J-A13006-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BRUCE R. RAZILLARD                             IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

NORFOLK SOUTHERN, NORFOLK
SOUTHERN CORPORATION, NORFOLK
SOUTHERN RAILWAY COMPANY

                        Appellees                   No. 1826 WDA 2014


           Appeal from the Judgment Entered October 16, 2014
             In the Court of Common Pleas of Greene County
                 Civil Division at No(s): 818 of 2011, G.D.


BEFORE: PANELLA, J., SHOGAN, J., and OTT, J.

MEMORANDUM BY PANELLA, J.                             FILED JULY 30, 2015

      Appellant, Bruce R. Razzilard, appeals from the judgment entered in

the Court of Common Pleas of Greene County after a non-jury trial. At issue

in this appeal is whether the grant of a “private grade crossing” over a

railway contained in a 1911 deed reserved an easement appurtenant or an

easement in gross to the grantor. Also at issue is whether impracticality of

performance is a waivable defense when specific performance is sought. We

conclude that the trial court misapplied the applicable law in concluding that

the deed reserved an easement in gross, but did not abuse its discretion in

finding that specific performance was impractical. We therefore reverse in

part, affirm in part, vacate in part and remand to give the trial court an

opportunity to address Razzilard’s breach of contract claim.
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     Razillard owns an approximately 88 acre property (“the Property”) in

Greene County, Pennsylvania, that overlooks the Monangahela River.

Between the Property and the river lies a railway line currently owned by

Appellees Norfolk Southern Corporation and Norfolk Southern Railway

Company (collectively, “Norfolk Southern”).     Between Norfolk Southern’s

railway and the river is a Pennsylvania State highway, Route 88, and

another property fronting the river which is not relevant to the instant

appeal.

     It is undisputed that in both Razillard’s and Norfolk Southern’s chain of

title lies the 1911 deed at issue here.    The 1911 deed granted Norfolk

Southern’s predecessor in title, The Monangahela Railroad Company, several

parcels of land for the purpose of constructing a railway.        As well as

reserving certain rights in the grantors, the deed provides in relevant part

that “[t]he Grantee agrees to construct and maintain … four private grade

crossings over Parcel No. 4; the location of said crossings to be determined

by the Grantors.” Furthermore, the deed states that

     [t]he Grantee agrees to construct a road for the Grantors on
     Parcel No. 4 to take the place of the two roads on said parcel,
     which will be closed by the construction of its railroad, and
     during the course of construction to keep open a way or crossing
     to take the place temporarily of the two roads already
     mentioned, and of the new road agreed to be constructed, until
     the same is completed, in accordance with this stipulation.




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It is undisputed that the Property contains “Parcel No. 4.” It is furthermore

undisputed that over the intervening years, a grade crossing from route 88

to the Property existed. The nature, character, and duration of the crossing

were the subject of dispute between the parties to varying degrees in the

trial court.

      In 2009, Razillard purchased the Property from his uncles.     Shortly

after purchasing the Property, Razillard contacted Norfolk Southern to

indicate his belief that the Norfolk Southern was liable for maintaining a

grade crossing across its railway to the Property. After Norfolk Southern’s

legal department reviewed deeds submitted by Razillard, it sent Razillard the

following letter.

      Norfolk Southern’s real estate department has reviewed the
      deeds you sent to justify your requirement for a grade crossing
      across Norfolk Southern’s Loveridge Secondary (MP LR 33.1) in
      Dunkard Township. It appears that everything is in order and
      your deed allows for a private grade crossing. I am enclosing
      the file that you previously forwarded to me.

      I have spoken with Tom Workman, Assistant Track Supervisor,
      and he did express to me a concern about some unique design
      and engineering required to make the crossing and approaches
      safe for your use. I trust you will work with us to ensure that
      this is a safe crossing. By copy of this letter, I am requesting
      Mr. Workman to contact you to arrange suitable design and
      installation of the grade.

In response, Razzilard arranged a meeting with Ben Taggert, an employee of

Norfolk Southern.




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      Razzilard and Taggert met at the railway on route 88.               Razillard

identified several locations for grade crossings. After this meeting, Norfolk

Southern again requested review of Razillard’s deeds, but Razillard was

ultimately unable to convince Norfolk Southern to construct a grade

crossing. Razillard subsequently initiated this litigation.

