Caribardi, G. v. Scida, J. (memorandum)
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J-A04006-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 GERARD CARIBARDI, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant v. JAMES J. SCIDA AND CHRISTINE SCIDA, HUSBAND AND WIFE, AND DONALD J. STAHLI AND TINA M. STAHLI, HUSBAND AND WIFE, Appellees No. 194 WDA 2013 Appeal from the Order December 21, 2012 In the Court of Common Pleas of Elk County Civil Division at No(s): No. 2007-785 BEFORE: BOWES, WECHT, and STABILE, JJ. MEMORANDUM BY BOWES, J.: FILED APRIL 24, 2014 Appellees, James J. Scida, his wife Christine Scida, Donald J. Stahli, and his wife Tina M. Stahli, were legally entitled to utilize an existing express found that the Stahlis had an express easement over Gizmo Drive and that the Scidas enjoyed both a prescriptive easement and an implied easement over Gizmo Drive. We affirm. Appellant instituted this equity action against Appellees seeking to prevent them from using a private roadway that is either thirty-three feet or thirty feet wide and is known as Gizmo Drive and asking for damages J-A04006-14 nonjury trial. The following facts are pertinent. Gizmo Drive traverses . invitees use Gizmo Drive to access their land. The Scidas and the Gizmo Drive provides the Stahlis their sole means of access to the nearest public road, which is a state highway. The Scidas have the ability to travel to the state highway over Freedom Road, which is a private road that they built over their property in 1986. Freedom Road is dangerous in the winter and not easy to navigate in the remaining seasons, and the Scidas continued to use Gizmo Drive after they constructed Freedom Road. In the chain of title, the express right of way or easement that eventually became known as Gizmo Drive first appears in a May 19, 1925 deed from John A. Pearson, et ux to August A. Larson, et ux. In that deed, the Pearsons sold the Larsons part of a sixty-eight-acre parcel of land that Mr. Pearson purchased from McKean Chemical Company. When the Pearsons sold the Larsons a part of the larger tract, the Pearsons also deeded to the Larsons an express easement over the land retained by the grantees [the Larsons] shall have forever a right of way and the use of the private road leading from the State Highway to the property hereby -2- J-A04006-14 property. Gizmo Drive is outlined in the assessment map of Elk County, Pennsylvania. Trial Exhibit 1. On March 26, 1942, John Pearson sold Howard C. Weirich the remaining property that he had purchased from McKean Chemical Company. The land sold by Mr. Pearson to Mr. Weirich excepted the plot previously conveyed to Mr. and Mrs. Larson on May 19, 1925. Trial Exhibit C. Howard Weirich became the sole owner of the entire parcel originally purchased by John A. Pearson from McKean Chemical. Trial Exhibit D (deed from Larsons to Howard Weirich). By deed dated September 15, 1956, Howard, who was by then married, and his wife Esther conveyed a portion of the sixty-eight-acre and Esther also transferred to Glenn and Mary an express easement over their retained land, i.e., the private roadway that was previously outlined in the grant from Pearson to Larson. See Trial Exhibit F (emphasis added) heir heirs and assigns, all their right, title and interest, of, in and to a right of way and the use of the private road leading from the state highway to the property hereby conveyed Esther enlarged the original lot conveyed to Glenn and Mary in the previous deed. In that instrument, Howard and Esther retained the right to use -3- J-A04006-14 Gizmo Drive and re-affirmed that Glenn and Mary also had the right to use that road, as follows: The Grantors, Howard C. Weirich and Ester E. Weirich, also convey to the said Grantees, their heirs and assigns, the full right, liberty, and privilege of the said private road with a thirty (30) foot right of way which forms the north boundary of the lot described above, as and for a passageway leading into and from the newly relocated section of U.S. Route 219, and free ingress, egress and regress into and along the same at all times hereafter, in common with the said Howard C. Weirich and Esther E. Weirich, their heirs and assigns, owners, tenants and occupiers of the grounds bounding the same. Trial Exhibit G. On November 5, 1963, Esther, by then a widow, executed a corrective deed to Glenn and Mary, and that deed contains the identical language regarding the right of way as that contained in the October 13, 1960 deed. On August 26, 1965, Mary A. Weirich, by then a widow, sold the land conveyed to her on November 5, 1963 to Rodger and Joyce Warmbrodt. The August 26, 1965 conveyance to the Warmbrodts included the express easement that Mary owned in her chain of title over Gizmo Drive: The grantor also conveys to the said grantees their heirs and assigns, the full right, liberty and privilege of the said private road with a thirty foot right of way, which forms the north boundary of the lot described above as