J-A03023-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
RACHEL CARSON TRAILS : IN THE SUPERIOR COURT OF CONSERVANCY, INC. : PENNSYLVANIA : v. : : RONALD EICHNER : : Appellant : No. 1347 WDA 2022
Appeal from the Order Entered November 10, 2022 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD-20-008369
BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY KUNSELMAN, J.: FILED: February 9, 2024
I. Introduction
In the early 1900s, when electric trolleys were a common form of mass
transit, the “Harmony Route,” ran north from Pittsburgh, through the Wexford
area, to Lawrence and Butler Counties.1 That route closed in 1931, and the
Rachel Carson Trails Conservancy, Inc. (“RCTC”) hopes to convert sections of
it into a public hiking trail. As part of that effort, in 2020, RCTC filed this
lawsuit to enjoin Ronald Eichner from interfering with its use and improvement
of 606 yards of “Harmony Trail.” The court of equity ruled in favor of RCTC.
Mr. Eichner appeals from the order and equitable decree that (1)
permanently enjoined him from interfering with RCTC’s use thereof and (2)
denied his counterclaim seeking to extinguish RCTC’s easement. We affirm.
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1 See The Pennsylvania Trolley Museum, “Pittsburgh Harmony Butler & New
Castle Railway 115,” available at https://pa-trolley.org/collection/pittsburgh- harmony-butler-new-castle-railway-115/ (last visited 1/22/24). J-A03023-24
II. Factual and Procedural Background
On December 28, 1996, Precision Equities, Inc. deeded the 606-yard
easement to RCTC.2 Precision conveyed “the free and uninterrupted use,
liberty and privilege of easement and right of way for the purpose of ingress,
egress and regress in and upon” Precision’s property. RCTC’s Ex. K at 1. The
easement followed the old Harmony Route from the southern line of Precision’s
property (in McCandless Township) to its northern line (in Pine Township).
See id. at 1-2; see also RCTC’s Ex. J (showing the easement as a red line on
a 2010 satellite image from the Allegheny County Department of Real Estate’s
website).
The deed plainly expressed the intention of Precision and RCTC to “form
a continuous through trail traversing [Precision’s] land as nearly along the
natural contours of said land in a width not to exceed” 25 feet. Id. at 2. It
also granted RCTC the right to access “adjacent areas for parking and access
to and from said Trail Area as shall be necessary to complete said Trail Area.”
Id.
On February 7, 1997, RCTC recorded its easement. See id. at 3.
Four months later, in June 1997, Precision sold its property to Mr.
Eichner. However, Precision neglected to inform him that it had previously
2 Technically, the easement is 1,818.49 feet in length. Also, in 1996, RCTC was known as Harmony Trails Council Corp., which is the named grantee in the deed. Harmony Trails Council rebranded as RCTC upon acquiring the much-longer Rachel Carson Trail in 2004.
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granted RCTC an easement through that land, and Mr. Eichner’s title searchers
did not uncover or report the easement.
Mr. Eichner’s newly purchased property abutted his farm. Therefore, he
knew of “people driving on the property and dumping things off, especially
after Penn Power[3] modified their substation . . . and made the entrance
looking to go up on the property.” N.T., 12/30/21, at 97. He removed “a
refrigerator, two stoves, rolled up hardware, six or seven stacks of branches
or leaves, [and other] things that shouldn’t be on private party.” Id. at 97-
98. Due to this history of unlawful dumping, on June 27, 1997, shortly after
he closed on the property, Mr. Eichner “constructed two sections of split-rail
fence, two posts and a chain, both north and south of [his new] property.”
Id. at 97. He also posted no-trespassing signs. See Eichner’s Exs. 10 & 11.
One sign threatened prosecution if there was “trespassing for any purpose
. . . .” Eichner’s Ex. 10 (capitalization removed).
