J-S78014-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MICHAEL E. PLOWS AND                     :   IN THE SUPERIOR COURT OF
BERNADETTE PLOWS                         :        PENNSYLVANIA
                                         :
                                         :
             v.                          :
                                         :
                                         :
DENNIS ROLES AND JESSICA M.              :
ROLES                                    :   No. 631 WDA 2017
                                         :
                   Appellant             :

            Appeal from the Judgment Entered March 24, 2017
  In the Court of Common Pleas of Cambria County Civil Division at No(s):
                               2014-1109


BEFORE:    OLSON, J., DUBOW, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.:                          FILED JANUARY 22, 2018

      Appellants, Dennis Roles and Jessica M. Roles, appeal from the

judgment entered on March 24, 2017, following a bench trial wherein the

trial court granted Michael E. Plows and Bernadette Plows (hereinafter “the

Plows”) the right to install a sewer line through a right-of-way that traverses

Appellants’ property. Upon review, we affirm.

      The trial court summarized the facts and procedural history of this

case as follows:

      This case involves a dispute between adjoining landowners.
      [The Plows] purchased a property with an address of 664
      Headricks Road, Johnstown, PA 15909 on September 27, 2000.
      The Plows’ deed for their property includes a 14[-]foot right-of-
      way that traverses [Appellants’] property. In 2002, the Plows
      began to experience problems with their septic tank and
      eventually, after trying several remedial measures, they applied
      to have municipal water installed through the Jackson/East

____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S78014-17


     Taylor Township Sewer Authority. [Appellants] purchased the
     adjoining property in 2010. At some point thereafter, animosity
     between the two neighbors developed. Particularly, Mrs. Plows
     testified that Mr. Roles during several occasions verbally
     attacked her with profanity laden insults.

     The Plows also submitted into evidence several pictures of what
     they described as [Appellants’] attempts to block their use of the
     right-of-way with barriers and vehicles. A retired contractor,
     Jack Houston, testified that he and his son measured the
     distance between the municipal sewer lines and the Plows[‘]
     residence. The distance was within one hundred fifty (150) feet,
     meaning the Plows are required to tap into the municipal
     system.

     On March 13, 2014, the Plows filed a complaint in equity seeking
     to enjoin [Appellants] from interfering or obstructing the Plows’
     usage of the right-of-way, enjoin [Appellants] from harassing
     them in any manner, order that the Plows are permitted to
     install a new sewer line through the right-of-way, order that the
     Plows are permitted to have a temporary easement in addition to
     the current right-of-way to install the sewer line, retain
     jurisdiction to enforce the order and any appropriate relief. On
     November 5, 2014, the Plows filed a petition for special
     injunction/permanent injunction asking for a rule to show cause
     why the relief requested in regards to the sewer pipe should not
     be granted pending the outcome of the matter on the merits.
     On November 12, 2014, the [trial] court scheduled a status
     conference in this matter for November 26, 2014. On November
     26, 2014, this conference was continued to January 21, 2015 at
     the request of the Plows’ attorney. On December 23, 2014,
     [Appellants] filed a response to the Plows’ complaint and petition
     in the nature of preliminary objections.       Argument on the
     preliminary objections was scheduled for February 16, 2015 and
     a non-jury trial was set for March 4, 2015.

     On February 13, 2015, the Plows filed a response to
     [Appellants’] preliminary objections. On February 25, 2015, the
     [trial] court overruled [Appellants’] preliminary objections. On
     April 2, 2015, [Appellants] filed an answer with new matter. On
     May 8, 2015, the Plows filed an answer to [Appellants’] new
     matter. On May 1, 2015, a non-jury trial was held to conclusion
     with the parties submitting post-trial legal memoranda. On June
     8, 2015, the [trial] court rendered its verdict and granted [the

                                   -2-
J-S78014-17


      Plows] the right to install the sewer line through the right-of-way
      upon certain conditions. On June 12, 2015, [Appellants] filed a
      motion for post-trial relief and a request for a transcript. For
      reasons unknown to the [trial] court, this motion was never
      argued before the [trial] court or scheduled for motions court as
      per Cambria County local practice. There was no docket activity
      until July 15, 2016, when the Plows filed a petition to enforce
      court order.      Argument on this petition was scheduled for
      September 28, 2016 and at this point the [trial] court also
      became aware, for the first time, that the post-trial relief
      requested by [Appellants] had not been heard nor decided. On
      July 18, 2016 the [trial] court entered an order denying the
      post-trial relief requested by [Appellants]. On August 2, 2016,
      [Appellants] filed a notice of appeal. On August 9, 2016[,] the
      [trial] court ordered [Appellants] to file a concise statement of
      [errors] complained of on appeal.           On August 18, 2016,
      [Appellants] complied and filed their concise statement. On
      September 14, 2016, [this] Court quashed the appeal sua
      sponte because no judgment had been entered on the [trial]
      court’s verdict.    On March 16, 2017, counsel for [Appellants]
      filed a motion to withdraw as counsel and on March 27, 2017,
      the motion was granted[.] On March 24, 2017, counsel for the
      Plows filed a praecipe for final judgment and judgment was
      entered of record for the Plows. On April 24, 2017, [Appellants]
      filed a notice of appeal and on May 8, 2017 complied with the
      [trial] court’s order to file a concise statement of [errors]
      complained of on appeal. [The trial court issued an opinion
      pursuant to Pa.R.A.P. 1925(a) on May 10, 2017.]

