                                   [J-32-2019]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                MIDDLE DISTRICT

     SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.


    THADDEUS BARTKOWSKI, III AND                :   No. 60 MAP 2018
    CRYSTAL ANNE CRAWFORD,                      :
                                                :   Appeal from the Order of the Superior
                      Appellees                 :   Court at Nos. 432 EDA 2017 and 521
                                                :   EDA 2017 dated January 22, 2018,
                                                :   Reconsideration denied March 22,
               v.                               :   2018, Affirming in part and Vacating in
                                                :   part the Judgment of the Chester
                                                :   County Court of Common Pleas, Civil
    KENNETH RAMONDO AND THERESE-                :   Division, at No. 15-05842 entered
    CECILIA RAMONDO,                            :   January 27, 2017 and Remanding.
                                                :
                      Appellants                :   ARGUED: April 11, 2019


                                         OPINION


JUSTICE WECHT                                             DECIDED: October 31, 2019
        We granted allowance of appeal to consider whether a landowner must prove

impossibility of alternative access arising from zoning and regulatory prohibitions or

conditions of the land in order to establish an easement by necessity.

        The facts pertinent to this appeal are not in dispute. Kenneth Ramondo and

Theresa-Cecelia Ramondo (“the Ramondos”) purchased a property in Chester County

(the “Ramondo property”) on July 16, 1991. The Ramondo property is of a type known

as a “flag lot,” because it is consists of both a main portion (the “flag”) and a narrow strip

(the “pole”) that connects the main portion to a public street.1 The pole portion of the

1      See DENISE L. EVANS & O. W ILLIAM EVANS, THE COMPLETE REAL ESTATE
ENCYCLOPEDIA 172 (2007) (defining “flag lot” as “[a] parcel of land shaped like a flag, with
a narrow strip providing access to a public street or waterway and the bulk of the property
containing no frontage.”)
Ramondo property is approximately twenty-five feet wide and opens onto Garrett Mill

Road. The Ramondo pole extends six hundred feet from Garrett Mill Road to the main

portion of the Ramondo property—the flag portion—which is approximately 5.62 acres.

Thaddeus J. Bartkowski, III, and Crystal Anne Crawford (“the Bartkowskis”) bought the

neighboring property (“the Bartkowski property”), also a flag lot, on December 11, 2012.

The pole of the Bartkowski property, also measuring twenty-five feet wide, abuts and runs

parallel with the Ramondos’ pole.      The flag portion of the Bartkowski property is

approximately 5.25 acres.2

      The portion of land at issue in this appeal involves the adjoining Ramondo and

Bartkowski poles, upon which the Ramondos constructed a driveway (the “Ramondo

driveway”) that provides them access to Garrett Mill Road. The Ramondo driveway

begins on the Bartkowski pole, and extends up that pole for approximately three hundred

feet. At that point, the Ramondo driveway crosses onto the Ramondo pole and continues

on that pole to the main portion of the Ramondo property. The Bartkowskis use neither

their pole nor the Ramondo pole to access their own flag portion, as they instead make

use of an earlier-granted easement which passes over an adjacent property.

      At one time, the Ramondo property and the Bartkowski property were both owned

by a common grantor, Adrian and Margaret Teaf (“the Teafs”). In 1967, the Teafs

recorded a subdivision map which laid out, among other properties, the Ramondo and

Bartkowski parcels.3 Both parcels were vacant, wooded lots, and neither pole contained

a driveway providing access to the flag portions of these parcels. On April 19, 1968, the

Teafs conveyed the Bartkowski property to Herbert and Margaret Mansmann (“the

Mansmanns”). The Mansmanns did not construct a driveway on their pole. Rather, the

2      The record before us includes a survey that depicts the properties. See Exh. 3.
For the reader’s convenience, we have reproduced the portion of the survey that shows
the Ramondo and Bartkowski properties as an Appendix to this opinion.
3      See Appendix.

                                     [J-32-2019] - 2
Mansmanns, and all subsequent owners of the Bartkowski property, shared a driveway

with the owners of the parcel south of the flag portion of the Bartkowski property, the

Coulstons. The Coulston driveway is located on the side of the Coulston property farthest

from the Bartkowski pole. As noted, an easement for this driveway use was recorded

prior to the Bartkowskis’ arrival.

       The Mansmanns built a single-family home on the Bartkowski property in 1969 and

still lived there when the Ramondos purchased the neighboring Ramondo property in

1991. In order to build a home on the vacant property, the Ramondos first needed to

construct a driveway. Before doing so, Kenneth Ramondo invited his neighbors, including

the Coulstons and the Mansmanns, to “walk the property line to see if anybody had a

problem with where the driveway was going.” Stipulated Facts, 2/27/2016, at 6 (citing

N.T., 8/17/2015, at 87). None of the neighbors objected to the Ramondos’ proposed

placement of the driveway. Nonetheless, although the lower portion of the Ramondo

driveway would traverse the Mansmanns’ property, no easement securing such access

was executed or recorded.