However, Mr. Eichner did not initially intend to exclude trail users from
his newly purchased land, because, at that time, he was unaware of RCTC’s
trail easement. N.T., 12/30/21, at 98. In fact, RCTC had not yet acquired
access along the Harmony Route to the easement in 1997. As such, RCTC
was unable to make immediate improvements on the trail, because it needed ____________________________________________
3 Penn Power owns parcels at both ends of Harmony Trail and has a powerline
easement running through the same valley. The electric company allows trail users to park their cars in its parking lot at the northern end of Harmony Trail, i.e., on the south side of State Route 910. See N.T., 10/19/21, at 60-61. Penn Power is not a party to this action. Gas and sewer-line easements also traverse the valley with the Harmony Trail. See N.T., 12/30/21, at 83.
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more land or easements leading south from State Route 910 (a.k.a., Wexford
Bayne Rd.) to its easement on Mr. Eichner’s property. See N.T., 10/19/21,
at 63. By 2000, RCTC acquired the adjoining land and other easements down
the old trolley route to reach Mr. Eichner’s property. See id. at 64. Thus,
only three years after Mr. Eichner purchased the property, the public could
walk, bike, and ski from State Route 910 southward on the Harmony Trail,
through the easement on Mr. Eichner’s property, and then turn around and
head back to State Route 910.
For example, John Stephen, a trail developer for RCTC since 2001, was
one of many volunteers who developed and maintained the Harmony Trail.
See N.T., 10/19/21, at 44. He walked the easement on Mr. Eichner’s property
about “once a year, ten times maybe.” Id. at 58. Whenever he reached the
easement on Mr. Eichner’s land, if the chain was up, it did not physically bar
his passage south. Mr. Stephen was always “able to step over it [or] around
it.” Id. He explained, “the chain crosse[d] the railroad . . . so going around
it mean[t] going into the grass, but you [could] do that.” Id. at 59.
Michael Taylor, a member of the Harmony Trail Committee and a trail
steward, performed maintenance on the trail and removed fallen trees when
needed. See N.T., 12/30/21, at 9. He moved into a development near the
Harmony Trail and “really started using it a lot in the summer, fall of 2016.”
Id. at 10. Thus, 19 years after Mr. Eichner erected the fences and chain, Mr.
Taylor began to “use the trail for walking, hiking, and biking” sometimes daily.
Id. at 9-10.
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Whenever he reached Mr. Eichner’s property, the presence of the chain
varied. See id. at 10. If it was up, Mr. Taylor would “just turned around” and
headed back to State Route 910. Id. at 13. If the chain was down, Mr. Taylor
would continue onto the easement and “intermittently” hiked there. Id. at
10. He found the chain down “on more than one occasion.” Id. at 19.
Furthermore, Mr. Taylor confirmed that it was “possible to step over the chain”
and that “lots of people in the neighborhood would” go south of the chain,
including “folks with a baby stroller . . . .” Id. at 11 (emphasis added).
Another member of the Harmony Trail Committee and trail steward, Eoin
Gormmey, used the Harmony Trail for cycling, walking, and cross-country
skiing. See id. at 45. He did these activities in the easement on Mr. Eichner’s
property, even though he “frequently” found the chain draped across the
easement. Id. While Mr. Gormmey could step over the chain, like Mr. Taylor,
he viewed the chain being up as meaning that RCTC’s easement was closed.
However, when the chain was down, he “took it [to mean] that the trail was
opened; the easement was accessible.” Id. at 46. At those times, Mr.
Gormmey “cycled . . . south following [RCTC’s] easement across Mr. Eichner’s
property.” Id. at 53.
Similarly, RCTC’s Treasurer and one of its founders, Charles Berthauer,
hiked the Harmony Trail about six times a year. Those hikes included the
easement on Mr. Eichner’s property. Half of the time, the chain hung across
the easement, but, if Mr. Berthauer “wanted to go down the easement portion,
[he] just stepped over it.” Id. at 60. While there, he saw “as many people
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on the easement portion of the trail” as he saw on its other sections. Id. at
72.