Trial Court Opinion, 5/10/2017, at 1-4 (superfluous capitalization, record

citations, and footnote omitted).

      On appeal, Appellants present the following issues for our review:

      I.    Did the [trial c]ourt err in granting an injunction where the
            grant constituted       an unlawful      expansion of an
            unambiguous and express easement for a road
            right-of-way?

      II.   Did the [trial c]ourt err in granting the injunction where no
            evidence of necessity was presented?




                                     -3-
J-S78014-17


      III.   Does the grant of the expansion of an easement without
             compensation constitute an unlawful taking for private
             purposes and without compensation?

Appellants’ Brief at 1.

      All of Appellants’ issues are interrelated, so we will examine them

together.       In their first issue presented, Appellants argue that the

easement at issue unambiguously granted the Plows a right-of-way for

ingress and egress only. Thus, they argue that the trial court’s award of an

injunction “effectively allows the Plows to expand[] its use for a sewer line

[and] further infringes upon [Appellants’] property rights [which] may not be

expanded beyond the original grant.”       Id. at 2-3. Appellants attempt to

distinguish the three cases relied upon by the trial court in rendering its

decision – Dowgiel v. Reid, 59 A.2d 115 (Pa. 1948), Pope v. Muth, 481

A.2d 355 (Pa. Super. 1984), and PARC Holdings, Inc. v. Killiam, 785 A.2d

106 (Pa. Super. 2001).    Id. at 4-6.   Appellants also challenge the Plows’

position that the expansion of the easement was a necessity.         Id. at 6.

More specifically, Appellants contend that there was no evidence that the

adjoining properties were once unified in title or that the claimed necessity

for a sewer line existed at the time of the severance of title. Id. Finally,

Appellants argue that the trial court’s action represented an expansion or

further encumbrance upon their property constituting an unconstitutional

taking pursuant to eminent domain. Id. at 7.

      Our standard and scope of review are as follows:

      Our appellate role in cases arising from non-jury trial verdicts is
      to determine whether the findings of the trial court are

                                     -4-
J-S78014-17


     supported by competent evidence and whether the trial court
     committed error in any application of the law. The findings of
     fact of the trial judge must be given the same weight and effect
     on appeal as the verdict of a jury. We consider the evidence in a
     light most favorable to the verdict winner. We will reverse the
     trial court only if its findings of fact are not supported by
     competent evidence in the record or if its findings are premised
     on an error of law. However, as the issue herein centers on the
     interpretation of an easement, which like any contract concerns
     a question of law, our scope of review is plenary.

                          *          *           *

     The law on the interpretation of easements is clear. A right of
     way is an easement, which may be created by an express grant.
     To ascertain the nature of the easement created by an express
     grant we determine the intention of the parties ascertained from
     the language of the instrument. Such intention is determined by
     a fair interpretation and construction of the grant and may be
     shown by the words employed construed with reference to the
     attending circumstances known to the parties at the time the
     grant was made.

     Ambiguous words are construed in favor of the grantee. Where
     a deed or agreement or reservation therein is obscure or
     ambiguous, the intention of the parties is to be ascertained in
     each instance not only from the language of the entire written
     instrument in question, but also from a consideration of the
     subject matter and of the surrounding circumstances.


Amerikohl Mining Co., Inc. v. Peoples Natural Gas Co., 860 A.2d 547,

549–550 (Pa. Super. 2004) (internal citations and quotations omitted).

     Our Court was confronted with a factual scenario similar to the case

sub judice in PARC Holdings, Inc. v. Killian, 785 A.2d 106, 112 (Pa.

