In Re: Petition of B. Adams & J. Adams, h/w

212 A.3d 1004
Supreme Court of Pennsylvania·Decided July 17, 2019·No. 9 MAP 2018·Published·Cited by 5 cases

Opinions

JUSTICE MUNDY

In this appeal by allowance, we consider whether Appellees, Burton R. Adams and Joanne M. Adams, demonstrated that opening a private road over the property of Appellant, James M. Corl, was necessary under the Private Road Act, 36 P.S. §§ 2731 - 2891 (Act). We conclude the Adamses have not demonstrated necessity as a matter of law based on their contemplated future use of their property, when, as in accordance with the Act, necessity must be based on the existing use of the property. Accordingly, we reverse the Commonwealth Court's order affirming the trial court's confirmation of the Board of View's (Board) report recommending the grant of a private road in favor of the Adamses.

In 1967, the Adamses purchased a one-half interest in a parcel in Sullivan County from Mr. Adams's uncle.1 N.T., 7/24/15, at 36. Mr. Adam's father owned the other one-half interest. Id. On February 22, 1984, the Adamses acquired Mr. Adam's father's one-half interest for $1.00. Deed, 2/22/84, at 1. The Adamses' parcel, number 02-080-0001, consists of 230.91 acres with a mountain situated on its northern portion. N.T., 7/24/15, at 7, 42. No public roads abut or enter into the Adamses' parcel. The nearby roads include State Route 87 some distance south of this parcel; Star Road, running north from Route 87 to the east of the parcel; and Holly Hill Road, extending north from Route 87 to the west of the parcel.2

However, the Adamses own two adjacent properties bordering the subject parcel on the north at the foot of the steep side of the mountain (parcel numbers 02-094-0001 and 02-080-0003). Through parcel 02-094-0001, the Adamses have had access to the subject parcel from the north via Star Road. From Star Road, an unimproved dirt road travels west. This road was once a township road but was abandoned *1006and reverted to a private road. The Adamses' parcel 02-080-0003 lies on one side of this now-private road. N.T., 7/24/15, at 27-30, 44. The now-private road then enters the Adamses' parcel 02-094-0001 and connects with an unimproved logging skid road at the base of the mountain on the northern side of the subject parcel. This logging road is approximately a mile long and has a 1,000-foot elevation change as it travels straight up to the top of the mountain. Using this access point, Mr. Adams has hunted on the property all his life by walking from the bottom up the mountain. Id. at 31-32. However, Mr. Adams estimated that improving this logging road to facilitate vehicular access up the mountain road would cost "over hundreds of thousands of dollars." N.T., 7/24/15, at 24.

To the west and south, the Adamses' parcel borders property owned by Appellants William Dittmar and James M. Corl (collectively, Corl).3 Corl's parcel, number 02-081-0038, consists of approximately 250 acres. Deed, 6/20/07, at 1. Holly Hill Road runs north from Route 87 and terminates on Corl's property to the west of the Adamses' parcel.

Where Holly Hill Road ends, an unpaved and unimproved travelway begins. This travelway is maintained by Chesapeake Oil & Gas Company (Chesapeake), pursuant to access agreements with Corl and the Adamses. Supplement to Report of the Board of View at 4-5. For the right to construct and use this travelway, Chesapeake paid Corl and the Adamses $5.00 per foot of road. Id. at 5 n.4. Presumably, the road, labelled "TA Burts Lane" on the Sullivan County tax map, was constructed by agreement of the parties to provide access to a well pad to accommodate the extraction of natural gas inuring benefits to both parties. From the end of Holly Hill Road, the 22-foot wide Chesapeake travelway runs east 2,136.29 feet (½ mile) over Corl's property, then it enters the Adamses' parcel, continues southeast for approximately 3,387 feet over the Adamses' parcel, and enters other land Corl owns (parcel number 02-080-0002) where Chesapeake's natural gas well pad is located. Id. ; N.T., 7/24/15, at 17-18. The 2,136.29-foot portion of the travelway on Corl's property is the subject of this case. Chesapeake has a right of way over the entire travelway for as long as the gas pad is active, and Chesapeake's subcontractors use the road daily for drilling activity. Id. at 13.

After Chesapeake completed the travelway, Corl permitted the Adamses to access the 2,136.29-foot portion of the travelway (Roadway) that connects Holly Hill Road with the portion of the Chesapeake travelway on the Adamses' property. Id. at 15. However, after approximately two and one-half years, Chesapeake installed two gates on the travelway at Corl's request which discontinued the Adamses' access to the Roadway.4 Id. According to Mr. Adams, Corl denied his subsequent request for a right-of-way because Corl believed Mr. Adams was disturbing his deer population. Id. at 16. Thus, the Adamses no longer have access to their parcel from Holly Hill Road.

The Adamses intend to build a house or a cabin for seasonal use on top of the mountain in the northeastern portion of their parcel to take advantage of the scenic *1007views. N.T., 7/24/15, at 22, 40.5 To facilitate construction vehicle access to the mountaintop, the Adamses prefer to access their property from Holly Hill Road instead of improving the logging skid road they currently access from Star Road. On February 26, 2013, seeking to restore their access from Holly Hill Road via the Roadway, the Adamses filed a petition to open a private road and for appointment of a board of view pursuant to the Private Road Act. Therein, they alleged they "do not have any way whatsoever to access their lands ... from Holly Hill Road (Colley Township Road T-443) other than to obtain a private roadway over the lands owned by [Corl]." Pet. to Open a Private Road, 2/26/13, at ¶ 7. To remedy this, they sought to have the Roadway opened as a private road pursuant to Section 2731 of the Act, which provides:

§ 2731. Proceedings to open private roads
The several courts of quarter sessions shall, in open court as aforesaid, upon the petition of one or more persons ... for a road from their respective lands or leaseholds to a highway or place of necessary public resort, or to any private way leading to a highway, ... direct a view to be had of the place where such road is requested, and a report thereof to be made[.]

36 P.S. § 2731. Further, "[i]f it shall appear by the report of viewers to the court directing the view, that such road is necessary, the said court shall direct what breadth the road so reported shall be opened ... and thenceforth such road shall be deemed and taken to be a lawful private road." 36 P.S. § 2732.

On April 2, 2013, the trial court appointed a Board of View (Board) to determine the necessity of granting access to the Roadway to the Adamses. The parties agreed the Board would make its decision based on a site view alone, without an evidentiary hearing. Report of the Board of View, 2/24/14, at ¶ 4. On November 18, 2013, the Board conducted a site visit with the Adamses, Mr. Dittmar, and counsel for both parties. Id. at ¶ 3.

On February 24, 2014, the Board submitted its report, concluding the Adamses "should be granted unlimited access over and upon [Corl's] land for the stated purpose of constructing and residing in a one-family residence to be constructed upon [the Adamses'] land."

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In Re: Petition of B. Adams & J. Adams, h/w, 212 A.3d 1004 (Pa. 2019).

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