Mr. Berthauer also explained that, in 2008, RCTC hired a contractor to
install water-management culverts on the trail. See id. at 73. According to
Mr. Brethauer, the contractor installed some of the culverts on Mr. Eichner’s
property in RCTC’s easement. The culverts were pipes “either eight or ten
inches in diameter, up to a foot, foot-and-a-half, to allow water to flow into
the trail from the [hill]side to the low side.” Id. at 74. Mr. Eichner never
asked RCTC to remove the culverts; they remain on his land. See id.
Finally, Robert Mulshine, another founder of RCTC, started walking the
Harmony Trail in 2007, and he too has “been on the easement.” Id. at 76.
He saw the chain “lying on the ground,” and, in his view, “it was never
intended to get people off the trial.” Id. “There was no fence across the trail,”
and, if the chain was up, people “would step over it.” Id. at 76-77.
In particular, on November 6, 2010, Mr. Mulshine and the other board
members of RCTC “did a walk in the ball park to Bradford Woods Elementary
School, along the route of the old Harmony trolley line.” Id. at 78-79. In
doing so, they “walked the entire length, which means [they] walked all [606
yards] of the easement.” Id. at 79.
When Mr. Eichner’s counsel asked Mr. Mulshine if he ever saw the lock
on the chain, Mr. Mulshine explained that the lock never barred ingress to or
use of RCTC’s easement. He said, “the lock forms a loop in that chain, and
[there is] a pole that it’s sitting on.” Id. at 84. “[Y]ou lift that loop up and
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put the chain down on the ground, so you get vehicles down there to do
maintenance on the easement. That lock is not preventing access.” Id.
(emphasis added).
Indeed, upon questioning from his own counsel, Mr. Eichner admitted
that his fences, chains, and no-trespassing signs failed to prevent the public
and RCTC members from using the easement. According to Mr. Eichner,
people would simply “pull out one of the metal posts that the chain is locked
to and just lay it on the ground, or on . . . the northern end, they would kick
the split-rail fence down.” Id. at 99. He continually repaired or replaced the
fences and chains when he found them displaced or damaged, but people
continually destroyed, removed, or ignored them.
In 2020, RCTC hired another contractor to improve the easement on Mr.
Eichner’s property by using an excavator to lay a limestone base along that
portion of the Harmony Trail. When Mr. Eichner learned there was a contactor
working on the easement, he called the police. They said this was civil matter
for the courts. The contractor and RCTC board members left the easement
after improving only a fraction of the easement.
A few months later, in August 2020, RCTC sued to enjoin Mr. Eichner
from interfering with its (and, by extension, the public’s) use of the Harmony
Trail. Mr. Eichner filed a counterclaim for quiet title, asking the court of equity
to declare RCTC’s 606-yard easement extinguished by Mr. Eichner’s alleged
adverse possession of it.
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Additionally, on September 20, 2021, RCTC moved for a preliminary
injunction. The common pleas court assigned the motion to Judge Arnold
Klein. Sitting in equity, the court conducted two days of hearings, on October
19, 2021 and December 30, 2021, respectively. Six months later, the parties
filed post-hearing briefs. The court eventually issued a Memorandum and
equitable decree granting RCTC a permanent injunction and denying Mr.
Eichner’s counterclaim for quiet title by adverse possession. See Trial Court
Order, 9/12/22.
A week later, Mr. Eichner moved for reconsideration, which the equity
court granted on October 7, 2022. Another hearing occurred on October 19,
2022 to determine whether RCTC was entitled to a permanent injunction. At
that hearing, Mr. Eichner and Mr. Mulshine both testified, and more documents
were admitted into evidence.
On November 10, 2022, the equity court entered an order denying Mr.
Eichner’s claim for adverse possession of the easement. The court further
decreed that Mr. Eichner “shall remove any chains and/or other barriers
interfering with [RCTC’s] use of its easement that is the subject of this suit.”
