J-A07044-14


                               2014 PA Super 232

VILLAGE OF FOUR SEASONS                        IN THE SUPERIOR COURT OF
ASSOCIATION, INC.                                    PENNSYLVANIA

                          Appellee

                     v.

ELK MOUNTAIN SKI RESORT, INC.

                          Appellant                   No. 996 MDA 2013


                  Appeal from the Order entered May 5, 2013
            In the Court of Common Pleas of Susquehanna County
                      Civil Division at No: 2011-1736 CP


BEFORE: GANTMAN, P.J., DONOHUE, and STABILE, JJ.

OPINION BY STABILE, J.:                            FILED OCTOBER 14, 2014

        Appellant, Elk Mountain Ski Resort, Inc. (Elk) draws water for

snowmaking from one of its ponds (Elk Pond), which is connected via a

breached berm to the lake (Village Lake) of the Appellee Village of Four

Seasons (Village).    As part of a larger dispute between Elk and Village,

Village moved for an injunction to stop Elk from drawing water from Village

Lake.    The trial court granted Village’s cross-motion for partial summary

judgment, enjoined Elk from drawing water, and ordered Elk to close the

breach in the berm dividing the two bodies of water.      We affirm in part,

vacate in part, and remand for further proceedings.

        Elk is a ski resort located in Susquehanna County, Pennsylvania.

Village is a vacation community located directly below the ski resort. The

land on which Elk is located includes Elk Pond, which is a small pond.
J-A07044-14



Similarly, the land on which the Village is located includes a man-made lake,

Village Lake.    Elk Pond adjoins Village Lake. The two bodies of water are

separated by a berm, which includes a breach.         Water flows through the

breach between the two bodies of water. Elk uses Elk Pond and other bodies

of water to make snow for its ski slopes. Village uses Village Lake for

recreation, including boating.

       This appeal concerns whether Village can prevent Elk from using water

from Village Lake.       The trial court found Village owns the land beneath

Village Lake. Accordingly, the trial court concluded Elk has no riparian right

to use the water contained in Village Lake.        As a result, the trial court

granted Village’s cross-motion for partial summary judgment, enjoined Elk

from using the Village Lake’s water, and further ordered Elk to “physically

close the opening in the berm between the Village Lake and the adjoining

pond, the Elk [Pond].”           Trial Court Order, 6/5/13, at 1. This appeal

followed.1

       On appeal, Elk raises several issues and sub-issues for our review, to

wit:

       1. Did the trial court commit reversible error in basing its grant
          of summary judgment on the doctrine that a lake-bed owner
          owns all the water lying above his lake bed, when the record
____________________________________________


1
  The trial court’s order was appealable under Pa.R.A.P. 311(a)(4). After Elk
appealed, the trial court stayed effect of the injunction pending resolution of
this appeal.



                                           -2-
J-A07044-14


         demonstrates that Elk makes snow from water lying above
         the lake bed it owns?

      2. Did the trial court commit reversible error in granting Village’s
         summary judgment motion even though a reasonable fact-
         finder could conclude that Village’s claims are barred by the
         reasonable-use doctrine of riparian law, by laches, and by
         Elk’s acquisition of an irrevocable license?

      3. Did the trial court commit reversible error in granting Village’s
         summary judgment motion on the ground that Elk could not
         establish that it had a prescriptive right to use the water in
         question, when the conclusion was based on the trial court’s
         sua sponte determination that Village had given Elk an
         “indulgence” to use the water?

      4. Did the trial court commit reversible error in issuing an
         injunction ordering Elk to undertake an affirmative act
         (closing the opening in the berm between [Elk Pond] and
         [Village Lake]) without adequately specifying how Elk was to
         do so?

Appellant’s Brief at 7.

      It is well-settled that

      [o]ur scope of review of a trial court’s order granting or denying
      summary judgment is plenary, and our standard of review is
      clear: the trial court’s order will be reversed only where it is
      established that the court committed an error of law or abused
      its discretion.

