Leistner v. Borough of Franklin Park

771 A.2d 69, 2001 Pa. Commw. LEXIS 115, 2001 WL 194273
CourtCommonwealth Court of Pennsylvania
DecidedFebruary 28, 2001
DocketNo. 1385 C.D. 2000
StatusPublished
Cited by4 cases

This text of 771 A.2d 69 (Leistner v. Borough of Franklin Park) 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
Leistner v. Borough of Franklin Park, 771 A.2d 69, 2001 Pa. Commw. LEXIS 115, 2001 WL 194273 (Pa. Ct. App. 2001).

Opinion

PELLEGRINI, Judge.

William and Mary Jane Leistner and John and Joyce Whiteside (Property Owners), owners of real property located on Lin Point Court (Lin Point), appeal from an order of the Court of Common Pleas of Allegheny County (trial court) dismissing them complaint in equity to enjoin the Borough of Franklin Park (Borough) from using Lin Point as a public road.

Lin Point is located off State Route 856 (Nicholos Road), continues in a somewhat curved fashion, and, upon straightening, is then intersected by a dead-end road known as Wunderlin Road. After this intersection, Lin Point continues on and sub[71]*71sequently reaches a dead end cul-de-sac area. It has never been laid out in a plan of lots or referred to in a deed, and at its inception, it was used as a private access way maintained by its residents and used by them and their guests to gain access to their property.1 Beginning in the early 1960s, the Borough began to perform various maintenance tasks on Lin Point, including snow removal, the patching of potholes and applying tar and chip to the roadway.

In 1975, Clarence and Lorraine Wunder-lin deeded property located off Wunderlin Drive to the Borough which it used to erect what is now known as Blueberry Hill Park (Park). Prior to the Borough’s acquisition of the Park, Mr. and Mrs. Wun-derlin had used the property as farmland, and from 1944 to 1959 as a small landfill that they later abandoned.

The Borough first began improvements on what is now the Park in 1977 by replacing a barn roof which was located on the property. However, the first major improvement was the construction of the first ball field which occurred between 1978 and 1979. Further, the Borough did not begin to light the ball field for night use until 1990. Moreover, it was not until 1985 that a sign was placed at the corner of Lin Point and Nicholson Road that the Park was to be accessed by Lin Point, and since acquiring the Park, the Borough has made significant changes to Lin Point, including paving the road in 1983, installing speed bumps in 1984, and placing a water line within Lin Point in 1998. Today, the Park consists of approximately four baseball fields, a track, a large playground and volleyball and basketball courts.

In May 1997, the Borough filed a declaration of taking condemning Lin Point for public roadway purposes. Based on the advice of counsel, the Borough later filed a declaration of relinquishment pursuant to Section 408 of the Eminent Domain Code2 claiming that the road was a public road because the public had used it for 21 years.

In June 1998, Property Owners filed a complaint in equity against the Borough contending that Lin Point was a private easement over private property which was being violated by the Borough through overuse both by physically widening the road through the tarring, chipping and paving process and by unreasonably increasing the volume and nature of traffic accessing Lin Point. The relief they sought was to enjoin the Borough from using Lin Point as a public access way to the Park, and, in the alternative, if Lin Point was found to be a public road, to enjoin the Borough from illegally encroaching upon their property by imper-missibly expanding the width of Lin Point beyond the original easement.

At trial, several current and former residents testified as to the nature of the easement and how the Park had increased the volume and nature of vehicle traffic on Lin Point. Beverly Wunderlin Nussbau-mer, who resided at Lin Point from the 1940s until the mid-1970s, and whose now-deceased parents sold what is today the Park to the Borough, testified that when [72]*72the Park was used by her parents as a landfill, traffic from this use was minimal, from two to four truckloads a day. Further, she stated that for approximately three to four years, her father allowed others to use the landfill which increased traffic to approximately eight to ten truckloads a day. She further testified that children would play in the road because it was a dead-end street, and after the landfill ceased, the only traffic was from the residents, their guests and occasional delivery persons. As to Lin Point itself, she testified that when she lived there, it was a very narrow unpaved road, only one car could drive through at a time, and if two cars tried to pass each other, they would create ruts on the side of the road because of its narrowness.

Darlene J. Gerber, a resident who lived on Lin Point since 1959, testified that when she first came to live on Lin Point, it was a narrow dusty road which only one car could fit onto at a time, and by the time the Park was in operation, two cars could maneuver down the street without pulling over. She noted that the Borough began to tar and chip Lin Point in the early 1960s. Moreover, she testified that when she first moved to Lin Point, her husband would plow the snow in the winter, but she noted that an elderly couple living on Lin Point called the Borough to plow the snow for them and the Borough would do this. She testified that traffic did not change on Lin Point until after the Borough purchased the Park and constructed the ball fields. Dave Fagan, who had lived at Lin Point since 1972, testified about the increase in traffic due to the Park and noted that there was an average of 50 to 60 cars within a one-hour time frame that would access Lin Point to get to the Park.

Property Owner John A. Whiteside, who had lived on Lin Point since 1967, testified that when the Park was first sold to the Borough, there was not a significant increase in traffic, and that only with the inception of the first Park festival in 1985 did traffic increase to the point where hundreds of cars were accessing the Park through Lin Point. He further noted that the Borough’s installation of lighting in the Park in 1990, which increased the hours when park patrons would come to the Park, also increased traffic on Lin Point. He stated that the chains on the gates of the Park were never locked and people could access it at all hours. In addition, he noted that there was an increase in noise in the neighborhood due to the traffic and from maintenance of the Park, including septic tank cleaning which occurred before 5:00 a.m. He testified that Lin Point used to be approximately ten feet wide and today varied from 17 to 26 feet in width. Property Owner William Leistner, who had resided at Lin Point since 1986, also testified to the extreme increases in traffic due to the construction of the Park. He noted that on differing occasions, larger vehicles were damaging residents’ property.

Also testifying on Property Owners’ behalf was Daniel J. Martone, a professional engineer and land surveyor, who, in 1997, was asked by Property Owners Leistners to determine if Lin Point had encroached on their property. Mr. Martone noted that Lin Point crossed the property and traversed along the westerly portion of their property. He further noted that the width of the roadway varied from 17 feet, six inches at the point where Lin Point intersected Wunderlin Drive to 19 feet at the end of the arc. Further, he stated that the gravel berm that spilled out on the side of the Lin Point was from six inches to a foot on both sides of Lin Point. Moreover, Mr. Martone noted that in addition to these measurements, he would add [73]*73a foot to two feet additional width on the gravel berm.

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Cite This Page — Counsel Stack

Bluebook (online)
771 A.2d 69, 2001 Pa. Commw. LEXIS 115, 2001 WL 194273, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leistner-v-borough-of-franklin-park-pacommwct-2001.