J. A26002/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

ALBERT E. LESH, ET AL.                  :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                   v.                   :
                                        :
DAVID W. LYONS,                         :         No. 2121 MDA 2014
                                        :
                        Appellant       :


            Appeal from the Judgment Entered March 23, 2015,
              in the Court of Common Pleas of Perry County
                  Civil Division at No. LP-QT-2000-00011


BEFORE: FORD ELLIOTT, P.J.E., WECHT AND PLATT,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED OCTOBER 30, 2015

      David W. Lyons (“appellant”) appeals from the judgment entered by

the Court of Common Pleas of Perry County granting Albert E. Lesh and his

wife, Sharon E. Lesh (“appellees”), an express 30-foot wide easement across

appellant’s property for the purposes of ingress and egress to their property.

      In 1957, the Loysville Community Club acquired title to approximately

151 acres of land located in Tyrone Township, Perry County, Pennsylvania

(hereinafter the “Mother Tract”).

      In 1964, the Loysville Community Club conveyed a long, rectangular

tract containing approximately 10.5 acres to Norman and Roberta Metz

(“1964 Metz Deed”).     The deed further “granted the right of ingress and

egress over and upon a 30-foot [wide] road or driveway which leads from

Route 274 to the southeastern corner of the land hereby conveyed.” (Deed,


* Retired Senior Judge assigned to the Superior Court.
J. A26002/15


10/1/64 at 1; Reproduced Record (R.R.) at 1b.) Attached to and recorded

with the 1964 Metz Deed was a drawing of a long rectangular tract of land,

with a right-of-way located in the far right-hand side which connected the

southeastern point of the property to Route 274 through land still owned by

Loysville Community Club.




                                   -2-
J. A26002/15




               -3-
J. A26002/15


     By Deed dated March 13, 1967, the Loysville Community Club

conveyed a second property to the Metzes (located west of the 10.5-acre

tract already owned by the Metzes) which consisted of 5.5 acres (“1967 Metz

Deed”). The 5.5-acre tract was contiguous to the 10.5-acre tract and the

properties shared a common boundary line.        In the 1967 Metz Deed, the

Loysville Community Club “granted and conveyed” a “right of ingress and

egress over and upon a 30-foot wide road or driveway which leads from

State Route 274 to” the property. The deed, however, did not specify the

location of the road or include a metes and bounds description. This is the

easement at issue in this appeal:

             FURTHER GRANTING AND CONVEYING to the
             grantees herein, their heirs and assigns, the right of
             ingress and egress over and upon a 30-foot road or
             driveway which leads from State Highway Route 274
             to the land hereby conveyed.

Deed, 3/13/67 at 1; R.R. at 10a.

     In 1972, the Loysville Community Club conveyed a 3.05-acre tract to

William and Ruby Clark (“1972 Clark Deed”).       This tract was located just

below the Metzes’ 5.5-acre tract, between the Metzes’ 5.5-acre tract and

Route 274.    There was no mention of an easement or right-of-way which

encumbered the property.

     By deed dated April 25, 1986, the Clarks conveyed their 3.05-acre

parcel to appellant (“1986 Lyons Deed”).      Like the 1972 Clark Deed, the




                                     -4-
J. A26002/15


1986 Lyons Deed from the Clarks to appellant did not mention an easement

or right-of-way which encumbered the property.

     By deed dated March 22, 2000, the Metzes conveyed their two parcels

(the 5.5-acre tract and the 10.5-acre tract) to appellees (“2000 Lesh Deed”).

The 2000 Lesh Deed included the conveyance of both tracts. With respect to

the 10.5-acre tract (“Tract 1”), the deed contained the following language

which conveyed a right of ingress and egress over a 30-foot wide road or

driveway from Route 274 to the southeastern corner of the property:

           Further granting and conveying to the grantees
           herein, their heirs and assigns, the right of ingress
           and egress over and upon the 30-foot road or
           driveway which leads from Route 274 to the
           southeastern corner of the land hereby conveyed.

Deed, 3/22/00 at 1; R.R. at 13a.