      Summary judgment is appropriate only when the record clearly
      shows that there is no genuine issue of material fact and that
      the moving party is entitled to judgment as a matter of law. The
      reviewing court must view the record in the light most favorable
      to the nonmoving party and resolve all doubts as to the
      existence of a genuine issue of material fact against the moving
      party. Only when the facts are so clear that reasonable minds
      could not differ can a trial court properly enter summary
      judgment.




                                     -3-
J-A07044-14


Hovis v. Sunoco, Inc., 64 A.3d 1078, 1081 (Pa. Super. 2013) (quoting

Cassel-Hess v. Hoffer, 44 A.3d 80, 84-85 (Pa. Super. 2012)).

      Elk first argues the trial court erroneously “relied on cases holding that

an owner of a non-navigable lake bed has exclusive rights to all water that

lies above the bed he owns.”      Appellant’s Brief at 25.   According to Elk,

these cases “dealt with land-locked lakes that were not part of a tributary

system[.]” Id. Elk claims, because the two bodies of water are part of a

tributary system, “[i]t seems more appropriate that riparian law as it applies

to flowing water, rather than riparian law as it applies to land-locked lakes,

should apply here.” Id. Additionally, according to Elk, the same cases are

distinguishable because they dealt with trespassing onto another’s lake,

which is not the case here because Elk made no physical intrusion onto

Village Lake. Id. at 26. We agree.

      The trial court, in determining whether Village had the right to prevent

Elk from utilizing water from Village Lake reasoned as follows. While “the

Village Lake and the Elk Pond are part of a stream that eventually exits into

an unnamed tributary,” the “standard riparian law as it relates to lakes must

be applied since we are ultimately determining what rights attach to a . . .

lake[,]” not flowing water. Trial Court Opinion, 5/6/13, at 19.

      Having determined the ultimate question here pertains to rights

attaching to a lake, the trial court went on to note:

      In Pennsylvania, it is well-settled that, if a body of water is
      navigable, it is publicly owned and may only be regulated by the

                                     -4-
J-A07044-14


      Commonwealth; ownership of the land beneath would not afford
      any right superior to that of the public to use the waterway.
      However, if a body of water is not navigable, it is privately
      owned by those who own the land beneath the water’s surface
      and the land abutting it, and may be regulated by them. The
      rule for determining whether bodies of water are navigable is
      whether they are used, or susceptible of being used, in their
      ordinary condition, as highways for commerce, over which trade
      and travel are or may be conducted in the customary modes of
      trade and travel on water.

Trial Court Opinion, 5/6/13, at 17-18 (internal citations, brackets, and

quotation marks omitted).

      With this background in mind, the trial court first determined that

Village Lake was a non-navigable lake. Id. at 18. (“In the instant matter,

the Village Lake is not navigable because it is not used, or susceptible of

being used, in its ordinary condition, as a highway for commerce.”). It then

determined Village owned the Village Lake’s bed.        Id.   (“[I]t goes without

saying that [Village] claims ownership over [Village L]ake. As for [Elk], it

has acknowledged on multiple occasions that the Village Lake was built by

[Village] on [Village]’s property.”). Finally, the trial court found that Village,

as the owner of land under a non-navigable lake, had the right to regulate

Village Lake as it pleased.     Id. at 20 (citing Shaffer v. Baylor’s Lake

Ass’n, Inc. 141 A.2d 583, 585 (Pa. 1958) (“[I]n the case of a non-navigable

lake or pond where the land under the water is owned by others, no riparian

rights attach to the property bordering on the water[.]”); Smoulter v.

