
stream angles toward his property and then comes through his property approximately 4

feet on his side of the property line and into his pond. [T., pp. 12-13].

26.     Mr. Albright testified that for 50 years, the stream was and still is his main source


of water.       Often times during the summer, when the weather was dry, there was very

little water.     He confirmed that Carl and Tracey Roth would also run out of water at

times and would have to divert water from the stream to their property. [T., pp. 13-14].

27.     Mr. Albright testified that it was his understanding that Richard B. Marshall


planned to build a pond. There was a meeting in 1997 at Mark Roth's house involving

Mark Roth, Richard B. Marshall and Mr. Albright, where they discussed putting in a


pipeline to divert the water from the main stream to ensure that Mr. Albright would get

more water, Mr. Marshall would get more water and Mr. Roth would be assured of water


during dry weather. Mr. Marshall agreed to pay for one-half (1/2) of the pipe and Mr.


Albright paid for the other half. Mr. Albright confirmed that it was the parties' agreement

that the pipe "could run full bore 24-7." [T., pp. 14-15].




                                              12
28.    In reliance upon said agreement, Mr. Albright and Cletus Steinbeiser, who had a


backhoe, actually laid the waterline in the spring or summer of 1997.          Most of the line


went through the Marshall property.            Mr. Albright and Mr. Steinbeiser buried the line


underground in the winter of 1997 so that it would not freeze. [T., pp. 15-16].


29.    Mr. Albright also said that they measured the amount of water that ran through


the pipe and that it averaged 5 gallons per minute. [T., p. 15].

30.     Mr. Albright testified that before this present dispute, that: "And from 1997 up


until five or six years ago, everything - - - everybody was satisfied.         Everything was


going okay.    And now we're where we're at."             Mr. Albright later confirmed that the


agreement made in 1997 was fine, adding: "Everybody for a number of years seemed to


be well satisfied with it." [T., pp. 15-16].


31.    Mr. Albright stated that the Marshall to Roth leg of the stream was "man-made"

and that the main stream did not run naturally to the Roth parcel. [T., pp. 16-18].


32.    Mr. Albright confirmed that the stream splits at the Marshall/Difolco junction. He


indicated "the split was man-made because it would have never run to Roth's naturally


the way the creek came down over Mr. Difolco's falls ... it wouldn't have been a natural


main stream the way it was there." [T., p. 18].




                                                  13
33.    Mr. Albright confirmed that the main stream that passes through the Marshall

property comes over a water fall from the Difolco property, and that stream makes a

turn towards his property and away from the Roth property. [T., p. 19].

34.    Mr. Albright testified that the water that flowed to the holding tank on the Roth

property came from the man- made stream that originated at a pool just under the water

fall on the Marshall property.      He said there was a holding tank that supplied water to

the Roth property and that the holding tank is not currently connected to the Plaintiffs'

home, to his knowledge. [Plaintiffs' Exhibit 8; Defendants' Exhibit 1 and T., pp. 19-20).

35.     Mr. Albright confirmed that the parties' agreement in 1997 was oral and never

put into writing. [T., pp. 20-21, 23].

36.    Mr. Albright also confirmed that the purpose in installing the pipe was to ensure

that Tracey Roth had an ample supply of water to her property year-round, however, he

also confirmed that an additional purpose was to benefit Mark & Michelle Roth, who had

moved into their new house. [T., pp. 24-25].

37.    After the pipe was put in, Mr. Albright had no further involvement in the matter

between the parties. [T., p. 24].




                                              14
38.       The Plaintiff, Mark J. Roth, confirmed that he has lived on his property his entire

life. He was born October 27, 1967. After he and his wife built their new home and

moved in during April 1995, the old family home was torn down in 1996 (which was

located on Parcel #4 on the survey by Pellegrini Engineers, Plaintiffs' Exhibit 5). [T., pp.


27-29].

39.    Mr. Roth confirmed that when he built his new home, they had a well drilled to

satisfy the bank. The well serves as their primary source of water. He also drew water

from the holding tank by connecting a garden hose with a shut off valve so as to not

waste water. He would use this water supply to fill his well when needed. [T., pp. 30-

31].

40.       The stream was the only water source for the original home where Carl and

Tracey Roth lived. IT., pp. 30-31].