      In his amended complaint, Razillard asserted three distinct causes of

action:       declaratory   judgment,   breach   of   contract,   and   preliminary

injunction.    Under each of these causes of action, Razillard requested “[a]

declaration and determination that Defendants are obligated to construct

and maintain four private grade crossings over Parcel No. 4[,]” that Norfolk

Southern maintain the existing grade crossing, and “such other and further

relief as this Honorable Court may deem just and equitable under the

circumstances herein.”

      The matter proceed to a bench trial.       After receiving briefs and oral

argument from the parties, the trial court entered an order denying Razzilard

relief on all counts.   Razillard filed post-trial motions, which the trial court

denied. This timely appeal followed.

      We begin with our standard of review.

      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. 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


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      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.

Stephan v. Waldron Elec. Heating and Cooling, LLC, 100 A.3d 660,

664-664 (Pa. Super. 2014) (citation and brackets omitted).

      Razillard first contends that the trial court erred in concluding that the

1911 deed established only an easement in gross, and not an easement

appurtenant to the Property.      An easement in gross and an easement

appurtenant are similar in that they both represent a burden on title to a

parcel of property.   See Restatement (Third) of Property (Servitudes) §

1.2(1) (2000). In both instances, the burdened parcel is often referred to as

the “servient tenement.”     Id., at § 1.1(1)(c).      The principal distinction

between the two is in the nature of the beneficiary.

      The beneficiary of an easement in gross is a person, and the right

attaches to that person.   See Lindemuth v. Safe Harbor Water Power

Corp., 163 A. 159, 160 (Pa. 1932). It is therefore not tied to the ownership

or occupancy of a certain parcel of land.        See Restatement (Third) of

Property (Servitudes) § 1.5(2) (2000).

      In contrast, the beneficiary of an easement appurtenant is the owner

of another parcel of property, and the right attaches to the ownership or

occupancy of the parcel, and not the person.      See Lindemuth, 163 A. at



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160.     The parcel of land to which the benefit of the easement is attached is

often referred to as the “dominant estate.” Restatement (Third) of Property

(Servitudes) § 1.1(1)(b) (2000). The benefit of an easement appurtenat is

transferred automatically when ownership of the dominant estate is

transferred; the transferor retains no right to the benefit. See Restatement

(Third) of Property (Servitudes) § 1.1(1)(a); 1.5(1).

        In the present appeal, Norfolk Southern contends, and the trial court

concluded, that the 1911 deed created an easement in gross in the grantors,

Asa and Myrtle Sterling, and therefore was extinguished when they passed

away.      Razillard argues that the     1911 deed created an easement

appurtenant to Parcel No. 4, and that therefore he, as owner of the

dominant estate, is entitled to the benefit of the easement.

        “Whether an easement is in gross or appurtenant must be determined

by the fair interpretation of the grant or reservation creating the easement,

aided if necessary by the situation of the property and the surrounding

circumstances.” Lindenmuth, 163 A. at 161 (citation omitted). The goal of

interpreting the document that created the easement is to effectuate the

intent of the parties. See Maranatha Settlement Association v. Evans,

122 A.2d 679, 680-681 (Pa. 1956).          A court is never to presume an

easement is in gross if it can be fairly read to be appurtenant.           See

Lindenmuth, 163 A. at 161. An easement should be held to be in gross if it



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bears no connection with the use and enjoyment of a dominant estate. See

id.

      The Supreme Court of Pennsylvania was faced with an analogous fact

pattern in Maranatha.      A real estate company developed a residential

subdivision, and constructed a pool on one of the parcels in the subdivision.

All the deeds to the other parcels included the phrase “The Grantee and his

immediate family only, shall enjoy the free use of the swimming pool.”

Maranatha later acquired the unsold lots in the subdivision, and forbade any

owners that were not parties to the original sale from the real estate

company from using the pool. Maranatha argued that the deeds contained

only easements in gross that were personal to the original purchaser of the

lots, and that subsequent purchasers were not entitled to the benefit of the

easement.     The Maranatha court unequivocally rejected Maranatha’s

position.

