J   -A06011-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    KEEGAN LAND DEVELOPMENT CORP.          :   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA

                 v.


    JAMES LAGANA ; LAGANA
    CONSTRUCTION SERV.; LAGANA
    ENTERPRISES; JIM LAGANA                :   No. 880 MDA 2018
    PLUMBING & HEATING CO.; LAGANA
    SUPPLY CO., INC., HAZELTON CITY
    WATER DEPARTMENT AND BARBARA
    CARMADELLA,


    APPEAL OF: JAMES LAGANA;
    LAGANA CONSTRUCTION SERV.;
    LAGANA ENTERPRISES; JIM LAGANA
    PLUMBING & HEATING CO.; LAGANA
    SUPPLY CO.,INC.

                  Appeal from the Order Entered April 27, 2018
     In the Court of Common Pleas of Luzerne County Civil Division at No(s):
                                   2006-2995

BEFORE:      OTT, J., NICHOLS, J., and PELLEGRINI*, J.

MEMORANDUM BY OTT, J.:                              FILED AUGUST 12, 2019

        James Lagana, Lagana Construction Serv., Lagana Enterprises, Jim

Lagana Plumbing & Heating Co., and Lagana Supply Co., Inc. (collectively

"Lagana"), appeal the order entered April 27, 2018, in the Luzerne County

Court of Common Pleas, enjoining Lagana from any future obstruction of the

use of an easement by Keegan Land Development Corp. ("Keegan") without

its express consent.      On appeal, Lagana argues the trial court erred in

determining: (1) the easement did not transfer to Lagana when he purchased


      Retired Senior Judge assigned to the Superior Court.
J   -A06011-19



the property from the original grantees; (2) Lagana was not an assign of the

original grantees; and (3) Lagana was not entitled to summary judgment

when Keegan failed to describe the encroachment with the required degree of

specificity. For the reasons below, we affirm the order of the trial court, albeit

on a different basis, and remand for     further proceedings.'
            We have garnered the facts and procedural history underlying this

dispute from the trial court's opinion, Keegan's complaint, and the trial

transcript. See Trial Court Opinion, 4/27/2018, at 5-7; Complaint 8/17/2016,

at   1111   7-35; N.T., 10/25/2017, at 1-129. In June of 1965, Keegan purchased

a    48.51 acre parcel of land, located in Hazle and Butler Townships, Luzerne

County, from Arthur and Edna Hess.           Most of the parcel is situated over   a

mountainside. The western border of the property sits east of         a   pavement

now identified as Gabriel Street. Dominick and Ann Matonte owned the parcel

of land adjacent to that western boundary of the Keegan property.2             On

December 6, 1976, Keegan granted to the Matontes, as well as "their heirs

and assigns, the perpetual right-of-way and easement" over .303 acres of its

land for "ingress, egress, and regress." Grant of Right -of -Way, 12/6/1976.

The trial court described the easement as "twenty (20) feet by six -hundred



' "This Courtcan affirm the trial court on any valid basis." D.G. v. D.B., 91
A.3d 706, 712 n.3 (Pa. Super. 2014).

2The Matontes are the aunt and uncle of John Keegan, who is Vice President
and a shareholder of Keegan Land Development Corporation. See N.T.,
10/25/2017, at 10.

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sixty (660) feet along the western boundary of [Keegan's] parcel adjacent to

the parcel owned by [the Matontes]" and extending in "a northerly direction

from what      is now   the intersection of Center Street and Gabriel Street." Trial

Court Opinion, 4/27/2018, at 5. Although the easement was not paved when

it was granted, the Matontes subsequently improved the easement "into                a

twenty (20) foot wide dirt road." Id. at 6.