41.    Mr. Roth indicated that the stream came down off the mountain into the holding

tank and that there were three lines installed, one for the Marshall home, one for his

home and one for his sister, who lived on Parcel #5. [T., pp. 30-31].




                                              15
42.    Mr. Roth stated that the 1997 meeting occurred on the deck of his new home.

He indicated that he, Richard B. Marshall and Harry Albright were all present and that


they came up with the idea of putting in a waterline, with Mr. Marshall paying for one-

half and Mr. Albright paying for one-half. The plan was to have all the water come off


the Difolco's property, run into Marshall's pond, then back into a stream, and then over

to Albright's property.     Mr.   Roth did not contribute financially to installation of the

waterline.    Mr. Roth stated that Tracey Roth was not present for this meeting. [T., pp.


31-32, 47].

43.    Mr. Roth also confirmed that the parties agreed that the waterline "could run 24

hours per day", and that the supply of water was measured at 4 to 5 gallons per minute.


There was never any agreement that Mr. Marshall could terminate the water supply. [T.,


pp. 32-33].

44.    Mr. Roth indicated that they kept running into problems in that his line would be

taken out of the water.         He spoke to Richard Marshall, who told him it wasn't his


responsibility to maintain water for Mr. Roth.       Mr. Roth said that he extended the


waterline with Anthony Difolco's permission up to his pond and installed a shutoff on the


other end of it. [T., p. 33].




                                              16
45.      After Mr. Roth extended the waterline up to the Difolco pond, Mr. Marshall cut off

the water supply at a pool of water below that is on the Marshall property. It was at that

time that Mr. Roth contacted Attorney Wicks. [T., pp. 33-34].

46.      Plaintiffs' Exhibit 8 is a photograph depicting the holding tank where the stream

emptied. There was      a pipe that would cross over into a smaller tank and that is where

the three water lines were tapped into the tank. [T., p. 34, Plaintiffs' Exhibit 8J.

47.      Mr. Roth claimed that the well on his property does not supply all the water he

needs.     For example, in the summer, they need additional water from the stream for

outside and inside activities, e.g., watering his lawn and shrubs, washing his vehicle,

power washing his house, doing dishes and laundry, taking showers, etc. [T., p. 36].

48.      Mr. Roth confirmed that Mr. Marshall unilaterally cut off the waterline without his

prior knowledge or permission in or about October, 2016.         [Plaintiffs' Exhibit 1 O and T.,

pp. 33-34, 37-38}.

49.      Plaintiffs' Exhibit 11 is a photograph looking from the Difalco property showing a

wooden bridge that goes across the top of his (Difalco) dam. One can look down into

the pool where the stream splits. The pool is on the Marshall property. This is the

same split in the stream as testified to by Mr. Albright. [T., pp. 38-39, Plaintiffs' Exhibit

11].




                                              17
50.     Mr. Roth could not specifically refute that the tank on his property is fed by a pipe


that traveled through the Marshall property through a man-made ditch dug from a pool

below the waterfall that comes from the Difolco property, onto the Marshall property, all


the way down to the tank. [T., pp. 42-43].


51.     Mr. Roth acknowledged that the origins of the stream bed are unknown to him.


[T., p. 43].

52.     Mr. Roth acknowledged that in order for the water to get from the pool on the


Marshall property over to the tank, it was necessary to have a pipe installed for the

water to flow under the road.    Mr. Roth was not involved in the installation of this pipe,


nor was he aware of when the pipe was put in. [T., p. 46].


53.     Mr. Roth admitted that without the pipe being put under the road, the water would


not have been able to get from the pool on the Marshall property over to his (Roth)


property. [T., p. 47].

54.    The deed into the Plaintiffs [Defendants' Exhibit 2] dated October 27, 1994 does

not reference anything concerning water rights. [T., pp. 51-52].




                                             18
55.    Mr. Roth acknowledged that relative to the water rights referenced in the Kurtz to

DeMatteis deed from 1927 [Plaintiffs' Exhibit 6), that he has never bathed, nor swam in

the stream, nor raised any fish. [T., pp. 55-57].


56.    Mr. Roth confirmed that the water that went into the tank was used for personal

consumption. [T., p. 57].

57.    Mr. Roth said there is not enough space to drill another well since he has "to be

so many feet from septic systems and property lines and sink holes." He has not

considered drilling his existing well deeper, noting that it is already 500 feet deep. [T., p.

