J-S28021-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BARRY R. STARLIPER AND SUZANNE : IN THE SUPERIOR COURT OF L. STARLIPER : PENNSYLVANIA : : v. : : : KEVIN L. NEGLEY, MELISSA A. : NEGLEY, GERALD DUPERT AND LORA : No. 1853 MDA 2018 DUPERT : : Appellants :
Appeal from the Judgment Entered October 9, 2018 In the Court of Common Pleas of Cumberland County Civil Division at No(s): 2016-4031
BEFORE: BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED OCTOBER 04, 2019
Kevin L. and Melissa A. Negley appeal1 from the judgment entered in
the action brought against them by Barry R. and Suzanne L. Starliper. The
Negleys contest the orders declaring an easement on their property, requiring
them to remove a fence and detach their addition from the Starlipers’ addition,
and awarding the Starlipers’ monetary damages for trespass. We affirm.
The properties at issue in this dispute originally comprised the
Sunnyside Female Seminary, which was founded in 1858 in the Borough of
Newburg, Pennsylvania. Trial Court Opinion, filed 7/30/18 at 1. The seminary ____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 Although Gerald Dupert and Lora Dupert also appealed, the trial court found that all claims against the Duperts were in favor of the Duperts. We therefore refer to the appellants as “the Negleys.” J-S28021-19
included a three-story building, a two-story “addition” protruding from the
rear of the building’s eastern half, and a backyard. The earliest recorded
division of the property occurred in 1872, when the western half of the
property (including the western half of the building) was conveyed. The
Starlipers now hold the title to the eastern half of the property, including the
original addition, which they acquired in June 2006.
The western portion became the property of Gerald and Lora Dupert in
June 2015. The previous owner had started construction of a two-story
addition on the rear of the residence, abutting the Starlipers’ addition. The
previous owner died before completing the addition. When the Duperts took
ownership, the addition consisted of studding, plywood, and a roof. In July
and August 2015, the Duperts’ daughter and son-in-law, Melissa and Kevin
Negley, finalized the construction on the addition.
The Duperts conveyed their property to the Negleys in February 2016.
Between April and May 2016, the Negleys constructed a fire escape from the
second story of the addition and erected a fence between the properties,
alongside the property line. The Negleys also constructed a detached garage
and carport at the rear of their backyard.
The Starlipers commenced this action in July 2016 by filing a complaint
asserting counts for trespass, nuisance, and obstruction of an easement.
Following further pleadings, the Starlipers filed a “Motion for Declaratory Relief
to Affirm Status of Easement.” The Starlipers alleged that the only way to
access the exterior western wall of their addition, in order to maintain it, was
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by accessing part of the Negleys’ property. The Starlipers alleged that as their
addition has existed since before the time the property was first divided, a
five-foot wide easement by implication existed on the portion of the Negleys’
property that runs adjacent to it. The Starlipers asserted that access to the
western wall of their addition has always been necessary, and that the wall
now includes two windows, air vents, vinyl siding, and a rain gutter.
The Negleys filed an Answer to the Motion for Declaratory Relief. They
claimed that the Starlipers had never performed maintenance on the wall, and
there was no evidence that any prior owners had ever accessed their property
to perform any such maintenance.
The trial court granted the motion on the pleadings and entered an order
declaring the Starlipers “have an easement of five feet in width, across the lot
owned by the [Negleys] to access the western wall of [the Starlipers’]
addition.” Order, 11/8/17, at 6.
Six months later, the case proceeded to trial. Barry and Suzanne
Starliper and Melissa and Kevin Negley each testified.2 The Starlipers testified
that the Negleys’ addition impedes their access to the easement, as does the
fire escape and fence. The Starlipers also testified that the Negleys’ addition
was fastened to the Starlipers’ addition, and that during construction of the
garage, the Negleys’ contractor spread soil, rocks, and debris onto the
____________________________________________
2 We refer to the testimony of Barry and Suzanne Starliper together as the “Starlipers’ testimony” and to the testimony of Melissa and Kevin Negley together as the “Negleys’ testimony.”