Boyd, 58 A. 144, 146 (Pa. 1904) (The owner of land under water has the

right to control activities on the surface); Mountain Props., Inc. v. Tyler

                                      -5-
J-A07044-14


Hill Realty Corp., 767 A.2d 1096, 1100 (Pa. Super. 2001) (“The common

law rule provides that ownership of a lakebed includes ownership of the

water above it, and the owner of the lakebed can prevent others from

utilizing his or her property.”)).2

       A   riparian       landowner’s    riparian   rights    differ    based    on   the

characteristics of the adjoining body of water.3 Non-navigable, land-locked

bodies of water are “privately owned by those who own the land beneath the

water’s surface and the lands abutting it, and may be regulated by them.”

Mountain Props., 767 A.2d at 1100.                      However, for non-navigable

watercourses,     i.e.,    bodies   of   water   that   are   flowing    or   “tributary,”

“[o]wnership of the land does not include ownership of the water which flows

over or past it.”     Standard Plate Glass Co. v. Butler Water Co., 5 Pa.

Super. 563, 576 (1897); see also Scranton Gas & Water Co. v. Del.,


____________________________________________


2
  Loughran v. Matylewicz, 81 A.2d 879, 882 (Pa. 1951) (“[I]n the case of
a non-navigable lake or pond where the land under the water is owned by
others, no riparian rights attach to the property bordering on the water[.]”);
and Miller v. Lutheran Conference & Camp Ass’n, 200 A. 646, 650 (Pa.
1938) (same), were also cited by the trial court.
3
  There is no dispute that Elk Pond and Village Lake are non-navigable. The
Commonwealth owns navigable bodies of water. Mountain Props., 767
A.2d at 1100. Bodies of water are “navigable” if “used, or susceptible of
being used, in their ordinary condition, as highways for commerce, over
which trade and travel are or may be conducted in the customary modes of
trade and travel on water.” Id.; see also Pa. Power & Light Co. v.
Maritime Mgt., Inc., 693 A.2d 592, 594-95 (Pa. Super. 1997) (en banc)
(discussing the test for navigability).



                                           -6-
J-A07044-14


Lackawanna & W. R.R. Co., 88 A. 24, 25 (Pa. 1913) (“It is settled law that

riparian owners have no ownership of running water.”); Irving’s Ex’rs v.

Burgess & Town Council of the Borough of Media, 10 Pa. Super. 132,

145 (1898) (“Ownership of riparian land does not include ownership of the

water which flows over or past it, it is true.”), aff’d per curiam, 45 A. 482

(Pa. 1900).

      For flowing watercourses, an upper riparian owner has the right to

make reasonable use of the water flowing on or past his property.              See

Lucas v. Ford, 69 A.2d 114, 116 (Pa. 1949).

      The rule of law is uniform and undoubted that every riparian
      owner is entitled, as an incident to his land, to the natural flow
      of the water of a stream running through it, undiminished in
      quantity and unimpaired in quality, subject to the reasonable
      use of the water by those similarly entitled, for the ordinary
      purposes of life; and any sensible or essential interference
      therewith, if wrongful, whether attended with actual damage or
      not, is actionable.

Clark v. Pa. R.R. Co., 22 A. 989, 990 (Pa. 1891) (emphasis added); see

also Alburger v. Phila. Elec. Co., 535 A.2d 729, 731 (Pa. Cmwlth. 1988)

(plurality   opinion)   (noting   that   Pennsylvania   is   a   “reasonable   use”

jurisdiction).

      Thus, although Village owns the land underneath the waters of Village

Lake, it may not own the water itself to the exclusion of all others. If Elk

Pond and Village Lake are part of a flowing watercourse, Elk—as an upper

riparian owner—has the right to reasonably use the water. Its use cannot

harm Village’s interest, i.e., it cannot use so much water that Village can no


                                         -7-
J-A07044-14


longer use Village Lake for recreation. If Elk Pond and Village Lake are non-

flowing bodies of water, however, Village has plenary rights to the water in

its lake, and it can bar Elk from drawing any water from Village Lake.