       The Ramondos completed construction of their driveway in 1992 and their home

in 1993. The Ramondos placed the driveway in its current location due to numerous legal

and physical impediments that precluded the placement of the driveway entirely on their

pole. First, a stream runs through the lower portion of the Ramondo pole and into Ridley

Creek, which flows across from and parallel to Garrett Mill Road. Second, the area in

which the stream crosses the Ramondo pole is a flood plain. Third, a utility pole sits just

off Garrett Mill Road in the middle of the Ramondo pole and services a utility line that runs

under the Ramondo driveway. Fourth, portions of the Ramondo pole are very steeply

sloped.




                                      [J-32-2019] - 3
      In 1995, the Ramondos paved the driveway, which had previously been gravel-

surfaced. The Ramondos resurfaced the driveway in 2000 and installed a guardrail along

the edge of the steep slope. In 1993, and again in 2004, the Ramondos executed

mortgages on their property in favor of Barclays and USAA, respectively. Neither of the

legal descriptions of the Ramondo property attached to the mortgage documents included

the portion of the Ramondo driveway that is situated on the Bartkowski pole.

      In 2003, the Mansmanns conveyed the Bartkowski property to F. Ramondo, Inc.,

the Ramondo family’s business. During the years that F. Ramondo, Inc. owned the

property, Kenneth Ramondo was an officer of the company.           On May 2, 2007, F.

Ramondo, Inc. conveyed the property to James and Marianne Bianco (“the Biancos”).

The Biancos conveyed the property to the Bartkowskis on December 11, 2012. When

the Bartkowskis purchased their property, they were aware that the Ramondos used the

Ramondo driveway to access their home. The Bartkowskis also knew that the Biancos

had used the shared Coulston driveway to access the home on the Bartkowski property.4

      In 2013, the Bartkowskis approached the Ramondos about the Ramondo

driveway’s encroachment upon the Bartkowskis’ pole.           On June 30, 2015, the

Bartkowskis, through their attorney, sent the Ramondos a cease and desist letter

demanding that the Ramondos stop using the portion of the Ramondo driveway that is on

the Bartkowskis’ pole.

      On July 16, 2015, the Bartkowskis filed an action in ejectment and trespass,

alleging that the Ramondos improperly constructed their driveway on the Bartkowski

property. On July 31, 2015, the Ramondos filed a counterclaim alleging that they acquired

title to the disputed area by adverse possession or through the doctrine of consentable


4      Specifically, in 2005, the Coulstons granted a non-exclusive access easement in
favor of F. Ramondo Inc. and its successors to use the Coulston driveway to access the
Bartkowski property.

                                     [J-32-2019] - 4
lines. Alternatively, the Ramondos claimed a property interest in the driveway by way of

an easement by prescription, necessity, or implication.

       The Bartkowskis and Ramondos decided to forego a trial, agreeing instead to

submit a stipulated fact record and joint exhibits, as well as memoranda of law, to the

court. The Bartkowskis submitted a site survey which identified in detail the Bartkowski

and Ramondo properties and their respective poles, as well as the location of the

Ramondo driveway. Both parties submitted expert reports.

       The Ramondos’ expert, Daniel Malloy, P.E., a civil engineer, concluded that the

current location of the Ramondo driveway is the “only method to reach their home.” Exh.

19 at 1. Malloy noted that, in some places along the Ramondo pole, the slope is a 50%

grade, which leaves “a portion of the Ramondo’s [pole] sit[ting] more than ten feet below

the elevation of the existing driveway.” Id. In order to install a driveway on the Ramondos’

pole, Malloy opined, it would be necessary to either “construct the driveway at the lower

grade of their property or elevate their driveway to remain close to the elevation of the

driveway they currently use.” Id. at 2. Neither of these options are viable solutions, Malloy

explained, because of environmental and zoning regulations.

       A thirty-foot wide stream runs through the lower portion of the Ramondos’ pole

before flowing under Garrett Mill Road, creating a flood plain in the entire area. Malloy

opined that constructing the driveway at the lower grade would require installation of a

retaining wall on the Ramondo pole in order to comply with Willistown Township zoning

ordinances regarding wetlands and prohibitive slopes.5 Construction of a retaining wall

would in turn require the placement of fill into the floodplain, which is prohibited both by

township ordinances and by the Federal Emergency Management Agency (FEMA). Id.

5     Pursuant to the Willistown Township’s environmental and zoning codes, Malloy
observed, construction of a driveway is not a permitted use on land within 25 feet of a
body of water or wetland or in areas with slopes in excess of a 15% grade. See Exh. 19
at 2.

                                      [J-32-2019] - 5
at 3. These same ordinances and regulations, Malloy opined, would likewise prohibit the

Ramondos from elevating their pole to the elevation of the Bartkowski pole. The only

option, therefore, would be to relocate the stream.

       Malloy posited that, in order to relocate the stream onto the neighboring property,

the Ramondos would need the approval not only of their neighbor, but also of the township

and the Pennsylvania Department of Environmental Protection (“DEP”). This approval

would be difficult to obtain, Malloy explained, because neither the township nor the state

allows streams to be relocated unless a “significant reason” exists to do so. Id. at 2.

