J-S28021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    BARRY R. STARLIPER AND SUZANNE             :   IN THE SUPERIOR COURT OF
    L. STARLIPER                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    KEVIN L. NEGLEY, MELISSA A.                :
    NEGLEY, GERALD DUPERT AND LORA             :   No. 1853 MDA 2018
    DUPERT                                     :
                                               :
                       Appellants              :

              Appeal from the Judgment Entered October 9, 2018
     In the Court of Common Pleas of Cumberland County Civil Division at
                              No(s): 2016-4031


BEFORE:      BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY McLAUGHLIN, J.:                         FILED OCTOBER 04, 2019

       Kevin L. and Melissa A. Negley appeal1 from the judgment entered in

the action brought against them by Barry R. and Suzanne L. Starliper. The

Negleys contest the orders declaring an easement on their property, requiring

them to remove a fence and detach their addition from the Starlipers’ addition,

and awarding the Starlipers’ monetary damages for trespass. We affirm.

       The properties at issue in this dispute originally comprised the

Sunnyside Female Seminary, which was founded in 1858 in the Borough of

Newburg, Pennsylvania. Trial Court Opinion, filed 7/30/18 at 1. The seminary
____________________________________________


*    Retired Senior Judge assigned to the Superior Court.

1 Although Gerald Dupert and Lora Dupert also appealed, the trial court found
that all claims against the Duperts were in favor of the Duperts. We therefore
refer to the appellants as “the Negleys.”
J-S28021-19



included a three-story building, a two-story “addition” protruding from the

rear of the building’s eastern half, and a backyard. The earliest recorded

division of the property occurred in 1872, when the western half of the

property (including the western half of the building) was conveyed. The

Starlipers now hold the title to the eastern half of the property, including the

original addition, which they acquired in June 2006.

      The western portion became the property of Gerald and Lora Dupert in

June 2015. The previous owner had started construction of a two-story

addition on the rear of the residence, abutting the Starlipers’ addition. The

previous owner died before completing the addition. When the Duperts took

ownership, the addition consisted of studding, plywood, and a roof. In July

and August 2015, the Duperts’ daughter and son-in-law, Melissa and Kevin

Negley, finalized the construction on the addition.

      The Duperts conveyed their property to the Negleys in February 2016.

Between April and May 2016, the Negleys constructed a fire escape from the

second story of the addition and erected a fence between the properties,

alongside the property line. The Negleys also constructed a detached garage

and carport at the rear of their backyard.

      The Starlipers commenced this action in July 2016 by filing a complaint

asserting counts for trespass, nuisance, and obstruction of an easement.

Following further pleadings, the Starlipers filed a “Motion for Declaratory Relief

to Affirm Status of Easement.” The Starlipers alleged that the only way to

access the exterior western wall of their addition, in order to maintain it, was

                                      -2-
J-S28021-19



by accessing part of the Negleys’ property. The Starlipers alleged that as their

addition has existed since before the time the property was first divided, a

five-foot wide easement by implication existed on the portion of the Negleys’

property that runs adjacent to it. The Starlipers asserted that access to the

western wall of their addition has always been necessary, and that the wall

now includes two windows, air vents, vinyl siding, and a rain gutter.

       The Negleys filed an Answer to the Motion for Declaratory Relief. They

claimed that the Starlipers had never performed maintenance on the wall, and

there was no evidence that any prior owners had ever accessed their property

to perform any such maintenance.

       The trial court granted the motion on the pleadings and entered an order

declaring the Starlipers “have an easement of five feet in width, across the lot

owned by the [Negleys] to access the western wall of [the Starlipers’]

addition.” Order, 11/8/17, at 6.

       Six months later, the case proceeded to trial. Barry and Suzanne

Starliper and Melissa and Kevin Negley each testified.2 The Starlipers testified

that the Negleys’ addition impedes their access to the easement, as does the

fire escape and fence. The Starlipers also testified that the Negleys’ addition

was fastened to the Starlipers’ addition, and that during construction of the

garage, the Negleys’ contractor spread soil, rocks, and debris onto the

____________________________________________


2 We refer to the testimony of Barry and Suzanne Starliper together as the
“Starlipers’ testimony” and to the testimony of Melissa and Kevin Negley
together as the “Negleys’ testimony.”