Super. 2001).   At issue there was the interpretation of an express easement

for a right-of-way and whether its use “was specifically limited by the terms

‘ingress and egress’ to merely pedestrian or vehicular access” or whether it


                                    -5-
J-S78014-17



could be used for the installation of utilities through the easement.    PARC

Holdings, 785 A.2d at 109.               Citing our Supreme Court’s decision in

Dowgiel,1 supra, we determined that Pennsylvania has adopted the rule

that where a right of way is granted or reserved without limit of use, it may

be used for any purpose to which the land accommodated thereby may

naturally and reasonably be devoted. Id. at 113. We looked at the plain

language of the easement in PARC Holdings and concluded that the

right-of-way was ambiguous because the language did not specify a limited

purpose for access, such as “for the purpose of maintaining a water system”

or “for pedestrian or vehicular travel only.”          Id. at 112.   The PARC

Holdings Court ultimately recognized that it was proper to install utilities

that naturally and reasonably may be accommodated by an easement. Id.

       Here, the easement at issue provides, in pertinent part, “Together with

the right of ingress and egress over, through, and upon a certain 14 foot

easement for a road right of way running over through and upon land” (as

described more particularly). Complaint in Equity, 3/13/2014, at Exhibit A.

Upon review, the easement does not have a limited purpose and, thus, is

____________________________________________


1
   In Dowgiel, our Supreme Court concluded that the grant of a right-of-
way for a private road included the right to construct and install electricity
lines across the easement as “a reasonable and natural use of the private
road for the purpose for which it was created, to wit, to enable the owners
and occupants of the premises to which the road is appurtenant to obtain
something which is essential to the livableness of the home, to wit,
electricity[.]” Dowgiel, 59 A.2d at 121.



                                           -6-
J-S78014-17



ambiguous.     After conducting an in-person view of the properties and

hearing testimony, the trial court “credit[ed] the evidence offered by [the

Plows] as to the difficulties experienced with the on-site septic system and

the fact that connecting into the municipal sanitary sewer system would

make the residence ‘liveable’ [as set forth in Dowgiel].”             Trial Court

Opinion, 5/10/2017, at 7 (footnote incorporated).       As such, the trial court

granted the Plows relief to install sewer lines through the easement with

appropriate notice to Appellants and upon the condition that the Plows bear

responsibility for returning the right-of-way to its preconstruction condition.

Upon review of the facts of this case, together with applicable law, we

discern no abuse of discretion or error of law in the trial court’s

determinations. With no limitations on the use of the easement for ingress

or egress, it was proper to allow the installation of sewer lines to make the

Plows’ property liveable. Moreover, because the express easement provided

the Plows with the right to place a sewage line, there was no need to show

an easement by necessity.       Finally, there was no unconstitutional taking,

expansion, or other encumbrance on Appellants’ property, since the existing

easement allowed for the installation of sewage lines. As such, Appellants

are not entitled to relief and all three of their issues are without merit.

      Judgment affirmed.



Judgment Entered.



                                      -7-
J-S78014-17




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/22/2018




                          -8-
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                   IN THE COURT·QF COMMON PLEAS O� CAMBR�A €00Ni( PE�-NSYL� ANIA
                               ·'      '• .. CIVIL DIVISION''. . . .. . ,t
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                 MICHAEL E. PLOWS and '                                                               . : . No.. 2014-1.J 09                                                                         .. .,
                 BERNADETTE M. PLOWS,                                                                                                                                              .. : �··J                                                 .· .          :
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                                                                                      OPINION                                                                                                   e,
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                        Kiniry, J., .Ze: May 2017. Thi� matter coiric; betof� the Court as a result of
                                               .                   . . ·.. . .                   •:         . ·..     .
                                                             {
                                                               1

                 Defendants Dennis Roles and Jessie/Roles        Rol'es")   filing\.statement
                          .                          .   :       .        .. . .                  ' .
                                                                                                            of M�tters Complained
                                                                                                              . .  ,'
                                                                                                                        . .. . ..
                 of on Appeal. For the reasons set fo�h below, the    Cpurt.i·;   � · p ectf  �    l.ly.
                                                                                .                        . . ' . that the Court's. .
                                                                                              . � . .submits
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                 decision in this matter should be affirmed.                                                                                                                        '