Malloy posited that the construction of a driveway, especially where one exists in close

proximity, “does not fall into a category the State or Township would consider a significant

reason” to relocate a waterway. Id. Building a bridge over the stream, Malloy contended,

would implicate many of the same ordinances and environmental concerns. In total,

Malloy summarized the extensive number of permits that the Ramondos would be

required to obtain from both the township and the DEP:

       They include an Erosion and Sedimentation permit, Highway Occupancy
       Permit to connect to Garrett Mill [Road], a PADEP permit GP7 (minor road
       crossing) and possibly a GP 15 (residential construction in wetlands). The
       Township will require zoning relief since the construction of a driveway in
       steep slopes, flood plains, and/or riparian buffer is prohibited by Willistown
       Township’s Environmental Ordinance (Section 73) and by the Zoning Code
       (Section 119).
Id.

       Finally, even assuming that all the environmental and zoning issues could be

overcome, which Malloy characterized as “highly unlikely,” see id. at 3, constructing a

driveway within the Ramondo pole also would require the relocation of the utility pole.

Malloy estimated this cost alone at approximately $10,000. For all of these reasons,

Malloy concluded that “the amount of regulatory relief and permitting needed to install a

new driveway on the Ramondos’ property from the State and the Township will be



                                      [J-32-2019] - 6
extremely extensive making the construction of a parallel driveway all but impossible.” Id.

Additionally, Malloy posited that “[t]he amount of engineering required to satisfy the

permitting agencies will be a significant percentage of the cost to construct the new

driveway (which in itself will be prohibitive).” Id. Malloy further advised that “it will be

many, many months, if not years before the approvals may be obtain[ed], if at all,” and

opined that “[i]t is very likely that all the required permits would never be approved.” Id.6

       The Bartkowskis’ expert, Denny L. Howell, P.E., a civil engineer, issued a rebuttal

report challenging Malloy’s conclusions. Howell acknowledged that the terrain of the

Ramondos’ pole is “steep,” and agreed with Malloy that construction thereon “would

require relief from Willistown [o]rdinances as it pertains to steep slope disturbance,

riparian buffer disturbance as well as flood plain disturbance.” Exh. 23 at 1. Despite

these obstacles, Howell concluded that “this relief is not unreasonable.” Id. Howell

posited that, “[s]etting aside the necessary [o]rdinance relief . . . construction of the

driveway is feasible,” and estimated that the construction cost would be approximately

$75,000.    Id.   On the likelihood that the Ramondos could obtain the necessary

environmental and zoning relief, Howell concluded that “it is well within reason to expect

that these variances could be obtained.” Id. at 2.

       By order dated September 19, 2016, the trial court found in favor of the Ramondos

on the counterclaim in which they asserted that they had obtained an easement by

implication.7 As a result, the court ruled against the Bartkowskis on their claims of

6      Although he could not state conclusively, Malloy noted that additional
environmental hurdles would be likely if bog turtles, which are common to Chester County
but the presence of which may be observed only during two months in the spring, are
discovered in the stream.
7      The granting of an easement by implication is based upon 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.” Findings, 9/19/2016, at 19 (citing Phillippi v. Knotter, 748 A.2d 757, 762 (Pa. Super.



                                      [J-32-2019] - 7
ejectment and trespass. In support of its order, the court issued Findings of Fact and

Conclusions of Law (“Findings”). Of relevance to this appeal, on the Ramondos’ claim

that they obtained an easement by necessity, the trial court outlined that the party seeking

access across the property of another must establish that: “(1) the titles to the alleged

dominant and servient properties [were] held by one person; (2) this unity of title [was]

severed by a conveyance of one of the tracts[;] and (3) the easement must be necessary

in order for the owner of the dominant tenement to use his land, with the necessity existing

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

Findings, 9/19/2016, at 17 (citing Graff v. Scanlan, 673 A.2d 1028, 1032 (Pa. Cmwlth.

1996)). Additionally, the trial court emphasized that “[a]n easement by necessity ‘is

always of strict necessity’ and never exists as a mere ‘matter of convenience.’” Id.

(quoting Phillippi v. Knotter, 748 A.2d 757, 760 (Pa. Super. 2000) (emphasis in original)).

The trial court concluded that the Ramondo property was “not landlocked,” and that,

although the Ramondos presented evidence that gaining approval from the Township to

relocate the driveway “may be difficult,” the Ramondos did not “demonstrate impossibility

and thus necessity.” Id. at 18.8


2000)). In order to find an easement by implication, use of the right-of-way must have
been occurring prior to severance from a common grantor. The trial court concluded that
the Ramondo family had unity of title between 2003 and 2007, during which time F.
Ramondo, Inc. (in which Kenneth Ramondo was an officer) was the record owner of the
Bartkowski property. Therefore, the trial court reasoned, severance from a common
grantor occurred in 2007, when F. Ramondo, Inc. conveyed the Bartkowski property to
the Biancos. The trial court ruled that, at that time, the Ramondos had been using the
Ramondo driveway for fifteen years in a manner that was “open, visible, permanent and
continuous,” such that an easement by implication arose and the Biancos, and all
subsequent purchasers, took the property subject to the burden of the Ramondo
driveway.
8      The trial court also ruled that the Ramondos did not acquire title through adverse
possession because the Mansmanns consented to the placement of the Ramondo
driveway, thus destroying the “hostility” element. For this same reason, the court
concluded, the Ramondos did not have any easement by prescription. Nor did the



