NO. 2402 of 1994, EQUITY
INTERSTATE CHEMICAL COMPANY,
INC,.:
Defendant, :
MEMORANDUM OPINION
This matter comes before the Court to determine the following two issues:
First, whether plaintiff has an easement through defendant's land to the south of plaintiff's land.
Second, whether plaintiff has title to a certain thirty-three foot wide strip of land abutting plaintiff's land to the west.
Findings of Facts:
Agway Inc. (hereinafter Agway) transferred property (69 D.R. 2994) to Interstate Chemical Company Inc. (hereinafter ICC) by general warranty deed dated November 30, 1969. (Plaintiff Exhibit 2). This property borders the plaintiff's property to the south. The parcel roughly forms a backwards seven.
Agway transferred property (75 D.R. 1650) to ICC by general warranty deed dated April 8, 1975. (Plaintiff Exhibit 5). This property borders the Property transferred to ICC on April 8, 1975 to the immediate southeast and roughly completes a rectangle when combined with the property transferred on November 30, 1969. Witnesses testified that Agway used the disputed easement prior to transfer of the properties and Agway continued to use the disputed easement over defendant's lands after the transfers to ICC.
Penn Central Property Inc. transferred its interest in the land abutting plaintiff's and defendant's property to the west to ICC by quitclaim deed (84 D.R. 3435) on September 24, 1984. (Plaintiff Exhibit 5). This property includes the disputed thirty-three foot wide strip of land.
Agway transferred property to Gary Butch (Hereinafter Butch) by general warranty deed (1988 D.R. 906) dated February 1, 1988. (Plaintiff Exhibit 1).
Analysis:
Since the Court has determined that no easement has been recorded and an easement is not necessary to the use of the property, we must look to whether an easement by implication exists. In determining whether or not an easement by implication has been created, Pennsylvania Courts utilize two different tests, the traditional test and the Restatement test. The Restatement test, which is a more flexible balancing approach, was expressly adopted by Pennsylvania in Thomas v. Deliere, 241 Pa. Super. 1, 359 A.2d 398 (1976). We will examine the facts under the stricter traditional test.
The Court in Tosh quoted a rule of thumb that can easily be applied to the case at bar. "Where an owner of land subjects part of it to an open, visible, permanent and continuous servitude or easement in favor of another part and then aliens either, the purchaser takes subject to the burden or the benefit as the case may be, and this irrespective of whether or not the easement constituted a necessary right of way." Tosh v. Witts, 381 Pa. 255, 258, 113 A.2d 226, 228 (1955).
The traditional test requires three criteria. First, there must be a separation of title. Second, the use that gives rise to the easement must have been so long continued, so obvious or manifest, as to show that it was meant to be permanent prior to the separation. Third, the easement must be necessary to the beneficial enjoyment of the land granted or retained. Becker v. Rittenhouse, 297 Pa. 317, 325, 147 A. 51, 53 (1929). This is not the same standard as is required to establish an easement by necessity. The formulations of the traditional test that require a showing of necessity do not mean to require a showing of absolute necessity, but rather require only that the claimed easement be shown to be convenient or beneficial to the dominant estate. Hann v. Saylor, 386 Pa. Super. 248, 562 A.2d 891 (1989); Heffley v. Lohr, 149 Pa. Super. 586, 27 A.2d 275 (1942). The Court sometimes requires that the servitude be continuous and self-acting, as distinguished from discontinuous and used only from time to time. Becker v. Rittenhouse, 297 Pa. 317, 325, 147 A. 51, 53 (1929).
Agway, the common grantor, owned both the dominant and servient estates as a single plot of land. Agway regularly used the roadway, now the disputed easement, prior to transferring the property. Even after Agway transferred the servient property, the grantor continued to use the disputed easement. Various witnesses testified that the roadway was used regularly throughout the entire time after the property was transferred. However, no easement was recorded with any of the property transfers. At the time Butch bought the dominant estate, the road was clear and had a distinct road base of slag and limestone. Through testimony, Butch has established that the easement is convenient and beneficial to his property.
In the fall of 1993, defendant met with plaintiff to inform him that the roadway would blocked by ICC for a short time while the Department of Environmental Resources ran tests on the property. On May 7, 1994 defendant sent a letter to plaintiff informing him that defendant would be blocking the roadway with the intent to deny plaintiff use of the roadway. Plaintiff then began this action. The circumstances surrounding the barracade and duration it was in place are not sufficient to constitute abandonment or to extinguish the easement. We find that the plaintiff has proven all the elements required to establish an easement by implication under the traditional test.
Section 476 of the Restatement of Property lists the following factors to be considered when deciding if an easement by implication exists:
(a) whether the claimant is the conveyor or the conveyee,
(b) the terms of the conveyance,
(c) the consideration given for it,
(d) whether the claim is made against a simultaneous conveyance,
(e) the extent of necessity of the easement to the claimant,
(f) whether reciprocal benefits result to the conveyor and the conveyee,
(g) the manner on which the land was used prior to its conveyance, and
(h) the extent to which the manner of prior use was or might have been known to the parties.
We find that under either test, plaintiff has proven the existence of an easement by implication.
Next we consider the thirty-three foot strip of land which used to constitute one-half of the railroad right of way. On March 2, 1865 (recorded on September 17, 1972 in Article Book K, Volume 3, Page 276 of the Mercer County Recorder's Office), J.M. Sheriff granted a sixty-six foot right-of-way to the New Castle and Franklin Railroad Company for railroad purposes. This property was part of a parcel eventually transferred to ICC by way of quitclaim deed recorded in 1984 D.R. 3435 of the Mercer County Recorder's Office. No later than October 15, 1984 (the date the property was transferred to ICC), the sixty-six foot wide right of way ceased being used for railroad purposes. At that moment, the property reverted back equally to each of the adjoining property owners regardless of who may have initially conveyed the property. Fleck v. Universal-Cyclops Steel Corporation, 397 Pa. 648, 156 A.2d 832 (1959). Therefore, Butch is the owner, in fee simple absolute, of the disputed thirty-three foot strip of land adjoining his property.
Hence this ORDER:
AND NOW, this 10th day of April, 1995, IT IS HEREBY ORDERED AND DECREED that plaintiff has proven the establishment of an easement by implication over lands of defendant to the south and defendant is enjoined from denying, blocking or impeding the right of the plaintiff to exercise his rights.
IT IS FURTHER ORDERED that plaintiff has established proof of his title to the thirty-three foot wide strip of land located on plaintiff's western boundary.
IT IS FURTHER ORDERED that this Order shall be cross-indexed in the Mercer County Recorder's Office under the names of the parties hereto with the costs thereof to be paid by the plaintiff.
The Court reserves the right to file a more complete Opinion.
BY THE COURT,
______________________J.
Michael J. Wherry, Judge
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