      At this stage in the case, summary judgment is appropriate only if Elk

cannot produce facts necessary to support a prima facie affirmative defense

of reasonable use. Pa.R.C.P. 1035.2(2); Hovis, 64 A.3d at 1081. We hold

that Village failed to meet the summary judgment standard, because a

factual dispute exists regarding whether Elk Pond and Village Lake are non-

flowing bodies of water, or part of a watercourse.

      We also hold that Elk has not waived its affirmative defense of

reasonable use. The trial court erroneously held that Elk needed to name

the defense in new matter. This Court has held otherwise. There is no need

to name an affirmative defense “if facts sufficient to constitute the defense

are pled.”   Iorfida v. Mary Robert Realty Co., 539 A.2d 383, 397 (Pa.

Super. 1988) (finding that a single paragraph of defendant’s new matter

sufficiently raised abandonment as an affirmative defense).         In this case,

Elk’s Answer and New Matter to Plaintiff’s First Amended Complaint, 8/1/12,

¶¶ 7, 38, and 39 plead that Elk acted “reasonably and in good faith at all

times,” that Elk has caused no material harm or injury to Village, and that

the   Susquehanna    River   Basin   Commission      (SRBC)   has   granted   Elk

consumptive water-use permits to use Elk Pond for snowmaking.              Taken

together, these paragraphs are “susceptible of the inference,” Iorfida, 539


                                     -8-
J-A07044-14


A.2d at 387, that the facts alleged, if true, constitute reasonable use of the

water in Elk Pond.4

       We additionally reject Village’s argument that Elk’s new matter

constitutes     insufficient    boilerplate    language        and     fails   to   satisfy

Pennsylvania’s      fact-pleading     standard.    It     is    true    that   boilerplate

allegations—without sufficient facts—constitute defective pleading. Pa.R.C.P.

No. 1019(a). However, a party must file preliminary objections to preserve

a claim that a pleading is insufficiently specific. Pa.R.C.P. No. 1028(a)(3). A

party who fails to file preliminary objections waives any challenge to the

specificity of that pleading.       Pa.R.C.P. No. 1032(a); see also 3 Goodrich

Amram 2d § 1028(b):2 (2014); Pergolini v. Lun, No. 080800249, 2012 WL

8530896, at *7 (Pa. C.P. Phila. June 27, 2012), aff’d sub nom., McNamara

v. Tseng, 75 A.3d 555 (Pa. Super. 2013) (unpublished memorandum).5

Because Village failed to file preliminary objections to Elk’s new matter,

Village cannot now challenge its factual specificity.
____________________________________________


4
  We need not address Elk’s argument that a plaintiff must prove
“unreasonable use” as opposed to the defendant proving “reasonable use.”
5
  Though Village cites Pergolini for the proposition that boilerplate language
constitutes insufficient fact pleading, the holding of Pergolini directly
contradicts Village’s position. In Pergolini, the defendants’ new matter
stated, “Defendant pleads any and all applicable defenses set forth in
[Pa.R.C.P. No.] 1030 which may apply to this case.” Pergolini, 2012 WL
8530896, at *7. The trial court ruled that the plaintiffs’ failure to file
preliminary objections waived their claim that the defense of license was
improperly raised. Id.



                                           -9-
J-A07044-14


       Turning to the merits, we hold that Elk put forth sufficient evidence to

overcome Village’s cross-motion for partial summary judgment.              For

example, Elk’s general manager testified in deposition that Elk Pond is fed

by, or eventually flows into, the East Branch of Tunkhannock Creek. Village

Cross-Motion for Partial Summary Judgment, 1/16/13, Ex. B., Deposition of

Gregg A. Confer, 1/11/12, at 40-46. Eric Roof, Compliance Manager for the

SRBC, testified that Elk Pond is an “on-stream” pond, i.e., a wide spot in a

stream, and that surface water flows into the pond, and eventually out of it

into the creek. Elk’s Memo of Law in Opposition to Village’s Cross-Motion for

Partial Summary Judgment, 4/11/13, Ex. C, Deposition of Eric Roof,

1/15/13, at 68, 77-78. The SRBC does not adjudicate property or riparian

rights, and therefore its issuance of permits is dispositive neither of the

nature of Elk Pond as a watercourse nor of the reasonableness of Elk’s use of

water under riparian law.6 Its issuance of permits, however, is sufficient to

raise a factual dispute that Elk Pond and, therefore, Village Lake, are part of

a watercourse that eventually drains into the Susquehanna River.