                                           -3-
J-S28021-19



Starlipers’ back lawn. The Starlipers conceded that some of the rocks in their

backyard were there prior to the construction. The Starlipers further testified

that construction of the garage increased the flow of water onto their land.

The Starlipers testified that they received an estimate of $1,480 from a

landscaper to haul away the debris, apply topsoil to grade the yard, and

replant grass. The Starlipers entered a copy of the estimate into evidence.

      The Negleys denied that their addition is attached to the Starlipers’

home, asserting that it is anchored to the rear of their own home. They

testified that they could easily remove a panel of the fence within minutes,

and offered to do so periodically to allow the Starlipers access to their exterior

wall. The Negleys stated that when construction on the garage began, they

instructed their contractors to keep any dirt off the Starlipers’ property, but

the contractors put some debris across the property line anyway. The Negleys

had the contractors remove as much of the debris as they could, but

acknowledged that some remained in the Starlipers’ backyard. The Negleys

denied that construction of the garage altered the flow of water between the

properties; the Negleys testified they only slightly raised the elevation of the

ground under the garage, and testified that their rear lawn has always sloped

onto the Starlipers’ rear lawn.

      The Negleys also argued that the Starlipers’ claims should be banned by

the doctrine of laches, as the Starlipers had delayed in asserting the existence

of an easement until the Duperts/Negleys had purchased the property,

finished the addition, and began construction of the fire escape and fence.

                                      -4-
J-S28021-19



Much of the testimony therefore revolved around the manner in which the

Starlipers had protested the various phases of construction, both before and

after the Duperts/Negleys acquired the property.

      Relevant to our disposition, the Starlipers testified that they voiced their

concerns to the Negleys in the spring of 2016, soon after the Negleys obtained

ownership and began construction of the fire escape, fence, and garage. The

Starlipers stated that they also attended a meeting of the Borough in May

2016, at which the Negleys were present, to publicly object to the

construction, and sent the Negleys a cease and desist letter. The Negleys

testified that the Starlipers’ complaints to the Borough were limited to

arguments regarding zoning and permits, and did not mention a right of way.

However, the Negleys also testified that when they began construction of the

fire escape, fence, and garage, the Starlipers complained that the construction

impeded their “right of way,” and that the additional construction would

prevent them from accessing their dryer vent.

      The court found that although the Negleys’ addition sits upon the

Starlipers’ easement, ordering the Negleys “to remove up to five feet of the

addition is inconvenient and would cause greater injury to the Negleys than is

reasonable under the circumstances.” Opinion, 7/30/18, at 15. However, the

court enjoined the Negleys “from adding to the addition to the extent it

trespasses on the [Starlipers’] property or impedes any easements.” Order,

7/30/18, at 1 (unpaginated). The court also found that the Negleys’ fire escape

sits upon the easement, but that it does not unreasonably infringe on the

                                      -5-
J-S28021-19



Starlipers’ use of the easement. Opinion, 7/30/18, at 15. In contrast, the court

found that the Negleys’ fence “significantly infringes upon the Starlipers’ use

of the easement . . . such as to require its removal.” Id. The court ordered

the Negleys “to remove the fence completely, or, alternatively, move the fence

to the end of the [Starlipers’] structure, therefore removing the easement

impediment.” Order, 7/30/18, at 1 (unpaginated).

      The court also found, based on the photographic evidence, that the

Negleys’ addition was fastened to the Starlipers’ addition, and that this

constituted trespass. Opinion, 7/30/18, at 12. The court ordered the Negleys

“to remove any parts of the addition that are fastened to [the Starlipers’]

home as well as any parts of the addition that unreasonably impede the

Starlipers’ access to their western wall for maintenance and repair.” Order,

7/30/18, at 1.

      The court found that the Negleys’ diversion of surface water onto the

Starlipers’ land constituted trespass, as well as the soil, rocks, and debris that

the Negleys’ contractors left on the Starlipers’ property during the construction

of the garage. Opinion, 7/30/18, at 10. The court ordered the Negleys to pay

the Starlipers damages of “$1,480.00 for this trespass of soil, rocks and

debris, minus the cost of any repair not directly related to [the Negleys’]




                                      -6-
J-S28021-19



actions.” Order, 7/30/18, at 1. The court concluded that laches did not bar

any of the Starlipers’ claims. Opinion, 7/30/18, at 5.3

       The Negleys filed a motion for post-trial relief, which the court denied.