                                                FACTUAL AND PROCEDURAL                                                                            IHSTOJfy·
                                                                                                                                                         . .,.
                            This case involves a.dispute'betwe�n adjoh1i�g landowners. 'Mi.chael Plows. and
                                     .   .        .       :                  .. . . . . . .
                 Bernadene Plows ("Plows'.') purchased· a propertywiih apiadqr�.ss"of 664 Head�ick� Road,
                      .              .                                        . .. ,. . . . . :.    .
                 Johnstown; PA' 1590� on September 27, 20,0.0. Transcript of Non:.Jury·l;_rial, 5/t'fns,.pp. ·4-5. · . _
                                                                                .                 .
                                                                                                       �•      ..
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                 The Plows' deed for their property includes a 14 foot. right-of-way.          that. transverses
                                                                                                            . , ..the Roles'                                                             ,',

                 prope.rty                                                         f s.'be�'an cx·��ri-�nc_�· p bl ·ms
                                 p.·
                           .. Id., 6, II. 23'-75, p. 7 ,.11...1-2.: In 20.02, the � ��
                                       . .                      .     .                         to
                                                                                                     ..           �� � �vitl�·.
                                                                                                                             .
                                                            '   •I,     •


                 their septic' system and eventually, after trying several reril�diaf i:n��su��s, they a�pliei to have
                                                                                                                                                   .       . .. : •.,.                                                                .l
                 municipal water installed through the iackson/E�st Taylor.TownshipSewer.Authority. ld., pp.
                                                     .                      . '. : '. .                                                                . . "·                                                      '\.



                 8:-9. T!1e Roles purchased the adjoining property in 20 I 0. :Id., p.:20; 1·1. 20-25·.
                                   ..   .           .        .     .:          .· . .                   some. point                                                                                                At
                 rhereatter, animosity between the two neighbors developed. · Particularly, Mrs: Plows testified
                                                . ... .                                                                                     ...         . ... ·       ..
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       that Mr: Roles during seve;ar occasions verbally ah�cked ·her with profanity laden. insults. Id;
            ..:       ..    ;        ..                    •                                    �            ••                                        • • •           •
                                                     ..                               JI
                                                                                           ·�




      . pp. 29-10, 32-33.

                  The Plows also.submitted into evidence several picturesof'whatrhey described as Mr.
                  .         � ·...   '. .      �-; . �       .. .  ..     ..·
                                                                            (      ··� ... ' . .. · ...                                     :



        Roles' attempts to block   � �� �se.P,t � r!�h:"'�t�V:�Y
                                    h     r    th                 witl � � �
                                                                        :b    r iers-an     � ��h�_cles. Id. pp. 35-41,

        Plaintiff's.Exhibits HJ ... H7. A retired contractor. Jack Houston, testified that he and his son
        .· · .. ··              -.            ,:. t':::-:_./�1:..:·:·�:-- .···�·.' :· .··... ·                                                                                  ...
       measured thedistance between the municipal sewer lines and the Plows residence. ld.;.p. 62, II.
                               '·  .. . . ,. .       .
                                                     '     - . ..             .    .. . .
       2- l 3.. The. distance W�s ��ithirt �ne· hu.. ndred . . I soj'. feet;. meaning thePlows are ·;equired
                                                                                                     fitt/ ( to
                                                                                           -�          .


     . ·· tap into the municipal.system, Id: p. 62°, 11. 8-: l 3.·

                  OnMarch 13, 2014� the Plows filed a Cotiiplaint il)-�quity s6eking to enjoin the Roles
                                               •••                                                  ••   •           <    •                          ··:                    •            •

                                                                            •.,•                                              .•                ',
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       -trom interfering or obstructing the Plows' usage of the right-of-way, enjoin the Roles from

        harassing them in any manner, order that. the Plows are permitted to install a sewer Iine.through,
                                                •                       •                                                              I*                                                •   •




                                                                                                                                       �-
       th�right'-of-way, order that the Plows.are-permiited' to have.�· temporary easement. in addition to

        the currentnght-of-way-to installthe sewer Iine, retain jurisdiction to enforce theorder and any ·

        other appropriate relief. Oi1 November .5,'''.l014, the Plows filed a Petition for Special ::· .·

                                                                  Sh9w·Cause as to why the reliefrequested
          . .              . Injunction asking. for a �ule 10....
        Injunction/Permanent                                                     .
                                                                                                                         ·'

        in regards to the Se\vef.pip'.� should not be granted pending the outcome Of the matt�r on the'
                                          .                                                                                        �
        merits: On November 12,�2014, the Court schedule? a status conference in this matter for                                                                                                      ..
        November 26, 2014 .. On November 26, 20i 4, this.confe�ence .�vas continued ro January 21; 2015
                                                     .         .        .
                                                                                                                 .                                                                               ..
        at the request of the Plows' �ttomey ;, On December 23;.201:4, the Roles filed a response _10 th�
                                                                                                             ,·.
        Plows \· complaint and petition in the nature of preliminary objc�tfoi1s.                                                                                     Argumenton the

       preliminary objections was scheduled: for February 16, 20 (Sand �I non-jury trial set for March 4;

       2015.                                                                                                                                               ·.......
                                                                                                             2


