J-S12023-18

                                  2018 PA Super 128



DUANE WILLIAMS,                                   IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                       v.

HENRY L. TAYLOR; HENRY L. TAYLOR,
LLC; MT. VALLEY FARMS & LUMBER
PRODUCTS, INC.; NAWAKWA, LLC;
ELMER A. SHOCKEY, JR.; AND
CONSTANCE S. ALERING,

APPEAL OF: HENRY L. TAYLOR;
HENRY L. TAYLOR, LLC; MT. VALLEY
FARMS & LUMBER PRODUCTS, INC.;
AND NAWAKWA, LLC,

                                                      No. 1516 MDA 2017


          Appeal from the Judgment entered on September 6, 2017,
              in the Court of Common Pleas of Adams County,
                  Civil Division at No(s): 2013-SU-0000290.

BEFORE: LAZARUS, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

OPINION BY KUNSELMAN, J.:                               FILED MAY 11, 2018

       Henry L. Taylor’s three logging companies1 appeal from the judgment

following a non-jury trial, in which Duane Williams sought to prohibit the

Taylor Companies from driving over a private lane on his property. The trial

judge found that the Taylor Companies may not, as a matter of law, obtain a




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1 Originally, Mr. Taylor was also a defendant in this case, but the trial court
dismissed him due to proceedings in the United States Bankruptcy Court for
the Middle District of Pennsylvania.
J-S12023-18



prescriptive easement under Pennsylvania’s Unenclosed Woodlands Act of

1850.2 We affirm.

       Approximately 8.1 billion trees comprise Pennsylvania3 – a/k/a “Penn’s

woods.” Here, we must consider the legal status of the trees growing on Mr.

Williams’ farm, where a private dirt driveway, Glatfelter Lane, passes

through a wooded area of his property.           Mr. Williams sought to keep the

Taylor Companies out of his woods; the Taylor Companies claimed a right of

way over the lane. The dispute in this matter concerns whether the Taylor

Companies are entitled to an easement by prescription through the trees on

Mr. Williams’ property. As discussed more fully below, the Taylor Companies

may not acquire an easement by prescription if the lane crosses through

“unenclosed woodlands” as defined by law.

       As seen below in Mr. Williams’ Exhibit #18, Glatfelter Lane runs from a

paved, public road on the eastern side of the farm; past a few buildings;

along the northern edge of a cornfield; and then into the trees.




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268 P.S. § 411. The statute uses “uninclosed.” We edit that spelling to the
modern form of “unenclosed” throughout this Opinion.

3 Penn State College of Agricultural Sciences, “Wow! Pennsylvania Is Full of
Trees!” available at http://ecosystems.psu.edu/research/centers/private-
forests/news/2013/wow-pennsylvania-is-full-of-trees (last visited 4/2/18).




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J-S12023-18




The lane initially parallels the arrow drawn on the photograph at the

northern edge of the easternmost cornfield, from the public road to the “X”

in the trees. It is the line running from the “X,” through the trees, over the

line drawn to indicate a “Drainage Ditch,” until reaching a tiny clearing above

the second field at the northwest corner of Mr. Williams’ farm. The lane then

re-enters the woods before leaving Mr. Williams’ land and proceeds up the

mountain on other properties where the Taylor Companies desire to log

timber.

      Next to Glatfelter Lane runs a tiny stream (not visible in the

photograph) that, according to Mark Webb, the forestry expert who testified

at trial, renders the trees and shrubs in question a “forested grand riparian

buffer . . . to protect the integrity of the stream.” N.T. 6/26/17 at 98. This

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conservation land use, combined with Mr. Webb’s personal observations of

the plant life and his preparation of several, multi-year, forest-management

plans for Mr. Williams, lead him to conclude that, in his professional opinion,

“most of the Glatfelter Lane passes through unenclosed woodlands.” Id. at

94.

      The Taylor Companies disagreed with that conclusion. Specifically, Mr.

Taylor testified that his unique perspective as a lumberjack informed his

view of the trees adjacent to and surrounding the lane.             He testified,

because “I am a sawmill owner and the timber buyer and a lumber grade

salesman, I look at trees a little bit differently than others and as I drove up

that lane, there was not a single tree that jumped out to me and said come

cut me . . . None of the trees were of merchantable value . . .” Id. at 110.

To him, a “woodland” is limited only to a wooded area that contains

commercially suitable timber.

      The court conducted a bench trial in this quiet title action. On appeal,

our appellate role is limited to determining:

         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. The findings of fact of
         the trial judge must be given the same weight and effect
         on appeal as the verdict of a jury. We consider the
         evidence in a light most favorable to the verdict winner.
         We will reverse the trial court only if its findings of fact are
         not supported by competent evidence in the record or if its
         findings are premised on an error of law. However, where
         the issue concerns a question of law, our scope of review is
         plenary.