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Starlipers’ back lawn. The Starlipers conceded that some of the rocks in their
backyard were there prior to the construction. The Starlipers further testified
that construction of the garage increased the flow of water onto their land.
The Starlipers testified that they received an estimate of $1,480 from a
landscaper to haul away the debris, apply topsoil to grade the yard, and
replant grass. The Starlipers entered a copy of the estimate into evidence.
The Negleys denied that their addition is attached to the Starlipers’
home, asserting that it is anchored to the rear of their own home. They
testified that they could easily remove a panel of the fence within minutes,
and offered to do so periodically to allow the Starlipers access to their exterior
wall. The Negleys stated that when construction on the garage began, they
instructed their contractors to keep any dirt off the Starlipers’ property, but
the contractors put some debris across the property line anyway. The Negleys
had the contractors remove as much of the debris as they could, but
acknowledged that some remained in the Starlipers’ backyard. The Negleys
denied that construction of the garage altered the flow of water between the
properties; the Negleys testified they only slightly raised the elevation of the
ground under the garage, and testified that their rear lawn has always sloped
onto the Starlipers’ rear lawn.
The Negleys also argued that the Starlipers’ claims should be banned by
the doctrine of laches, as the Starlipers had delayed in asserting the existence
of an easement until the Duperts/Negleys had purchased the property,
finished the addition, and began construction of the fire escape and fence.
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Much of the testimony therefore revolved around the manner in which the
Starlipers had protested the various phases of construction, both before and
after the Duperts/Negleys acquired the property.
Relevant to our disposition, the Starlipers testified that they voiced their
concerns to the Negleys in the spring of 2016, soon after the Negleys obtained
ownership and began construction of the fire escape, fence, and garage. The
Starlipers stated that they also attended a meeting of the Borough in May
2016, at which the Negleys were present, to publicly object to the
construction, and sent the Negleys a cease and desist letter. The Negleys
testified that the Starlipers’ complaints to the Borough were limited to
arguments regarding zoning and permits, and did not mention a right of way.
However, the Negleys also testified that when they began construction of the
fire escape, fence, and garage, the Starlipers complained that the construction
impeded their “right of way,” and that the additional construction would
prevent them from accessing their dryer vent.
The court found that although the Negleys’ addition sits upon the
Starlipers’ easement, ordering the Negleys “to remove up to five feet of the
addition is inconvenient and would cause greater injury to the Negleys than is
reasonable under the circumstances.” Opinion, 7/30/18, at 15. However, the
court enjoined the Negleys “from adding to the addition to the extent it
trespasses on the [Starlipers’] property or impedes any easements.” Order,
7/30/18, at 1 (unpaginated). The court also found that the Negleys’ fire escape
sits upon the easement, but that it does not unreasonably infringe on the
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Starlipers’ use of the easement. Opinion, 7/30/18, at 15. In contrast, the court
found that the Negleys’ fence “significantly infringes upon the Starlipers’ use
of the easement . . . such as to require its removal.” Id. The court ordered
the Negleys “to remove the fence completely, or, alternatively, move the fence
to the end of the [Starlipers’] structure, therefore removing the easement
impediment.” Order, 7/30/18, at 1 (unpaginated).
The court also found, based on the photographic evidence, that the
Negleys’ addition was fastened to the Starlipers’ addition, and that this
constituted trespass. Opinion, 7/30/18, at 12. The court ordered the Negleys
“to remove any parts of the addition that are fastened to [the Starlipers’]
home as well as any parts of the addition that unreasonably impede the
Starlipers’ access to their western wall for maintenance and repair.” Order,
7/30/18, at 1.
The court found that the Negleys’ diversion of surface water onto the
Starlipers’ land constituted trespass, as well as the soil, rocks, and debris that
the Negleys’ contractors left on the Starlipers’ property during the construction
of the garage. Opinion, 7/30/18, at 10. The court ordered the Negleys to pay
the Starlipers damages of “$1,480.00 for this trespass of soil, rocks and
debris, minus the cost of any repair not directly related to [the Negleys’]
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actions.” Order, 7/30/18, at 1. The court concluded that laches did not bar
any of the Starlipers’ claims. Opinion, 7/30/18, at 5.3
The Negleys filed a motion for post-trial relief, which the court denied.