The court thereafter entered final judgment in favor of the Starlipers, and the

Negleys appealed.

       The Negleys raise the following issues for our review:

       I. Whether the Trial Court erred in finding an easement running
       on [the Negleys’] lot to the benefit of [the Starlipers’] lot?

       II. Whether the Trial Court erred in awarding [the Starlipers]
       $1,480.00 in damages when the only estimate provided at trial
       including cleaning up debris on [the Starlipers’] property that was
       not placed there by [the Negleys] and existed prior to [the
       Negleys’] purchase of the property?

       III. Whether the Trial Court erred in finding the doctrine of laches
       inapplicable when [the Starlipers] delayed prosecuting or
       instituting their claim for at least 8 years?

       IV. Whether the Trial Court erred in finding [the Negleys]
       trespassed by diverting surface water onto [the Starlipers’] land?

       V. Whether the Trial Court erred in finding that the addition
       trespasses on the [the Starlipers’] property when [the Starlipers]
       provided no proof that the addition was fastened to their property
       and the addition is not fastened to their property?

       VI. Whether the Trial Court erred in ordering [the Negleys] to
       remove a fence which can easily be removed at any time [the
       Starlipers] wish to access their wall?

Negleys’ Br. at 3-4.



____________________________________________


3The court found in favor of the Negleys on the Starlipers’ claims of nuisance
and punitive damages/attorneys’ fees. These findings are not at issue on
appeal.

                                           -7-
J-S28021-19



      Our standard of review in matters of equity is well settled:

      The trial judge, sitting in equity as a chancellor, is the ultimate
      fact-finder. The scope of review, therefore, is limited. The final
      decree will not be disturbed unless the chancellor committed an
      error of law or abused his or her discretion. The findings of fact
      made by the trial court will not be disturbed unless they are
      unsupported by competent evidence or are demonstrably
      capricious.

Gurecka v. Carroll, 155 A.3d 1071, 1075 (Pa.Super. 2017) (en banc)

(quoting Griffith v. Kirsch, 886 A.2d 249, 253 (Pa.Super. 2005)).

       I. The trial court properly declared an implied easement.

      The Negleys first contend that the trial court erred in declaring that the

Starlipers have an easement by implication. The Negleys argue that the

easement is unnecessary because the court had other options to ensure the

Starlipers’ ability to access the outside of their wall. The Negleys contend that

the Starlipers have not explained “why they cannot maintain the vents from

inside the home or why they need a five foot easement to accomplish this

task.” Negleys’ Br. at 12.

      The Negleys also argue that the Starlipers “failed to provide any

evidence that they or any of their predecessors in title had ever undertaken

such use or that any such use was open, visible, continuous, and permanent.”

Id. at 11. They maintain that “there is absolutely no evidence that the use

claimed by [the Starlipers] has been long continued or so obvious and

manifest to show that this use was meant to be permanent.” Id. Finally, the




                                      -8-
J-S28021-19



Negleys contend that the Starlipers’ proposed use of the easement “would be

discontinuous and only used from time to time.” Id. at 12.

      “Easements by implied reservation . . . are based on the theory that

continuous use of a permanent right-of-way gives rise to the implication that

the parties intended that such use would continue, notwithstanding the

absence of necessity for the use.” Bucciarelli v. DeLisa, 691 A.2d 446, 449

(Pa. 1997) (quoting Burns Mfg. Co., Inc. v. Boehm, 356 A.2d 763, 767 (Pa.

1976)). Such easements can only arise at the time ownership over two tracts

of land is first severed. Phillippi v. Knotter, 748 A.2d 757, 762 (Pa.Super.

2000). Although the complaining party bears the burden of establishing the

existence of an easement by implication, when the right to such an easement

“is of ancient origin and is too remote to be capable of direct proof,” the

plaintiff’s burden is relaxed. Possessky v. Diem, 655 A.2d 1004, 1008

(Pa.Super. 1995).