and for a passageway leading into and from the newly re-located section of United States Route 219, and free ingress, egress and regress into and along the same at all time hereafter in common with the said Esther E. Weirich[.] Trial Exhibit J. The Warmbrodts sold their land, together with their express easement over Gizmo Drive to James K. and Elizabeth M. Zilcoski. -4- Trial J-A04006-14 Exhibit K. Stahlis. The Zilcoskis, in turn, sold a portion of their property to the The December 12, 2002 deed to the Stahlis from the Zilcoskis provided: The Grantors, James K. and Elizabeth M. Zilcoski, also grant and convey to the said Grantees, Donald J. Stahli and Tina M. Stahli, their heirs and assigns, the full right, liberty, use and privilege of the said private road [which was one of the boundaries contained in the metes and bounds description of the property in the deed] with an approximate thirty foot wide right of way for a passageway leading into and from the re-located section of U.S. Route 219, and free ingress, egress and regress into and along the same at all times hereafter in common with the said Esther Trial Exhibit S. Based on this chain of title, the equity court concluded that the Stahlis had an express easement over Gizmo Drive due to their purchase of land from the Zilcoskis.1 The court made the following factual findings in this respect: 25. at the Zilcoskis had the ability to grant their heirs and assigns the right to use the road and did so in the December 12, 2002 deed 26. There is no question that James and Elizabeth Zilcoski have the right to use the roadway known as Gizmo Drive and the Zilcoskis granted defendants Stahli the right, liberty, use and privilege of the approximate 30-foot-wide private road in the December 12, 2002 deed (Plaintiff Exhibit S) in which the ____________________________________________ 1 Appellant admitted in his pretrial statement that the Zilcoskis had an express easement over Gizmo Drive. -5- J-A04006-14 Zilcoskis conveyed the 9,465 square foot triangular parcel to defendants Stahli. 27. Defendants Stahli have the same rights to use the 30-foot wide right-of-way that formed the north boundary of the Zilcoski passageway leading to and from the relocated section of S.R. 219. Trial Court Opinion, 9/22/11, at 6. to the easement in question. Specifically, in 1978, Esther Weirich conveyed the land now owned by Appellant to a member of the Zuroski family. The grant was subject to the right of way. Appellant bought his property from a -ofway as fully as the same was granted to Glenn W. Weirich, et ux, by Esther noted, the November 5, 1963 deed outlines the express easement owned by Glenn and Mary Weirich as well as by Howard and Esther Weirich. Drive. In 1980, Esther E. Weirich sold the land that the Scidas eventually bought. Specifically, by deed dated March 3, 1980, Esther E. Weirich, who had remarried and was Esther E. Weis, and her husband Paul Weis sold 6.13 acres of land to Van B. and Kristen L. Weber. Trial Exhibit L. On January 10, 1985, the Scidas purchased the 6.13 acres of land from Van B. Weber et ux. The description of the property that they purchased included -6- J-A04006-14 the right of way in question as one of its boundaries, but the Webers, and, as their successors, the Scidas, were not granted the express right to use Gizmo Drive. Trial Exhibit M. The land over which Gizmo Road traveled already had been sold by Esther. The equity court acknowledged that the land containing the right of way was conveyed by Esther before she sold the Webers the land now owned by the Scidas and since the land conveyed to the Webers and then to the Scidas did not mention the express easement or grant those grantees the right to use it. However, based upon evidence that the Scidas presented at trial, the used Gizmo Drive as a means of access to their property since 1985, notwithstanding that their deed makes no specific reference to an easement or right-of- See -of-way of record also id over Gizmo Drive, but have used that roadway continuously as a means of the equity court expressly decided that the Scidas had an easement by implication over Gizmo Drive. See id. The equity court therefore rendered a verdict in favor of Appellees, declined to order them from refraining to use Gizmo Drive, and refused to -7- J-A04006-14 award Appellant damages. After denial of his post-trial motion, Appellant filed the present appeal and raises the following arguments: 1. Whether the Trial Court erred in its determination that Defendants James J. and Christine Scida possess an easement unity of title at the time of the alleged creation of the implied easement and no other basis for the creation of an implied easement exists. 