J.A22032/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


DOUGLAS A. AND TAMMY J. KEHR                :     IN THE SUPERIOR COURT
LIVING TRUST                                :          PENNSYLVANIA
                                            :
                          Appellants        :
                                            :
                    v.                      :
                                            :
                                            :
LARRY W. AND JOYCE J. GRISSINGER,           :
                                            :
                                            :     No. 296 MDA 2014


                Appeal from the Order Entered January 31, 2014
              In the Court of Common Pleas of Huntingdon County
                        Civil Division No(s).: 2012-1117

BEFORE: PANELLA, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                    FILED NOVEMBER 24, 2014

        Appellant, the Douglas A. Kehr and Tammy J. Kehr Living Trust,

appeals from the order entered in the Huntingdon County Court of Common

Pleas, which: (1) set aside its November 1, 2013 order granting Appellant an

easement by necessity over the land owned by Appellees,              Larry W.

Grissinger and Joyce J. Grissinger;       and (2) dismissed the action.   We

reverse.

        The trial court summarized the facts and procedural posture of this

case as follows:



*
    Former Justice specially assigned to the Superior Court.
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           This action was filed by [Appellant] to obtain an
        easement by necessity across the property of [Appellees].

            The case was tried to the [c]ourt August 19, 2013. On
        October 11, 2013, the [c]ourt granted [Appellant] the
        relief [requested].

                                *    *    *

           We rehearse here only the facts that are essential to
        the issue on appeal. They are:

        1. [Appellant] and [Appellees] own contiguous tracts of
        real estate located in Springfield Township, Huntingdon
        County,    and    Taylor   Township,   Fulton   County,
        Pennsylvania.

        2. The two (2) properties were a part of a larger tract of
        land warranted in the name of Jesse Head November 10,
        1792, and subsequently acquired by Thomas Wilson.

        3. Mr. Wilson conveyed seventy (70) acres of the property
        in 1868 to Miles Brown.

        4. [Appellees] own this tract today.

        5. Thomas Wilson conveyed forty-one (41) acres to
        [Appellant’s] predecessor in title Henry Wilson in 1880.

        6. [Appellant’s] property is and has at all time since
        it was conveyed to Henry Wilson landlocked as it is
        without access to a public road.

Trial Ct. Op., 3/21/14, at 3 (emphasis added).

     At trial Appellant called Kirby D. Lockard, a licensed land surveyor.

The parties accepted him as an expert. N.T., 8/19/13, at 2. He testified:

        [Counsel for Appellant]: Did you . . . effect a title search
        on and go back to the original warrants in this matter.

        A: Yes.



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                                  *    *    *

         This is a copy from the Pennsylvania Historic Museum
         Commission’s website of the Jesse Head warrant.

                                  *    *    *

         Q: . . . When you researched this, which parcel came out
         of the warrant first?

         A: [Appellees’] tract.

                                  *   *     *

         Q: [Appellees’ tract] and that was conveyed to whom on
         what date?

         A: To Miles Brown, March 26, 1868.

         Q: And then what parcel came out second?

         A: [Appellant’s] tract, which was to Henry Wilson in 1880.

         THE COURT: . . . [W]ho was the grantor in those two
         deeds?

         THE WITNESS: Thomas Wilson was the common
         grantor.

N.T. at 10, 11, 12.

      Appellant contends that “counsel stipulated on the record that unity of

title existed with respect to the parties properties.”   Appellant’s Brief at 15.

The trial court also refers to the following exchange which occurred at trial

as a “stipulation.” See Mem., 10/11/13, at 10.

         The Court: [Counsel] do you have any argument that
         there was, in fact, unity of title in Thomas Wilson?

         [Counsel for Appellees]: No, Your Honor.



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         The Court: So the requirement that [Appellant] prove
         unity of title has been met?

         [Counsel]: That particular element.

         The Court: What did you say?

         [Counsel]: That’s one element, yes.

Id. at 14.

      Mr. Lockard testified that the property was landlocked.

         Q: Did you find any grant of right─of─way to [Appellant’s]
         property?

         A: No.
                                 *        *       *

         [Counsel for Appellant]: [Mr. Lockard], at the time of the
         severance of [Appellees’] property from the larger
         tract, did [Appellant’s] property become landlocked
         at that point in time?