                                      [J-32-2019] - 8
       The Bartkowskis filed a post-trial motion challenging the trial court’s order, which

the trial court denied on January 4, 2017. The Bartkowskis filed a timely notice of appeal

and Pa.R.A.P. 1925(b) statement challenging whether the Ramondos met the elements

necessary to establish an easement by implication. The Ramondos cross-appealed,

disputing the trial court’s rulings that they did not have an easement by necessity or that

they had not obtained title by the doctrine of consentable lines. On February 22, 2017,

the trial court issued its Pa.R.A.P. 1925(a) opinion, adopting, in full, its September 19,

2016 Findings of Facts and Conclusions of Law.

       In an unpublished memorandum, a divided panel of the Superior Court affirmed in

part and vacated in part. Bartkowski v. Ramondo, 432 & 521 EDA 2017, 2018 WL 495213

(Pa. Super. Jan. 22, 2018).9 On the Ramondos’ easement by necessity claim, the

Superior Court agreed with the trial court’s reasoning to the effect that the Ramondos

failed to establish necessity. The Superior Court reasoned that, although the Ramondos’

expert opined that construction of a new driveway on the Ramondo pole would be “costly

and ‘all but impossible,’” the Ramondos did not prove that this could not be done. Id. at

*6 (quoting Findings, 9/19/2016, at 9). To the contrary, the Superior Court reiterated the

Bartkowski expert’s proffer that construction of the driveway was “feasible,” and held that,




Ramondos acquire title by way of the doctrine of consentable lines, according to the court,
because there was no agreement to treat the driveway as the property line.
9      The panel unanimously agreed that the Ramondos had not obtained title to the
disputed portion of the driveway under the doctrine of consentable lines. The panel
reversed the trial court’s ruling in favor of the Ramondos that they had obtained an
easement by implication. The panel rejected the trial court’s conclusion that a severance
from a common grantor existed in 2007 when F. Ramondo, Inc. conveyed the Bartkowski
property to the Biancos. Citing the rule that “[a] corporation is a separate, fictional legal
person distinct from its shareholders or employees,” the panel concluded that the trial
court erred in finding that one entity held both the Bartkowski and Ramondo properties in
unity. Bartkowski, 2018 WL 495213, at *5 (citing Missett v. Hub Int’l Pa., LLC, 6 A.3d
530, 535 (Pa. Super. 2010)).

                                      [J-32-2019] - 9
“because a new driveway is possible, even if difficult and expensive,” the trial court did

not err in denying the Ramondos claim for an easement by necessity. Id.

       Judge Bowes dissented on this issue, characterizing the lower portion of the

Ramondos’ pole as “virtually impassable,” due to a “stream, flood plain, utility pole, and a

steep slope.” Id. at *8 (Bowes, J., concurring and dissenting). Summarizing the expert

reports, Judge Bowes reasoned that there is no dispute that the Ramondos would need

relief from various township ordinances and DEP regulations in order to construct a new

driveway on the Ramondo pole. Howell’s belief that it would be “feasible” to obtain such

regulatory relief was insufficient, in Judge Bowes’ opinion, to establish that the multiple

permitting and zoning obstacles could be overcome. The key inquiry, Judge Bowes

emphasized, is not whether the Ramondos “could possibly get relief” but “whether it is

likely or probable that they will.” Id. at *10. Judge Bowes explained that the myriad of

required variances and approvals serve to elevate the Ramondos’ claim of necessity

above a mere question of convenience.10

       We granted allowance of appeal in order to consider whether, when seeking to

establish an easement by necessity, a landowner must prove impossibility of alternative

access arising from zoning and regulatory prohibitions or other conditions. Bartkowski v.

Ramondo, 195 A.3d 853 (Pa. 2018) (per curiam).

       The Ramondos argue that the only element at issue in this appeal is whether

access upon the Ramondo driveway is necessary. The Ramondos characterize their

need for access as one of strict necessity, distinguishing their circumstances from those

cases in which this Court or the Superior Court have concluded that a landowner’s claim

for a particular desired access is one of mere convenience. Brief for Ramondos at 14-15


10     Judge Bowes noted additionally that the necessity existed at the time of severance
because the steep slope, stream, and flood plain were all present in 1967 when the Teafs
subdivided the property into five lots.

                                     [J-32-2019] - 10
(citing Schwoyer v. Smith, 131 A.2d 385 (Pa. 1957); Youst v. Keck’s Food Serv., Inc., 94

A.3d 1057 (Pa. Super. 2014); Phillippi, 748 A.2d 757). The Ramondos maintain that the

“regulatory prohibitions” and the “practical and financial impossibility of relocating the

stream and driveway,” result in their property being landlocked. Brief for Ramondos at

15.