59J.

58.    Mr. Roth admitted that there have been a few occasions when he has gone on to

the Marshall property to clean the leaves off the screen, but denies that he did so

without Mr. Marshall's knowledge or permission. [T., pp. 60-62].

59.    Mr. Roth admitted that there is nothing in writing from Mr. Marshall conveying any

water rights from his property onto Plaintiffs; e.g., there is no easement recorded at the

courthouse. [T., p. 61].




                                              19
60.    Mr. Roth testified that it is his understanding that the "excepting and reserving"

language in the deed is a reservation to the seller (Granter) of the deed, and not to the

buyer (Grantee). [T., p. 65).

61.    Richard B. Marshall acquired his property in Tyrone Township in 1967.

[Defendant's Exhibit 4 and T., p. 76).

62.    The deed dated November 24, 1967 and recorded at Blair County Deed Book

Volume 867, Page 395 wherein the Defendant, Richard B. Marshall and his then wife

became owners of the property in Tyrone Township, consisting of 57.08 acres,

contained the following language:

            ALSO, THE PERPETUAL right to grantees, their heirs and
            assigns to use without liability (as defined in deed from Gail
            Scott Kurt and Charles M. Kurtz, her husband, to Mary D.
            DeMatteis, dated November 16, 1927, and recorded in Blair
            County Deed Book 366, Page 265), the water flowing through
            lands conveyed by said deed as well as the lands herein
            conveyed for the purpose of swimming, bathing and propagation
            of fish.


[Defendants' Exhibit 4].

63.    Mr. Marshall testified that the water comes off the pond on Mr. Difolco's property,

down their falls and into a pool. The stream continues and flows away from the pool

and away from the Plaintiffs' property and ultimately goes through the Priddy property

and ends up in a pond on the Albright property. [T., pp. 79-80, Defendant's Exhibit 5].

This testimony is consistent with Mr. Albright's testimony.



                                            20
64.    Defendant's Exhibit 7 (1) is a photograph of the water fall. Exhibit 7 (2) is a photo


of the pipe and part of the ditch located below the water fall. This is the same pipe that


used to provide water to the holding tank on the Roth property.         Exhibit 7(3) shows


Kurtz Lane, with part of the ditch on the left side of the lane. The water fall and pool


would be to the right side of Kurtz Lane. The ditch was made from below the falls,


tapping into a pool, running through a galvanized pipe, 12 inches, under the road to the

other side and through the ditch. Mr. Marshall acknowledged that he had no idea when


the pipe was put in, or who put it in, but stated that it was present when they bought the


property. Exhibit 7(5) shows a remnant of the ditch. Exhibit 7(8) shows a section still

visible. Mr. Marshall indicated that the ditch is not much more than 3 to 4 feet wide.


Finally, Exhibit 7(12) shows a remnant of the ditch. IT., pp. 86-90, Defendants' Exhibit


7).

65.    Mr. Marshall testified that the ditch was never deep enough for anyone to swim


or bathe in it, nor raise fish. [T., p. 90]. Mr. Marshall confirmed that the flow of water


through the ditch "was very unsteady, unpredictable" and "dependent on the weather

conditions." [T., pp. 90 & 99).




                                            21
66.     Mr. Marshall stated that the ditch ultimately led down to Roth's' property, went

over into a field where the holding tank was, and then fed into the holding tank. [T., p.

91].


67.     Mr. Marshall has no idea as to when the holding tank was installed, nor by whom.


[T., p. 92].

68.     Mr. Marshall was aware that after Carl and Tracey Roth built their home, they


continued to get water from the holding tank. [T., pp. 94 and 98-99].


69.     Mr. Marshall agreed that Carl and Tracey Roth had problems with the lack of


water flow from the ditch into the holding tank, which led to the installation of a pipe. [T.,

pp. 99-100].

70.     Mr. Marshall indicated that Carl and Tracey Roth "were very good friends" and


that he agreed to put the pipe in "as a friend." [T., p. 100].


71.     Mr. Marshall recalled an agreement being made in 1997, however, it is his

recollection that the agreement was for the benefit of Tracey Roth.             Mr. Marshall


claims that he knew Mark Roth had his own well and that he felt no obligation to Mr.


Roth.   He also denied that Mr. Roth was part of this conversation.          It was also Mr.

