Hash v. Sofinowski

487 A.2d 32, 337 Pa. Super. 451, 1985 Pa. Super. LEXIS 5335
CourtSupreme Court of Pennsylvania
DecidedJanuary 11, 1985
Docket231
StatusPublished
Cited by24 cases

This text of 487 A.2d 32 (Hash v. Sofinowski) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hash v. Sofinowski, 487 A.2d 32, 337 Pa. Super. 451, 1985 Pa. Super. LEXIS 5335 (Pa. 1985).

Opinions

JOHNSON, Judge:

This appeal is taken from a final decree entered by the Court of Common Pleas of York County, sitting in equity, enjoining appellants Edwin C. and Jocine A. Sofinowski from limiting the width of a right-of-way across their land used by appellees Ronald E. and Betty C. Hash. The parties agree that since 1924, appellees' predecessors in title acquired a prescriptive right to use the way going from Watters Road over the Sofinowski property to the Hash property. In 1981, appellants installed a series of posts along the western boundary of the right-of-way and dug a bank ten feet to the east of these posts. The Hashes brought suit alleging that the Sofinowskis had wrongfully impeded access to their property and requested they be enjoined from so limiting the way.

Appellants have owned their property in Fawn Township, York County, Pennsylvania, since 1966. Appellees purchased a tract adjoining the Sofinowski estate in 1980. The Hash property is landlocked, the easement at issue providing the only access to the nearest public way, Watters Road.

Testimony adduced at trial established use as a farm of portions of the Hash estate from 1924 until the 1960’s. Mr. Hash further testified that such a use continued until 1980. During this period, the right-of-way was used for passage of farm equipment to the Hash property, although [454]*454testimony varied significantly as to the width of the easement. The trial court found that the contemplated use of the easement for modern farm equipment was consistent with that which had been established during the prescriptive period, and determined that a right-of-way 18 feet wide was a reasonable extension of the prescriptive easement acquired by appellees. Appellants were directed to restore it to that width, and took exceptions. The court en banc affirmed. Because we find a prescriptive easement, unlike an express easement by grant, to be narrowly limited to the extent of use rather than mode of use exercised during the period of prescription, we vacate and remand for additional findings of fact in accordance with this opinion.

When a right-of-way is expressly granted, its scope is determined by ascertaining the intention of the parties to the grant. Lease v. Doll, 485 Pa. 615, 403 A.2d 558 (1979). The easement is construed in favor of the grantee where the terms of the grant are vague, so as to permit reasonable use and enjoyment. Id. This is so because a right-of-way is generally granted of necessity, providing the owner of property landlocked by subdivision with access to the public road. The landlocked property would otherwise be rendered virtually useless. Piper v. Mowris, 466 Pa. 89, 351 A.2d 635 (1976).

Although the extent of an easement is limited to that which has been granted, our courts have consistently permitted express easements to accommodate modern developments, so long as the use remains consistent with the purpose for which the right was originally granted. This is based upon a presumption that advances in technology are contemplated in the grant of the easement. Smith v. Fulkroad, 305 Pa.Super. 459, 451 A.2d 738 (1982). Thus Lease, supra, and Piper, supra, allowed easements granting ingress and egress to the dominant tenements across the servient tenements to expand from footpaths to ways [455]*455permitting passage of motor vehicles. The use, or more appropriately, purpose, remained the same — access to landlocked property. Only the extent of that use reasonably increased.

Similarly, in Wise v. Lutz, 78 York 153 (1964), the court of common pleas permitted a right-of-way of undetermined width to be defined to accommodate modern-day farm equipment. The court found that the easement had consistently been used for the passage of farm machinery, and determined that 16 feet was now necessary for the “reasonable and proper enjoyment” under present conditions.

At first blush, the facts of Wise appear to be on point with the case at bar. There is, however, one critical distinction: the right-of-way in Wise arose by express reservation in the grant; the easement presently before us has arisen by prescription.

It is axiomatic that an easement by prescription arises by actual, continuous, adverse, visible, notorious and hostile possession of the property in question for a period of 21 years. Keefer v. Jones, 467 Pa. 544, 359 A.2d 735 (1976); Adshead v. Sprung, 248 Pa.Super. 253, 375 A.2d 83 (1977). It stands to reason that the scope of such an easement must necessarily be a function of the continued, adverse use by which it was generated and is thus limited to that of the prescriptive period.1 See generally Annot., 5 A.L.R.3d 439 (1966). Although appellees apparently demonstrated to the trial court’s satisfaction agricultural activities upon the dominant estate during a 21-year prescriptive period, their assertion that they intend to farm their property, coupled with an equipment dealer’s testimony that modern farm machinery is 18 feet wide, is not a sufficient basis to [456]*456establish that the future use of the easement by the Hashes is consistent with the adverse use during the prescriptive period.2

The Restatement of Property provides:

§ 477. Extent of Easements Created by Prescription.
The extent of an easement created by prescription is fixed by the use through which it was created.

5 Restatement of Property 2992, § 477 (1944).

§ 478. Factors in Ascertaining Extent of Easements Created by Prescription.
In ascertaining whether a particular use is permissible under an easement created by prescription a comparison must be made between such use and the use by which the easement was created with respect to
(a) their physical character,
(b) their purpose,
(c) the relative burden caused by them upon the ser-vient tenement.

5 Restatement of Property 2994, § 478.

§ 479. Extent of Easement Appurtenant as Affected by Evolution of the Dominant Tenement.
In ascertaining whether a particular use is permissible Under an easement appurtenant created by prescription there must be considered, in addition to the factors enumerated in § 478, the needs which result from a normal evolution in the use of the dominant tenement and the extent to which the satisfaction of those needs increases the burden on the servient tenement.

5 Restatement of Property 3000, § 479.

Our state courts have not squarely addressed the issue of the extent of an easement created by prescription in terms [457]*457of width. Bodman v. Bodman, 456 Pa. 412, 321 A.2d 910

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Bluebook (online)
487 A.2d 32, 337 Pa. Super. 451, 1985 Pa. Super. LEXIS 5335, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hash-v-sofinowski-pa-1985.