      An easement by implication exists if the party claiming such an

easement establishes three things: (1) a separation of title; (2) prior to the

separation, the use giving rise to the easement was “so long continued, and

so obvious or manifest, as to show that it was meant to be permanent”; and

(3) the easement is “necessary to the beneficial enjoyment of the land granted

or retained.” Gurecka, 155 A.3d at 1076 (quoting Daddona v. Thorpe, 749

A.2d 475, 481 (Pa.Super. 2000)) (emphasis removed). A fourth factor may

be added: “that the servitude shall be continuous and self-acting, as

distinguished from discontinuous and used only from time to time.” Id.

                                    -9-
J-S28021-19



(quoting Daddona, 749 A.2d at 481).4 We presume that parties to a

conveyance expect and intend knowable and reasonably foreseeable prior

uses of the land to continue after the conveyance. Bucciarelli, 691 A.2d at

448 (citing Restatement (First) of Property, § 476, Comment j).

       Regarding the element of necessity, an easement by implication need

not require a showing of “absolute necessity,” or that it is “essential for the

beneficial use of the property.” Daddona, 749 A.2d at 480 (quoting Burns,

356 A.2d at 767), 482 (quoting Mann–Hoff, 604 A.2d at 708 n.4). Rather,

the party seeking the easement must only show that the easement is

“convenient or beneficial to the dominate estate.” Id. at 482 (quoting Mann-

Hoff, 604 A.2d at 708 n.4).

       Here, the trial court found that there was no dispute regarding the unity

of title at the time the properties were separated. Order, 11/8/17, at 4. The

court further concluded that the easement was necessary to enable the

Starlipers “to clean, inspect, and repair the exterior.” Id. at 6. The court also

found that the Starlipers had met their burden in proving the easement was

obvious and intended to be permanent, because “the [Starlipers’] addition

existed for [14] years prior to the first division of the land, and subsequent

____________________________________________


4Pennsylvania courts may also consider the “balancing approach, designed to
ascertain the actual or implied intentions of the parties,” found in the
Restatement of Property in determining the existence of an easement by
implication. Gurecka, 155 A.3d at 1076, 1078 n.1 (quoting Mann–Hoff v.
Boyer, 604 A.2d 703, 707 (Pa.Super. 1992)); see also Restatement (First)
of Property § 476 (1944).


                                          - 10 -
J-S28021-19



owners of the land are presumed to know and contemplate reasonably

necessary uses of the property.” Id. at 5.

      The trial court did not commit an error of law or an abuse of discretion.

Although there was no testimony regarding maintenance of the wall before

1872, when the western half of the property was conveyed, a reasonable

landowner would have required access to the exterior wall of the home for

ordinary maintenance and repairs, and the only access to the western wall of

the Starlipers’ property was by way of Negleys’ yard. The original owners of

the Negleys’ property would have reasonably foreseen the continued need for

access, and thus we presume the parties intended an implied easement to

that portion of the Negleys’ property. Bucciarelli, 691 A.2d at 448.

      Moreover, the Starlipers testified that the exterior wall now includes two

windows, air vents, vinyl siding, and a rain gutter. These modern

improvements would have been open and visible to the Duperts/Negleys at

the time they purchased the property, and would have indicated the Starlipers’

ongoing need to access their exterior. The Negleys’ argument that the

easement is unnecessary because there are alternative measures available to

the court is misplaced, as an easement by implication need not be absolutely

necessary, but only contemplated as an ongoing use by the parties at the time

of severance of title. See Daddona, 749 A.2d at 482. We thus conclude the

trial court did not err or abuse its discretion in declaring the Starlipers have

an easement by implication.




                                     - 11 -
J-S28021-19



      II. The trial court properly awarded $1,480 in damages.

      The Negleys argue that the soil their contractors spilled onto the

Starlipers’ property caused no damage, as it barely penetrated the property

line and grass has since regrown over it. Negleys’ Br. at 14. The Negleys

contend that there was no testimony corroborating the Starlipers’ estimated

cost to remove the debris, grade the yard, and replant the grass. Id. at 15.

The Negleys also argue that the Starlipers acknowledged some of the debris

was there prior to the construction, and the $1,480 cost estimate provided by

the Starlipers did not specify whether it included the debris for which the

Negleys are not responsible. Id.

      When trespass causes injury to real property, the measure of damages

is as follows: “Assuming the land is reparable, the measure of damage is the

lesser of: (1) the cost to repair, or (2) the market value of the damaged

property (before it suffered the damage, of course).” Slappo v. J’s Dev.

