                             [J-32-2019] [MO: Wecht, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                 MIDDLE DISTRICT


 THADDEUS BARTKOWSKI, III AND                  :   No. 60 MAP 2018
 CRYSTAL ANNE CRAWFORD,                        :
                                               :   Appeal from the Order of the Superior
                      Appellees                :   Court at Nos. 432 EDA 2017 and 521
                                               :   EDA 2017 dated January 22, 2018,
                                               :   Reconsideration denied March 22,
               v.                              :   2018, Affirming in part and Vacating in
                                               :   part the Judgment of the Chester
                                               :   County Court of Common Pleas, Civil
 KENNETH RAMONDO AND THERESE-                  :   Division, at No. 15-05842 entered
 CECILIA RAMONDO,                              :   January 27, 2017 and Remanding.
                                               :
                      Appellants               :   ARGUED: April 11, 2019


                                   DISSENTING OPINION


JUSTICE MUNDY                                            DECIDED: October 31, 2019
       Nearly two hundred years ago, in a case involving principles similar to those

implicated in this case, this Court noted:

              The right of way from necessity, over the land of another, is
              always of strict necessity, and this necessity must not be
              created by the party claiming the right of way. It never exists
              where a man can get to his property through his own land.
              That a road through his neighbours [sic] would be a better
              road, more convenient or less expensive is not to the purpose;
              that the passage through his own land is too steep or two [sic]
              narrow does not alter the case. It is only where there is no
              way through his own land, that the right of way over the land
              of another can exist.
M’Donald v. Lindall, 3 Rawle 492, 495 (1827) (emphasis in original).

       The M’Donald court appears to have settled upon a narrow definition of “strict

necessity,” namely, that impossibility is the sole basis upon which relief may be granted.
As expressed by one commentator, “[t]he application of a strict necessity standard

requires the claimant to prove that without the way of necessity, there would be no way

to get to the alleged dominant tract and it would therefore be rendered useless.” 11

Jeffrey R. Sang, AM. JUR. PROOF OF FACTS 3D 601, § 6 (2019).

       I respectfully disagree with the majority that “[t]o require a party to prove

impossibility of alternative access is to stretch ‘strict necessity’ beyond its intended

meaning.” Majority Op. at 15. Because the focus is on meaning, it is instructive to

consider the dictionary definitions of the terms involved. Merriam-Webster defines “strict,”

in relevant part, as “inflexibly maintained or adhered to.” Strict Definition, MERRIAM-

WEBSTER.COM,    http:/dictionary/strict (last visited September 3, 2019).        It defines

“necessity,” in relevant part, as “the quality or state of being necessary.” Necessity

Definition, MERRIAM-WEBSTER.COM, http:/dictionary/strict (last visited September 3, 2019).

It defines “necessary,” in relevant part, as “absolutely needed:   REQUIRED.”   Necessary

Definition, MERRIAM-WEBSTER.COM, http:/dictionary/strict (last visited September 3, 2019).

Accordingly, I believe it is appropriate to require anyone who seeks an easement by

necessity to establish that no alternative exists. This approach has been adopted by

other jurisdictions. See, Charles A. Murray Trust v. Futrell, 840 N.W.2d 775 (Mich. Ct.

App. 2013) (rejecting the application of the reasonable-necessity standard for easements

by necessity, and holding that “the strict necessity standard . . . remains the law in

Michigan today.”); Gacki v. Bartels, 859 N.E.2d 1178, 1186 (Ill. App. Ct. 2006) (“[T]he

plaintiff must show that there were and are no alternative means of access to his

property.”); Carroll v. Meredith, 59 S.W.3d 484, 491 (Ky. Ct. App. 2001) (“[A] requirement

of strict necessity has traditionally applied to easements or ways of necessity). Strict

necessity has generally been defined as absolute necessity as where property is

landlocked or otherwise inaccessible.”); Tiller v. Hinton, 482 N.E.2d 946, 950 (Oh. 1985)



                             [J-32-2019] [MO: Wecht, J.] - 2
(no easement of necessity where “there is an alternative outlet to a public way even

though it is less convenient or more expensive.”).

       I am concerned that the approach adopted by the majority will have the effect of

unreasonably compromising the rights of the proposed servient estate despite the

majority’s recognition of “the sanctity of property rights.” Majority Op. at 20. We must be

cognizant of the fact that “[p]roperty rights have been described as the rights to ‘possess,

use and dispose of [property].’” Loretto v. Teleprompter Manhattan CATV Corp., 458

U.S. 419, 435 (1982) (citation omitted).       Furthermore, “[‘t]he power to exclude has

traditionally been considered one of the most treasured strands in an owner’s bundle of

property rights.’” Id. (citation omitted).   A third party who tramples on these rights by

asserting an entitlement to use his neighbor’s land against his neighbor’s wishes should

be required to establish that it is impossible for him to access his property otherwise.

       Applying these principles to the instant matter, I would affirm the order of the

Superior Court. As the trial court noted:

              The property owned by the Ramondos is not landlocked.
              Although the creation of a new driveway or access point for
              the Ramondos may be inconvenient and costly for them, the
              property does not fit the requirement of strict necessity that
              must be present for a finding of an easement by necessity.
              Furthermore, although the Ramondos believe that approval
              from the Township to relocate the driveway may be difficult,
              the evidence did not demonstrate impossibility and thus
              necessity.

Trial Court Decision 9/19/16, at 18.

       The Superior Court recognized that “because a new driveway is possible, even if

difficult and expensive, the trial court properly denied the Ramondos’ claim for an




                              [J-32-2019] [MO: Wecht, J.] - 3
easement by necessity.”       Bartkowski v. Ramondo, Nos. 432 & 521 EDA 2017,

unpublished memorandum at 13 (Pa. Super. filed January 22, 2018).1

      Accordingly, I respectfully dissent.



      Justice Donohue joins this dissenting opinion.




1 The record establishes that title to the Barkowski and Ramondo properties was held by
a common grantor. It is also clear that the unity of title was severed when the common
grantor subdivided the land in 1967. As recognized by the majority, “the only factual
dispute before the court concerned whether the Ramondo driveway’s encroachment upon
the Bartkowski pole was “necessary in order for the [Ramondos] to use [their] land, with
the necessity existing both at the time of the severance of title and at the time of the
exercise of the easement.” Majority Op., at 14 (citing Youst v. Keck’s Food Serv., Inc.,
94 A.3d 1057, 1075 (Pa. Super. 2014). The record contains no evidence whether the
physical characteristics of the land in question are the same as existed at the time of
severance. Furthermore, the Ramondos’ argument in favor of a finding of necessity relies
on their expert’s opinion regarding “the amount of regulatory relief and permitting needed
to install a driveway on the Ramondos’ property.” Report of Daniel E. Molloy, PE, 6/22/16
at 3. Given the dearth of record evidence regarding state and local regulations at the time
of the subdivision in 1967, and the importance of the current regulations in Mr. Malloy’s
opinion, the conclusion that the alleged necessity existed at the time of the severance is
not supported by the record.


                             [J-32-2019] [MO: Wecht, J.] - 4