Trial Court Order, 11/10/22, at 1. The court also “permanently enjoined [him]
from interfering with [RCTC’s] property rights in the easement at issue in this
case.” Id. This timely interlocutory appeal, as of right, followed.4
4 Under Pa.R.A.P. 311(a)(4)(ii), an “an order is immediately appealable when
it enjoins conduct previously permitted and is effective before entry of the (Footnote Continued Next Page)
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III. Analysis
Mr. Eichner raises the following three appellate issues:
1. Whether the [equity] court committed mistakes of fact resulting in a decision contrary to the law?
2. Whether [Mr.] Eichner proved all of the elements of adverse possession when it is undisputed that he posted no trespassing signs; a chain fence with locks on June 27, 1997; and that they have continued until the order of court dated November 10, 2022?
3. Whether the court of [equity] resolved issues not before it?
Eichner’s Brief at 5. We address each issue in turn.
A. Issues of Fact
First, Mr. Eichner contends the court of equity made erroneous factual
findings. He identifies those findings of facts and citations to the record in the
equity court’s Memorandum with which he disagrees, but he fails to establish
how those factual errors entitle him to appellate relief. Critically, his argument
contains no case law or other authority.5 See id. at 32-34. Mr. Eichner
declares, without any legal support, that “When there are material mistakes
of fact, the ruling must be overturned whereas [sic] the mistakes of fact are
final order.” Morgan v. Millstone Res. Ltd., 267 A.3d 1235, 1243 (2021) (quotations omitted). Thus, the fact that Mr. Eichner neither filed post-trial motions nor praeciped for the entry of a final judgment does not deprive this Court of appellate jurisdiction over the November 10, 2022 order or result in waiver based on Pa.R.C.P. 227.1. See id.
5 We also note that Mr. Eichner cited no legal authority in the section of his
brief regarding our Scope and Standard of Review to support his erroneous contention that, because “this case has mixed issues of fact and law, the standard is plenary.” Mr. Eichner’s Brief at 3.
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complete fabrications and total distortions of the facts, it certainly needs to be
overturned.” Id. at 35.
He then speculates that “both of the Memorandum and Opinions were
written by law clerks who did not have access to the Transcript of October 19,
2021 and certainly not the Transcript of October 19, 2022 which was only
transcribed on December 21, 2022.” Id. Mr. Eichner again offers no legal
authority as to why, even if we assumed that a law clerk drafted the court of
equity’s Memorandum without access to the transcripts, this would necessitate
reversal of the appealed-from order.
Our Rules of Appellate Procedure require appellants to develop cogent,
legal arguments – as opposed to factual ones – in their briefs to this Court.
Indeed, an appellant’s “argument . . . shall have . . . such discussion and
citation of authorities as are deemed pertinent.” Pa.R.A.P. 2119(a). When
“defects in a brief prevent meaningful review, the issue may be found
waived.”6 Sephakis v. Pennsylvania State Police Bureau of Recs. &
Identification, 214 A.3d 680, 687 (Pa. Super. 2019).
Mr. Eichner would have us substitute his view of the evidence for that
of the equity court to reverse the permanent injunction. However, he cites no
law to demonstrate that such relief is warranted, even if we ultimately agreed
6 “The applicability of waiver principles presents a question of law, over which
our standard of review is de novo . . . [and] our scope of review is plenary.” Temple Est. of Temple v. Providence Care Ctr., LLC, 233 A.3d 750, 760 (Pa. 2020).
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with him that the equity court made certain factual misstatements and
incorrect citations to the record in its Memorandum. Moreover, he does not
consider (much less provide an argument pertaining to) our deferential
standard of review for the factual findings of the equity court.7 Given the
deficiencies of Mr. Eichner’s appellate argument, we dismiss his first issue as
waived.