Assocs., Inc., 791 A.2d 409, 415 (Pa.Super. 2002).

      We review a challenge to the calculation of damages for abuse of

discretion. J.J. Deluca Co., Inc. v. Toll Naval Assocs., 56 A.3d 402, 417

(Pa.Super. 2012). The calculation of damages “is a factual question to be

determined by the fact-finder,” who must “assess the testimony, by weighing

the evidence and determining its credibility, and by accepting or rejecting the

estimates of the damages given by the witnesses.” Id. (quoting Liss &

Marion, P.C. v. Recordex Acquisition Corp., 937 A.2d 503, 514 (Pa.Super.

2007)). Further,

                                    - 12 -
J-S28021-19


      Although the fact-finder may not render a verdict based on sheer
      conjecture or guesswork, it may use a measure of speculation in
      estimating damages. The fact-finder may make a just and
      reasonable estimate of the damage based on relevant data, and
      in such circumstances may act on probable, inferential, as well as
      direct and positive proof.

Id. at 417-18 (quoting Liss, 937 A.2d at 514).

      Here, the Negleys conceded that their contractors had left debris on the

Starlipers’ lawn, and the Starlipers testified that the estimated cost of

repairing the lawn—including removing the debris, grading the yard, and

replanting the grass—was $1,480. This testimony was corroborated by a

written estimate by a landscaping service. However, as the Starlipers admitted

that the Negleys were not responsible for all of the debris on their lawn, the

trial court ordered the Negleys to pay the Starlipers $1,480, “minus the cost

of any repair not directly related to [the Negleys]’ actions.” Order, 7/30/18,

at 1. Thus, the court did not order the Negleys to pay for the debris that was

not caused by their construction, and the Negleys’ argument that the court

erred in concluding that damages were due, or in calculating the damages,

has no merit.

      Moreover, the Negleys did not question the Starlipers during trial as to

whether the estimate they provided included the debris that was already on

the Starlipers’ lawn, or present any rebuttal evidence regarding the cost to

repair the Starlipers’ yard. The only evidence available to the trial court

regarding the cost of repair was the testimony of the Starlipers. We cannot

say it was error for the court to order damages based on the only evidence


                                    - 13 -
J-S28021-19



before it. See Lobozzo v. Adam Eidemiller, Inc., 263 A.2d 432, 436-37

(Pa. 1970) (“we cannot say that the jury was in error in accepting the only

evidence presented to them on the amount of damages”).

III. The trial court properly refused to dismiss the Starlipers’ claims
                      under the doctrine of laches.

     The Negleys contend that the court erred in concluding the Starlipers’

claims were not barred by laches. According to the Negleys, the Starlipers

failed to exercise due diligence because they did not take any legal action to

claim an easement until years after construction began and after the

Duperts/Negleys had taken possession, finished the addition, and began

construction of the fence and fire escape. Negleys’ Br. at 17. The Negleys

argue that the actions taken by the Starlipers prior to the Duperts/Negleys’

purchase of the property were limited to complaints to the Borough regarding

local ordinances and codes, and the Duperts/Negleys had no notice that a

dispute existed with respect to the property. Id. at 17, 20. After the

Duperts/Negleys took ownership, the Starlipers again complained only about

local codes, and thus the Negleys took care to comply with the codes and

receive proper permits; it was not until after their improvements to the

addition were completed and they began construction of the fence and fire

escape that the Starlipers claimed they had an easement. Id.

     The Negleys further argue that they were prejudiced by the Starlipers’

delay in asserting the existence of an easement because the Negleys

liquidated their “nest egg” to pay for the home and the construction, and they


                                    - 14 -
J-S28021-19



would not have done so if they had known there was a property dispute. Id.

at 18, 20. The Negleys also argue they were prejudiced by the Starlipers’ delay

in pursuing legal action because the prior owner, who began the construction

of the addition, died several years ago, and other neighbors have since moved

or are unable to recall when the addition was initially built. Id. at 19.