     With respect to the 5.5-acre tract (“Tract 2”), the 2000 Lesh Deed

included the following language which conveyed a right of ingress and egress

over a 30-foot wide road or driveway from Route 274 to the property. Once

again, this deed did not indicate the location of the easement; it was not

described in terms of metes and bounds:

           Further granting and conveying to the grantees
           herein, their heirs and assigns, the right of ingress
           and egress over and upon a 30-foot road or driveway
           which leads from State Highway Route 274 to the
           land hereby conveyed.

Deed, 3/22/00 at 2; R.R. at 14a.




                                    -5-
J. A26002/15


      In 2000, appellant was informed by appellees that they purchased the

two lots from the Metzes and that appellees had a right-of-way through his

property to Route 274.          When appellant refused to recognize the

right-of-way, appellees filed an action to quiet title.     A non-jury trial was

held on June 11, 2014.

      At trial, appellant argued that it was not clear from the 1967 Metz

Deed that an easement was granted over his property.              There was no

drawing or description of the location of the easement and the language

granting the easement itself was ambiguous because it could have been

referring to the easement granted and conveyed in the 1964 Metz Deed. He

also argued that his own deed, and that of his predecessor, made no

mention of any easement burdening his property.          He further argued that

the easement over his property never physically existed and was never used

to access the 5.5-acre tract.

      Appellant testified that at the time he purchased his property, he was

not informed that there was an easement across his property, and he did not

perform a title search or obtain title insurance to have a title search

performed. (Notes of testimony, 6/11/14 at 78, 81; R.R. at 100a, 103a.)

      Appellees presented the testimony of Thomas Palm, a qualified land

surveyor, who prepared a Plot Plan in February 2001 based on the

information from the aforementioned deeds. Palm’s Plot Plan was submitted

as Plaintiff’s Exhibit 2. (Attached to appellees’ brief as Exhibit “A.”)



                                      -6-
J. A26002/15




               -7-
J. A26002/15


     Palm opined that the right of ingress and egress originally conveyed by

the 1964 Metz Deed was not the same as the one conveyed by the 1967

Metz Deed. Palm opined, based on plans and the language of the Deeds,

that there were two completely different easements that were conveyed by

the Loysville Community Club at different times.      Palm explained that

Loysville Community Club was only authorized to convey an easement over

land that it owned. (Notes of testimony, 6/11/14 at 15; R.R. at 57a.) By

1967, the Loysville Community Club had already relinquished its ownership

interests in the parcel of land deeded in 1964. It belonged to the Metzes.

The Loysville Community Club could not, via the 1967 Metz Deed, convey an

easement to the Metzes through land owned by the Metzes.               Palm

concluded that the right of ingress and egress conveyed by the 1967 Metz

Deed had to pass through land owned by the Loysville Community Club in

1967 and that was the 3.05-acre tract.    (Id. at 16; R.R. at 58a.)    Palm

explained at the time of the 1967 conveyance, there was a subdivision just

south of the 3.05-acre tract which included an existing 30-foot wide

right-of-way between plots 10 and 11 connecting Route 274 to appellee’s

3.05-acre property.   Palm testified that the right of ingress and egress

conveyed by the 1967 Metz Deed through the 3.05-acre tract was directly in

line with the existing road to Route 274. (Id. at 16-17; R.R. at 57a-58a.)

Palm further testified that anyone performing a title search would have been




                                   -8-
J. A26002/15


able to go “back to the 1967 Deed and [be] put . . . on notice of the right of

way.” (Id. at 20; R.R. at 62a.)

      Appellants also presented the testimony of Norman Metz. He operated

a private airstrip on the 10.5-acre tract.   He later purchased the 5.5-acre

tract to provide a buffer for his airstrip “so nobody would build there.” (Id.

at 46; R.R. at 50b.) He never built on the 5.5-acre tract so there was never

an issue with respect to accessing Route 274 from it. Mr. Metz knew that he

was granted a right-of-way from Route 274 to the larger parcel.          With

respect to the 5.5-acre parcel, he testified “I thought we had a right of way

to it, but I never knew where it was. And I never pressed the fact because I

didn’t want it open, because I knew people would be running around and

using it.” (Id. at 44; R.R. at 48b.)