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          On February IJ, 2.015, the P,lows.file�fa r�sp6n�,/to'the
                                           .      . .       . �'·��.
                                                                                                                                                                             Rol�s· preliminary-objections:
                                                                                                                                                                                     .       ..
                                                                                                                                                                                                            ·
                                        .                                                                                                                                                                                              ·,
  On. February 25, 2015,
                     .   .
                           the non-jury
                                  -
                                         trial \V�S•.. continued to May t'(
                                                                          . . 2015     'o� the'.·.motion of the
                                      ..                           .          � '         ·•                                                                                                                 f

  Plows' attorney, O� March 3; 20:15, the Court 'ove�ruJecithe Rolea'-preliminary objections.' On
                       o                                          •                                                                                                    ••                                                                            •
                           4                                                                                                        •.                                             • •                           #




                                             ; .                                  ·• .. '
                                                                                                                                                                                                                                                                  .'
  April 2, 20!5, the Roles filed an An�w�r with New'Matter ..On :M.a.y 8,.2915, the'•Plo�s filed 3:n·
                                                                       .                .
                                                                                       •.
                                                                                             .                  '

  Answer to tlie. Roles' New Matter; Ort May. l I,                                                             20 I\ a.non-jury trial \vas: held to conclusion
  ;
                                         .                                             .        .              . ... �     .. .         -· ·:;"' : �
  with theparties submittingpost-rrial legal 1!.1c�·oranda� ·on JuneB, 20�5. rfi�·C�u'rt. rendered;its
                              .       . .: .; .                   ·.     .. .         .. .   � .. .                                                                                                                        ·� ·
  verdict and granted the Plaintif{t11e righi.to install tl;e sewer lirre.through'the right of way upon
      . .. ·. . .,      .    � . .     .          .            ... . .      � .' . �.            . .
  certain conditions. On June\2, 20!5/the �6fosJiJe';t a lvf orion fo{fo�t:�ri�l; R�l�efand.a
                                                              • • •. • s; ... - • ..                     .:·              .; � -. .                    ... i •.             ' .....                      �.• �'.'.                     •

. 'Request for a:Transctipt.             For: reasons unknown to the Court, this Motion was never argued
                                         :                                                                                                                                         �
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                               •.
                                    ..
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       . the Court   or scheduled' forMotions'C.
                                              . ouit as-per      . �ounty. local .practice, There
                                                        . Can1bria
                                                                                                                                                                             0
  before
    .         .    .                .      .


. was no docket activity until.July                           .It �o ·-�. when the.Pl�ws Jilea ��c_titicin� to Enforce. Court
                                                                                                                                                        •.

  Order, Argument on this Petition was scheduled for September �8 •. 2016. and at.this point the
                                                              .                                                                                             .                                       .                  .   .
  Court.also became aware, for the first time, that, the Post Trial Reliefrequested by the Roles. had

  notbeen heard.nor decided. 'On Juii 18, 20_16 the Courtef!lered an Orderdenying the Post�Trial
                                                                      ..
                                                         ,.                                                                     •                   I•
                                                                                                                                                        •
  Relief requested by the Roles, On Augusf-2, 2016, the                                                                                       �oies     filed a Notice of Appeal.
                                                                                                                                                . r�· , ...
                                                                                                                                                                                                                                                         On

  Au�ust 9, 2016 the Court ordered the Roles to file a -con�ise Statement .of'Mauers Complained
                                                                           .                                                                           .             '"··

  of on Appeal. ·oi1 August .r�, 20.l6, the Roles co1np·ll�q an{filed the.ii'. Concise Statement. . On
         .      ..         . .
                              .
                                  . .. . .                     .�                ...     .
                 �.                                                                                                                                                                                     ,:

  September 14, 2016, the Superior Court quashed- the appeal. . sua -sponte because.no
                                                                              .        judgmenthad

             .. on
  been.entered  . .the. Court's verdict. ·On
                                          ... March 16; 2017 eounselfor Roles filedaMotion .to
     . . .              . .                    . ..  .
                                                               .    .
                                                                                         .                                                                                                                                                       .




  Withdraw .as Cow1sel and oti .M.arc� 27, zo 17, the Motion was granted -by Order ofthe Honorable

 Judge   Linda Rovder Fleming of the Cambria County Court of Common
                                                               . . Pleas,
                                                                    .     On March
                                                                                . 24,
   --.. ,. . .--....------ . .. .                   .. .
 .
                                                                            .
  I
   On Mar¢h 13, 20 I,�, the Court entered an Amended Order removing. a typographical error from.the.Order of.March ·
  3.
                                                                                                                                                                                                                       ..