       To be entitled to reasonable use of the water in Village Lake, Elk had

the burden of proving that the water is flowing or tributary. We express no

opinion on whether Elk can meet that burden, but we find that factual issues
____________________________________________


6
  The compact establishing the SRBC disclaims any effect on the riparian law
of the signatory governments. 32 P.S. § 820.1, Susquehanna River Basin
Compact, art. 15.19.



                                          - 10 -
J-A07044-14


exist regarding (1) whether Elk Pond and Village Lake are land-locked bodies

of water or part of a flowing watercourse; and (2) if the latter is true,

whether Elk’s use of water is reasonable under riparian law. Therefore, the

trial court erred in granting Village’s cross-motion for summary judgment.

See Pa.R.C.P. No. 1035.2 (summary judgment inappropriate where factual

disputes exist); Hovis, 64 A.3d at 1081 (same).

      We turn next to Elk’s claim that the trial court erred in rejecting its

claim of a prescriptive easement to use the water in Village Lake.         “A

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

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

Walley v. Iraca, 520 A.2d 886, 889 (Pa. Super. 1987); see also

McNaughton Props., LP v. Barr, 981 A.2d 222, 225 n.2 (Pa. Super.

2009).   Moreover, the party asserting the easement must demonstrate

“clear and positive” proof. Walley, 520 A.2d at 889; see also Pittsburgh

& Lake Erie R.R. Co. v. Township of Stowe, 96 A.2d 892, 894 (Pa. 1953)

(“[A prescriptive easement] will be upheld only if there is clear and positive

proof of its existence[.]”). Permissive use defeats a claim of a prescriptive

easement. Morning Call, Inc. v. Bell Atl.-Pa., Inc., 761 A.2d 139, 143

(Pa. Super. 2000); see also Borens v. Krywoshyja, 184 A.2d 378, 380

(Pa. Super. 1962). The landowner has the burden of proving consent, but

only after the alleged easement holder proves the use was adverse, open,




                                    - 11 -
J-A07044-14


notorious, and continuous for 21 uninterrupted years. Walley, 520 A.2d at

889.

        The trial court ruled Elk could not establish that its use of Village Lake

was adverse. Trial Court Opinion, 5/6/13, at 10-13. The trial court found,

based on a photograph, that Village Lake did not exist prior to June 11,

1960, and that by letter sent on December 12, 1980, Village granted Elk an

indulgence to use Village Lake for snowmaking. Id. We agree with Village

that the trial court did not err in rejecting Elk’s prescriptive easement claim.

The 1980 correspondence7 shows that Village consented to Elk’s use of

Village Lake. Consent defeats a claim of adverse use. Therefore, Elk cannot

show that its use of Village Lake was adverse for the requisite 21 years.8

____________________________________________


7
    In pertinent part, the 1980 letter, as found by the trial court, states:

              With reference to the water in the lake, we had
              extensive damage to our docks last year, however,
              this year we have made provisions to unhook our
              docks and have them float so that they may rise or
              fall with the water level. We would be happy to
              work with you with whatever water we have
              that you need, providing it doesn’t weaken our
              damn [sic] by taking the pressure off of it or
              ruin our docks or kill our fish.