The court thereafter entered final judgment in favor of the Starlipers, and the
Negleys appealed.
The Negleys raise the following issues for our review:
I. Whether the Trial Court erred in finding an easement running on [the Negleys’] lot to the benefit of [the Starlipers’] lot?
II. Whether the Trial Court erred in awarding [the Starlipers] $1,480.00 in damages when the only estimate provided at trial including cleaning up debris on [the Starlipers’] property that was not placed there by [the Negleys] and existed prior to [the Negleys’] purchase of the property?
III. Whether the Trial Court erred in finding the doctrine of laches inapplicable when [the Starlipers] delayed prosecuting or instituting their claim for at least 8 years?
IV. Whether the Trial Court erred in finding [the Negleys] trespassed by diverting surface water onto [the Starlipers’] land?
V. Whether the Trial Court erred in finding that the addition trespasses on the [the Starlipers’] property when [the Starlipers] provided no proof that the addition was fastened to their property and the addition is not fastened to their property?
VI. Whether the Trial Court erred in ordering [the Negleys] to remove a fence which can easily be removed at any time [the Starlipers] wish to access their wall?
Negleys’ Br. at 3-4.
3The court found in favor of the Negleys on the Starlipers’ claims of nuisance and punitive damages/attorneys’ fees. These findings are not at issue on appeal.
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Our standard of review in matters of equity is well settled:
The trial judge, sitting in equity as a chancellor, is the ultimate fact-finder. The scope of review, therefore, is limited. The final decree will not be disturbed unless the chancellor committed an error of law or abused his or her discretion. The findings of fact made by the trial court will not be disturbed unless they are unsupported by competent evidence or are demonstrably capricious.
Gurecka v. Carroll, 155 A.3d 1071, 1075 (Pa.Super. 2017) (en banc)
(quoting Griffith v. Kirsch, 886 A.2d 249, 253 (Pa.Super. 2005)).
I. The trial court properly declared an implied easement.
The Negleys first contend that the trial court erred in declaring that the
Starlipers have an easement by implication. The Negleys argue that the
easement is unnecessary because the court had other options to ensure the
Starlipers’ ability to access the outside of their wall. The Negleys contend that
the Starlipers have not explained “why they cannot maintain the vents from
inside the home or why they need a five foot easement to accomplish this
task.” Negleys’ Br. at 12.
The Negleys also argue that the Starlipers “failed to provide any
evidence that they or any of their predecessors in title had ever undertaken
such use or that any such use was open, visible, continuous, and permanent.”
Id. at 11. They maintain that “there is absolutely no evidence that the use
claimed by [the Starlipers] has been long continued or so obvious and
manifest to show that this use was meant to be permanent.” Id. Finally, the
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Negleys contend that the Starlipers’ proposed use of the easement “would be
discontinuous and only used from time to time.” Id. at 12.
“Easements by implied reservation . . . are based on the theory that
continuous use of a permanent right-of-way gives rise to the implication that
the parties intended that such use would continue, notwithstanding the
absence of necessity for the use.” Bucciarelli v. DeLisa, 691 A.2d 446, 449
(Pa. 1997) (quoting Burns Mfg. Co., Inc. v. Boehm, 356 A.2d 763, 767 (Pa.
1976)). Such easements can only arise at the time ownership over two tracts
of land is first severed. Phillippi v. Knotter, 748 A.2d 757, 762 (Pa.Super.
2000). Although the complaining party bears the burden of establishing the
existence of an easement by implication, when the right to such an easement
“is of ancient origin and is too remote to be capable of direct proof,” the
plaintiff’s burden is relaxed. Possessky v. Diem, 655 A.2d 1004, 1008
(Pa.Super. 1995).