       The Ramondos next contend that “requiring landowners who face codified legal

impediments to prove with absolute certainty that they could obtain relief from those

impediments is not logical and would be a tremendous waste of public and private

resources.” Id. at 16. Rather than imposing such a burden, the Ramondos propose that,

when it is undisputed that zoning and regulatory relief is required prior to allowing

construction of alternative access, as it is here, the court should find a “per se necessity,

or at least a presumption of necessity.” Id. at 19. Upon such a finding, the Ramondos

assert, the burden should shift to the servient property owner to prove that relief is

available. The Ramondos argue that such burden-shifting frameworks are commonplace

in other areas of the law, and they advocate for application of such a framework here. Id.

at 18-20 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (adopting

burden-shifting framework for employment discrimination claims); Borough of Perkasie v.

Moulton Builders, Inc., 850 A.2d 778 (Pa. Cmwlth. 2004) (applying burden-shifting

framework to conditional use applications in zoning matters)).

       Applying these principles, and relying upon their expert’s report, the Ramondos

maintain that they presented compelling evidence that zoning and regulatory relief is “not

reasonably likely.”   Brief for Ramondos at 21.          Like Judge Bowes in dissent, the

Ramondos reject the trial court’s and Superior Court’s reliance upon the Bartkowskis’

expert’s opinion that alternative access on the Ramondo’s pole was “feasible,”

characterizing that opinion as “unsupported” and “woefully insufficient.” Id. at 20-21.




                                      [J-32-2019] - 11
Accordingly, the Ramondos ask that we reverse the order of the Superior Court and hold

that they have established grounds for an easement by necessity over the Bartkowski

property.

       In response, the Bartkowskis first assert that the trial court, when presented with

competing expert opinions on the physical and legal impediments to constructing a

driveway on the Ramondos pole, credited the conclusion of the Bartkowski’s expert.

Because this credibility determination has support in the record, the Bartkowskis argue,

this Court should not disturb it on appeal. Brief for Bartkowskis at 11-13. Moreover, the

Bartkowskis contend Howell’s opinion is supported by the concept that “waivers and

variances exist precisely in order to ensure that properties like the Ramondos’ cannot be

rendered valueless or inaccessible by a combination of the unique features of the property

and restrictive ordinances.” Id. at 13.

       The Bartkowskis next maintain that the Ramondos have waived their claim of

necessity based upon their failure to cite or discuss the regulations and ordinances that

prohibit them from constructing a driveway on their own pole.           Without specific

identification of these impediments, the Bartkowskis argue, it is impossible to determine

“whether the Ramondos could avoid violation through alternative construction

techniques,” or whether “the specific environmental regulations complained of existed at

the time of the severance of title.” Id. at 15.

       In response to the Ramondos’ claim that the burden should shift to the Bartkowskis

to prove that relief is available, the Bartkowskis argue, without conceding that they have

a burden, that their expert opined that a driveway possibly can be constructed on the

Ramondo pole, thus proving that relief is available. As such, the Bartkowskis ask that we




                                       [J-32-2019] - 12
affirm the Superior Court’s holding that the Ramondos failed to establish an easement by

necessity.11

       This appeal calls upon us to clarify the requirement of “strict necessity” as it relates

to the establishment of an easement by necessity. This is a question of law over which

our standard of review is de novo and our scope of review is plenary. JP Morgan Chase

Bank N.A. v. Taggart, 203 A.3d 187, 191 (Pa. 2019).

       As noted above, the three fundamental requirements for an easement by necessity

are:

       1) the titles to the alleged dominant and servient properties must have been
       held by one person; 2) this unity of title must have been severed by a
       conveyance of one of the tracts; and 3) the easement must be necessary in
       order for the owner of the dominant tenement to use his land, with the
       necessity existing both at the time of the severance of title and at the time
       of the exercise of the easement.
Youst, 94 A.3d at 1075. We have long recognized that a “right of way from necessity over

the land of another . . . is always of strict necessity.” Ogden v. Grove, 38 Pa. 487, 491

(Pa. 1861) (internal citations and quotation marks omitted). Thus, a right of way never



11      The Bartkowskis fail entirely to address the question upon which we granted
review. The Superior Court’s decision did not, as the Bartkowskis argue, merely rely upon
or defer to the trial court’s credibility determinations. See Brief for Bartkowskis at 11. The
trial court did not find the Ramondo expert’s report to be incredible. Rather, the trial court
concluded that, despite the evidence offered by the Ramondos, they did not prove that
creating a new driveway on the Ramondo pole was impossible. See Findings, 9/19/2016,
at 18 (“[T]he evidence did not demonstrate impossibility and thus necessity.”). It was the
strict necessity standard that led to the court’s conclusion, not a mere finding of fact or
determination of credibility.
        The Bartkowskis’ waiver argument is likewise unconvincing. The parties
proceeded on a stipulated fact record, and they did not dispute that constructing a
driveway upon the Ramondo pole would face numerous zoning hurdles and
environmental restrictions.
        The Bartkowskis also argue that a Willistown Township ordinance that requires
abutting flag lots to utilize a shared driveway is an unconstitutional taking. We will not
address this argument, because neither of the courts below relied upon this ordinance
and because it is beyond the scope of our order granting review.