      The doctrine of laches is an affirmative defense that bars the prosecution

of stale claims and is the practical application of the maxim that “those who

sleep on their rights must awaken to the consequence that they have

disappeared.” Fulton v. Fulton, 106 A.3d 127, 131 (Pa.Super. 2014)

(quoting Kern v. Kern, 892 A.2d 1, 9 (Pa.Super. 2005)). We have explained

laches as follows:

      Laches bars relief when the complaining party is guilty of want of
      due diligence in failing to promptly institute the action to the
      prejudice of another. Thus, in order to prevail on an assertion of
      laches, respondents must establish: a) a delay arising from
      petitioner’s failure to exercise due diligence; and, b) prejudice to
      the respondents resulting from the delay.

Id. (quoting Estate of Scharlach, 809 A.2d 376, 382-83 (Pa.Super. 2002)).

Evidence of prejudice “may include establishing that a witness has died or

become unavailable, that substantiating records were lost or destroyed, or

that the defendant has changed his position in anticipation that the opposing

party has waived his claims.” Commonwealth ex rel. Baldwin v. Richard,

751 A.2d 647, 651 (Pa. 2000).

      The issue of whether laches should bar the Starlipers’ claim to an

easement underneath the Negleys’ addition is moot, as the trial court did not

                                     - 15 -
J-S28021-19



order the Negleys to move or remove their addition. Nor do we need to

determine whether laches bars the Starlipers’ claim that the fire escape

infringes on the easement, as the court did not order the Negleys to move or

remove the fire escape. The trial court held that these improvements to the

Negleys’ property could remain.

      The court did grant relief on the Starlipers’ claim that the Negleys’ fence

infringes on the easement, by ordering the Negleys to move or remove the

fence, and thus the question of whether laches bars this claim is not moot.

However, we do not believe the court erred in refusing to apply laches. The

Negleys admitted that once they began construction of the fence in the spring

of 2016, the Starlipers immediately complained that it would interfere with

their “right-of-way” and ability to access their wall, specifically mentioning

their access to the dryer vent. The Starlipers’ counsel also sent the Negleys a

cease and desist letter referencing an easement in May 2016, and the

Starlipers commenced this action shortly thereafter, in July 2016. The trial

court thus aptly concluded that “[i]t is beyond belief that the Negleys assumed

that the Starlipers acquiesced to the construction through their conduct,” Tr.

Ct. Op. at 5, at least insofar as the fence was concerned. No relief is due on

the issue of laches.

  IV. The trial court did not err in finding in the Starlipers’ favor on
                          their trespass claim.

      The Negleys argue that the court erred in holding them liable for

trespass because construction of their garage and carport diverted surface


                                     - 16 -
J-S28021-19



water onto the Starlipers’ land. The Negleys claim that they own the higher

land, as the photographic evidence and testimony proves their land has always

sloped downward onto the Starlipers’ property. Negleys’ Br. at 24-25. The

Negleys also argue that there was no evidence they were negligent in

constructing the garage, which conformed to all local codes and zoning

ordinances. Id. at 27. The Negleys further argue there was no evidence that

they created an artificial channel that greatly increased the quantity of

diverted surface water, and that “[a] bald allegation by [the Starlipers] that

there is more water on their property now than there was when the garage

was built is not enough to merit damages in this situation.” Id. at 27-28.

      Our jurisprudence considers water a “common enemy” of neighboring

landowners, who may fight against it as they will. LaForm v. Bethlehem Tp.,

499 A.2d 1373, 1378 (Pa.Super. 1985) (en banc). Thus,

      [u]nder the so-called “common-law” or “common-enemy rule,”
      not only is an owner of higher land under no liability for damages
      to an owner of lower land caused by water which naturally flows
      from the one level to the other, but he can, at least in the
      development of urban property, improve his land by regrading it
      or erecting buildings thereon, without legal responsibility for any
      consequent diversion of surface waters from his property to that
      of adjoining owners, it being recognized that changes or
      alterations in the surface may be essential to the enjoyment of his
      property.

Id. (quoting Chamberlin v. Ciaffoni, 96 A.2d 140, 142 (Pa. 1953)).

Accordingly, a landowner of higher ground is not liable for damage caused by

the discharge of surface water onto neighboring property unless the

landowner either (1) “diverted the water from its natural channel by artificial

                                    - 17 -
J-S28021-19



means;” or (2) unreasonably or unnecessarily increased the quantity or

changed the quality of the discharged water. Id.; accord Kowalski v. TOA

PA V, L.P., 206 A.3d 1148, 1162 (Pa.Super. 2019). The plaintiff need only

prove the landowner is liable under one of the two theories of liability.