                                                                                                                                                                .   '



                                             201 ?'counselfor. the-Plows filed a �rae�ip�for Final Judg1·n�nfan.djudg1!1.�?t was entered of
                                                                                                                                   the,Roles;�l�d
                                             recordfor the Plows. On April 24, �017,                                                        .       ..
                                                                                                                                                                        a··N.otice
                                                                                                                                                                             ...
                                                                                                                                                                                   of
                                                                                                                                                                                   .
                                                                                                                                                                                      Appeal
                                                                                                                                                                                       .
                                                                                                                                                                                             and.en May81 201:7
                                                                                                                                                                                                             . .
                                                                                                                                                                                                                                .
                                             complied wi th the Court's Order to -file a
                                                                  ·                  ..                                            C�ncise $tatenient
                                                                                                                                              ·.·· ....
                                                                                                                                                        �(Matters C�mplained of on
                                                                                                                                                                            ..
                                             Appe�I.

                                                        ' The Roles raise four.issues 'for review, Firs�. the. Roles argue that the Court erred in
                                                                                                               .                                                                         .
                                          . . granting
                                                  . .                                  . . tailed
                                                       an. irtjµnction where. the.Plaintitis .
                                                                                                  to
                                                                                                  . prove
                                                                                                     .
                                                                                                           that the-requested
                                                                                                        : ..      . . ..      relief wasa
                                                                                                                                     ' . .


                                             ne¢essity. Second, the Roles.arg�� that· the Court. erred
                                                              .                                      .   .                             •.
                                                                                                                                                                     ii,·faiH�g to 'find that the Plaintiffs
                                                                                                                                                                                                      ..
                                                                                                                                                                                                             had'

                                             waiv�� any right tothe
                                                                                           reii6freqµe�te.d
                                                                                                            due.to laches. Third, .tt1e'Cour.:t �tr:�d in granting.the.
                                                                                                                                                �                   ... � �                                   �-                    ..
                                          ' . injunction in that such a grant constituted an unlawful expansion of an unambiguous and express
                                                                                     !                            •       ..       .                    •                .        •                       .                 .

                                                           .                       ..          . '
                                              easement fora road. right.. of-way. Fourth, t�c Court erred in granting the. injunction as the grant

                                            · amount to an unlawful condemnation and taking pursuant                                                                     to the Pennsylvania Constitution and
                                             the United· States Constitution.
                                                                        ,·
                                                                                              . ..
                                                                                                ·                              Ii: •·   I
                                                                                                                                                                             ..
                                                                                                                                                                              ·�:,.   . .. "
                                                                                                                                                                                      ,., .·.
                                                                                                         ·.   .
                                                                                                     .. · .. •. :
                                                                                                                      �        DISCUSSION
                                                                                                                               .... .
                                                                                      .                             � ,.,. .
                                                                                                                      on. the sameiine of cases we cited.
                                                         Tri arriving atour verdict, the Court
                                                                        '.    .�
                                                                                               'relie1'.princjpally
                                                                                       .. .. . . . .         . .. . . ; .                                   .
                                            . in o_. ur Order of March. 3, 20'1.s that oveh1ilecJ.. thiRoles'
                                                                                                           .
                                                                                                               Preliminary Objections.2 · ..We view the

                                             latter two cases as progeny of the Dowgiei case and shall exam ine the most recent case PARC v.

                                             Killia. In PARC the Superior Court, citing Dowgiel� held:
                                                                                                                                                                                                                     '·.
                                                                         Our Supreme.Court's decision in Dowgiel v. Reid,. 35.9                                                                 Pa. 448, · S9 A.2d
                                                                         11 S ( 1948), ii lustrates that Pennsylvania has adopted the rule that where a
                                                                         right of way is granted or reserved- without limit ofuse, it may be-used for
                                                                         any purpose to which the land accommodated thereby may naturally and.'
                                                                         reasonac,ly he devoted. In Dowglel: the courtwas asked to.determine
                                                                       · whether "theright
                                                                                    .       . . touse.a
                                                                                                  .      road
                                                                                                           .  to and
                                                                                                                  .  from. one's
                                                                                                                             .   l1ab1tatiori" also
                                                 Dowgiel V. Reid, 59 A.2d i 15� (Pa.1948)� J>op� V. Muth, 481 A:2d                                                      3�5 (Pa.Super, L984).and PAl�C H�lciings, l�c.
                                             2

                                            . v. Killia, 7S5 A.2d I 06 (Pa.Sup(.£ 200 I).                                                           '                        .... • •
                                                                                                                                            4