Marshall's recollection that he paid the entire amount for the pipe, although he


acknowledged that he may have only paid one-half of the cost. [T., pp. 100-102; 112-

113].



                                              22
72.    Relative to the discrepancies as to who was present and what the exact nature of

the discussion and agreement was during this 1997 meeting, we find Harry Albright's

testimony to be more credible. In fact, Mr. Marshall acknowledged that Mr. Albright is a

friend and a good neighbor. [T., p. 111 ].

73.    Mr. Marshall confirmed that Harry Albright and Cletus Steinbeiser installed the

pipe and agreed that the pipe also benefited Mr. Albright. [T., p. 102].

74.    A dispute arose with Mark Roth, and Mr. Marshall did not want Mr. Roth to

continue entering upon his property. Therefore, he had Attorney Traci Naugle send a

letter to Mr. Roth dated October 26, 2016 [Defendants' Exhibit 9].           Mr. Marshall

acknowledged that after the letter was sent, he shut off the water by cutting the pipe.

He then engaged the services of Attorney Stants, who sent a letter to Plaintiffs' counsel,

Attorney Wicks, dated February 13, 2017. [Defendants' Exhibit 10 and T., pp. 106-110].

75.    Mr. Marshall agreed that there was a water flow of 5 gallons per minute from the

installed pipe, as measured by Mr. Albright and Mr. Steinbeiser. [T., p. 113].

76.    In review of the survey attached to Defendant's Exhibit 8, being the deed dated

May 6, 1982 from Richard B. Marshall and Elizabeth J. Marshall into Carl D. Roth and

Tracey D. Roth, Mr. Marshall acknowledged that the holding tank, which he indicated

was close to the northern corner of Plot A 1, was located at the approximate end of the




                                             23
small stream depicted on the survey that flowed over his property onto the Roth

property. [T., pp. 114-115, Defendant's Exhibit 8).

77.    Mr. Marshall was personally aware that this small stream ultimately ran into the

tank on the Roth property. [T., p. 115].

78.    Mr. Marshall stated that the small stream depicted on the survey is actually "the

ditch" and "Ii]t's always been a ditch. IT., p. 118).

79.    Mr. Marshall acknowledged that, periodically, individuals would have to clear

leaves from the ditch to get the water flowing again, requiring such individuals to enter

upon his property. [T., pp. 117-118].

80.    Mr. Marshall stated that the "no trespassing" signs situated on his property are

mostly for hunters, with whom he has had problems in the past. He has never sought to

have anyone prosecuted who entered upon his property for the purpose of clearing

leaves out. [T., pp. 117-118].

81.    The Defendant, Bryce Marshall, is the son of Richard G. Marshall. [T., p. 120).

82.    Bryce Marshall owns real property in Tyrone Township which is adjacent to the

Plaintiffs' property.   The deed into Bryce Marshall is dated February 1, 2006.

[Defendants' Exhibit 11]. This property formerly belonged to Tracey Roth and had a

house situate on it. [T., pp. 120-121).




                                              24
83.    When Richard G. Marshall sold the property to Carl and Tracey Roth, he retained

a right of first refusal. [T., p. 121].

84.     Bryce Marshall was aware that his father allowed a pipe to be installed to ensure

that Tracey Roth received water at her home. The conditions of the ditch drying up and

the leaves clogging the drain had gone on for years. Once the pipe was installed, it

improved the flow of water. [T., p. 123].

85.    When Bryce Marshall purchased the property, his water source was originally

from the holding tank. He had a well drilled, at which time the well driller shut off the

line coming from the holding tank to the house. [T., pp. 123-124].

86.     Bryce Marshall had no knowledge that the Plaintiffs had a line running from the

holding tank to their home. On one occasion, when he inquired of Mark Roth as to what

purpose he used the water, Mr. Roth explained that he had an insufficient supply of

water from his well and that he would occasionally attach a garden hose to the tank. [T.,

pp. 124-125].

87.    Bryce Marshall testified that on one weekend, they discovered a new, long,

spiraling black line running from the existing water pool up through the waterfalls and

into Mr. DiFalco's pond. This line was put in by Mark Roth without permission from the

Marshall family.      The Marshall family contacted Attorney Traci Naugle and upon




                                            25
receiving a response from her, Richard G. Marshall disconnected the line. [T., pp. 125-

126].