An easement by implication exists if the party claiming such an
easement establishes three things: (1) a separation of title; (2) prior to the
separation, the use giving rise to the easement was “so long continued, and
so obvious or manifest, as to show that it was meant to be permanent”; and
(3) the easement is “necessary to the beneficial enjoyment of the land granted
or retained.” Gurecka, 155 A.3d at 1076 (quoting Daddona v. Thorpe, 749
A.2d 475, 481 (Pa.Super. 2000)) (emphasis removed). A fourth factor may
be added: “that the servitude shall be continuous and self-acting, as
distinguished from discontinuous and used only from time to time.” Id.
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(quoting Daddona, 749 A.2d at 481).4 We presume that parties to a
conveyance expect and intend knowable and reasonably foreseeable prior
uses of the land to continue after the conveyance. Bucciarelli, 691 A.2d at
448 (citing Restatement (First) of Property, § 476, Comment j).
Regarding the element of necessity, an easement by implication need
not require a showing of “absolute necessity,” or that it is “essential for the
beneficial use of the property.” Daddona, 749 A.2d at 480 (quoting Burns,
356 A.2d at 767), 482 (quoting Mann–Hoff, 604 A.2d at 708 n.4). Rather,
the party seeking the easement must only show that the easement is
“convenient or beneficial to the dominate estate.” Id. at 482 (quoting Mann-
Hoff, 604 A.2d at 708 n.4).
Here, the trial court found that there was no dispute regarding the unity
of title at the time the properties were separated. Order, 11/8/17, at 4. The
court further concluded that the easement was necessary to enable the
Starlipers “to clean, inspect, and repair the exterior.” Id. at 6. The court also
found that the Starlipers had met their burden in proving the easement was
obvious and intended to be permanent, because “the [Starlipers’] addition
existed for [14] years prior to the first division of the land, and subsequent
4Pennsylvania courts may also consider the “balancing approach, designed to ascertain the actual or implied intentions of the parties,” found in the Restatement of Property in determining the existence of an easement by implication. Gurecka, 155 A.3d at 1076, 1078 n.1 (quoting Mann–Hoff v. Boyer, 604 A.2d 703, 707 (Pa.Super. 1992)); see also Restatement (First) of Property § 476 (1944).
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owners of the land are presumed to know and contemplate reasonably
necessary uses of the property.” Id. at 5.
The trial court did not commit an error of law or an abuse of discretion.
Although there was no testimony regarding maintenance of the wall before
1872, when the western half of the property was conveyed, a reasonable
landowner would have required access to the exterior wall of the home for
ordinary maintenance and repairs, and the only access to the western wall of
the Starlipers’ property was by way of Negleys’ yard. The original owners of
the Negleys’ property would have reasonably foreseen the continued need for
access, and thus we presume the parties intended an implied easement to
that portion of the Negleys’ property. Bucciarelli, 691 A.2d at 448.
Moreover, the Starlipers testified that the exterior wall now includes two
windows, air vents, vinyl siding, and a rain gutter. These modern
improvements would have been open and visible to the Duperts/Negleys at
the time they purchased the property, and would have indicated the Starlipers’
ongoing need to access their exterior. The Negleys’ argument that the
easement is unnecessary because there are alternative measures available to
the court is misplaced, as an easement by implication need not be absolutely
necessary, but only contemplated as an ongoing use by the parties at the time
of severance of title. See Daddona, 749 A.2d at 482. We thus conclude the
trial court did not err or abuse its discretion in declaring the Starlipers have
an easement by implication.
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II. The trial court properly awarded $1,480 in damages.
The Negleys argue that the soil their contractors spilled onto the
Starlipers’ property caused no damage, as it barely penetrated the property
line and grass has since regrown over it. Negleys’ Br. at 14. The Negleys
contend that there was no testimony corroborating the Starlipers’ estimated
cost to remove the debris, grade the yard, and replant the grass. Id. at 15.
The Negleys also argue that the Starlipers acknowledged some of the debris
was there prior to the construction, and the $1,480 cost estimate provided by
the Starlipers did not specify whether it included the debris for which the
Negleys are not responsible. Id.
When trespass causes injury to real property, the measure of damages
is as follows: “Assuming the land is reparable, the measure of damage is the
lesser of: (1) the cost to repair, or (2) the market value of the damaged
property (before it suffered the damage, of course).” Slappo v. J’s Dev.