      On February 20, 2015, the trial court found that appellees possessed a

30-foot wide express easement leading directly from Route 274 across

appellant’s 3.05-acre property to the 5.5-acre parcel described as Tract 2 in

the 2000 Lesh Deed transferring the property from the Metzes to the Leshes.

The trial court’s conclusion that the easement existed was based on the rules

of construction, the language contained in the 1964 and 1967 Metz Deeds,

the 2000 Lesh Deed, the inability of the Loysville Community Club to grant

an easement over land it had relinquished rights to, and the testimony of

Mr. Metz who confirmed the existence, grant, and use of the easement at

issue. The trial court also relied on the testimony of Palm and Palm’s Plot



                                       -9-
J. A26002/15


Plan to make a determination of the location of the easement.         The trial

court wrote:

            Further, the clear, express language of the 1967
            Metz deed states that the 30 foot road leads from
            “State Highway Route 274 to the land hereby
            conveyed.” Therefore, the easement can only lead
            from 274 directly to the Metz 1967 property.
            Plaintiffs’ Exhibit 2, the Palm Plot Plan, clearly
            identifies that the only way to access Route 274 from
            the Metz property is directly southeast. There is
            already an existing 30 foot right of way between lots
            10 and 11 to the 3.05 acre parcel of land. Thus, the
            most logical and direct route from Route 274 to the
            Metz property is to simply extend the current right of
            way through the 3.05 acre Lyons property to meet
            the Leshs’ second parcel.

Trial court opinion, 2/22/15 at 3.

      Appellant raises four issues on appeal:

            1.    Did the Trial Court commit an error of law or
                  abuse of discretion in finding that an express
                  easement crosses Mr. Lyons’ land where no
                  plan or survey exists showing the presence or
                  location of such an easement and neither his
                  Deed nor chain of title references an express
                  easement burdening his property?

            2.    Did the Trial Court commit an error of law or
                  abuse of discretion in finding that an express
                  easement crosses Mr. Lyons’ land when a
                  recorded Preliminary and Final Subdivision Plan
                  prepared by the parties’ common grantor
                  dated February 9, 1981, identifies all other
                  express easements involving the parties’
                  properties but fails to include any reference or
                  drawing to such an express easement?

            3.    Did the Trial Court commit an error of law or
                  abuse of discretion in its Order of July 7, 2014,
                  finding that an express easement exists and


                                     - 10 -
J. A26002/15


                   crosses Defendant’s land “as described in Palm
                   Plot Plan” when no such exhibit was entered
                   into evidence and no such document is
                   recorded?

            4.     Did the Trial Court commit an error of law or
                   abuse of discretion by finding that an express
                   easement crosses Mr. Lyons’ land when the
                   burden of proof was upon Appellees, and
                   express easements being governed by the law
                   of contracts are limited to the size expressly
                   granted in a document, and where doubt exists
                   are construed against the drafter?

Appellant’s brief at 2.

      Our appellate role in cases arising from non-jury trial verdicts is to

determine whether the findings of the trial court are supported by competent

evidence and whether the trial court committed error in any application of

the law. See Porter v. Kalas, 597 A.2d 709, 711-712 (Pa.Super. 1991).

The findings of the trial judge in a non-jury case must be given the same

weight and effect on appeal as the verdict of a jury, and the findings will not

be disturbed on appeal unless predicated upon errors of law or unsupported

by competent evidence in the record. See id. Furthermore, our standard of

review demands that we consider the evidence in a light most favorable to

the verdict winner. See id.

      The same rules of construction that apply to contracts are applicable in

the construction of easement grants.         McNaughton Properties, LP v.

Barr, 981 A.2d 222 (Pa.Super. 2009); Zettlemoyer v. Transcontinental

Gas Pipeline Corp., 657 A.2d 920 (Pa. 1995). Therefore, to ascertain the



                                    - 11 -
J. A26002/15


nature of an easement created by an express grant, the intention of the

parties will be determined from the language of the instrument.        Forest

Glen Condominium Ass’n v. Forest Green Common Ltd. Partnership,

900 A.2d 859 (Pa.Super. 2006); Amerikohl Mining Co., Inc. v. Peoples

Natural Gas Co., 860 A.2d 547 (Pa.Super. 2004); Gateway Motels, Inc.

v. Duquesne Light Co., 500 A.2d 1230 (Pa.Super. 1985).