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           The trial court's conclusions of law on appeal originating
           from a non-jury trial are not binding on an appellate court
           because it is the appellate court's duty to determine if the
           trial court correctly applied the law to the facts of the case.

Stephan v. Waldron Electric Heating & Cooling LLC, 100 A.3d 660,

664–665 (Pa. Super. 2014) (citation omitted). Additionally, the trial judge,

as finder of fact, is free to believe all, part, or none of the evidence, and this

Court will not disturb his credibility determinations.       Voracek v. Crown

Castle USA Inc., 907 A.2d 1105, 1108 (Pa. Super. 2006).

      The Taylor Companies allege three errors on appeal. First, they assert

that the trial judge “erred by applying a legally insufficient definition of

‘woodland’ and by disregarding relevant facts concerning the character of

the land.” Taylor Companies’ Brief at 7. Second, they argue that the trial

court needed to reach an “independent factual finding that the land was

‘unenclosed.’” Id. And, third, the Taylor Companies claim that “the findings

of fact of the trial judge were clearly erroneous.” Id.

      The trial court ordered the Taylor Companies to file a statement of

matters complained of on appeal.          See Pa.R.A.P. 1925.       They obliged.

However, the Taylor Companies failed to include the second issue they

raised in this appeal—i.e., whether the trial court procedurally erred by not

making a separate, factual finding that the property was “unenclosed” – in

their 1925(b) Statement.       “Issues not included in the Statement and/or

not raised in accordance with the provisions of this paragraph (b)(4) are

waived.”       Pa.R.A.P. 1925(b)(4)(vii).       We conclude that the Taylor



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J-S12023-18



Companies failed to preserve their second issue for appellate review and,

therefore, it is waived.

        Also, the Taylor Companies provided us with no discussion or citation

to any legal authority in support of their third issue raised on appeal, i.e.

whether the trial court’s findings of fact were clearly erroneous. Instead of

making a legal argument, they offered only one page of conclusory

statements about their views of the evidence. The Taylor Companies did not

include any citations to the record in that portion of their brief.        As Mr.

Williams correctly noted, the Taylor Companies made “general complaints

without setting forth a cogent discussion of a single factual finding that they

claim was ‘clearly erroneous.’”       Williams’ Brief at 35.   We cannot guess

which    factual   findings   the   Taylor   Companies   believed   were   “clearly

erroneous.” As such, we conclude that their third issue is also waived.

        Next, we turn to the merits of the Taylor Companies’ only remaining

appellate issue, namely, whether the trial court applied a legally insufficient

definition of “woodland” and disregarded relevant facts concerning the

character of the land.

        Generally, under the common law, one may acquire a prescriptive

easement through someone else’s property by proving “(1) adverse, (2)

open, (3) notorious, (4) continuous and uninterrupted use [of the easement]

for a period of 21 years.” PA Energy Vision, LLC v. South Avis Realty,

Inc., 120 A.3d 1008, 1014 (Pa. Super. 2015) (citation omitted). However,

in 1850, the General Assembly carved out an exception to that general rule

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by forbidding the acquisition of prescriptive easements through unenclosed

woodlands. The Unenclosed Woodlands Act dictates:

        No right of way shall be hereafter acquired by user, where
        such way passes through un[e]nclosed woodland; but on
        clearing such woodland, the owner or owners thereof shall
        be at liberty to enclose the same, as if no such way had
        been used through the same before such clearing or
        enclosure.

68 P.S. § 411.

     Prior to the Act, a prescriptive easement could arise regardless of the

physical nature of the property.   It did not matter whether the land was

enclosed or trees were present.     The Act was passed in response to a

decision by the Supreme Court of Pennsylvania in 1837 in Worral v.

Rhoads, 2 Whart. 427, 430 (Pa. 1837) (allowing a prescriptive easement

through woods whether closed or unenclosed, cleared or uncleared), and

adhered to in Reimer v. Stuber, 8 Harris 458 (Pa. 1853) (following Worral,

allowing a prescriptive easement through open woodland, even though the

landowner had never once visited the forested part of her property).

     The legislators deemed the rule in Worral, allowing easements by

prescription through woods, unjust. Therefore, they passed the Unenclosed

Woodlands Act, which overturned Worral and its progeny and barred a

trespasser from obtaining a prescriptive easement through unenclosed

wooded areas.

     Here, the parties agree that the Taylor Companies cannot obtain an

easement if the wooded area in question meets the definition of “unenclosed


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J-S12023-18



woodlands.”     They also agree that the statute bars easements by

prescription, if the alleged right-of-way runs through both unenclosed

woodlands and a treeless section of the same property. Taylor’s Brief at 23-

24; Williams’ Brief at 22-23; see Trexler v. Lutz, 118 A.2d 210, 211 (Pa.