Assocs., Inc., 791 A.2d 409, 415 (Pa.Super. 2002).
We review a challenge to the calculation of damages for abuse of
discretion. J.J. Deluca Co., Inc. v. Toll Naval Assocs., 56 A.3d 402, 417
(Pa.Super. 2012). The calculation of damages “is a factual question to be
determined by the fact-finder,” who must “assess the testimony, by weighing
the evidence and determining its credibility, and by accepting or rejecting the
estimates of the damages given by the witnesses.” Id. (quoting Liss &
Marion, P.C. v. Recordex Acquisition Corp., 937 A.2d 503, 514 (Pa.Super.
2007)). Further,
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Although the fact-finder may not render a verdict based on sheer conjecture or guesswork, it may use a measure of speculation in estimating damages. The fact-finder may make a just and reasonable estimate of the damage based on relevant data, and in such circumstances may act on probable, inferential, as well as direct and positive proof.
Id. at 417-18 (quoting Liss, 937 A.2d at 514).
Here, the Negleys conceded that their contractors had left debris on the
Starlipers’ lawn, and the Starlipers testified that the estimated cost of
repairing the lawn—including removing the debris, grading the yard, and
replanting the grass—was $1,480. This testimony was corroborated by a
written estimate by a landscaping service. However, as the Starlipers admitted
that the Negleys were not responsible for all of the debris on their lawn, the
trial court ordered the Negleys to pay the Starlipers $1,480, “minus the cost
of any repair not directly related to [the Negleys]’ actions.” Order, 7/30/18,
at 1. Thus, the court did not order the Negleys to pay for the debris that was
not caused by their construction, and the Negleys’ argument that the court
erred in concluding that damages were due, or in calculating the damages,
has no merit.
Moreover, the Negleys did not question the Starlipers during trial as to
whether the estimate they provided included the debris that was already on
the Starlipers’ lawn, or present any rebuttal evidence regarding the cost to
repair the Starlipers’ yard. The only evidence available to the trial court
regarding the cost of repair was the testimony of the Starlipers. We cannot
say it was error for the court to order damages based on the only evidence
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before it. See Lobozzo v. Adam Eidemiller, Inc., 263 A.2d 432, 436-37
(Pa. 1970) (“we cannot say that the jury was in error in accepting the only
evidence presented to them on the amount of damages”).
III. The trial court properly refused to dismiss the Starlipers’ claims under the doctrine of laches.
The Negleys contend that the court erred in concluding the Starlipers’
claims were not barred by laches. According to the Negleys, the Starlipers
failed to exercise due diligence because they did not take any legal action to
claim an easement until years after construction began and after the
Duperts/Negleys had taken possession, finished the addition, and began
construction of the fence and fire escape. Negleys’ Br. at 17. The Negleys
argue that the actions taken by the Starlipers prior to the Duperts/Negleys’
purchase of the property were limited to complaints to the Borough regarding
local ordinances and codes, and the Duperts/Negleys had no notice that a
dispute existed with respect to the property. Id. at 17, 20. After the
Duperts/Negleys took ownership, the Starlipers again complained only about
local codes, and thus the Negleys took care to comply with the codes and
receive proper permits; it was not until after their improvements to the
addition were completed and they began construction of the fence and fire
escape that the Starlipers claimed they had an easement. Id.
The Negleys further argue that they were prejudiced by the Starlipers’
delay in asserting the existence of an easement because the Negleys
liquidated their “nest egg” to pay for the home and the construction, and they
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would not have done so if they had known there was a property dispute. Id.
at 18, 20. The Negleys also argue they were prejudiced by the Starlipers’ delay
in pursuing legal action because the prior owner, who began the construction
of the addition, died several years ago, and other neighbors have since moved
or are unable to recall when the addition was initially built. Id. at 19.