         On May 31, 1988, the Matontes deeded two parcels of land to Lagana,3

including the parcel bordering Keegan's property. There          is no   mention of the

easement in the deed.          See id.        Hazle Township later paved part of the

easement, which it is now identified as Gabriel Street, from the intersection

of Center Street to the intersection of Schan Street.          Lagana subdivided his

property and constructed townhomes. He later paved the portion of Gabriel

Street from Schan Street to forty feet beyond North Butler Terrace to provide

access for the townhomes.         See id.; N.T., 10/25/2017, at 83-88. It merits

mention that in subsequent deeds granted to the various Lagana enterprises,

and in   a   plot plan submitted to the Butler Township Zoning Commission, the

right-of-way was described as being 30 feet wide, rather than 20 feet wide.4

See Complaint, 8/17/2006, at           1111   18-21.   Furthermore, in 2003, Lagana



3 The Matontes are also the aunt and uncle of James Lagana, who is the
President of the Lagana companies that are named in this appeal. Lagana and
Keegan are cousins. See N.T., 10/25/2017, at 75, 78.

4 At trial, Lagana admitted that was an error, and the easement was only 20
feet wide. See N.T., 10/25/2017, at 88-89.


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granted the Hazelton Water Authority         a   perpetual easement and right-of-way

in    the 20 -foot easement to         provide water service to the townhome

developments. See id. at Exhibit G, Grant of Perpetual Easement and Right -

Of -Way, 2/13/2003.       The water authority later installed water lines under

Gabriel Street and repaved the land. See Trial Court Opinion, 4/27/2018, at

7.    "A manhole was [also] built into the paved easement now identified as

Gabriel Street to allow Keegan [] access should it choose to develop the parcel

that it owns." Id.

        Keegan initiated this action by writ of summons filed on March 13, 2006.

On August 17, 2006, Keegan filed a complaint in               ejectment, seeking an order

directing Lagana to remove the paved portion of the easement, as well as

landscaping      and   parking     spaces   obstructing        the right-of-way.5     See

Complaint, 8/17/2006, at 9. It also sought an order enjoining Lagana from

"any future obstruction    ...   of Keegan's use of the easement over the Keegan's

parcel."   Id.   The case finally proceeded to        a   non -jury trial on October 25,

2017. On April 26, 2018, the trial court entered          a   decision in favor of Keegan.

Specifically, the court concluded: (1) it could "generally geographically place

the adjacent Keegan Parcel and Matonte Parcel" and the parties do not dispute




5The Complaint also named the water authority and an individual residing at
421 North Butler Terrace as defendants.      However, neither of these
defendants are still a part of this action.



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the easement "is located on Keegan's land[;]"6 (2) the easement was not

described or incorporated in the deed Lagana received from the Matontes;7

(3) Lagana is not an heir of the Matontes and was not an assign of the

easennent;8 (4) because "Lagana held no rights to the [e]asement," its actions

in paving Gabriel     Street and granting   a   sub -easement to the water authority

were "improper[;]"9 however, (5) because Keegan failed to produce          a   survey

establishing how much, if any, Lagana encroached onto Keegan's property

beyond the easement, it could not determine damages.1° Consequently, the

court entered the following order:

        AND NOW, this 26th day of April, 2018, it is hereby ORDERED and
        DECREED as follows:

             1. The Court hereby ENJOINS any future obstruction by the
             Lagana Defendants of Keegan's use of the Easement over
             the Keegan Parcel without Keegan's express consent.
             2. A hearing to determine the valuation of damages in this
             matter is hereby scheduled to occur [] August 1, 2018 at
             9:00 a.m. ...
Order, 4/26/2018.




6   Trial Court Opinion, 4/27/2018, at 9-10.

    See id. at 11.

8   See id. at 11-12.

9   Id. at   12.

1°   See id. at 13.



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        Lagana filed      a   motion for clarification and/or reconsideration on May 3,

2018, and     a   supplemental thereto on May 8, 2018. However, before the trial

court ruled on his motion, Lagana filed           a   notice of appeal on May 25, 2018.11

The court later denied the motion on May 29, 2018.

        Before we may address the substantive issues on appeal, we must first

consider whether the order before us is appealable. "Although no party has

challenged our jurisdiction on such grounds, we may always review our

jurisdiction sua sponte."           See Barak v. Karolizki, 196 A.3d 208, 215 (Pa.

Super. 2018).

        Generally, an appeal lies only from            a   final order. See id. See also

Pa.R.A.P. 341(b)(1) (a final order "disposes of all claims and of all parties").

