J-A23043-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 MARK J. ROTH AND MICHELLE A.              :   IN THE SUPERIOR COURT OF
 ROTH, HUSBAND AND WIFE,                   :         PENNSYLVANIA
                                           :
                    Appellants             :
                                           :
                                           :
              v.                           :
                                           :
                                           :
 RICHARD B. MARSHALL, BRYCE C.             :
 MARSHALL AND RICHARD B.                   :
 MARSHALL, II                              :        No. 563 WDA 2019

               Appeal from the Judgment Entered April 3, 2019
                in the Court of Common Pleas of Blair County
                    Civil Division at No(s): 2017 GN 3490

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                      FILED NOVEMBER 21, 2019

      Mark J. Roth and Michelle A. Roth, husband and wife (collectively, “the

Roths”), appeal from the judgment entered against them and in favor of

Richard B. Marshall, Bryce C. Marshall and Richard B. Marshall, II (collectively,

the Marshalls”). We affirm.

      The trial court set forth the facts underlying the instant appeal in its

April 3, 2019, Opinion, which we adopt for the purpose of this appeal. See

Trial Court Opinion, 4/3/19, at 3-26.

      On December 15, 2017, the Roths filed a Complaint for Injunctive Relief,

alleging that the Marshalls had interfered with the flow of water, which ran

through a pipe, onto the Roths’ property. The Marshalls filed an Answer, New

Matter and Counterclaim. Following a non-jury trial, the trial court found in
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favor of the Marshalls and against the Roths.        The Roths filed Post-Trial

Motions, which the trial court denied. After the entry of Judgment, the Roths

filed the instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b)

Concise Statement of matters complained of on appeal.

      The Roths present the following claims for our review:

      I.    Whether the [trial] court erred by failing to enforce [the
            Roths’] water rights under the deed of November 16, 1927,
            which prohibited the grantors, their successors and assigns,
            from diverting the stream of water flowing to the lands
            conveyed under the deed?

      II.   Whether the [trial] court erred by failing to find that [the
            Roths] were entitled to an injunction as a matter of law, as
            the enforcement of a restrictive covenant cannot be
            compensated by monetary damages[,] and the [Roths] had
            otherwise satisfied the requirements for injunctive relief?

See Brief for Appellant at 4.

      We keep in mind the applicable standard of review:

      In equity matters, appellate review is based on a determination
      by the appellate court of such questions as whether (1) sufficient
      evidence supports the findings of the judge; (2) the factual
      inferences and legal conclusions based on those findings are
      correct; and (3) there has been an abuse of discretion or an error
      of law. Generally, in an appeal from a trial court sitting in equity,
      the standard of review is rigorous. The function of this Court on
      an appeal from an adjudication in equity is not to substitute its
      view for that of the lower tribunal; our task is rather to determine
      whether a judicial mind, on due consideration of all of the
      evidence, as a whole, could reasonably have reached the
      conclusion of that tribunal.

Omicron Sys., Inc. v. Weiner, 860 A.2d 554, 557-58 (Pa. Super. 2004)

(citation and internal quotation marks omitted). Moreover, we are “bound by

the trial court’s determination concerning the credibility of witnesses and

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weight to be accorded the evidence.” Marchetti v. Karpowick, 667 A.2d

724, 726 (Pa. Super. 1995) (citation omitted).

      “[W]hen reviewing the grant or denial of a final or permanent injunction,

an appellate court’s review is limited to determining whether the trial court

committed an error of law.” Buffalo Twp. v. Jones, 813 A.2d 659, 663-64

(Pa. 2002).

      Ultimately, the grant or denial of a permanent injunction will turn
      on whether the trial court properly found that the party seeking
      the injunction established a clear right to relief as a matter of law.
      Accordingly, … appellate review in these cases is whether the
      lower court committed an error of law in granting or denying the
      permanent injunction. Our standard of review for a question of
      law is de novo. Our scope of review is plenary.

Id. at 664 n.4 (citations omitted).

      The Roths first claim that the trial court erred by failing to enforce their

water rights, as described under a November 16, 1927, deed (“the 1927

Deed”).   Brief for Appellant at 12.    The Roths assert that the 1927 Deed

prohibited the grantors, their successors and assigns from diverting a stream

of water flowing to the lands conveyed under the deed, including the property

that is now theirs. Id. The Roths argue that the lack of the covenant in their

own deed does not defeat their rights, as their rights were previously recorded

in the chain of title. Id. at 12-14. The Roths further contend that the lack of

a metes and bounds discription does not defeat their claim, as the Marshalls

have never disputed the location of the stream. Id. at 14. In addition, the

Roths take issue with the trial court’s differentiation between the natural flow


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of the stream, and the “manmade” portions, as the 1927 Deed made no such

differentiation. Id. at 15. The Roths also dispute the trial court’s conclusion

that they merely have a license to the water from the stream. Id. at 16.

      In its Opinion filed on October 29, 2018, the trial court determined that

the 1927 Deed reserved for the grantors, not the grantees, the perpetual use

of the water. See Trial Court Opinion, 10/29/18, at 21-23. The trial court

further concluded that, “[b]ecause no document of record in [the Roths’] chain

of title grants them any right to divert water from [the Marshalls’] property to

their own for personal uses, their claim is barred by the affirmative defense of

[the] Statute of Frauds, 33 P.S. § 1 ….” Id. at 23.

      In its Amended Opinion filed on April 3, 2019, the trial court additionally

analyzed the language set forth in the 1927 Deed, and the evidence presented

by the parties. See Trial Court Opinion, 4/3/19, at 26-30. Based upon this

analysis, the trial court ultimately concluded that the Roths were not entitled

to injunctive relief, as they “have not met their burden of establishing that

they are entitled to claim any rights in the water flowing through [the

Marshalls’] property and, as a result, their request for injunctive relief must

be denied.” See id. at 36. We agree with the sound reasoning of the trial

court, as set forth in its October 29, 2018, and April 3, 2019 Opinions, and

affirm on this basis with regard to the Roths’ first claim.     See Trial Court

Opinion, 10/29/18, at 21-23; Trial Court Opinion, 4/3/19, at 26-36.




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      The Roths next claim that the trial court improperly failed to enforce the

restrictive covenant contained in the 1927 Deed and denied them injunctive

relief. Brief for Appellant at 17. The Roths assert that the Marshalls’ act of

terminating the flow of water to their property constituted a violation of the

restrictive covenant.     Id.   However, as we agree with the trial court’s

determination that there was no violation of the restrictive covenant, the

Roths are not entitled to relief on this claim.

      Judgment affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/2019




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