2. Whether the Trial Court erred in its determination that Defendants Donald J. and Tina M. Stahli had obtained an nonparty, James and Elizabeth Zilcoski, as the Zilcoskis had no authority or property rights sufficient to grant an easement Our standard of review is as follows:2 When reviewing the findings of a court in equity, an the chancellor committed an error of law or abused his discretion. A final decree in equity will not be disturbed unless it Kepple v. Fairman Drilling Co., 532 Pa. 304, 312, 615 A.2d 1298, 1302 (1992) (internal quotation marks omitted). Although facts found by the chancellor, when supported by ____________________________________________ 2 Appellant suggests that this action was one sounding in declaratory judgment and that we should apply the standard of review applicable in that documentary evidence and that no credibility determinations were made. Nevertheless, this action expressly was brought as an equity lawsuit, and we must employ the standard of review applicable in that context. Moreover, the court did make a credibility determination insofar as it believed the neighbor, that they had continuously used Gizmo Drive since they purchased Scidas use that road. -8- J-A04006-14 competent evidence in the record, are binding, no such deference is required for conclusions of law, which we review de novo. Id. T.W. Phillips Gas and Oil Co. v. Jedlicka, 42 A.3d 261, 267 (Pa. 2012). In this case, we must separately analyze the easements in question since the Stahlis were held to have an express easement and the Scidas were determined to have an easement by implication and easement by prescription. respect to the Scidas. His argument is premised solely on the fact that there brief at 13; id (Weirich) Weis no longer owned the property on which Gizmo Drive was located [when she sold the Webers the land,] no easement by implication could Maioriello v. Arlotta, 73 A.2d 374 (Pa. 1950) (easement by implication not created since there was no proof that both parcels of land at issue had a common grantor). We have analyzed the legal construct of easements by implication in a considerably more recent decision, Phillippi v. Knotter, 748 A.2d 757 (Pa.Super. 2000), than that of Maioriello. In Phillippi, we noted that an parties is demonstrated by the terms of the grant, the property's surroundings and any other res gestae -9- Id. at 761 J-A04006-14 (quoting Sentz v. Crabbs, 630 A.2d 894, 895-896 (Pa.Super. 1993)). There are actually two separate tests employed by the courts to assess whether such an implied easement was created. Phillippi, supra. We can use either the test contained in the Restatement of Property or what is labeled the traditional test. As outlined in Phillippi, supra at 761-62, our High Court has defined the traditional test as follows: It has long been held in this Commonwealth that although the language of a granting clause does not contain an express reservation of an easement in favor of the grantor, such an interest may be reserved by implication, and this is notwithstanding that the easement is not essential for the beneficial use of the property. The circumstances which will give rise to an impliedly reserved easement have been concisely put by Chief Justice Horace Stern speaking for the Court in Tosh v. Witts, 381 Pa. 255, 113 A.2d 226 (1955): 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 Tosh, 113 A.2d at 228 (citations omitted). Bucciarelli v. DeLisa, 547 Pa. 431, 437-438, 691 A.2d 446, 448-449 (1997) (citations omitted). Our Supreme Court further stated: Easements by implied reservation are based on the theory that continuous use of a permanent rightof-way gives rise to the implication that the parties intended that such use would continue, notwithstanding the absence of necessity for the use. Id., 691 A.2d at 449 (citation omitted). - 10 - J-A04006-14 Under the Phillippi, supra at 762 (citation omitted). The following factors are utilized in the Restatement analysis: (a) whether the claimant is the conveyor or the conveyee, (b) the terms of the conveyance, (c) the consideration given for it, (d) whether conveyance, the claim is made against a simultaneous (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. Restatement of Property § 476. While none of these factors is dispositive, the extent to which an easement is necessary under the circumstances is a factor heavily weighed in determining whether an easement should be Phillippi, supra at 762 (citation omitted). An easement by implication must arise when the ownership of the two parcels in question first became separated. Id. Initially, we reject the notion that there was never unity of title. Howard and Esther Weirich had unity of title in the acreage that eventually - 11 - J-A04006-14 was sold in parcels to all the parties in question. Furthermore, in this case, when Esther conveyed the portion of her land containing Gizmo Drive, the use of that easement was necessary to access the 6.13 acres eventually purchased by the Scidas, who only subsequently built Freedom Road. Thus, landlocked absent the use of Gizmo Drive. See Trial Court Opinion, 1985, . . . [t]he only access to the Scida land was afforded by Gizmo Drive until Freedom Road was installed by defendants Scida in 1986 while in the Additionally, Gizmo Drive has been referenced