      When the language in the grant of an easement is ambiguous, a court

may resort to evidence of extrinsic circumstances as an aid to interpretation.

If the language of a deed granting an easement is ambiguous regarding the

location, size, or purpose of an easement, then the intent of the parties as to

the original purpose of a grant is a controlling factor in determining the

extent of an easement.      The intention of the parties as to the original

purpose of a grant of an easement is determined by a fair interpretation and

construction of the grant and may be shown by the words employed

together with reference to the attending circumstances known to the parties

at the time the grant was made. PARC Holdings, Inc. v. Killian, 785 A.2d

106 (Pa.Super. 2001); Merrill v. Mfgrs. Light and Heat Co., 185 A.2d

573, 576 (Pa. 1962) (“Where a deed or agreement or reservation therein is

obscure or ambiguous, the intention of the parties is to be ascertained in

each instance not only from the language of the entire written instrument in

question, but also from a consideration of the subject matter and of the

surrounding circumstances.”). Whether an ambiguity exists is a question of



                                    - 12 -
J. A26002/15


law subject to plenary review. Juniata Valley Bank v. Martin Oil Co., 736

A.2d 650 (Pa.Super. 1999).           However, resolution of conflicting parol

evidence relevant to what the parties intended by an ambiguous provision is

for the trier-of-fact.    Hutchison v. Sunbeam Coal Corp., 519 A.2d 385

(Pa. 1986).

                                         I.

      Appellant argues that the trial court erred in finding that an express

easement exists over his property. He argues that no drawing, plan, survey,

or map shows the location of the supposed easement.              The supposed

easement does not appear in the Preliminary and Final Subdivision Plan

prepared in 1981 which shows other easements.          He claims that the two

Metz parcels (conveyed in 1964 and 1967) were contiguous and shared a

border and suggests that the right of ingress and egress referenced in the

1967 Metz Deed was actually a reference to the right-of-way granted by the

1964 Metz Deed, which connected the southeastern corner of the 10.5-acre

property to Route 274.       He supports his claim with the argument that no

new drawing was prepared or recorded with the 1967 Deed, and no location

was specified.   He believes that this was because the 5.5-acre tract was

meant to share the same right of ingress and egress which existed on the

10.5-acre tract. He also contends that the easement language relied upon

by appellees only appears in the various deeds in the chain of title conveying

the 5.5-acre tract.      However, the deeds in the chain of title conveying his



                                       - 13 -
J. A26002/15


3.05-acre tract make no mention whatsoever of any easement encumbering

or burdening the property.

      First, addressing the lack of a plan or map, Pennsylvania law is clear

that identification or marking of the exact location of a right-of-way is not a

relevant   consideration   in   the   determination    of   the   validity   of   the

right-of-way. In creating an easement, it is not necessary to designate with

definiteness the part of the land to which the right attaches. Ozehoski v.

Scranton Spring Brook Water Company, 43 A.2d 601 (Pa.Super. 1945).

The absence of a drawing, plan, survey, or map does not necessarily mean

that an easement was not conveyed.

      Clearly, the 1967 Metz Deed conveyed an easement of some sort

which benefitted the 5.5-acre tract. The intended use of the easement was

to serve as a means of ingress and egress between the 5.5-acre tract and

Route 274. The wording of the easement, however, is ambiguous because,

as the trial court aptly pointed out, if this language was intended to convey a

right-of-way, it was not done “appropriately” because it does not “say where

the right of way is.” (Notes of testimony, 6/11/14 at 82; R.R. at 104a.) The

issue before the trial court then was twofold:        (1) whether the 1967 Metz

Deed conveyed an easement that was separate and distinct from the

easement conveyed in the 1964 Metz Deed; (2) and if so, where was it

located?




                                      - 14 -
J. A26002/15


      In resolving this ambiguity and the parties’ intent, it was proper to

consider extrinsic evidence including the circumstances attending Loysville

Community Club’s conveyance of the 5.5-acre tract to the Metzes in 1967.