Super. 1955).   Thus, if any section of Glatfelter Lane passes through Mr.

Williams’ “unenclosed woodland,” the parties concur that no prescriptive

easement may arise. The parties disagree, however, over what constitutes

“unenclosed woodlands.”

     We note that the legislature did not define this pivotal phrase. Also,

for nearly 170 years, no appellate court has ever needed to articulate a

precise meaning for this term. All previous cases addressing the issue had

factual scenarios at either one extreme or the other.   Beginning in 1896, for

example, in Kurtz v. Hoke, 33 A. 549 (Pa. 1896), no one questioned that

the alleged easement “extended for about 100 yards through the improved

part” of the land “and then over the woodland of plaintiff.”        Thus, no

easement was permitted. The alleged easement was also barred in Trexler,

118 A.2d at 210, where it extended “through a tract of 110 acres of

woodland of defendants to contiguous woodland of plaintiff.”      Similarly, in

Martin v. Sun Pipe Line Co., 666 A.2d 637, 641 (Pa. 1995), the court

granted summary judgment for the landowners and rejected an easement

when affidavits and aerial photographs showed that “the premises were in

fact heavily forested.” See also Humberston v. Humbert, 407 A.2d 31,

32 (Pa. Super. 1979) (where for most of the 21 years, the easement went

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J-S12023-18



through unimproved and unenclosed woods), and Sprankle v. Burns, 675

A.2d 1287, 1288 (Pa. Super. 1996) (where the record revealed that the dirt

road crossed through unenclosed woodland, and a prescriptive easement

could not be granted for timbering purposes).

     At the other end of the spectrum, this Court allowed a prescriptive

easement in Eble v. Jones, 44 A.2d 761, 762 (Pa. Super. 1945), where the

facts of record clearly showed that the “premise never contained woodland;”

only sparse underbrush and two or three trees, and in Minteer v. Wolfe,

446 A.2d 316, 321 (Pa. Super. 1982), where the growth alleged to be

woodland consisted merely of “a fence row of trees and brush as is

commonly found to exist on the boundary lines of land located in rural

areas.”

     In sum, our review of the cases from nearly two centuries found only

two instances where an easement was permitted because it definitely did not

pass through woodlands (Elbe and Minteer), and five where an easement

was barred because it definitely did pass through unenclosed woodlands

(Kurtz, Trexler, Humberston, Martin, and Sprankle).

     Thus far, only one federal district court has defined the phrase

“unenclosed woodland”. In McCormick v. Camp Pocono Ridge, Inc. II,

781 F. Supp. 328 (M.D.Pa. 1991), the court stated “It is beyond question

that the words ‘un[e]nclosed woodland’ in this statute refer to a wooded

area which is not enclosed by a fence or some other barrier.” Id. at 333.




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      In the present case, we face a situation where the parties vigorously

dispute   whether   the   lane   crosses through the     type   of “unenclosed

woodlands” area the statute sought to protect.        The trial judge accepted

and applied the definition promulgated by Mark Webb, an expert witness

who testified for Mr. Williams.    Mr. Webb opined that a “woodland” is “an

area of land occupied by wood and shrubs and is synonymous with ‘forest.’”

Trial Court Opinion, 7/5/17 at 3.     The Taylor Companies contend that by

adopting Mr. Webb’s “ecological definition,” the trial court violated the

statute. Taylor Companies’ Brief at 19. They argue, instead, that we should

apply the following commercial definition to the term:

          factual indicators of woodland includ[e] the number and
          type of trees, commercial suitability of timber, presence of
          previous timbering, the density of foliage, canopy cover,
          visibly and field of view (herein referred to as “the Taylor
          Factors”). [Mr. Taylor] further testified that between 450
          to 500 trees per acre are required to be considered a
          starting forest with a minimum of 18 inches diameter
          trees.

Taylor’s Brief at 22.

      All of the Taylor Companies’ self-titled “Taylor Factors” are based on

the testimony of their president, Mr. Henry Taylor. N.T. 6/26/17 at 104. His

“factors” doubtlessly require “scientific, technical, or other specialized

knowledge [that] is beyond that possessed by the average layperson.” See

Pennsylvania Rule of Evidence 702(a).         However, counsel for the Taylor

Companies, after an extensive voir dire concerning Mr. Taylor’s training and

experience, never offered him as an expert witness. N.T. 6/26/17 at 104-


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108.    The average layperson, possessing no familiarly with the logging

industry, could not possibly speak with such precision and expertise on the

subject of foresting as Mr. Taylor did at trial.   Technically, Mr. Taylor was

not properly qualified to offer an expert opinion and was not permitted to

comment on the nature, density, size, canopy, etc. of the trees in question;

nor was he permitted to testify as to the ultimate issue before the court.