The doctrine of laches is an affirmative defense that bars the prosecution
of stale claims and is the practical application of the maxim that “those who
sleep on their rights must awaken to the consequence that they have
disappeared.” Fulton v. Fulton, 106 A.3d 127, 131 (Pa.Super. 2014)
(quoting Kern v. Kern, 892 A.2d 1, 9 (Pa.Super. 2005)). We have explained
laches as follows:
Laches bars relief when the complaining party is guilty of want of due diligence in failing to promptly institute the action to the prejudice of another. Thus, in order to prevail on an assertion of laches, respondents must establish: a) a delay arising from petitioner’s failure to exercise due diligence; and, b) prejudice to the respondents resulting from the delay.
Id. (quoting Estate of Scharlach, 809 A.2d 376, 382-83 (Pa.Super. 2002)).
Evidence of prejudice “may include establishing that a witness has died or
become unavailable, that substantiating records were lost or destroyed, or
that the defendant has changed his position in anticipation that the opposing
party has waived his claims.” Commonwealth ex rel. Baldwin v. Richard,
751 A.2d 647, 651 (Pa. 2000).
The issue of whether laches should bar the Starlipers’ claim to an
easement underneath the Negleys’ addition is moot, as the trial court did not
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order the Negleys to move or remove their addition. Nor do we need to
determine whether laches bars the Starlipers’ claim that the fire escape
infringes on the easement, as the court did not order the Negleys to move or
remove the fire escape. The trial court held that these improvements to the
Negleys’ property could remain.
The court did grant relief on the Starlipers’ claim that the Negleys’ fence
infringes on the easement, by ordering the Negleys to move or remove the
fence, and thus the question of whether laches bars this claim is not moot.
However, we do not believe the court erred in refusing to apply laches. The
Negleys admitted that once they began construction of the fence in the spring
of 2016, the Starlipers immediately complained that it would interfere with
their “right-of-way” and ability to access their wall, specifically mentioning
their access to the dryer vent. The Starlipers’ counsel also sent the Negleys a
cease and desist letter referencing an easement in May 2016, and the
Starlipers commenced this action shortly thereafter, in July 2016. The trial
court thus aptly concluded that “[i]t is beyond belief that the Negleys assumed
that the Starlipers acquiesced to the construction through their conduct,” Tr.
Ct. Op. at 5, at least insofar as the fence was concerned. No relief is due on
the issue of laches.
IV. The trial court did not err in finding in the Starlipers’ favor on their trespass claim.
The Negleys argue that the court erred in holding them liable for
trespass because construction of their garage and carport diverted surface
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water onto the Starlipers’ land. The Negleys claim that they own the higher
land, as the photographic evidence and testimony proves their land has always
sloped downward onto the Starlipers’ property. Negleys’ Br. at 24-25. The
Negleys also argue that there was no evidence they were negligent in
constructing the garage, which conformed to all local codes and zoning
ordinances. Id. at 27. The Negleys further argue there was no evidence that
they created an artificial channel that greatly increased the quantity of
diverted surface water, and that “[a] bald allegation by [the Starlipers] that
there is more water on their property now than there was when the garage
was built is not enough to merit damages in this situation.” Id. at 27-28.
Our jurisprudence considers water a “common enemy” of neighboring
landowners, who may fight against it as they will. LaForm v. Bethlehem Tp.,
499 A.2d 1373, 1378 (Pa.Super. 1985) (en banc). Thus,
[u]nder the so-called “common-law” or “common-enemy rule,” not only is an owner of higher land under no liability for damages to an owner of lower land caused by water which naturally flows from the one level to the other, but he can, at least in the development of urban property, improve his land by regrading it or erecting buildings thereon, without legal responsibility for any consequent diversion of surface waters from his property to that of adjoining owners, it being recognized that changes or alterations in the surface may be essential to the enjoyment of his property.
Id. (quoting Chamberlin v. Ciaffoni, 96 A.2d 140, 142 (Pa. 1953)).
Accordingly, a landowner of higher ground is not liable for damage caused by
the discharge of surface water onto neighboring property unless the
landowner either (1) “diverted the water from its natural channel by artificial
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means;” or (2) unreasonably or unnecessarily increased the quantity or
changed the quality of the discharged water. Id.; accord Kowalski v. TOA
PA V, L.P., 206 A.3d 1148, 1162 (Pa.Super. 2019). The plaintiff need only
prove the landowner is liable under one of the two theories of liability.