Kowalski, 206 A.3d at 1162.

       Under the first theory of liability, whether a given use of land is

considered “natural” or “artificial” depends in part on whether the land is in

an urban or rural setting.5 In an urban environment, “orderly development of

land . . . has always been regarded as a natural use of land.” LaForm, 499

A.3d at 1381. In contrast, development of rural land—such as the erection of

buildings and installation of pavement over natural soil—constitutes an

“artificial” use of land, for which developers must take sufficient precaution so

as not to burden others with the increased flow of water. Kowalski, 206 A.3d

at 1162; see also Miller, 483 A.2d at 915. Such development “carries with it

a responsibility on the developer to properly accommodate the increased flow

of surface waters off the land, where such increase was predictable and



____________________________________________


5 See Miller v. C.P. Centers, Inc., 483 A.2d 912, 915 (Pa.Super. 1984)
(discussing Westbury Realty Corp. v. Lancaster Shopping Center, 152
A.2d 669 (Pa. 1959), in which “the Court devised a new approach to situations
in which urban development of rural lands covered significant portions of
natural soil with nonporous materials and buildings, thereby preventing
natural seepage and increasing the flow of surface waters”); see also
LaForm, 499 A.2d at 1380-81 (discussing the evolution of a higher legal
standard for developers in rural areas).



                                          - 18 -
J-S28021-19



preventable.” LaForm, 499 A.2d at 1380.6 A developer of rural lands need

not be found negligent to be found liable for increased flow of surface water.

Miller, 483 A.2d at 914-15 (rejecting argument that without a finding of

negligence, defendants were not liable for development of rural lands under

first theory of liability).

       In addition, liability imposed under the first theory does not require an

unreasonable or unnecessary increase in the quantity of surface water.

Kowalski, 206 A.3d at 1163. “Rather, to establish liability under this theory,

a plaintiff need only show that . . . the water was discharged onto the plaintiff’s

property in an increased volume or force, however, slight.” Id. (emphasis

added).

       The Negleys have failed to establish that the trial court erred or abused

its discretion in imposing liability. First, the trial court found that the Borough

of Newburg is not an urban environment. Tr. Ct. Op. at 8-9. Specifically, the

court stated, “The Borough of Newburg is not a city and lacks many of the

factors that distinguish urban areas from their rural counterparts[.]” Id. at 9.

The Negleys have presented no argument that the court erred in determining

that the Borough of Newburg is not an urban environment. They have thus

failed to support and therefore waived any argument that rules regarding

development in rural areas should not apply.
____________________________________________


6See LaForm, 499 A.2d at 1380-81 (holding that because increase of surface
water caused by development of a rural hillside was predictable and
preventable, it constituted an “artificial” land use, and developer accordingly
had an affirmative duty to provide adequate drainage).

                                          - 19 -
J-S28021-19



      Next, the trial court found that in constructing their garage, the Negleys

“diverted the water from its natural channel by artificial means,” because “the

Negleys’ contractor . . . elevated the ground surrounding the foundation of

their carport, altering the slope of the land and causing an increased flow of

water onto the Starlipers’ land.” Id. at 9-10. It then imposed liability on the

Negleys under the first theory of liability stated in LaForm.

      We agree that in a rural setting, construction of a detached garage and

cement carport constitutes an “artificial means” of diverting the natural flow

of water between the parties’ backyards. Kowalski, 206 A.3d at 1162.

Moreover, the court’s finding that the construction increased the flow of

surface water into the Starlipers’ backyard is supported by the Starlipers’

testimony regarding the flow of water to and from their backyard before and

after the construction, and the Negleys’ own testimony that their contractors

elevated the ground level when constructing the garage. Finally, because the

court imposed liability under the first theory, the Starlipers were not required

to prove that the Negleys “greatly” or unreasonably increased the flow of

water, or were negligent in their construction. Kowalski, 206 A.3d at 1163;

Miller, 483 A.2d at 914-15.

      As the court did not err or abuse its discretion, no relief is due.

     V. The trial court did not err in finding the Negleys’ addition
               trespassed onto the Starlipers’ property.

      The Negleys contend that there is no evidence supporting the Starlipers’

claim that the Negleys fastened their addition to the Starlipers’ addition.