                                      [J-32-2019] - 13
exists “when a man can get to his own property through his own land,” and “[c]onvenience

is no foundation for the claim.” Id.

       Here, the first two elements have been met. The titles to the Ramondo and

Bartkowski properties were once held by a common grantor (the Teafs), and unity of title

was severed in 1967 when the Teafs subdivided the land. Thus, the only factual dispute

before the trial court concerned whether the Ramondo driveway’s encroachment upon

the Bartkowski pole was “necessary in order for the [Ramondos] to use [their] land, with

the necessity existing both at the time of the severance of title and at the time of the

exercise of the easement.” Youst, 94 A.3d at 1075.

       The question presented hinges not upon whether the Ramondos in fact satisfied

this element but, rather, upon the validity of the lower courts’ conclusions that the

Ramondos did not establish necessity because they failed to prove that constructing a

new driveway on their pole “could not be done.” Bartkowski, 2018 WL 495213, at *6; see

also Findings, 9/19/2016, at 18 (ruling that the Ramondos did not “demonstrate

impossibility and thus necessity”). By equating strict necessity with impossibility, the

lower courts increased the Ramondos’ burden beyond what this Court previously has

required. Our research has not uncovered, nor did either party present, any case from

this Court or our intermediate appellate courts holding that a party seeking access across

a neighboring property must prove absolute impossibility of alternative access in order to

establish strict necessity.

       As is evident from our easement by necessity jurisprudence, the concept of strict

necessity always is contrasted with the notion of convenience. See Ogden, 38 Pa. at

491; Graff, 673 A.2d at 1032 (“An easement implied on the grounds of necessity is always

of strict necessity; it never exists as a mere matter of convenience.”). Our precedents

provide little insight on the meaning of “necessity” beyond these opposing principles.




                                       [J-32-2019] - 14
Without question, these two concepts—strict necessity and mere convenience—sit at

opposite ends of a continuum that encompasses a significant amount of gray area. One

scholar has opined that, although the necessity element is the “fulcrum on which way of

necessity cases balance,” this “seemingly black-and-white concept . . . is really gray.” 11

JEFFREY R. SANG, AM. JUR. PROOF OF FACTS 3D 601, § 6 (2019). There is no formulaic or

canonical standard that constitutes “strict necessity,” leaving each case to turn on its

facts.

         To require a party to prove utter impossibility of alternative access is to stretch

“strict necessity” beyond its intended meaning. This effectively would limit a landowner’s

entitlement to an easement by necessity to circumstances in which the property is

completely surrounded and landlocked by other properties, such that there is literally no

means of ingress and egress. This Court has never so held. On this subject, a decision

of the Idaho Court of Appeals is particularly instructive. In MacCaskill v. Ebbert, 739 P.2d

414 (Idaho Ct. App. 1987), the court was asked to determine whether an easement by

necessity may arise where the property is landlocked, not for want of legal access, but

because the topographical characteristics of the land make legal access impassable. The

court refused to limit the circumstances under which an easement by necessity may arise

to landlocked properties, reasoning that, “there are cases where a tract of land, though

not totally landlocked in a legal sense, cannot yield a beneficial use because the sole

legal access is inadequate for the purposes to which the property naturally might be put.”

Id. at 418. The court continued:

         Obviously, one seeking an easement need not show that a legally available
         route is absolutely impossible to use. There are few natural obstacles that
         could not be surmounted by modern engineering if unlimited resources were
         committed to the task. On the other hand, neither is it sufficient merely to
         show that the legally available route would be inconvenient or expensive.
         Rather, an easement by necessity should be granted only if the difficulty or




                                      [J-32-2019] - 15
       expense of using the legally available route is so great that it renders the
       parcel unfit for its reasonably anticipated use.
Id. at 419 (citation and emphasis omitted).12 We agree with the MacCaskill court that

literal impossibility of alternative access is an unworkable standard. As the Idaho court

acknowledged, with enough money and modern resources, creation of an alternative

means of access can never be considered truly and utterly impossible.

       This analysis also comports with other jurisdictions’ formulations of “strict

necessity.” See, e.g., Ashby v. Maechling, 229 P.3d 1210, 1215 (Mont. 2010) (“The

element of strict necessity requires that there is no practical access to a public road from

the landlocked parcel.”); Beery v. Shinkle, 193 S.W.3d 435, 441 (Mo. Ct. App. 2006)

(“Strict necessity has been interpreted to mean the absence of a reasonably practical way

to and from plaintiff’s land that the plaintiff has a legally enforceable right to use.”);

Thompson v. Whinnery, 895 P.2d 537, 541 (Colo. 1995) (en banc) (internal quotation

marks omitted) (“[I]n evaluating whether an easement is necessary for access over

difficult terrain[,] we must determine whether there is a practical inability to have access

any other way than by a way of necessity.”); Hitchman v. Hudson, 594 P.2d 851, 858 (Or.