B. Issues of Law
For his second appellate issue, Mr. Eichner asserts that he proved his
counterclaim of adverse possession to extinguish RCTC’s easement. He begins
by stating, “Since the [equity court’s] law clerk was not present at any of the
hearings, and particularly the hearing of October 19, 2022, and the transcript
had not been transcribed, [the law clerk] would not know that Mr. Mulshine
had stated that there was no evidence to contradict that the signs were
erected on June 27, 1997.” Mr. Eichner’s Brief at 36. He then declares that
RCTC’s witnesses “prove that they knew in 1997 Mr. Eichner was claiming the
property.” Id. He ultimately tries to relitigate the facts, as he sees them,
relying upon his own self-serving testimony. See id. at 36-37.
The remainder of Mr. Eichner’s argument is as follows:
This Court ignored all of the relevant cases cited by counsel for Mr. Eichner, including Schlagel v. Lombardi, 486 A.2d 491 (Pa. Super. 1984) citing Malachos v. Witherow, 118 A.2d 1955 ____________________________________________
7 A court of equity’s “findings of fact will not be disturbed absent an abuse of
discretion, a capricious disbelief of the evidence, or a lack of evidentiary support on the record for the findings.” Carroll v. Ringgold Education Ass'n, 680 A.2d 1137, 1140 (Pa. 1996).
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and Jones v. Porter. More importantly, the cases state actual possession of land is dominion over the land. It is not the equivalency to obvious. Reed, supra. Brennan v. Manchester Crossinqs, Inc., supra. Closs v. Melenday, 513 A.2d 490 (Pa. Super. 1986). Also, the case of Homeland Company v. Neiqh and Reed v. Walnick which stated ownership is not destroyed because other persons occasionally pass unobserved over the lot in question. See Stern v. Fried, 570 A.2d 1079 (Pa. Super. 1990) which states visible and notorious possession ownership must be evidenced by conduct sufficient to place a reasonable person on notice that his/her land is being held by the claimant as his own. Also, the case of Zegland v. Gahaghen, 812 A.2d 558 (Pa. 2002) states that “the law mandates that a person asserting a claim of adverse possession make that assertion openly and notoriously to all the world. There must be no secret that the adverse possessor is asserting a claim to the land in question.”
Now, most importantly, I requested that the law clerk review the last cases I cited in my Post-Hearing Brief, Brennan v. Manchester Crossings, Inc., 708 A.2d 215, Weibel v. Wells, 156 A.3d .1220, appeal denied at 130 A.3d 31. These most recent cases show the duty of [RCTC] by stating, “To interrupt continuous adverse use of property and toll running of the statute of limitations on an adverse possession claim, the owner must (1) bring and pursue to judgment legal proceedings in which the use is determined to be without legal justification; or (2) cause the cessation of the use without the aid of legal proceedings.” It is clearly obvious that [RCTC] in this case did not do that. The court in this case did not follow the law, either on adverse possession or the duty of the person who wants to challenge adverse possession. Also, the time frame in this case is very questionable. Mr. Eichner put up his signs and chains on June 27, 1997. On June 12, 2020, almost two (2) years [after he] had acquired the property by adverse possession, officials and contractors were on the property to start construction of the trail. It is noteworthy that [RCTC’s] people left the scene on June 12, 2020 and filed a lawsuit on August 6, 2020. Now more than 22 months after filing suit and two years after they left the scene when the police arrived, they are alleging severe and irreparable harm for a preliminary injunction.
Restatement of Property § 7.7
Mr. Eichner’s Brief at 37-39 (emphasis in original).
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The above two paragraphs are the only portion of Mr. Eichner’s 50-page
brief that contain any legal authority. However, because Mr. Eichner’s counsel
copied his Motion to Reconsider to serve as the above section of his appellate
brief, the two paragraphs do not address the issue that Mr. Eichner raised on
appeal. See Motion to Reconsider at 12-13.
In fact, the only change Mr. Eichner made in this section of his appellate
brief from his Motion to Reconsider was to add the phrase “Restatement of
Property § 7.7” at the end of the argument. Id. at 39. He does not even
indicate which RESTATEMENT he means. Nonetheless, we recognize that Mr.