                                     - 20 -
J-S28021-19



Negleys’ Br. at 28. The Negleys point out that they described in their trial

testimony how the addition is fastened to the rear of their own home, and

claim that this is supported by the photographic evidence. Id. at 28-29. The

Negleys also complain that the Starlipers failed to assert they suffered any

damages as a result of this alleged trespass. Id. at 29.

      A continuing trespass is committed by the continued presence of a

trespassing structure, chattel, or any other thing. Jones v. Wagner, 624 A.2d

166, 170 (Pa.Super. 1993). A landowner is entitled to maintain an action in

equity to compel a person to remove structures that trespass on his or her

property. Id. at 171.

      Here, the trial court found that despite the conflicting testimony, the

photographic evidence supported the Starlipers’ claim that the Negleys’

addition is attached to their home, and thus the Negleys were responsible for

a continuing trespass. Tr. Ct. Op. at 12. Crediting one party’s evidence over

another’s proof is the trial courts prerogative, which we cannot disturb. In

addition, the argument that the Starlipers presented no evidence of damage

to their home is beside the point, as the court did not order any monetary

damages. Rather, the court only ordered the Negleys to detach their addition

from their neighbor’s property, an appropriate remedy for continuing trespass.

See Jones, 624 A.2d at 171.

 VI. The trial court did not err in ordering the removal of the fence.

      In their final issue, the Negleys contend that the court erred in ordering

them to move or remove their fence. The Negleys argue that the fence, which

                                    - 21 -
J-S28021-19



they can quickly take down and put back up, does not obstruct the easement,

and cite cases wherein this Court held that the erection of a swinging gate did

not obstruct an easement. Negleys’ Br. at 30-31.7 The Negleys also argue they

testified they are willing to periodically take down the portion of the fence that

sits upon the easement, to accommodate the Starlipers’ needs to maintain

their wall. Id. at 31-32.

       “An easement, once acquired, may not be restricted unreasonably by

the possessor of the land subject to the easement.” Palmer v. Soloe, 601

A.2d 1250, 1252 (Pa.Super. 1992). “[T]he property owner may not take

actions that ‘completely deny’ use of the easement [and] may not interfere

unreasonably with the easement holder’s use of the easement.” Id. Whether

the landowners acts constitute “unreasonable interference” depends upon the

advantage of the acts to the landowner and the disadvantage to the

easement-owner. Id. at 1252-53. The erection of a moveable gate may

constitute unreasonable interference under a certain set of circumstances,

such as where it “completely denies” the rights of the easement user.

Matakitis v. Woodmansee, 667 A.2d 228, 232-33 (Pa.Super. 1995).

       In analyzing this issue, the trial court noted that “[t]he Negleys concede

that they would have to remove the fence for the Starlipers to utilize the

easement.” Tr. Ct. Op. at 15. The court stated that although the Negleys

asserted they would remove the fence on occasion as requested, the court
____________________________________________


7 The Negleys cite Haig Corp. v. Thomas S. Gassner Co., 63 A.2d 433
(Pa.Super. 1949) and Helwig v. Miller, 47 Pa. Super. 171 (Pa.Super. 1911).

                                          - 22 -
J-S28021-19



was not confident that “such a system would work efficiently or effectively.”

Id. The court thus concluded the fence infringes on the Starlipers’ use of the

easement, and ordered the Negleys to remove the fence from the easement.

Id.

      The trial court properly concluded that the fence unreasonably interferes

with the Starlipers’ use of the easement, as the evidence demonstrates that

it forecloses the Starlipers’ ability to maintain the exterior of their wall.

Moreover, the obstruction posed by the fence would not be remedied by a

gate through the fence, as the Starlipers require use of the land upon which

the fence itself sits. The court was not obligated to accept the Negleys’ offer

of periodically removing the fence, a resolution that could easily lead to further

disputes. Instead, by ordering the Negleys to move their fence such that it

begins at the edge of the Starlipers’ addition, the court ensured the Starlipers’

ability to utilize the easement, while allowing the Negleys to keep a fence

along the open portions of their property line. The court was well within its

discretion to fashion such a compromise.

      Judgment affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/04/2019


                                     - 23 -