Ct. App. 1979) (“An easement of necessity will not be implied where the claimant has

other practicable ways of ingress or egress or could obtain the necessary way by a

reasonable expenditure”). These descriptions of “strict necessity” demonstrate that the

standard is not “hopelessly inelastic for sensible application to varying sets of facts.”

Mitchell v. Castellaw, 246 S.W.2d 163, 168 (Tex. 1952). Common to these descriptions,

12      The MacCaskill court adopted a “reasonable necessity” standard. However, the
court noted that “the criteria for determining ‘reasonable’ necessity . . . could not easily
be distinguished from those we had postulated for ‘strict’ necessity.” MacCaskill, 739
P.2d at 419 n.3. This sentiment is expressed as well by leading treatise writers, who posit
that the difference between the two standards is “greater in theory than in practice,” and
that “[a]n examination of decisions in this area reveals that, in many cases, the court
would reach the same result under either degree-of-necessity test.” JON W. BRUCE &
JAMES W. ELY, JR., THE LAW OF EASEMENTS AND LICENSES IN LAND § 4:10 (March 2019
Update).

                                     [J-32-2019] - 16
and absent from the reasoning of the courts below in the instant case, is a focus upon the

practicability of constructing alternative access. Where it is manifestly impracticable,

even though theoretically possible, to create ingress and egress across one’s own

property, the landowner may establish that a right of way over a neighboring property is

“strictly necessary” in the legal sense.

       The expense of constructing alternative access may be one of many relevant

factors in determining whether access across a neighboring property is “strictly

necessary.” The Maryland Court of Appeals considered as much, while maintaining a

“strict necessity” standard:

       If the cost of constructing a road over one’s land as a means of access to
       the public highway would require unreasonable expense out of proportion
       to the value of the land, then there exists such necessity for a way over the
       grantor’s land as to justify recognition of a way by implication. But the court
       will not recognize a way of necessity if another road to the public highway
       can be made without unreasonable expense, even though the other road
       may be much less convenient. Mere inconvenience will not be sufficient to
       justify the finding of a way of necessity.
Condry v. Laurie, 41 A.2d 66, 68 (Md. 1945); see also Bluffs Owners Ass’n, Inc. v. Adams,

897 So.2d 375, 378 (Ala. Civ. App. 2004) (“[T]he issue is not whether the right-of-way

sought is, of all possible routes, the nearest and most convenient means to access . . .

the property; instead, the landowner seeking the easement must show that any other

alternate-access route would require unreasonable expense disproportionate to the value

of the property.”); 3 TIFFANY REAL PROPERTY § 794 (3d ed. 2018) (“[I]f the cost of the

construction of a road over one’s own land, as a means of access to any particular portion

thereof, would involve very great expense, out of proportion to the value of the land itself,

there is such a necessity for a way over another’s land as to justify the recognition of a

way of necessity.”). These cases demonstrate that, although the cost or difficulty of

constructing alternative access may not always, or even often, be sufficient by itself to




                                      [J-32-2019] - 17
warrant burdening another’s property, there may be a tipping point at which it becomes

manifestly unreasonable to require a party to expend a disproportionate amount of money

in order to access a parcel.

        We find additional insight in Pennsylvania jurisprudence involving the Private

Roads Act (“the Act”),13 pursuant to which a landowner, in order to access his own

property, may petition the court to open a private road across a neighboring property.

Although opening a private road and granting an easement by necessity are separate

and discrete acts of judicial authority, the parallel inquiry regarding the necessity of the

intrusion upon a neighboring property warrants discussion. Under the Act, opening a

private road requires a determination “that such road is necessary.” 36 P.S. § 2732. The

Act does not define the word “necessary,” but, in an oft-quoted case, our Superior Court

held:

        While the Act does not require an absolute necessity, such as being
        completely landlocked, the mere inconvenience in the use of an existing
        road is not enough. The existing road must be of a limited privilege, or
        extremely difficult and burdensome in its use to warrant the appropriation of
        another more convenient course. In short, the Act is said to require the
        strictest necessity.
Application of Little, 119 A.2d 587, 589 (Pa. Super. 1956) (internal citations omitted).

        This Court later affirmed this standard, holding that a private road may be opened

across the land of another only upon a finding of the “strictest necessity.” In re Private

Road in Speers Boro, II, Washington Cty., 11 A.3d 902, 906 (Pa. 2011). In Speers Boro,

the landowners had full access to their property by river, but had land access only across

a neighboring property. In determining whether opening a private road was necessary

under such circumstances, we concluded that a court must consider all “available means

of access to the property,” but emphasized that a navigable waterway does not equate to



13      36 P.S. §§ 2731-2891.

                                      [J-32-2019] - 18
road access. Id. Thus, we explained that, on remand, the parties may offer evidence to

show why water access was or was not a sufficient means of access to the property. Id.

In light of this conclusion, which we reached under a similar “strict necessity” standard, it

is clear that we rejected the proposition that necessity only exists where access to the

property is literally impossible. See also In re Laying Out & Opening Private Rd. in

Sullivan Twp., Tioga Cnty., 964 A.2d 495, 503 (Pa. Cmwlth. 2009) (considering multiple

factors, including the topography of the land, the cost, and environmental consequences

of constructing alternative access in determining whether opening a private road was

strictly necessary).