in deeds dating back to 1925. Since 1960, in the chain of title from the common owner of all the property in question, Howard and Esther Weirich Weis, what is now known as Gizmo Drive has been expressly delineated as being a private roadway subject to use by Esther Weirich and Glenn Weirich and their heirs and assigns to access the state highway. When Esther sold the landlocked property to the Webers, Gizmo Drive had been used as a means of access to the public road. Gizmo Drive is displayed on the county assessment map. Appellant was aware of the easement in question since his land grant was expressly subject to it. Hence, utilizing the factors contained in the Restatement, we conclude that the equity court did not abuse its discretion in concluding that the Scidas own an easement by implication. - 12 - J-A04006-14 We also observe that Appellant fails to address the secondary finding in favor of the Scidas. The equity court made a specific determination that the Scidas had consistently used Gizmo Drive to access their land since they purchased the property on January 10, 1985. It credited the testimony of Mr. Scida and an independent witness to that use and it discounted Scidas did have a prescriptive easement, even though it viewed this determination as inconsequential in light of its finding that the Scidas had an easement by implication. Id. to a prescriptive easement are of minimal consequence, although they have continuously used Gizmo Drive as a means of access to their property since 1985 another's property which is not inconsistent with the owner's rights and which is acquired by a use that is open, notorious, and uninterrupted for a period of twenty- Sobien v. Mullin, 783 A.2d 795, 798 (Pa.Super. 2001) (quoting Soderberg v. Weisel, 687 A.2d 839, 842 inconsis to the right of way, which was used by other people in the same manner as that of the Scidas. They used that roadway openly, notoriously, and consistently. They bought their land on January 10, 1985, and this action - 13 - J-A04006-14 was not instituted until September 7, 2007, which is twenty-two years and eight months after the Scidas started to use Gizmo Drive. Hence, we uphold over Gizmo Drive. hlis. Appellant maintains that the court erred in finding that the Zilcoskis had the right to grant the Stahlis permission to use the right of way when they conveyed a portion of their property to the Stahlis. In Babcock Lumber Co. v. Faust, 39 A.2d 298, 303 (Pa.Super. 1944) (emphasis added), we noted: tenement as an entirety, and not solely for any particular part thereof. The law will not presume that either party at the time of the grant of the easement was ignorant that the grantee had a right to alien a part of his lands, or that it was the intention, unless clearly expressed, that by such alienation the easement should be extinguished. Accordingly, if the dominant estate is divided, the right is not destroyed. The owner or assignee of any portion of that estate may claim the easement so far as it is applicable to his part of the property, provided the easement can be enjoyed as to the separate parcels without any additional burden upon the servient tenement Easements, § 65, subsec. b; 1 Thompson on Real Property (Perm.Ed.) § 340; 3 Tiffany, Real Property, 3d Ed., § 809; Watson v. Bioren, 1 Serg. & R. 227, 7 Am.Dec. 667; Ehret v. Gunn, 166 Pa. 384, 31 A. 200; Seidler v. Waln, 266 Pa. 361, 109 A. 643, 8 A.L.R. 1363. In this case, the Zilcoskis sold to the Stahlis a portion of their property. When the Zilcoskis subdivided their land, that property enjoyed an Zilcoskis to the Stahlis conveyed to the Stahlis the right to use the easement - 14 - J-A04006-14 that the Zilcoskis owned. There was no additional burden on Appellant by because the Stahlis were using Gizmo Drive in the same manner as the Zilcoskis. The Stahlis did not place a business on their land that resulted in a vastly increased use of Gizmo Drive. The present scenario falls squarely within the Babcock holding. of the triangle of property to the Stahlis in 2002 was not a division of the dominant estate that would parcel that Zilcoski conveyed to the [Stahlis] was not a portion of the parcel which held the easement across Gizmo Drive. Rather, it was a small portion Id. We disagree. As noted in Babcock, the easement existed for the benefit of the dominant tenement as an entirety, and not solely for any particular part of the dominant estate. Thus, the Zilcoski whether the Zilcoskis subdivided and sold a small amount of their property or a large amount of their property. Rather, when the dominant estate is divided, the right to use the easement continues. The owner of any portion of the dominant estate can use the easement if there is no additional burden - 15 - J-A04006-14 upon the servient estate. Herein, as noted, there is no additional burden upon Gizmo Drive by its use by one more landowner. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 4/24/2014 - 16 -
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