Trial Court Opinion, 5/6/13, at 9 (emphasis in original).
8
  We find no merit to Elk’s attempt to distinguish express consent from
indulgence. Either defeats the adverse element of a prescriptive easement
claim. See Walley, 520 A.2d at 889 (defendant obligated to present clear
and positive proof that use of plaintiff’s land was adverse to plaintiff’s
interests); see also Flannery v. Stump, 786 A.2d 255, 258-59 (Pa. Super.
(Footnote Continued Next Page)


                                          - 12 -
J-A07044-14



      Next, we address whether the trial court erred in rejecting Elk’s claim

of laches. A defendant raising laches must show “that because of delay in

enforcing a right, some change has occurred to the prejudice of the

defendant, which makes inequitable the enforcement of the plaintiff’s claim.”

Mariner v. Rohanna, 92 A.2d 219, 221 (Pa. 1951); see also In re Estate

of Aeillo, 993 A.2d 283, 287 (Pa. Super. 2010).

      The doctrine of laches:

      is an equitable doctrine which 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. 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.
      The question of laches is factual and is determined by examining
      the circumstances of each case. Prejudice in the context of a
      claim of laches means that the party must change his position to
      his detriment in order to invoke laches. Furthermore, laches is
      an equitable doctrine that should not be applied in favor of a
      person who has failed to take required action on his own.

In re Estate of Aiello, 993 A.2d 283, 288 (Pa. Super. 2010) (internal

citations omitted).

      Here, Elk had the burden to establish, by competent evidence in its

opposition to summary judgment, that Village’s delay in enforcing its water
                       _______________________
(Footnote Continued)

2001) (“[T]o establish a property right by prescription, the use upon which
it is based must be adverse to the rights of the owner of the land. If the
use is the result of some lease, license, indulgence, or special contract
given by the owner, it is not adverse.”) (first emphasis in original; second
and third emphases added) (quoting Margolin v. Pa. R.R. Co., 168 A.2d
320, 322 (Pa. 1961)).



                                           - 13 -
J-A07044-14



rights caused prejudice to Elk under circumstances that would make it

inequitable to enforce Village’s claim.

       The trial court concluded that Elk waived the defense of laches by

failing to plead it in new matter. Trial Court Opinion, 5/6/13, at 14. The

trial court was mistaken.        Elk in fact raised this defense in its defensive

pleadings. See Elk Mountain Ski Resort, Inc.’s Answer and New Matter to

Plaintiff’s First Amended Complaint, 8/1/12, ¶ 44 (“Plaintiff’s claims are

barred, in whole or in part, by the doctrine of laches.”).9

       The trial court’s error in finding this claim waived is harmless, since we

find, in any event, Elk did not meet its burden to establish its laches claim.

Elk maintains it was error to dismiss its laches claim because it spent

considerable effort and money creating its ski resort dependent upon water

from Elk Pond. Elk assets Village, aware of Elk’s efforts, sat on its purported

water rights for decades before seeking to enjoin Elk from using Village’s

water (which Elk denies).10 Elk claims it spent millions of dollars to install

snowmaking equipment specially tailored for Elk Pond.          Initially, we note

____________________________________________


9
   Village argues that Elk failed to satisfy Pennsylvania’s fact-pleading
standard by pleading no material facts in support of laches in new matter.
Village waived this argument by failing to file preliminary objections. See
the discussion concerning waiver of defects in a pleading by failure to file
preliminary objections, supra.
10
    Of course, should the fact-finder ultimately determine Elk is not using
Village’s water as Elk at times contends, Elk’s laches argument becomes
moot.