       To be sure, the property rights of those owning proposed servient estates are not

to be taken lightly, and we caution against any contrary conclusion. It is immaterial, for

instance, whether a right-of-way would appear to have a minimal impact upon the use of

the servient estate, or whether its owner offers a persuasive reason for wishing to exclude

other individuals from the property. All property owners are presumptively entitled to the

quiet use and enjoyment of their entire properties; such rights are inherent to our

understanding of property ownership. See, e.g., Willcox v. Penn Mut. Life Ins. Co., 55

A.2d 521, 528 (Pa. 1947) (quoting Wynehamer v. People, 13 N.Y. 378, 433 (N.Y. 1856))

(property is “the right of any person to possess, use, enjoy and dispose of a thing”). The

burden to establish the necessity for an easement across the property of one’s neighbor

falls squarely upon on the shoulders of the party seeking it. We observe only that, once

that necessity is established, the recognition of an easement is essential to ensure that

the utility and value of the dominant property are not wholly extinguished.

       Based on the foregoing analysis, we hold that the courts below erred in holding

that a landowner must establish impossibility of alternative access before a court will grant

an easement by necessity. To be sure, the strict necessity standard remains a daunting




                                      [J-32-2019] - 19
hurdle to overcome for a landowner seeking an easement by necessity. Given the

sanctity of property rights, this is as it should be. Nevertheless, neither our case law, nor

the persuasive reasoning from other states imposing a “strict necessity” standard,

supports a requirement that a landowner prove utter impossibility of alternative access.

Such a burden risks becoming insurmountable, and, as such, as unworkable as it is

unjust.

          Determining whether a landowner has established necessity is a fact-intensive

question, which defies a one-size-fits-all, bright-line standard.14 The central inquiry is

whether, absent the recognition of an easement, the proposed dominant estate will be

left without a means of ingress and egress, rendering the property inaccessible and, thus,

unusable. See, e.g., Bodman v. Bodman, 321 A.2d 910, 912 (Pa. 1974) (“An easement

by necessity may be created when after severance from adjoining property, a piece of

land is without access to a public highway.”).       A court must evaluate the asserted

necessity by assessing whether this untenable outcome will result in practice, not merely

by asking whether some remote alternative is hypothetically possible in the abstract.

Each case will require individualized consideration of multiple factors, including, but not

limited to: the existence of zoning restrictions and the likelihood that the party can obtain

the necessary variances or exceptions; the existence of state or federal regulations that

prohibit certain uses of the land in question; the topography of the land and the

practicability of constructing alternative access; the environmental consequences of

construction; the costs involved; and, of course, whether and to what extent these

impediments existed at the time of severance.15 This list of factors is non-exclusive, as

14     For this reason, we reject the Ramondos’ suggestion that we should adopt a per
se finding or presumption of necessity when a property owner faces zoning or regulatory
obstacles in constructing alternative access. See Brief for Ramondos at 19.
15     Because our present analysis relates solely to whether strict necessity requires a
showing of impossibility as a matter of law, we need not decide the factual question of



                                      [J-32-2019] - 20
future cases may well present additional circumstances relevant to the establishment of

necessity. As in this case, expert opinions often will be necessary in order to establish

that any legal or physical barriers cannot or are exceedingly unlikely to be overcome.

Although some degree of speculation is inherent in the assessment of such future

outcomes, this is a question of the credibility of the evidence and the weight to be afforded

thereto, which are matters that we entrust to the discretion of the fact-finder.

       We do not intend to dilute or diminish the rigors of the “strict necessity” standard.

Nor do we intend to imply that the presence of one or more, or even all, of the above-

listed circumstances automatically establishes strict necessity. These considerations are

intended only to guide courts in navigating the “gray area” between sheer impossibility

and mere convenience. As the quantity and quality of hurdles obstructing a party’s ability

to create an alternative means of access mount, so too does a court’s prerogative to find

that strict necessity has been established.

       The Superior Court affirmed the trial court’s order denying the Ramondos an

easement by necessity based upon the theory that establishing necessity requires

proving impossibility of alternative access. See Bartkowski, 2018 WL 495213, at *6;

Findings, 9/19/2016, at 18. This was error. Accordingly, we reverse the order of the

Superior Court, and we remand the matter for further proceedings consistent with this

Opinion.


       Chief Justice Saylor and Justices Baer and Todd join the opinion.




whether the asserted necessity in this matter existed at the time of severance. We note
Judge Bowes’ suggestion that the steep slope, stream, and flood plain were all present
in 1967 when the Teafs subdivided their property. See Bartkowski, 2018 WL 495213, at
*10 (Bowes, J., dissenting). However, because the present record lacks development on
this matter, the existence of necessity at the time of severance remains an appropriate
area of inquiry on remand.

                                      [J-32-2019] - 21
Justice Dougherty files a concurring and dissenting opinion.

Justice Mundy files a dissenting opinion in which Justice Donohue joins.




                             [J-32-2019] - 22