88.     Bryce Marshall indicated that Mark Roth and his father had previously argued

about the water issues. As Bryce Marshall explained: "That was always an ongoing


thing". [T., p. 127].

89.     Bryce Marshall personally spoke to Mark Roth in 201 O or 2011. He confirmed

that, thereafter, Mr. Roth still came upon the Marshall property to talk to his father.

Bryce Marshall explained that there were times when they would give Mr. Roth

permission to clean out the ditch, and other times they would clean it out themselves.

Bryce Marshall also acknowledged that Mr. Roth would seek permission to enter upon

their land, but that such would result in an argument between Mr. Roth and Bryce's

father. [T., p. 128].

90.     Bryce Marshall confirmed that a deed was conveyed in 2006 from his father into

his father and he and his brother, so that all three are the joint owners of the real


property where the water supply was cut off. [T., p. 129].

SUPPLEMENTAL DISCUSSION:

        We incorporate the Discussion section set forth in our original Opinion and Order

dated October 29, 2018. Upon further review of this matter, we agree with the Plaintiffs


that the "Excepting and reserving" language set forth in the deed dated November 16,



                                            26
1927 from Gail Scott Kurtz and Charles M. Kurtz, her husband, to Mary D. DeMatteis

(DBV 366-265) should be interpreted as containing two separate clauses.           The first

clause "[e]xcepts and reserves ... the perpetual right to the Granters ... their heirs and

assigns, to use for the purpose of swimming, bathing and propagation of fish the water

flowing through other lands of the Grantor herein, as well as through land herein

surveyed ... "

       The clause that the Plaintiffs are relying upon and which is really at issue herein

is the last clause, which reads "Granters, their heirs and assigns, shall not divert the

stream of water now flowing through lands herein conveyed ... "

       The Plaintiffs argue that this clause constitutes a covenant running with the land.

       Covenants, to "run with the land", ordinarily must affect land and are intended to

pass with it, while covenants which are merely "personal" do not so run. Logston v.

Penndale, lnc., 576 A.2d 59, 61 (Pa. Super. 1990).

       There can be no dispute that the 1927 conveyance clearly indicated that there

was a "stream of water now flowing through the lands herein conveyed."          The deed

does not describe exactly where this stream is located. The deed does not provide any

physical description of the stream (e.g., its width, length or depth or where it starts or

where it ends). There were no surveys attached to this 1927 conveyance. As a result,

we are left with "trying to find the pieces to complete the puzzle".



                                             27
       The only witness who was not a party to this lawsuit was Harry Albright.       Mr.

Albright knows the parties and from all appearances, seems to have a positive

relationship with all involved. We find his testimony to be honest and credible.

       Mr. Albright testified that he has lived on his neighboring property since 1947.

The Plaintiff's father, Carl Roth, acquired his property on September 13, 1948.      Mark

Roth was born in 1967 and grew up on his property.            Richard Marshall originally

acquired his property on November 11, 1967.        All of these individuals   clearly have

some level of familiarity with the properties and stream in question.

       Once again, we focus on Mr. Albright's testimony.        Mr. Albright provided the

following history:

            Q.      And can you tell the Court what led to the
            discussion?

            A.         Well, for 50 years, my farm has been getting water
            since around 1800 out of that, and it's still my main source of
            water even now. And about 50 years or so ago when I was
            just a kid, when the water got low in the summer, there was
            very little water coming down that stream up at A.J. Difolco's.
            Well, it would get real low and Roth would start to run out of
            water, and then they would go up and divert some down that
            manmade - - - that was a manmade stream. And then my
            grand pap and me would go up and transfer more down the
            main stream because we'd run out down at the farm. So that
            went on for like 50 years or more.

            And then I understood Mr. Marshall was going to build a
            pond. And I did not understand exactly where he planned to
            run the water from the spillway, whether he was going to run
            it in the main stream or down the manmade one. And I talked
            to him about it, and I said you need to run it into the main
            stream. And then we decided for Mr. Marshall's benefit, my


                                            28
            benefit, and Roth's benefit, something needed to be changed
            how much water was going one way or the other in dry
            weather.