Kowalski, 206 A.3d at 1162.
Under the first theory of liability, whether a given use of land is
considered “natural” or “artificial” depends in part on whether the land is in
an urban or rural setting.5 In an urban environment, “orderly development of
land . . . has always been regarded as a natural use of land.” LaForm, 499
A.3d at 1381. In contrast, development of rural land—such as the erection of
buildings and installation of pavement over natural soil—constitutes an
“artificial” use of land, for which developers must take sufficient precaution so
as not to burden others with the increased flow of water. Kowalski, 206 A.3d
at 1162; see also Miller, 483 A.2d at 915. Such development “carries with it
a responsibility on the developer to properly accommodate the increased flow
of surface waters off the land, where such increase was predictable and
5 See Miller v. C.P. Centers, Inc., 483 A.2d 912, 915 (Pa.Super. 1984) (discussing Westbury Realty Corp. v. Lancaster Shopping Center, 152 A.2d 669 (Pa. 1959), in which “the Court devised a new approach to situations in which urban development of rural lands covered significant portions of natural soil with nonporous materials and buildings, thereby preventing natural seepage and increasing the flow of surface waters”); see also LaForm, 499 A.2d at 1380-81 (discussing the evolution of a higher legal standard for developers in rural areas).
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preventable.” LaForm, 499 A.2d at 1380.6 A developer of rural lands need
not be found negligent to be found liable for increased flow of surface water.
Miller, 483 A.2d at 914-15 (rejecting argument that without a finding of
negligence, defendants were not liable for development of rural lands under
first theory of liability).
In addition, liability imposed under the first theory does not require an
unreasonable or unnecessary increase in the quantity of surface water.
Kowalski, 206 A.3d at 1163. “Rather, to establish liability under this theory,
a plaintiff need only show that . . . the water was discharged onto the plaintiff’s
property in an increased volume or force, however, slight.” Id. (emphasis
added).
The Negleys have failed to establish that the trial court erred or abused
its discretion in imposing liability. First, the trial court found that the Borough
of Newburg is not an urban environment. Tr. Ct. Op. at 8-9. Specifically, the
court stated, “The Borough of Newburg is not a city and lacks many of the
factors that distinguish urban areas from their rural counterparts[.]” Id. at 9.
The Negleys have presented no argument that the court erred in determining
that the Borough of Newburg is not an urban environment. They have thus
failed to support and therefore waived any argument that rules regarding
development in rural areas should not apply. ____________________________________________
6See LaForm, 499 A.2d at 1380-81 (holding that because increase of surface water caused by development of a rural hillside was predictable and preventable, it constituted an “artificial” land use, and developer accordingly had an affirmative duty to provide adequate drainage).
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Next, the trial court found that in constructing their garage, the Negleys
“diverted the water from its natural channel by artificial means,” because “the
Negleys’ contractor . . . elevated the ground surrounding the foundation of
their carport, altering the slope of the land and causing an increased flow of
water onto the Starlipers’ land.” Id. at 9-10. It then imposed liability on the
Negleys under the first theory of liability stated in LaForm.
We agree that in a rural setting, construction of a detached garage and
cement carport constitutes an “artificial means” of diverting the natural flow
of water between the parties’ backyards. Kowalski, 206 A.3d at 1162.
Moreover, the court’s finding that the construction increased the flow of
surface water into the Starlipers’ backyard is supported by the Starlipers’
testimony regarding the flow of water to and from their backyard before and
after the construction, and the Negleys’ own testimony that their contractors
elevated the ground level when constructing the garage. Finally, because the
court imposed liability under the first theory, the Starlipers were not required
to prove that the Negleys “greatly” or unreasonably increased the flow of
water, or were negligent in their construction. Kowalski, 206 A.3d at 1163;
Miller, 483 A.2d at 914-15.
As the court did not err or abuse its discretion, no relief is due.
V. The trial court did not err in finding the Negleys’ addition trespassed onto the Starlipers’ property.
The Negleys contend that there is no evidence supporting the Starlipers’
claim that the Negleys fastened their addition to the Starlipers’ addition.