The order at issue is not final because it scheduled              a   valuation of damages

hearing for       a   future date. Nevertheless, we find the court's April 26, 2018,

order   is   appealable pursuant to Pa.R.A.P 311.              Rule 311 allows   a   party to

appeal certain otherwise interlocutory orders as of right, including orders

involving     injunctions.        See Pa.R.A.P. 311(a)(4).            Specifically, the rule

provides:

        (4) Injunctions. --An order that grants or denies, modifies or
        refuses to modify, continues or refuses to continue, or dissolves
        or refuses to dissolve an injunction unless the order was entered:



11                       trial court ordered Lagana to file a concise statement
     On June 21, 2018, the
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Lagana
complied with the court's directive, and filed a concise statement on July 12,
2018.


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           (ii) After a trial but before entry of the final order. Such
           order is immediately appealable, however, if the order
           enjoins conduct previously permitted or mandated or
           permits or mandates conduct not previously mandated or
           permitted, and is effective before entry of the final order.
Pa.R.A.P. 311(a)(4)(ii). Because we conclude the court's April         26,2018, order
"enjoin[ed] conduct previously permitted" as set forth       in Rule   311(a)(4)(ii), it
was immediately appealable as of right. Accordingly, we proceed to review

the issues raised by Lagana on appeal.

        Preliminarily, we note that when considering     a   decision by   a   trial court

sitting without   a   jury our scope of review   is

           limited to a determination of whether the findings of the trial
           court are supported by competent evidence and whether the
           trial court committed error in the application of law.
           Findings of the trial judge in a non -jury case must be given
           the same weight and effect on appeal as a verdict of a jury
           and will not be disturbed on appeal absent error of law or
           abuse of discretion. When this Court reviews the findings of
           the trial judge, the evidence is viewed in the light most
           favorable to the victorious party below and all evidence and
           proper inferences favorable to that party must be taken as
           true and all unfavorable inferences rejected.
        Since this is an action in ejectment, plaintiffs carried the burden
        of establishing [their case] by a preponderance of the evidence....
Croyle v. Dellape, 832 A.2d 466, 470-471 (Pa. Super. 2003) (citations
omitted). Furthermore, we note that:

        In construing a deed or a contract, certain general principles must
        be kept in mind. First, it is the intention of the parties at the time
        of entering in thereto that governs, and such intention is to be
        gathered from a reading of the entire contract. In addition,
        'Contracts must receive a reasonable interpretation, according to

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        the intention of the parties at the time of executing them, if that
        intention can be ascertained from their language...."

Southall      v.   Humbert, 685 A.2d 574, 577              (Pa. Super. 1996) (quotation

omitted).

         In his first issue, Lagana argues the trial court erred when it determined

the right-of-way Keegan granted to the Matontes was an easement in gross

as opposed to an easement appurtenant. See Lagana's Brief at 11.

        The Pennsylvania Supreme Court has described an easement in gross

as follows:

        An easement in gross is defined as a mere personal interest in the
        real estate of another. The principal distinction between it and an
         easement appurtenant is found in the fact that in the first there
         is, and in the second there is not, a dominant tenement. The
         easement is in gross, and personal to the grantee, because it is
         not appurtenant to other premises. The great weight of the
         authorities supports the doctrine that easements in gross,
         properly so called because of their personal character, are not
         assignable or inheritable, nor can they be made so by any terms
         in the grant [].

Lindenmuth         v. Safe   Harbor Water Power Corp.,             163 A. 159, 160 (Pa.

1932). "An easement in gross          is a    mere personal interest in, or right to use,

the land of another." Loughran v. Matylewicz, 81 A.2d 879, 881 (Pa. 1951).

See also     7   Summ. Pa. Jur. 2d Property        §   18:3 (2d ed. 2019) ("An 'easement

in   gross' is an easement with   a    servient estate but no dominant estate [and]

is a   mere personal interest in, or   a     right to use, the land or water of another.")

(footnote omitted).