            So we had a meeting at Mark Roth's house; Mr. Marshall, me
            and Mark Roth. And I brought up the idea of the only way I
            knew to control it would be to put a pipeline in it. And that
            way, Mr. Marshall would get more water, I'd get more water,
            Roth would be assured of water in dry weather. And so we
            agreed to that. And to my best understanding, Mr. Marshall
            agreed to pay for half the pipe. I paid for half the pipe. And it
            was put in. And the understanding was that that could run
            full bore 24/7. And it ran approximately five gallon a minute.
            And from 1997 up until five or six years or so ago, everything
            - - - everybody was satisfied. Everything was going okay.
            And now we're where we're at.

[T., pp. 14-15].


       Mr. Albright testified that the Marshall to Roth leg of the stream was "man-made"

and that the main stream did not run naturally to the Roth parcel. [See Findings of Fact

Nos. 31 & 32].

       Mr. Albright also testified that the water that flowed to the holding tank on the

Roth property came from the man-made stream that originated at a pool just under the

waterfall on the Marshall property. [See Finding of Fact No. 34].

       We find Mr. Albright's testimony as set forth above to be clear and credible and,

frankly, dispositive of the issue before us. The man-made stream was a diversion of

water flow from the "main stream", as Mr. Albright termed it.          We believe that a

reasonable interpretation of the clause set forth in the 1927 deed restricting the

granters, their heirs and assigns, from diverting "the steam of water now flowing through


                                            29
lands herein conveyed" referenced this "main stream", and not the man-made diversion

of water that was made some time thereafter. The deed restriction references "stream"

in the singular, not in the plural.

       Mr. Albright's testimony is supported by the testimony of Richard Marshall, who


indicated that the "small stream" that flowed over his property onto the Roth property

and into the holding tank was actually "the ditch" and "[i]t's always been the ditch". [See

Findings of Fact Nos. 71-74].         We find Mr. Marshall's testimony to be credible in this

regard.

          Finally, Mr. Roth admitted that he could not refute the assertion that the holding

tank on his property was fed by a pipe that traveled through the Marshall property

through a man-made ditch dug from a pool below the waterfall that comes from the

Difolco property onto the Marshall property.         He acknowledged that the origin of the

stream bed is unknown to him. [See Findings of Fact Nos. 50-51]. Further, Mr. Roth

was not involved in the installation of the pipe, nor was he aware of when the pipe was

installed. [See Finding of Fact No. 52].

       Based upon the above, we make the following:




                                                30
AMENDED CONCLUSIONS OF LAW:

       1.     The same principles that apply to the interpretation of a contract apply to

the interpretation of a deed. See New Charter Coal Co. v. McKee, 191 A.2d 830, 834


(Pa. 1963).    The nature and quantity of the interest conveyed by a deed "must be

ascertained from the instrument itself." In re Property of W. R. Covert, 186 A.2d 20,

23 (Pa. 1962) (quoting Yuscavage v. Hamlin, 137 A.2d 242, 244 (Pa. 1958)). Thus,

"the language of the deed shall be interpreted in the light of the subject matter, the

apparent object or purpose of the parties and the conditions existing when it was

executed." Highland v. Commonwealth, 161 A.2d 390, 402 (Pa. 1960).

      2.      When it comes to water rights, the construction of those rights is to be

"most liberal" and "most advantageous" to the grantee without being onerous to the


granter. Eastern Pennsylvania Power Company v. Lehigh Coal and Navigation Co.,

246 Pa. 72, 74 (Pa. 1914).

      3. In the deed dated November 16, 1927 from Gail Scott Kurtz and Charles K.

Kurtz, her husband, to Mary P. DeMatteis (DBV        366-265), the property description

contained in the following clause:




                                           31
            Excepting and reserving, however, from the force and operation
            of this deed, the perpetual right to the grantors herein, their
            heirs and assigns, to use for the purposes of swimming, bathing
            and propagation of fish the water flowing through other lands of
            the grantors herein as well as through land herein conveyed,
            and by acceptance of this deed the grantee, for herself, their
            heirs and assigns, release the said grantors, their heirs and
            assigns, from any and all liability for any contamination
            resulting, directly or indirectly, from such usage of the stream.
            Grantors, their heirs and assigns, shall not divert the stream of
            water now flowing through lands herein conveyed. - - -



      4.       The water course which provided water from the stream on the

Defendants' property to the holding tank on the Plaintiffs' property was not a naturally

occurring stream, but instead, traveled from a man-made ditch dug at some point prior

to the Defendants' acquiring their property.