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Negleys’ Br. at 28. The Negleys point out that they described in their trial
testimony how the addition is fastened to the rear of their own home, and
claim that this is supported by the photographic evidence. Id. at 28-29. The
Negleys also complain that the Starlipers failed to assert they suffered any
damages as a result of this alleged trespass. Id. at 29.
A continuing trespass is committed by the continued presence of a
trespassing structure, chattel, or any other thing. Jones v. Wagner, 624 A.2d
166, 170 (Pa.Super. 1993). A landowner is entitled to maintain an action in
equity to compel a person to remove structures that trespass on his or her
property. Id. at 171.
Here, the trial court found that despite the conflicting testimony, the
photographic evidence supported the Starlipers’ claim that the Negleys’
addition is attached to their home, and thus the Negleys were responsible for
a continuing trespass. Tr. Ct. Op. at 12. Crediting one party’s evidence over
another’s proof is the trial courts prerogative, which we cannot disturb. In
addition, the argument that the Starlipers presented no evidence of damage
to their home is beside the point, as the court did not order any monetary
damages. Rather, the court only ordered the Negleys to detach their addition
from their neighbor’s property, an appropriate remedy for continuing trespass.
See Jones, 624 A.2d at 171.
VI. The trial court did not err in ordering the removal of the fence.
In their final issue, the Negleys contend that the court erred in ordering
them to move or remove their fence. The Negleys argue that the fence, which
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they can quickly take down and put back up, does not obstruct the easement,
and cite cases wherein this Court held that the erection of a swinging gate did
not obstruct an easement. Negleys’ Br. at 30-31.7 The Negleys also argue they
testified they are willing to periodically take down the portion of the fence that
sits upon the easement, to accommodate the Starlipers’ needs to maintain
their wall. Id. at 31-32.
“An easement, once acquired, may not be restricted unreasonably by
the possessor of the land subject to the easement.” Palmer v. Soloe, 601
A.2d 1250, 1252 (Pa.Super. 1992). “[T]he property owner may not take
actions that ‘completely deny’ use of the easement [and] may not interfere
unreasonably with the easement holder’s use of the easement.” Id. Whether
the landowners acts constitute “unreasonable interference” depends upon the
advantage of the acts to the landowner and the disadvantage to the
easement-owner. Id. at 1252-53. The erection of a moveable gate may
constitute unreasonable interference under a certain set of circumstances,
such as where it “completely denies” the rights of the easement user.
Matakitis v. Woodmansee, 667 A.2d 228, 232-33 (Pa.Super. 1995).
In analyzing this issue, the trial court noted that “[t]he Negleys concede
that they would have to remove the fence for the Starlipers to utilize the
easement.” Tr. Ct. Op. at 15. The court stated that although the Negleys
asserted they would remove the fence on occasion as requested, the court ____________________________________________
7 The Negleys cite Haig Corp. v. Thomas S. Gassner Co., 63 A.2d 433 (Pa.Super. 1949) and Helwig v. Miller, 47 Pa. Super. 171 (Pa.Super. 1911).
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was not confident that “such a system would work efficiently or effectively.”
Id. The court thus concluded the fence infringes on the Starlipers’ use of the
easement, and ordered the Negleys to remove the fence from the easement.
Id.
The trial court properly concluded that the fence unreasonably interferes
with the Starlipers’ use of the easement, as the evidence demonstrates that
it forecloses the Starlipers’ ability to maintain the exterior of their wall.
Moreover, the obstruction posed by the fence would not be remedied by a
gate through the fence, as the Starlipers require use of the land upon which
the fence itself sits. The court was not obligated to accept the Negleys’ offer
of periodically removing the fence, a resolution that could easily lead to further
disputes. Instead, by ordering the Negleys to move their fence such that it
begins at the edge of the Starlipers’ addition, the court ensured the Starlipers’
ability to utilize the easement, while allowing the Negleys to keep a fence
along the open portions of their property line. The court was well within its
discretion to fashion such a compromise.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/04/2019
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