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         Conversely,   a       prerequisite to the creation of an easement appurtenant

is   the "[e]xistence of       a   servient tenement for the beneficial use of    a   dominant

tenement[.]" Brady v. Yodanza, 425 A.2d 726, 727                   (Pa. 1981).

        In determining whether a particular easement created by grant is
        or is not appurtenant to land, two matters must be considered-
        the nature of the right and the intention of the parties. In the first
        place, it is a rule that nothing can be appurtenant unless it agrees
        in nature and quality with the thing to which it is claimed to be
        appurtenant. ... In addition, the easement must bear some
        relation to the use of the dominant estate. A right not connected
        with the enjoyment or use of a parcel of land granted cannot be
        annexed as an incident to that land, so as to become appurtenant
        to it.
Lindenmuth, supra, 163                A. at 161. Moreover,   "[m]any cases recognize that
where an easement          is      annexed as an appurtenance to land   ...   it passes with   a

transfer of land although not specifically mentioned in the instrument of

transfer." Brady, supra, 425 A.2d at 728.
        Here, the grant of right-of-way executed by Keegan in favor of the

Matontes described         a    .303 acre parcel of Keegan's land (20 feet by 660 feet)

that bordered the Matontes' property.                   The document stated that, in

consideration for one dollar, Keegan

        does grant to DOMINICK MATONTE and ANN MATONTE, his wife,
        their heirs and assigns, the perpetual right-of-way and easement
        at any and all times hereafter to ingress, egress and regress over
        [a specific] parcel of land situate in Hazle and Butler Townships,
        including the right to make passable said right-of-way[.]
Grant of Right -Of -Way, 12/6/1976.

        The trial court did not explicitly determine whether the easement was in

gross or appurtenant to the property.                However, our review of its opinion

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reveals the court found the easement was intended only for the benefit of the

Matontes, and did not pass with the land; in other words, the right-of-way at

issue was an easement in gross.           Indeed, the court determined "Keegan

granted the Matontes, their heirs and assigns, rights of ingress, egress and

regress over the [e]asement."           Trial Court Opinion, 4/27/2018, at 10.

However, it found the easement was not described in the deed transferring

the land to Lagana, nor did the Matontes specifically convey an assignment of

the easement to him. See id. at 11-12. Furthermore, it             is   undisputed Lagana

is   not an heir of the Matontes. See id. at 12. Based upon these findings, the

court concluded the easement was personal to the Matontes (in gross), and

did not pass with the land when it was sold to Lagana (appurtenant).                  We

agree with Lagana that this conclusion was in error.

        Here, the easement was adjacent to        a   dominant (Matonte) and servient

(Keegan) estate.      Although the agreement named the Matontes, their heirs

and assigns, as the grantees, it provided for "the        perpetual right-of-way     and

easement at any and all times hereafter to ingress, egress and regress"

over   a   defined parcel of land.   Grant of Right -of -Way, 12/6/1976 (emphasis

supplied). The description of the easement specifically referenced that it ran

"along the lands of Dominic Matonte[.]"       Id. There     is   nothing in the language

of the right-of-way that indicates it was intended to be for the sole personal

use of the Matontes, and not attached to the land.

        We note, however, John Keegan did testify the            "right-of-way" was not
granted out of necessity, because the Matontes had access to their property

                                         - 10 -
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on the west side of their parcel.       See N.T., 10/25/2017, at 17. Rather, he

claimed       "[i]t   was just meant to be   a   right-of-way of convenience"     so the

Matontes could "access their property" on the eastern side.                 Id. at   20.

Regardless, the right-of-way, as granted, did not provide for the private or

exclusive use of the Matontes. Indeed, the language in the grant creating               a

"perpetual right-of-way and easement at any and all times hereafter" supports

the assertion that the easement was created in perpetuity attached to the

land. Grant of Right -of -Way, 12/6/1976.

          A comparison of the facts in the       Miller   v.   Lutheran Conference &
Camp Ass'n, 200 A. 646 (Pa. 1938), which concerned an easement in gross,

is   instructive. In that case, Frank Miller and his brother Rufus Miller owned

lands on Tunkhannock Creek.           They, along with other landowners, created

Pocono Spring Water Ice Company ("the corporation").                   The corporation

erected       a   dam on the Creek, which then formed Lake Naomi. See id. at 647-

648.      The organizers leased their land along the newly formed lake to the

corporation for "exclusive use of the water and its privileges[,]" that is, for

"pleasure, boating, skating, fishing and the cutting, storing and selling of ice."