•••"• ,.,�..,.........,---,..•.,u_..._.          ,_.._....,,..,,.... ,,.-,_.,�.,--•,.---
                                                                                                                                                                                                              ------·-·--··-·-..· --·-
                included the right to provide the property, with electricity. In 'answering the
                question in:�hc affirmative, the Dowgiel COU.11 reviewed the language and
                circumstances from v.arious·casesa.ri�qondudcd that "the weight of
                authority" favored a construction. of easements to allow for utility access
              ' where the way was granted oi<reserved without any expressed. limitation
                ofits use.                                    ,                  ·

PARC Holdings.Inc�-             . A.2d 106 i 13 (Pa.Super.
               . . v, Ki Ilia, 785                         2001). (some interns] citations
                                          1.
                                                 .


omitted), In . PA RC the dispute was whether a right-of-way
                        ·'                        .
                                                            that had language for "ingress
                                                                                    .   .
                                                                                           and.

egress" included·
          .       the right
                        .
                            to install utilities. The language" of the right-of-way
                                                                              .   .
                                                                                    in PARC
                                                                                       .
                                                                                            was as

follows:

                EXCEPTING AND RESERVING unto th� Grantor:· its successors and
                assigns a non-exclusive fifty (50) foot 'wide right-of-way, with Grantee,
                their heirs.and assigns, for ingress and egress to certain land now
              , owned by Granter consisting ofapproximately 46 acres and adjoining
                the land hereby granted.the centerline of which Right-of-Way shall be an
                extension of the centerline of Chapel Crest Terrace.sa µfty (50) foot street,
                and shall extend from the most northerly extremity of'Chapel Crest.
                Terrace, as. currentlyexisting, along the centerline of said Chapel,Crest ·
                Terr�ce, as extended; in a northwesterly direction.approximately thirty
                (30) feet to the southern borderof the land now owned by Granter and t�
                be benefittedjsicl hereby:           '      ·               ·

Id., 785 A.2.d 106, I 09(Pa.�uper. iOOI )(emphasis in original). Th.e language at issue in. the case

at bar is as follows:

                Togetlfer with the;rigll't_:,6f ir-.gressa.Q,d, 'egress over, through and upon !i
                certaln'Id fc>.ot�e�sem�ntf>r �·.r�ad right:,ot,yay,runni!lg_�w"er through
                and upon land now or late of Henry W. · Kazik, et al, cornrriencing arid
                leading and extending.from Headrick's Road in to the Ian� of said ,             .
                grantees a distance' on     00.66 feetmore'or less, said easement for.the road.
                right way is situate along the southeasterly boundary line of Kazik land as
                forth iii Deed Book 1:008; Page 839. The parties.hereto further agree that
                maintenance of said' right of way    wm       be meresponsibility .of thegranrees,'
                their.heirs and assigns,.                                                ·

Plows' Complaint in Equity, Exhibit A.



                                                    s



                                                         ---------·----
                                                                                                                                                              .,.


                                                                                                                                                 ·,.
                                                                                                                                                                                               �·

                                                            ..
                                         . The Supreme Court of Pennsylvania: in Do�g��l3 (whoserationale was relied                                                                  on by theCourt in·
                                           PARC. .cited above) held that the. right                              io use a road to and                       from one's
                                                                                                                                                                    .. �abitatiQh. 'includes the·
                                           right to erect poles along that. road on which may be strung wires' for the transmission of

                                           electricity" to
                                                         . and· from that
                                                                     .    habitation.
                                                                             .        fo doing
                                                                                         .                                       so. the Court rationaliz�d: ·
                                                                  · Io erect poles a long. the priV'�te \pad and to string on those poles wires for
                                                                     the, transmission of elect-deity to �11d/toni "the home of defendants, James ..
                                                                     and Esther Reid, to the power line onthe main highway, is a reasonable.
                                                                     and natural use               of.
                                                                                            the· private .road for the purpose for which. it. was
                                                                                                                                                                                                      �' . .
                                                                   . created, to wit; to' enable the owners and occupants of the premises fo
                                                                  · which the road: is appurtenant to obtain something which is essential to the
                                                                     livableness of the home, to wit, electricity, the same being. obtainable only
                                                                     by the means above' stated. -Such a use is in this modern era one of the
                                                                     ordinary purposes of such a way; on this record this use appears to be a
                                                                 ·•· reasonable one and i( further .appears that it does, nor · constitute 4_1n
                                                                     additional burden .on the servienr estate except possible 'one.of a.trifling
                                                                     character. .            ·                                       ·            ·

                                         , Do.wgiel v. Rejg, 59 A.2d 115, 121 '(Pa. 1948).