Eichner included one page from the RESTATEMENT (THIRD) OF PROPERTY in the
back of his Reproduced Record.8
From this, we infer Mr. Eichner would have us rely upon Section 7.7 of
the RESTATEMENT (THIRD) OF PROPERTY, but he makes no argument concerning
that treatise. Mr. Eichner does not claim that any court of this Commonwealth
has adopted any section from the RESTATEMENT (THIRD), much less Section
7.7. Nor does he explain why we should rely upon it as an accurate reflection
of Pennsylvania property law. Thus, the phrase “Restatement of Property §
7.7” that Mr. Eichner appended to his Motion to Reconsider does not constitute
a meaningful appellate argument, so much as an incomprehensible mic-drop.
We decline to consider Section 7.7 of the new RESTATEMENT and its place – if
8 Neither party made the RESTATEMENT (THIRD) OF PROPERTY a part of the certified record. Thus, it should not be in Mr. Eichner’s Reproduced Record. See Pa.R.A.P. 2152(a).
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any – in Pennsylvania law without supporting justification from the party who
seemingly would have us apply it.
Moreover, the issue Mr. Eichner raised in this Court was whether he
proved his counterclaim of adverse possession. The two paragraphs from his
Motion to Reconsider instead focus upon what he viewed as the insufficiencies
of RCTC’s proof to obtain a preliminary injunction. His last sentence makes
this clear: “Now, more than 22 months after filing suit and two years after
[RCTC] left the scene when the police arrived, they are alleging severe and
irreparable harm for a preliminary injunction.” Motion to Reconsider at 13;
Eichner’s Brief at 38-39. In other words, Mr. Eichner’s argument discusses
what he believes RCTC needed to do to disprove his counterclaim for adverse
possession, a burden that RCTC has no obligation to bear.
Mr. Eichner’s counterclaim for quiet title, based on a claim for adverse
possession, was an affirmative defense under the 21-year statute of
limitations for bringing an ejectment, trespass, or other action against him for
interfering with RCTC’s interest in and use of the easement. “A defendant
asserting an affirmative defense has the burden of proof as to that affirmative
defense.” Sabella v. Appalachian Dev. Corp., 103 A.3d 83, 93 (Pa. Super.
2014). “As the party asserting the affirmative defense of the statute of
limitations, [Mr. Eichner] bore the initial burden of establishing that the action
was filed after the applicable period would have expired, had it started to run
at the time the cause of action accrued.” Id. Indeed, “the burden of proving
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adverse possession falls on the one asserting title under it . . . .” Conneaut
Lake Park v. Klingensmith, 66 A.2d 828, 829 (Pa. 1949).
Thus, to succeed on the issue that he raises on appeal, Mr. Eichner may
not rely on the alleged deficiencies in RCTC’s rebuttal of his counterclaim for
adverse possession. By doing so, Mr. Eichner erroneously attempted to shift
his burden of proof to RCTC. Instead, to succeed on appeal, he needs to
establish that, even viewing all the facts in the light most favorable to RCTC
as the winner below, Mr. Eichner “is entitled to judgment as a matter of law
[or] the evidence was such that no two reasonable minds could disagree that
the outcome should have been rendered in favor of the movant.” Harley v.
HealthSpark Found., 265 A.3d 674, 684 (Pa. Super. 2021).
Noticeably absent from Mr. Eichner’s brief are the elements for adverse
possession to extinguish an easement. Thus, he offers no explanation as to
how he so clearly proved each of those elements that “the evidence was such
that no two reasonable minds could disagree that the outcome should have
been rendered in [his] favor . . . .” Id.
Because members of RCTC and the public repeatedly used the easement
since the early 2000s, despite Mr. Eichner’s efforts to keep them off his
property, Mr. Eichner fails to make a colorable claim for judgment, as a matter
of law. Clearly, Mr. Eichner admitted his chain and fencing were ineffective
in preventing RCTC members and the public from using the easement. He
conceded people repeatedly removed or destroyed his barriers. See N.T.,
12/30/21, at 99. Thus, his no-trespassing signs were insufficient to extinguish
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the easement, because the signs did not give him continuous, exclusive
possession of the easement.
