Emig v. Bobst Mountain Hunting Club

684 A.2d 237, 1996 Pa. Commw. LEXIS 450
CourtCommonwealth Court of Pennsylvania
DecidedOctober 29, 1996
StatusPublished
Cited by11 cases

This text of 684 A.2d 237 (Emig v. Bobst Mountain Hunting Club) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Emig v. Bobst Mountain Hunting Club, 684 A.2d 237, 1996 Pa. Commw. LEXIS 450 (Pa. Ct. App. 1996).

Opinion

DOYLE, Judge.

Bobst Mountain Hunting Club (the Hunting Club) appeals an order of the Court of Common Pleas of Lycoming County (Common Pleas) confirming the report of a Board of View which found that a private road across portions of the Hunting Club’s property should be opened to Bruce and Cindy Emig, abutting property owners.

The Emigs own a landlocked parcel of land located in Cogan Township, Lycoming County. Previously, they had accessed their property by means of an existing road known as “Coal Mountain Road” and a connecting dirt road, which the parties in the instant proceedings refer to as “Spur Road.” Both Coal Mountain Road and Spur Road are located on property owned by the Hunting Club.1 When the Hunting Club terminated the Emigs’ use of Coal Mountain Road and Spur Road and sought criminal sanctions against the Emigs for their alleged trespass on the Hunting Club’s property, the Emigs brought an action pursuant to Section 11 of what is commonly known as the Private Road Act,2 to condemn a three-mile private right-[239]*239of-way over both Coal Mountain Road and Spur Road.

A view of the site was held on June 17, 1994 at which both parties and their attorneys were present. Thereafter, on June 27, 1994, a hearing was held at the office of counsel for the Hunting Club. At this hearing, the Hunting Club contended that a better, alternative route was available to provide access to the Emigs’ property, viz., an old logging road which only extended over the Hunting Club’s land for 900 feet, as opposed to three miles, from Hoagland Run Road, the public road.3

On October 21, 1994, the Board filed a report with Common Pleas finding necessity for a private road and recommending the opening of the three mile route requested by the Emigs, that is, the route located on Mountain Road and Spur Road.

Thereafter, the Hunting Club filed exceptions to the Board’s Report. In response, Common Pleas remanded the matter to the Board to file an amended report which would address the effect of the statutory limitation that the right-of-way could be no more than twenty-five feet wide regardless of the width of the existing roadway, and to address future maintenance questions regarding the roadway.

On January 11, 1996, the Board filed an amended report which provided that “[t]he width of the right-of-way shall remain the same as now exists except in those areas where it exceeds 25 feet. In those areas the width shall be reduced to 25 feet to conform to the specific limitation set by the Act of 1836.” (Amended Report of the Board at 2; R.R. at 52.) In all other respects the original report was affirmed.

Thereafter, both the Emigs and the Hunting Club filed exceptions to the amended report of the Board. By order dated February 28, 1996, Common Pleas dismissed the exceptions and ordered:

1. The determination of the Board of View that [the Emigs] should have a private right-of-way over the Coal Mountain Road and Spur Road as more fully shown in Exhibit “A” of the Stipulation filed of record on August 24, 1995, is confirmed.
2. Said rights-of-way shall have a width of twelve and one-half (12 1/2 feet) on either side of the center line of the existing roadway except to the extent that the overall width of the existing roadway has historically been narrower, in which event the maximum width shall be the historic maximum width.
3. This matter shall be remanded to the Board of View, which shall conduct further proceedings and establish just compensation to be awarded to [the Hunting Club] by virtue of the grant of these private rights-of-way-

(Opinion of Common Pleas, 2/28/96, at 3-4; R.R. at 58.)

This appeal by the Hunting Club followed.

We note that generally a Board of View has broad authority under the Act to determine the necessity for a proposed road. Graff v. Scanlan, 673 A.2d 1028 (Pa.Cmwlth.1996).4 And, although the Board’s findings are subject to review by Common Pleas, the Court cannot look beyond the record or consider questions of fact. Rather, Common Pleas has appellate review which is limited to ascertaining the validity of the Board’s jurisdiction, the regularity of the proceedings, questions of law and whether the Board abused its discretion. Driver.

In the instant case, the Hunting Club contends that the Board erred in failing to annex and return to Common Pleas a plot or draft of the proposed private road as man[240]*240dated by Section 3 of the Act, 36 P.S. § 1831. Section 3 of the Act provides:

The viewers as aforesaid, shall make report at the next term of the said court, and in the said report shall state particularly: first, who of them were present at the view; second, whether they were severally sworn or affirmed; third whether the road desired be necessary for a public or private road; they shall also annex and return to the court a plot or draft thereof, stating the courses and distances, and noting briefly the improvements through which it may pass, and whenever practicable, the viewers shall lay out the said roads at an elevation not exceeding five degrees, except at the crossing of ravines and streams, where by moderate filling and bridging, the declination of the road may be preserved within that limit.

36 P.S. § 1831 (emphasis added).

In In re Road in Conemaugh Township, 20 D. & C. 428, 430 (Q.S. Somerset Co.1933), the Court of Quarter Sessions explained the purpose of the draft requirement:

The report of viewers does set forth the distances but not the courses of the road, nor is there any plot or draft of the road attached thereto. It is possible that the location of the road might be discerned by physical markings on the ground, but how is this to be made a record which might be called into question many years in the future, when the title to the land upon which this private road is a servitude has passed into other owners. We think this defect is fatal. (Citations omitted.)

For the same reason, our Supreme Court in Lower Makefield Road, 71 Pa. 175 (1872), affirmed the decision of the Court of Quarter Sessions of Bucks County which set aside a report, sua sponte, on the ground that a plot or draft was not attached to the report finding necessity for a private road.

In the instant case, the report and amended report of the Board provides only that the right-of-way granted to the Emigs shall be located over Coal Mountain Road and Spin-Road as shown on maps presented at the hearing and that the width of the right-of-way shall not exceed twenty-five feet.5 Significantly, neither the report nor the amended report has a draft or plot of the right-of-way annexed thereto which sets forth its courses and distances. Although neither party presently appears to dispute the location of the right-of-way, without an adequate record, any subsequent owners of the subject property may be unable to discern the precise location of the private road.

Accordingly, we hold that the Board’s failure to conform with the Section 3 draft requirement rendered the amended report fatally defective.

Section 58 of the Act, 36 P.S.

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Bluebook (online)
684 A.2d 237, 1996 Pa. Commw. LEXIS 450, Counsel Stack Legal Research, https://law.counselstack.com/opinion/emig-v-bobst-mountain-hunting-club-pacommwct-1996.