Appellees presented testimony of their expert surveyor, Palm, and the

testimony of Norman Metz who owned the two parcels and testified as to his

knowledge and intentions at the time the conveyances were made.

      This court has carefully reviewed the record and finds, to begin with,

that the evidence supports the trial court’s rejection of appellant’s position

that the easement referenced in the 1967 Metz Deed and in the 1964 Metz

Deed was the same one.

      The record reveals that in 1967, the Metzes owned the 10.5-acre tract

which included a right of ingress and egress over a road or driveway which

connected the southeastern corner of that property with Route 274.        The

Loysville Community Club, in 1967, owned two other parcels:           (1) the

5.5-acre tract (which adjoined the 10.5-acre tract), and situated just below

that, (2) the 3.05-acre tract.     Appellant’s position that the easement

referenced in the 1967 Metz Deed was actually a reference to the same

easement conveyed in the 1964 Metz Deed cannot be correct.               It is

fundamental that one may not grant an easement over property that he or

she does not own.    Woodlawn Trustees, Inc. v. Michel, 211 A.2d 454

(Pa. 1965).




                                    - 15 -
J. A26002/15


         In 1967, the Loysville Community Club had no ownership interest and,

consequently, no authority to convey any further right-of-way across the

10.5-acre parcel which it did not own.        In 1967, however, the Loysville

Community Club still owned the 3.05-acre tract and had the ability to convey

a right-of-way over that parcel to benefit the new owner of the 5.5-acre

tract.    This chronological evidence of the order in which the parcels were

conveyed from the Mother Tract supported the trial court’s determination

that there were two separate easements. This finding is further supported

by the plain language contained in the 2000 Lesh Deed which confirms two

separate easements leading to two separate tracts of property.

         Further, a simple comparison of the 1964 and 1967 Metz Deeds

indicates that there are two separate easements. The language is different.

The easement in the 1964 Metz Deed grants an easement to the

“southeastern corner” of the property conveyed.       This coincides squarely

with the drawing attached to and incorporated into the 1964 Metz Deed

which shows a right-of-way running from Route 274 to the southeastern

corner of the 10.5-acre tract.     The 1967 Metz Deed, on the other hand,

states that the 30-foot wide road leads from “State Highway Route 274 to

the land hereby conveyed.” This language, when it is considered in context

of the then-existing subdivision and plan of lots as depicted in Palm’s Plot

Plan, unmistakably leads to the conclusion that the parties intended that

there be a second easement which directly connected the 5.5-acre tract to



                                     - 16 -
J. A26002/15


Route 274 via an existing right-of-way through lots 10 and 11. Further, the

grantor in both deeds, Mr. Metz, testified that there were two separate

easements.

     With respect to the location of the easement, the trial court concluded,

based on the uncontradicted testimony of Palm, that the only way to access

Route 274 from the 5.5-acre tract was to proceed directly southeast, where

there was an already existing 30-foot wide right-of-way between lots 10 and

11 to the 3.05-acre parcel of land. Thus, the trial court concluded, at the

time of conveyance, the most logical and direct route at the time of

conveyance from Route 274 to the Metz property was to simply extend the

current right-of-way through appellant’s 3.05-acre tract to meet appellees’

5.5-acre tract. We find the evidence supported the trial court’s conclusion

with respect to the location of the easement conveyed with the 5.5-acre

parcel in 1967.

     Appellant also contests the validity of appellees’ easement over his

property on the basis that there was no mention of any easement or

right-of-way which burdened or encumbered the property in the 1986 Lyons

Deed or the 1972 Clarks Deed. He claims that since the easement was not

mentioned in his deed or in the deed of his predecessor (Clark), he did not

take subject to it. We do not agree.

             The weight of authority is to the effect that if a deed
             or a contract for the conveyance of one parcel of
             land, with a covenant or easement affecting another
             parcel of land owned by the same grantor, is duly


                                     - 17 -
J. A26002/15


               recorded, the record is constructive notice to a
               subsequent purchaser of the later parcel. The rule is
               based generally upon the principle that a grantee is
               chargeable with notice of everything affecting his
               title which could be discovered by an examination of
               the records of the deeds or other muniments of title
               of his grantor.