                                          - 14 -
J-A07044-14



that while Elk recites numerous general improvements to its snowmaking

operations, it falls short of demonstrating the extent to which these changes

related to its dependence upon use of water from Village Lake to sustain its

laches argument. Elk apparently draws water from several sources. More to

the point, Elk’s laches claim fails because, like its prescriptive easement

claim, Village’s consent or indulgence for Elk’s use of water, as reflected in

the 1980 letter, clearly stated Village was willing to work with Elk on water,

providing it does not weaken Village’s dam, ruin its docks, or kill Village’s

fish.   Elk was on notice since 1980 it did not possess an unfettered and

indefinite right to rely upon Village’s water. Village, in effect, informed Elk

should Village suffer adverse consequences from Elk’s drawing of water from

Village’s lake, it would object. Therefore, Elk did not demonstrate Village sat

upon and delayed enforcing its rights to establish the required prejudice to

support its laches claim under circumstances that would render enforcement

of Village’s claim inequitable.

        We finally address whether the trial court erred in rejecting Elk’s claim

that it had an irrevocable license to use the water in Village Lake. A license

is a “personal privilege to perform an act or a series of acts on the land of

another.” Kovach v. Gen. Tel. Co., 489 A.3d 883, 885 (Pa. Super. 1985).

A license may be written, but is usually oral.        Id.   Licenses are freely

revocable, and become irrevocable only when the licensee relies on it to his

detriment, by expending money, labor, or treating his property differently

because of the license.     Zivari v. Willis, 611 A.2d 293, 296 (Pa. Super.

                                      - 15 -
J-A07044-14



1992); see also Morning Call, 761 A.2d at 144 (“The Pennsylvania

Supreme Court adopted the equitable doctrine of irrevocable license in the

mid-nineteenth century stating that a license to do something on the

licensor’s land when followed by the expenditure of money on the faith of it,

is irrevocable, and is to be treated as a binding contract.”) (internal

quotation omitted). The use of water in a stream can be the subject of a

license. Thompson v. McElarney, 82 Pa. 174, 177-78 (1876). Irrevocable

license is an affirmative defense. Pa.R.C.P. No. 1030(a). As such, it must

be pleaded in new matter, or it is waived. Pa.R.C.P. No. 1032(a); Iorfida,

539 A.2d at 386.

       The trial court correctly concluded that Elk waived the affirmative

defense of irrevocable license by failing to plead it in new matter. Although

Elk directs this Court’s attention to three paragraphs of its new matter, none

of those paragraphs—or indeed any of Elk’s pleadings—mentions irrevocable

license.   Iorfida, discussed supra, does not apply, because there are no

facts and no legal conclusions pleaded that could plausibly support a defense

of irrevocable license.       By failing to plead this affirmative defense, Elk

waived this potential defense.11
____________________________________________


11
    Assuming, arguendo, that Elk did not waive its claim of irrevocable
license, summary judgment was proper. The justifiable reliance necessary
to make a license irrevocable requires proof that (1) reliance was after the
grant of a license; (2) the licensee cannot be restored to his original
position; (3) and the expenditures outweigh the benefits. See Buffington
v. Buffington, 568 A.2d 194, 200-01 & n.7 (Pa. Super. 1989). Elk failed to
(Footnote Continued Next Page)


                                          - 16 -
J-A07044-14



      Having reviewed the briefs and record, we conclude that the trial court

erred in granting summary judgment to Village on Elk’s claim that it is an

upper riparian owner with the right of reasonable use of water from Village

Lake for snowmaking. The trial court correctly granted summary judgment

on Elk’s remaining claims of prescriptive easement, laches, and irrevocable

license.12   Accordingly, we affirm in part, vacate in part, and remand for

further proceedings.

      Order affirmed in part and vacated in part.          Case remanded.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/14/2014




                       _______________________
(Footnote Continued)

meet its burden of showing justifiable, detrimental reliance. Aside from
general statements that use of Village Lake allowed Elk to improve its
snowmaking operations, no evidence of record exists as to when Elk made
improvements, how much they cost, whether they were related to the water
drawn from Village Lake, or whether Village knew about them. Thus, Elk
failed to present prima facie evidence of justifiable reliance.
12
   Given our disposition, we do not need to address at this time Elk’s
argument that the trial court’s injunction is too vague.



                                           - 17 -