       5.      In order to be entitled to reasonable use of water flowing from the property

of another, the party claiming such a right has the burden of proving the water in

question is flowing or tributary.   Village of Four Seasons Association, Inc. v. Elk

Mountain Ski Resort, Inc., 103 A.3d 814, 820-22 (Pa. Super. 2014).

       6.       The restrictive covenant set forth in the Kurtz to DeMatteis deed dated

November 16, 1927, based upon our reasonable interpretation of the subject clause,

applies to a "stream of water now flowing through lands herein conveyed", i.e., what




                                               32
was described as "a main stream" by Harry Albright, and not the man-made ditch that

diverted water from the Marshall property to the holding tank on the Roth property.

       7.     As a result, we do not find that the act of terminating the flow of water

through the man-made ditch by the Defendant, Richard B. Marshall, constitutes a

violation of the restrictive covenant.

       8.     Restrictive covenants are to be strictly construed against persons seeking

to enforce them and claiming benefit thereof and in favor of free, unrestrictive use of

property. Logston v. Penndale, Inc., 576 A.2d 59, 62 (Pa. Super. 1990).

       9.     Plaintiffs may not claim any prescriptive rights in the water as there was

no evidence presented at trial which established that there use of the water was

adverse, open, notorious, continuous and uninterrupted use for a period of twenty-one

(21) years. Walley v. lraca, 520 A.2d 886, 889 (Pa. Super. 1987).

       10.    The party asserting a prescriptive easement must demonstrate "clear and

positive" proof. Wally, 520 A.2d at 889.

       11.    Evidence presented at trial indicated that Plaintiffs' use of the water from

the holding tank was a matter of personal convenience and did not establish that they

required such water as a strict necessity.




                                             33
       12.   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, lnc., 94 A.3d 1057, 1075 (Pa. Super. 2000).

       13.   The installation of the pipe established that the use of the water which

flowed from the stream on Defendants' property to the holding tank on Plaintiffs'

property was entirely permissive and could be terminated at any time, thus creating

nothing more than a license. Thompson v. McElarney, 82 Pa. 174, 177-78 (1876).].

       14.    In general, a license is a mere personal or revocable privilege to perform

an act or series of acts on the land of another, which conveys no interest or estate; a

licensee is simply given permission by the occupant of the land to do something that

otherwise would be a trespass. Morning Call, lnc., v. Bell Atlantic-Pennsylvania,

Inc., 761 A.2d 139, 144 (Pa. Super. 2000).

       15.    A license is distinguishable from an easement because it is usually

created orally, is revocable at the will of the licensee, and is automatically revoked by

the sale of the burdened property. Id. at 144.

       16.   A license is generally considered a "mere personal privilege to perform an

act or series of acts on the land of another." Kovach v. General Telephone Co. of

Pennsylvania, 489 A.2d 883, 885 (Pa. Super. 1985).




                                             34
         17.   Licenses are freely revocable and only become irrevocable when a

licensee relies to its detriment upon it. Zivari v. Willis, 611 A.2d 293, 296 (Pa. Super.


1992).

         18.   An injunction is a court order that can prohibit or command virtually any

type of action. It is an extraordinary remedy that should be issued with caution and

"only where the rights and equity of the plaintiff are clear and free from doubt, and

where the harm to be remedied is great and irreparable." 15 Standard Pennsylvania

Practice 2d §83:2 (2005).      Big Bass Lake Community Assn. v. Warren, 950 A.2d

1137, 1144 (Pa. Cmwlth. 2008).

         19.   The required elements of injunctive relief are: a clear right to relief; an

urgent necessity to avoid an injury that cannot be compensated in damages; and a

finding that greater injury will result from refusing, rather than granting, the relief

requested. Id.

         20.   Plaintiffs have failed to establish a clear right to relief, an urgent necessity

to avoid an injury that cannot be compensated in damages, or that a greater injury will

result from refusing the relief they have requested.




                                              35
      21.     Based on the factors stated herein, Plaintiffs have not met their burden of

establishing that they are entitled to claim any rights in the water flowing through

Defendants' property and, as a result, their request for injunctive relief must be denied.


       In light of the foregoing, we now enter the following:




      0




                     R




                                   D




                                                 E




                                                                R




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