         A: It had no access to a public road, yes.

         Q: And we’ve already gone over it that McKinley Road[1] is
         the closest public road─township road to the property?

         A: Yes.

         Q: Now there’s been a lot of talk about coming in from
         what they call the lower road, the lower Woods Road. Are
         you familiar with that?

         A: Yes.

                             *       *        *



1
 The notes of testimony also refer to this road as McKinleyville Road. See
N.T. at 23.



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        The Court: And that road would appear to go on to
        [Appellant’s] property, is that correct?

        The Witness: Yes.

        [Counsel for Appellant]: But now to get to that road and to
        get into [Appellant’s] property, do you have to traverse
        someone else’s property as well beyond [Appellees’]
        property?

        A: . . .Well, [sic] wouldn’t cross [Appellees’] property at
        that location. Only the Price property.

        Q: To get in that way you would have to go over the Price
        property, is that correct?

        A: Yes.

N.T. at 14, 18-19.

     On November 1, 2013, the court entered an order providing:

        [Appellant] is entitled to an easement by necessity over
        the land owned by [Appellees]. It is further ORDERED,
        DIRECTED, AND DECREED that said easement shall be
        twenty-five (25) feet in width, and said easement shall
        provide access to [Appellant’s] property off of McKinleyville
        Road and over and across [Appellees’] property at the
        “Upper Woods Road” location as depicted on the survey
        prepared by Kirby D. Lockard, Registered Professional Land
        Surveyor, dated May 9, 2007. Said survey depicting the
        location of [Appellant’s] easement by necessity is hereby
        incorporated into this Order.

Order, 11/1/13.

     Appellees filed a motion for post-trial relief.   A hearing was held on

December 16, 2013. On January 31, 2014, the court entered the following

order: “It is ordered that the prior order entered in this case on November




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1, 2013 is set aside and vacated. Judgment is entered in this case in favor

of [Appellees]. The action is dismissed.” Order, 1/31/14.

      This timely appeal followed.     Appellant filed a timely court-ordered

Pa.R.A.P. 1925(b) statement of errors complained of on appeal and the trial

court filed a responsive opinion.

      Appellant raises the following issues for our review:

         I. Whether the trial court erred in determining that
         [Appellant] did not establish all three (3) elements for the
         establishment of an easement by necessity over
         [Appellees’] property?

         II. Whether the trial court erred in refusing to accept the
         stipulations of fact which were stipulated to by counsel at
         the time of trial, and which were accepted and adopted by
         the trial court at the time of trial?

Appellant’s Brief at 4.

      Appellant argues the trial court erred in determining that all three

elements for the establishment of an easement by necessity over Appellees’

property were not established.       Id. at 12.     Appellant avers that it is

undisputed that both properties were once part of a single tract of land and

thus unity of title was satisfied.   Id.   Appellant contends the unity of title

was severed by the conveyance by Thomas Wilson to Miles Brown in 1868.

Id. at 12-13.    Appellant claims an easement by necessity is established

because Appellant’s property is landlocked and there is no access to it from

a public road. Id. at 13.      Furthermore,     Appellant   contends   the   trial




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court erred in finding that there was no unity of ownership based upon the

stipulation between the parties at the time of trial. Id. at 15-16.

      Our standard of review in matters of equity is the following:

            [A]ppellate review of equity matters is limited to a
            determination of whether the chancellor committed
            an error of law or abused his discretion. The scope
            of review of a final decree in equity is limited and will
            not be disturbed unless it is unsupported by the
            evidence or demonstrably capricious.

Phillippi v. Knotter, 748 A.2d 757, 758 (Pa. Super. 2000) (citation

omitted).

         “It is a well-settled principle of law that, in the event
         property is conveyed and is so situated that access
         to it from the highway cannot be had except by
         passing over the remaining land of the grantor, then
         the grantee is entitled to a way of necessity over the
         lands of his grantor.”            The three fundamental
         requirements for an easement by necessity to arise are the
         following:

            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.

            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.

Id. at 760 (citation omitted and emphasis added), cited with approval in

Youst v. Keck's Food Service, Inc., 94 A.3d 1057, 1075 (Pa. Super.