Piper v. Mowris, 351 A.2d 635, 639 (Pa. 1976).

         Here, the Loysville Community Club conveyed title to the 5.5-acre

tract with an easement which affected the Community Club’s other 3.05-acre

tract.     That was the 1967 Metz Deed.            The 1967 Metz Deed gave

constructive notice of the easement to all subsequent purchasers of the

3.05-acre tract, including appellant. Constructive notice of the easement, in

this case, put appellant on inquiry before the purchase of his parcel, and

such inquiry would have informed him as to the location of the easement

over his land from the 1967 Metz Deed.

                                         II.

         In his next issue, appellant argues that the trial court erred because it

did not consider a February 9, 1981, Subdivision Plan which was prepared by

Palm’s father, which did not mention any easement over appellant’s

property.

         As appellees point out, appellant failed to advance any argument or

question any witness about any aspect of the February 9, 1981 plan.

Appellant failed to introduce the February 9, 1981 plan into evidence.         He

failed to authenticate or offer any context for the February 9, 1981 plan. He



                                       - 18 -
J. A26002/15


did not identify it during discovery, so appellees were never provided with an

opportunity to challenge any aspect of the February 9, 1981 plan during the

course of litigation before the trial court. The first time appellant introduced

the plan was in his Motion for Post-Trial Relief.

          Pa.R.Civ.P. 227.1(b)(1) provides that post-trial relief may not be

granted unless the grounds “if then available, were raised in pretrial

proceedings or by motion, objection, point for charge, request for findings of

fact or conclusions of law, offer of proof or other appropriate method at

trial.”    Appellant had every opportunity to introduce the February 9, 1981

plan at trial but failed to do so. His failure to do so resulted in a waiver of

the issue.

                                         III.

          In his third issue, appellant contends that the trial court erred when it

found that an express easement exists over his property “as described in

Palm Plot Plan.” Appellant contends that the drawing does not identify the

metes and bounds of the alleged easement. The drawing also included the

caveat:       “NO PLAN OR SURVEY HAS BEEN FOUND WHICH SHOWS THE

LOCATION OF THE RIGHT OF WAY . . .”                It also identifies the asserted

easement as a “PROPOSED LOCATION.”               Appellant contends that the trial

court erred when it relied on the drawing. We disagree.

          At trial, the appellant accepted Palm as a qualified land surveyor and

was the only expert accepted by the court as an expert at trial. (Notes of



                                        - 19 -
J. A26002/15


testimony, 6/11/14 at 7; R.R.at 49a.) The Plot Plan was based on Palm’s

expert review of multiple deeds and the layout of the lots along Shermans

Valley Avenue in the area of the subject properties.      As Palm testified, a

30-foot right-of-way existed from Route 274 between other parcels to the

tract now owned by appellant and was the only access point to appellant’s

property from Route 274. (Id. at 16-17; R.R. at 58a-59a.) He explained

that he had a “proposed location for the intended right of way depicted on

[his] plot plan.”   (Id. at 17; R.R. at 59a.)     The proposed location was

“directly in line with the 30-foot right-of-way going out to 274.” (Id. at 17;

R.R. at 59a.) The testimony and the drawing were clearly meant to aid the

court in its interpretation of the documents and to visualize the locations of

the existing lots and rights-of-way at the time of the relevant conveyances.

We find no error in the trial court’s reliance on the Plot Plan, in part, in

forming its decision. As noted, the trial court relied on the entire evidentiary

record and applied the appropriate legal precedent.

                                      IV.

      In his final issue, appellant alleges that the burden was on appellees to

prove the existence and location of the express easement and the trial court

erroneously placed the burden on him to perform a title search and prove

the asserted easement does not exist. We do not believe the issue merits

any discussion beyond pointing out that the two concepts are completely

unrelated. One burden relates to a movant’s burden of proof at trial. The



                                     - 20 -
J. A26002/15


other relates to a grantee’s burden to perform his own chain of title search

in order to gain knowledge of any restrictions or servitudes which may

appear in his line of title.

      Under these circumstances, the trial judge was correct in concluding

that appellees have an express easement over appellant’s property.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/30/2015




                                   - 21 -