As owner of the property in fee simple, Mr. Eichner obviously believes
the trail goers have trespassed against him. They did not. “It is well-settled
law that in order to establish a claim for trespass, a plaintiff must prove an
intentional entrance upon land in the possession of another without a
privilege to do so.” Kennedy v. Consol Energy Inc., 116 A.3d 626, 636
(Pa. Super. 2015) (emphasis added). Here, RCTC has a deed that privileges
its members and other trail goers to enter and use the 25-foot-wide by 606-
yard-long easement. Therefore, RCTC members and the public were not
trespassers when they entered Mr. Eichner’s property, because the easement
privileged them to do so.
Instead, Mr. Eichner trespassed against them and their property rights
of access and use. “It is beyond cavil in Pennsylvania that a property owner
may use his property only in ways that do not interfere with the rights of the
easement holder.” Starling v. Lake Meade Prop. Owners Ass'n, Inc., 162
A.3d 327, 343 (Pa. 2017). “The owner of the servient tenement [i.e., Mr.
Eichner] may make any use thereof which is consistent with or not calculated
to interfere with the exercise of the easement.” Minard Run Oil Co. v.
Pennzoil Co., 419 Pa. 334, 214 A.2d 234, 235 (1965). By blocking the
easement and intentionally inferring with RCTC’s attempts to improve the trail,
Mr. Eichner committed repeated trespasses against the rights of RCTC, as
expressed in RCTC’s deed from Precision. See RCTC’s Ex. K at 1, 3.
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RCTC and the public, in turn, had the common-law remedy of self-help
at their disposal to negate Mr. Eichner’s repeated trespasses and, thereby,
maintain their access to and use of the easement. Regarding that ancient
remedy, this Court has said, “act[s] of commission are committed in defiance
of those whom such [wrongful acts] injure, and the injured party may abate
them without notice to the party who committed them . . . .” Jones v.
Wagner, 624 A.2d 166, 168 (Pa. Super. 1993) (holding that the remedy of
self-help is available to the landowners whose neighbors’ trees grow across
the property line) (quoting Gostina v. Ryland, 199 P. 298, 299–300 (Wash.
1921)).
We hold that an easement owner, the owner’s agents, or the owner’s
invitees may exercise the remedy of self-help when the possessor of a servient
tenement obstructs the dominant estate’s easement, because the owner of
the dominant estate may enter the servient estate to do anything reasonably
necessary to ensure the proper use and enjoyment of the easement. See 3
Tiffany, REAL PROPERTY at 346-51, § 810 (3d ed. 1939). By ignoring Mr.
Eichner’s no-trespassing signs, stepping over the chain, or laying it on the
ground, the members of RCTC and the public were exercising reasonable self-
help to remedy Mr. Eichner’s violations of RCTC’s easement rights.
In sum, Mr. Eichner has neither contended nor established that he is
entitled to judgment, as a matter of law, on his counterclaim for quiet title by
adverse possession.
His second appellate issue affords him no relief.
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C. Issues of Procedure
Finally, Mr. Eichner contends the court of equity resolved legal issues
that were not before it. He claims the court could not grant the permanent
injunction, because RCTC did not explicitly petition it for one. See Eichner’s
Brief at 39. He also believes the equity court had no authority to dismiss his
counterclaim for quiet title by adverse possession, even though it was his
affirmative defense to RCTC’s Complaint.
Like his first appellate issue, Mr. Eichner cites no legal authority or any
rule of procedure to support his claims of procedural error. See id. at 39-40.
Thus, he has waived his final appellate issue. See Pa.R.A.P. 2119(a); see
also Sephakis, supra.
Order affirmed.
DATE: 02/09/2024
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