2014).


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     In Phillippi, the parties owned “two distinct parcels of land that at one

time were a single parcel owned by O’Brien Coal Company [(“O’Brien”)].”

Phillippi, 748 A.2d at 759.      On August 19, 1910, O’Brien conveyed one

section of the property to the Connellsville and State Line Railroad Company.

Id. On August 25, 1917, O’Brien conveyed a parcel of the remaining land to

E.J. O’Brien. Id.   The appellants eventually became the owners of the E.J.

O’Brien parcel. Id. “Eventually [the] appellees became the owners of [the]

parcel of land once owned by O’Brien. . . .” Id.

     This   Court   in   Phillippi   found   that   the   first   two   fundamental

requirements for an easement by necessity were established.              There was

unity of title between the property of the appellants and appellee. The unity

of title was severed when O’Brien conveyed the property now owned by the

appellants to E.J. O’Brien.     Id. at 760-61.        The Phillippi Court then

addressed the third requirement, specifically whether there existed an

easement by necessity.       Id. at 761.      This Court found there was no

easement by necessity:

        From the time of the original severance to the
        present, the western portion of the land currently
        owned by appellants has been accessible from a
        public road.     Therefore, the situation caused by the
        original severance was not that of strict necessity in
        which property was conveyed in such a way that access to
        it from a public road could not be had except by passing
        over the remaining land of the grantor.

Id. (footnotes omitted and emphasis added).




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     We address issues one and two together because they are interrelated.

In the case sub judice, the trial court originally found that Appellant was

entitled to an easement by necessity.     Subsequently, the court concluded

that Appellant had not established an easement by necessity because the

first fundamental requirement for an easement by necessity was not

satisfied, based upon the conveyance of one of the tracts.         Id. at 6.

The court opined:

        [F]urther reflection brought about by [Appellees’] Post-
        Trial Motion and additional research caused us to change
        our mind. In this regard, the critical fact in our opinion
        that defeats [Appellant’]s case is that at the time their
        property was carved out of the land warranted to Jesse
        Head, their grantor─Thomas Wilson─had already sold off
        the property now owned by [Appellees]. . . . Therefore,
        while it is true that there was unity of ownership of the
        properties in this case during the ownership of Thomas
        Wilson, that unity was destroyed when Mr. Wilson
        conveyed the seventy (70) acre parcel to Miles Brown.

Trial Ct. Op., 3/21/14, at 5. We find the court erred as a matter of law in

vacating the November 1, 2013, order. See Phillippi 748 A.2d at 758.

     In the instant case, the properties of Appellant and Appellees were

owned by Thomas Wilson.      Mr. Lockard testified that Thomas Wilson was

the common grantor. N.T. at 12. At trial, Appellee’s counsel conceded that

the requirement that Appellant prove unity of title had been met. Id. at 14;

see Phillippi, 748 A.2d at 761.

     In Phillippi, this Court found that unity of title was severed by the

conveyance of one tract. Id. at 761. Similarly, in the instant case, unity of



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title was severed by the conveyance of one tract. See N.T. at 12. Thus,

the second requirement for an easement by necessity has been met. See

Phillippi, 748 A.2d at 761.

       In order to find that the third prong is established, we must determine

whether an easement by necessity exists. “An easement by necessity may

be created when after severance from adjoining property, a piece of land is

without access to a public highway.”          Bodman v. Bodman, 321 A.2d

910, 912 (Pa. 1974); accord Phillippi, 748 A.2d at 761.

       Instantly, at trial, Mr. Lockard, when asked if Appellant’s property was

landlocked, responded that Appellant’s property had no access to a public

road. N.T. at 18. Thus, the third requirement for an easement by necessity

has been satisfied. See Bodman, 321 A.2d at 912; Phillippi, 748 A.2d at

761.

       We find that the three pronged test enunciated in Phillippi has been

satisfied. See id. at 760. We thus hold the trial court abused its discretion

and erred as a matter of law in vacating its November 1, 2013 order

granting Appellant an easement by necessity over the land owned by

Appellees. See id. at 758.    We reverse the January 31, 2014 order.

       Order reversed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/24/2014




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