Id. at 648. Thereafter, the corporation granted           to Frank Miller, "his heirs and

assigns forever, the exclusive right to fish and boat in all the waters of said

corporation at Naomi." Id. Frank Miller later granted to his brother, Rufus

Miller,   a   one-fourth interest in the fishing, boating and bathing privileges. He

did this in conjunction with the creation of        a   business partnership, which the

brothers used to operate and maintain bath and boat houses along the lake.

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See id. After Rufus Miller's death, the partnership was terminated, and each

of the brothers (or their heirs) granted licenses to others for the use of the

lake.    At issue was   a   license Rufus Miller's estate ("the estate") granted to

Lutheran Conference and Camp Association, which owned land abutting the

lake, to give its members permission to boat, bathe and fish in the lake. See

id. Frank Miller and his wife, Katherine, sought an injunction to prevent the
Association from trespassing, and in particular bathing, in the lake.

        While the issues on appeal concerned whether the original easement

included bathing rights and whether the rights granted in the easement were

divisible,12 for our purposes, we note the Court found the rights obtained by

Frank Miller from the corporation were granted as an easement in gross. See

id. at 650. The Court explained: "[T]hese rights, not having been granted           in

connection with, or to be attached to, the ownership of any land, were not

easements appurtenant but in gross."        Id. Indeed,     Frank Miller obtained from

the corporation the exclusive right to fish and boat in the lake. However, he

did not obtain those rights because he had an abutting property; he obtained

the rights to operate   a   boating and bathing business on the lake. Conversely,

in   the present case, the Matontes obtained      a   right-of-way from Keegan for the



12 We note the Court ultimately held Frank Miller obtained bathing rights by
prescription, and the easement in gross he obtained from the corporation was
assignable. See Miller, supra, 200 A. at 650-651. However, the Court also
held that while Frank Miller could assign part of his interest to Rufus Miller,
neither had the authority to sub -license their rights: "[T]hey should be utilized
in common and not by two owners severally, [as] this was evidently the
intention of the brothers." Id.
                                         - 12 -
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sole purpose of eastern access to their property.               Unlike in Miller, the

easement herein was granted "in connection with" and "attached to" the

Matontes' ownership of abutting land.                 Miller, supra, 200   A.   at 650.

Accordingly, we agree the trial court erred in determining the right-of-way

constituted an easement in gross, personal only to the Matontes.

           In his second issue, Lagana contends that because the right-of-way was

an easement appurtenant,            "it   passed by operation of law to [him] as

purchaser[] of the dominant estate." Lagana's Brief at 14. Again, we agree.

        The trial court concluded "Lagana held no rights to the [e]asement"

because he was not an heir or assign of the Matontes, and the easement was

not incorporated in the deed conveyed by the Matontes to Lagana. Trial Court

Opinion, 4/27/2018, at 10-12. However, that conclusion was dependent upon

the court's finding that the right-of-way granted by Keegan was personal to

the Matontes, i.e., an easement in gross. We have found that determination

to be incorrect. Moreover, as noted above, an easement appurtenant "passes

with   a    transfer of land although not specifically mentioned in the instrument

of transfer." Brady, supra, 425 A.d at 728. Accordingly, we conclude Lagana

obtained the right to use the easement when he purchased the Matontes'

property.

           In his third issue, Lagana asserts the trial court erred in refusing to grant

summary judgment or dismiss the action when Keegan failed to "describe the

encroachment with the required degree of specificity." Lagana's Brief at 17.

By way of background, Lagana filed             a     motion for summary judgment on

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October 10, 2017, two weeks before trial.              He asserted      that Keegan's

allegations of encroachment were based upon             a   purported 30 -foot wide

easement Lagana granted to the water authority, when the easement at issue

was only 20 feet wide.          See Lagana's Motion for Summary Judgment,

10/10/2017, at      ¶ 10.   Lagana insisted Keegan failed to provide an "adequate

description" of the alleged 10 -foot encroachment. Id. at      ¶    21. The trial court

denied the motion without opinion on October 17, 2017.