See Pennsylvania Rule of Evidence 701(c) and 704. We note, however, that

no one objected to the “expert” nature of this testimony.

       Even if the trial court had recognized Mr. Taylor as an expert witness,

we would not adopt his narrow definition of “woodland,” as only those woods

old and dense enough to be used as merchantable timber.          Like the trial

court, we believe that when the legislature sought to restrict prescriptive

easements through the wooded areas in the Unenclosed Woodlands Act, it

intended to protect more than just those wooded areas where the trees were

dense enough to harvest as lumber. Instead, it sought to protect all wooded

areas, including those used for recreational purposes like hunting or hiking,

as well as those preserved in their natural state for conservation purposes.

There is no indication in the record, briefs, or case law that the General

Assembly intended to exclude these other uses of woods from the term

“woodland” when it enacted the Unenclosed Woodlands Act.

       Indeed, as noted above, the statute’s sole aim was to protect

landowners, like Mr. Williams, from the perceived injustice of the rule in

Worral, supra. We see no reason why the legislature, in 1850, would have

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wanted to protect an owner’s “liberty” to use his open woods as he sees fit,

only when the woods at issue contained enough trees to make timbering

profitable.    If we accepted the Taylor Companies’ definition, the right that

the General Assembly protected would shift with market forces and/or the

subjective views of whatever an individual logger deems to be harvestable.

         As the trial judge here concluded, the Taylor Companies confuse “a

forest     suitable   for       commercial    timbering    operations     with    ecological

unenclosed woodlands.             The two are not necessarily synonymous.”               Trial

Court Opinion, 7/5/17, at 4.             We agree.       The Taylor Companies’ narrow

definition of “woodland” misses the forest for the trees.

         Mr. Webb’s broader definition does not. A “woodland,” he said, is an

“[a]rea of land that would be occupied by herbaceous species both woody

and shrub as well as grassy.” N.T. 6/26/17 at 93. He also opined, and we

agree, that the term woodland and forest are “synonymous.”                        Id.    The

everyday usage of the two words bears this out.                      The Oxford English

Dictionary defines the terms as follows: “Woodland – Land covered with

trees.”4      “Forest       –    A   large   area     covered   chiefly   with   trees   and




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4THE OXFORD ENGLISH DICTIONARY ONLINE, available at
https://en.oxforddictionaries.com/definition/woodland (last visited 4/3/17).




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undergrowth.”5       In both definitions, the operative words are “covered,”

“with,” and “trees.” Hence, the terms are synonymous.

       Mr. Webb further testified that “most of the Glatfelter Lane passes

through unenclosed woodlands.” N.T. 6/26/17 at 94. He based this upon

his finding that the land is a “forested grand riparian buffer . . . to protect

the integrity of the stream.” Id., at 98. Because the trial court accepted

Mr. Webb as an expert witness, he was uniquely qualified to offer his opinion

on the ultimate issue at bar. See Pennsylvania Rule of Evidence 704. As a

forestry expert, Mr. Webb observed that, once Glatfelter Lane passes the

first field, it “is totally enclosed within the woodlands. There are woodlands

on both sides of the roadway as you go up or down the hill.” Id. at 96.

       The trial judge credited this testimony, found it highly probative, and

ultimately concluded that “it is also obvious that the area of woodland

through which the right of way is located is a natural extension of the much

more vast forest from which [the Taylor Companies] conduct their timbering

operations.     It is contiguous and uninterrupted.”     Trial Court Opinion,

7/5/17, at 4. In light of the aerial photographs of record and the copious

ones taken at ground level, we concur with the trial court. This is especially

true in the northwestern corner of Mr. Williams’ farm, where Glatfelter Lane



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5THE OXFORD ENGLISH DICTIONARY ONLINE, available at
https://en.oxforddictionaries.com/definition/forest (last visited 4/3/17).



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J-S12023-18



enters the larger forest, before exiting from his land.    The record reflects

that trees and bushy undergrowth cover that portion of his property.

      We therefore conclude that substantial evidence supports the trial

court’s findings of fact and that its conclusions of law were correct. Thus, we

hereby adopt the trial judge’s ecological definition of “woodland,” because it

effectuates the legislative intent behind the Unenclosed Woodlands Act of

1850. A “woodland” is an area of land that trees and bushy undergrowth

cover, synonymous with a “forest.”

      The trial court appropriately found the Taylor Companies could acquire

no prescriptive easement over Glatfelter Lane and quieted title in Mr.

Williams.

      Judgment affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/11/2018




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