                                                        Finally, the Pennsylvania Superior Court in 'P�pe v; Muth; 'likewise relied on Do\\;giel to

                                           hold.that "it. would be entirely unreasonable to grant appellees permission to construct a road to
                                                                                           .   ,                   •                                                              r




                                           connecttheir future ;�ome .,;ith a main road and then to deny them the ability to. live in tlie home

                                           in. a manner
                                                  .             . with accepted, modem standards." Pope
                                                        consistent                                    .
                                                                                                        v:; Milth;481 A.2d355, J57 (Pa.·

                                           Super. I 984). "Thus; when taken as a whole it seems clear that Pennsylvania law supports the·

                                        · proposition that.a dght-of�way easement for �ccess to-aresidence or for "ingress and egress"

                                          necessarily includes utility a�cesS "over, through and.upon the land.';



                                             Of11otc is that the Pennsylvania Supreme Court, in Dowgiei, also explicitly held ihat its ruling expressly overruled
                                          3

                                           its priordcclaion in Allen·�: Scb.eib, wherein !�e·Co,ut(had�held. "Bul plaincifl'.irrjg�t �o: lay. or authorize anothcfto
                                         · 1ay a line of gas pipe therein depends upon the 11at.uJc !5f her o.wn�rship. If an �,sement, then she .can use itonly for.
                                           the purpose for which if was established or" dedicated, and cannot lay a pipe'linc thetcin;"-(onginal citations omitted)
                                          See Dowgiel,. 59 A.2d 11.5, at 12 l .. ln PARC the Pcnnsylv.anin �upcrior Court recognized in a foqtnotc that Allen ·
                                           had been overruled by Dow'giei'as' wcil. Se�:Pi'\:RC;·Jg�;�A·.id 106, f j 9., n. .2." ,· •, � .                        .
                                                                                    'at                                   .,                    ' '

                                                                                                         ..
                                                                                                          . i·
                                                                                                                   ;   .. ,·:.
                                                                                                                                 6
                                                                                                                                 .   '
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·-··--······--········---····..····--·-·-················                             ··--········---------
                                                            ···················--····..                                                       ---------·----··-. . . .----·· .........---·---
      .        �

                     In making our:. decision
                                         . we gave..tittle weight.to either parties' descriptions oftheir
      'ndghbots' behavior. The C6iirt hasfound . in... property disputes that              peopl� lose
                                                                           .. well-meaning
· sight of �he issues �efa.llse they have become so wrapped' llp in detesting their neighbors'
      .                  ..      . ·.                                     -                         )
  existence. That seemed to the Court to be ihe case, in t�1is particu iar dispute. We did however,

 . creditthe evidenccoffot�d
...                  .       by.·.,the...Plaintiff
                                             �-.�·.as to the difficulties
                                                          ..   • ...
                                                                       '     ... with the
                                                                          experienced  • ...
                                                                                            on-site
                                                                                              •
                                                                                                           ·��
                                                                                                            •                  •
                                                                                                                                                           \·.

                                                                                                                                                            f    •.



          .
          septic:
            .
                  system and the foc1.tth�t
                                         �
                                            connecting itttothe municipal.sanitary sewer system would make
                                              .                                  .         .


          the resideneevlivable.t'"                       Weal so conciudc�·a,1)n·p·er;on vi�:w of the premises, :After hearing all
                        �..                       • • •                            •   '               •             ·'                ..   t    O     •                    I
                                                                                                                                                                                    #




      the evidence and reviewing the law, the                                              Court attempted' to equitably craft a remedy so that-the
                                                                           .                  ..   .
                                                                                                            :.
                                                                                                                : ..
                                                                                                                     •
                                                                                                                          "
                                                                                                                               i,, �
                                                                                                                              '\,                                 ,.   ·.       •



  . Plows could tap into the sanitary sewer lines and �rijoy the modem conveniences appurtenant

      thereto bur' also assure that the Roles would 'not .be'undu ly burdened by this process. We· made

      the Plowsresponsible to return the road to i}s staie.prfor to the installation, we m.ad; a provision

      that ihcre must be 72hours prior written noticeto the Roles and WC also.made thePlows

      responsible for reinstalling a cable 011Jbe. Roles property to its preconstruction condition after its

      'removal, Weare unsure, ba�ed                                            on the procedural hisforyofthiS.J.:ase,:i_fi;uch installation has

                                         .
. ever even been -attempted. Nonetheless we ask that the Honorable Pennsylvania Superior Court

      affirm ourdecision as we believe it .is supported by}hc .application of these facts.to the current
               .  .     ..                   .             ..                                  . ..
      law ofthis Commonwealth ..

                                                                                                                     . BY THE. COURT:.
                                                                                                                                            ..



      4
              The Court In
                        '   .     .;.        ..                        .
                                D?wgiei used this adjective to describe the ¥d�ition of �.l.�,ctricity to � ·
                                                                                   :                             .            . .�               ...
                                                                                                       7