      [I]t seems utterly impossible to believe that the intention was to
      give the privilege of bathing in the pool only to the original
      purchasers of the lots as a mere easement in gross, much less a
      revocable license. It may well be asked, why should the right
      have been given to the original purchasers as individuals wholly
      apart from their status as owners of the neighboring lots in view
      of the fact that such a purchaser might remain the owner merely
      for a very short time and then deed the title to an assignee, in
      which case, if [Maranatha’s] position were correct, he would still
      have the right to bathe in the pool as possessing an easement in
      gross, but on the other hand the new owner of the property and
      all subsequent owners and occupants would have no right to the
      bathing privilege at all.



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122 A.2d at 681.

      Similar to the Maranatha court, we struggle to understand how the

easement at issue here would make any sense as an easement in gross. If

the Sterlings had sold the Property shortly after filing the deed, it is difficult

to envision what use they would have had for multiple grade crossings into

the property. It would make no sense for the Sterlings to retain the benefit

of the grade crossings after they no longer owned the Property. Similarly, it

seems nonsensical that a subsequent purchaser of the Property would be

denied the benefit of the easement in favor of the Sterlings.        Such grade

crossings are clearly related to the use and enjoyment of the Property, and

the easement is fairly read as an easement appurtenant.          Thus, we must

conclude that it is, and that the trial court committed an error of law in

deciding otherwise.    See Rusciolelli v. Smith, 171 A.2d 802, 806 (Pa.

Super. 1961).

      As we conclude that the trial court erred in finding that the 1911 deed

created an easement in gross, we need not reach Razillard’s second

argument on appeal concerning an easement by implication.              We must,

however, address Razillard’s third issue on appeal.

      Razillard argues that the trial court erred when it concluded that

construction of the grade crossings required by the easement would be

impractical. Razillard’s primary argument in this respect is that this issue is



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waived, as Norfolk Southern did not plead it as a defense. We conclude that

impracticality is always at issue when equitable relief is requested.

        As noted previously, while Razillard requested relief under theories of

declaratory judgment and breach of contract, the remedies sought sound in

specific performance and other equitable relief. In other words, Razillard’s

amended complaint does not request monetary damages at law, but rather

an order compelling Norfolk Southern to honor its obligations under the 1911

deed.

        “A decree of specific performance is not a matter of right, but of

grace.” Barnes v. McKellar, 644 A.2d 770, 776 (Pa. Super. 1994) (citation

omitted). Specific performance is not to be enforced by a court if it would

“result in hardship or injustice to either party.” Id. (citation omitted). As an

appellate court, we are not to substitute our judgment for that of the trial

court unless the trial court “clearly abused [its] discretion or committed an

error of law.” Id. (citation omitted).

        Here, the trial court’s findings and conclusions are amply supported by

the record. In 1933, route 88 was lowered such that it was subsequently

three to four feet lower than the railway. See N.T., Trial, 12/16/13, at 118-

119. Furthermore, route 88 was widened in 1993, providing less room for

an approach to traverse the grade from route 88 to a railway crossing. See

id., at 28.



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      Approximately 20 years ago, the federal Department of Transportation

instituted an initiative to eliminate grade crossings due the number and

severity of accidents occurring at them. See id., at 178-179. The crossings

sought by Razillard have sight lines less than the minimum safe stopping

distance of the trains that travel that railway. See id., at 159. While the

overwhelming majority of the freight conveyed by these trains is coal, some

hazardous waste is also carried over the railway. See id., at 160.

      Under these circumstances, we cannot conclude that the trial court

abused its discretion in finding that specific performance of the easement

contained in the deed was impractical. Based upon the evidence of record,

there is no safe manner in which to construct the grade crossings requested

by Razillard. Other accommodations to create a crossing, such as a tunnel

or a bridge, would impose an undue hardship upon Norfolk Southern, and

furthermore, are not required by the deed’s explicit language requiring only

grade crossings.

      As a result of our review, we affirm the trial court’s denial of Razillard’s

request for specific performance as impractical.      We vacate the judgment,

however, and remand for the trial court to consider “such other and further

relief as [it] may deem just and equitable under the circumstances[,]”

pursuant to Razzilard’s claim for breach of contract.




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      Judgment reversed in part, affirmed in part, vacated in part.   Case

remanded for proceedings consistent with this memorandum.      Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/30/2015




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