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STIEGELMAN v. PENNSYLVANIA YACHT CLUB (10/03/68)

decided: October 3, 1968.

STIEGELMAN
v.
PENNSYLVANIA YACHT CLUB, INC., APPELLANT



Appeal from decree of Court of Common Pleas of Bucks County, May T., 1958, No. 24, in case of Caroline Henson Stiegelman v. Pennsylvania Yacht Club, Inc. et al.

COUNSEL

David Freeman, with him Edward D. Foy, Jr., Richard S. Clover, and Liederbach and Eimer, and Clover, Warden & Silverman, for appellants.

Thomas J. Profy, III, with him Hyman Rubin, and Begley, Carlin, Mandio, Kelton & Popkin, and Rubin, Leib & Caesar, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Roberts concurs in the result. Mr. Justice Musmanno took no part in the consideration or decision of this case.

Author: Eagen

[ 432 Pa. Page 112]

This is an appeal from a final decree in equity entered in the court below enjoining the appellant-defendant (hereinafter Pennsylvania Yacht Club) from obstructing and interfering with the appellee-plaintiff's (hereinafter Caroline Stiegelman) right of ingress and egress over a driveway located on property owned by the Pennsylvania Yacht Club which abuts the Stiegelman property. The driveway runs parallel with and close to the common boundary of the two properties. Prior to the beginning of this controversy, there was no roadway providing access to Caroline Stiegelman's property from a state road except this driveway. The court ruled that Caroline Stiegelman had acquired an easement by prescription.

[ 432 Pa. Page 113]

After a hearing, the chancellor found as a fact, and this finding was subsequently affirmed by the court en banc, that the owners, tenants and occupiers of Caroline Stiegelman's property had used the driveway as the sole means of ingress to and egress from the buildings on the premises since 1917, and that there was no evidence as to the circumstances surrounding the inception of this use. It is the Pennsylvania Yacht Club's contention that the court erred in not finding that the evidence established a permissive user. The evidence clearly establishes that Caroline Stiegelman and her predecessor in title used this driveway uninterruptedly and continuously since 1917 without any objection by the Pennsylvania Yacht Club and its predecessors in title until it was blocked in 1957. Such evidence, without more, established prima facie the adverse nature of the use and raised the presumption of an unqualified grant. Wampler v. Shenk, 404 Pa. 395, 172 A.2d 313 (1961). To rebut this presumption, the burden of showing that the driveway was used under permission or contract not consistent with adverse use was on the owner of the servient tenement, the Pennsylvania Yacht Club. Garrett v. Jackson, 20 Pa. 331 (1853); Elias v. Scott, 164 Pa. Superior Ct. 329, 64 A.2d 508 (1949); Steel v. Yocum, 189 Pa. Superior Ct. 522, 151 A.2d 815 (1959).

To sustain its contention that the use was permissive in origin the Pennsylvania Yacht Club relies on the testimony of two witnesses. Robert Stiegelman, called by the Pennsylvania Yacht Club, testified that he was employed by his uncle or stepfather, Jacques Stiegelman, during the years 1929-1935 to repair the road. He testified "Q. Did your uncle or stepfather, Jacques Stiegelman, know that this road was blocked off one day a year from '29 to '35? A. Yes. Q. Did he know that you were to repair this road during the

[ 432 Pa. Page 114]

    time that you were there? A. He suggested I go over and see Johnny because Johnny was over to see him that morning and asked me if I would -- if we would repair the road. He says that was one of the conditions that we could use the road, as long as we kept it in repairs. Q. So this work of yours on the road was done with the knowledge, and agreement, and consent of Mr. Costello and Jacques Stiegelman, is that correct? A. That's right."

The Jacques Stiegelman referred to was Caroline Stiegelman's predecessor in title and the "Johnny" referred to was John Costello, the Pennsylvania Yacht Club's predecessor in title. It will be noted that the "He" referred to in the sentence, "He says that was one of the conditions that we could use this road, as long as we kept it in repairs" is not clearly identified. It is, therefore, uncertain whether this was the declaration of Jacques Stiegelman or of John Costello. If it was the declaration of Costello, the Pennsylvania Yacht Club's predecessor in title, it was a mere self-serving declaration and hearsay. Brown v. McConnell, 173 Pa. Superior Ct. 94, 93 A.2d 896 (1953). Although there was no motion made to strike this testimony, the chancellor was justified in giving little or no weight to this self-serving declaration. If it was the declaration of Caroline Stiegelman's predecessor in title, it was admissible evidence under the rule that declarations of a prior owner against his interest are evidence against him or those claiming under him.

Walter Tilley, Caroline Stiegelman's witness, testified that he was employed by Jacques Stiegelman during the years 1931-1935. He testified: "Q. Did anybody else tell you to put up the chain? A. Mr. Costello, I was talking to him one day, he told me -- I think, we had a little bump in ...


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