        We find no error or abuse of discretion on the part of the trial court.

Indeed, 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." Krepps v. Snyder, 112

A.3d 1246, 1258 (Pa. Super. 2015) (quotation omitted), appeal denied, 125

A.3d 778 (Pa. 2015).         Here, the pretrial record did not "clearly" show that

Keegan could not establish the 10 -foot encroachment during trial.

        As for the second part of Lagana's claim, we also do not find Keegan's

failure to establish the 10 -foot encroachment constituted      a   basis for dismissal

of its entire claim. We note the trial court did find "Keegan fail[ed] to produce

a   survey establishing precisely how much, if any, pavement encroaches onto

the Keegan [p]arcel beyond the [e]asement's boundaries."                   Trial Court

Opinion, 2/27/2018, at 13.          Moreover, the court's opinion suggests that

Keegan may present evidence of this encroachment at the future damages

hearing. To the extent the court's decision allowed Keegan to have "another

bite of the apple" to demonstrate the 10 -foot encroachment by survey, we

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find the court erred.       Nonetheless, as will be discussed infra, the court may

grant other relief.

        Despite the fact we find several of the trial court's rulings to have been

in   error, we affirm the order on appeal. Lagana's right to make use of the

easement was still subject to the terms of the easement itself. The easement

provided the grantees with the right to "ingress, egress and regress" over the

specified parcel of land, "including the right to make passable said right-of-

way." Grant of Right -of -Way, 12/6/1976. Furthermore, it         is   well -settled that

"the owner of land, who grants      a   right of way over it, conveys nothing but the

right of passage, and reserves all incidents of ownership not granted." Dyba

v.   Borowitz,    7   A.2d 500, 501 (Pa. Super. 1939). Accordingly, as much as

Keegan could not interfere with Lagana's right-of-way, Lagana could not make

use of the easement for any purposes not explicitly granted in the right-of-

way.

        As noted above, the 10 -foot encroachment constituted only part of

Keegan's claim.        In its complaint, Keegan sought an order directing Lagana

to, inter a/ia:       (1) "remove the paved portion of the paved road along the

common boundary of the two parcels;" (2) "remove landscaping and parking

spaces on the right-of-way, currently obstructing the right of way;" and (3)

"remove the encroachment of large rocks, fill and/or debris from Keegan's

land." Complaint, 8/17/2006, at 9. To the extent these actions interfered

with Keegan's use of the parcel, and/or exceeded the rights granted in the

right-of-way, Keegan may be entitled to damages and/or equitable relief, such

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as the removal of the obstructions.          We leave this determination to the trial

court upon remand.

         Accordingly, we affirm the order on appeal, which, in essence, simply

enforced the terms of the easement. Indeed, the order enjoined Lagana from

any "future obstruction     ...     of Keegan's use over the [e]asement     ...   without

Keegan's express consent." Order, 4/26/2018. Although the court concluded

Lagana had no right to use the easement, it did not include that specific finding

in its   final order.13 Because the court did not determine what damages, if any,

Keegan was entitled to as       a   result of Lagana's obstruction of the right-of-way,

we remand this case for     a     damages hearing.1-4

         Order affirmed.   Case remanded for         further proceedings. Jurisdiction
relinquished.




13Indeed, the order, as filed, did not enjoin Lagana from using the right-of-
way.

14We note the trial court found Lagana's paving of the easement was improper
because it had concluded Lagana did not have any rights in the easement. As
noted above, we found that determination to be in error. Moreover, because
the specific language in the easement included "the right to make passable
said right-of-way," we find Lagana's paving of the easement, now known as
Gabriel Street, to be permissible under the specific terms of the right-of-way.
Grant of Right -of -Way, 12/6/1976 (emphasis supplied).
                                            - 16 -
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Judgment Entered.




  seph D. Seletyn,
Prothonotary


Date: 08/12/2019




                     - 17 -
