Appeal from decree of Court of Common Pleas of Clearfield County, May T., 1966, No. 3, in case of Stephen Soltis and Bernice Soltis, husband and wife, v. Theodore C. Miller and Lornabelle M. Miller, husband and wife.
Carl A. Belin, Jr., with him Belin and Belin, for appellants.
Marvin L. Wilenzik, with him Gerber, Davenport & Wilenzik, for appellees.
Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Roberts.
This appeal in equity arises out of a dispute between adjoining landowners concerning the existence and restricted nature of a right of way from appellants' landlocked property across appellees' land to a public way. We believe appellants not only possess a right of way by necessity but also are entitled to use the right of way for any reasonable and lawful purpose.
The pertinent factual background follows. On November 1, 1862, the common owner of the land tracts here in question severed his land and deeded a fifty-acre portion to one Levi Sheesley. Appellants acquired the fifty acres on September 17, 1946. At the time, the land was entirely land-locked, with the nearest public road being Route 219, access to which is possible only across what is now appellees' land. Historically, appellants and their predecessors in title used the right-of-way to gain access to and enjoy the fifty acres.
Appellees purchased the tract fronting Route 219 in November, 1965. Within a few months, appellants filed a complaint in equity asserting that appellees had
bulldozed shut their right-of-way, thus depriving them access to their "back fifty". Appellees acknowledged they had embarked on a grading and landscaping project but denied appellants possessed a right-of-way.
After further pleadings and testimony, on March 6, 1968, the chancellor sitting without a jury determined that appellants were entitled to ". . . a right of access and egress to and from their property over the defendant's property by reason of necessity; this by reason of the fact that such necessity and way have existed since the division of title by the common owner."
The chancellor afforded the litigants an opportunity to effectuate a private settlement concerning the location and extent of the easement. When the parties were unable to agree, the court decreed on February 17, 1970, that appellees' proposed location of the way was the more reasonable. The chancellor also limited the way to only appellants' domestic purposes. This decree was subsequently modified on May 19, 1970, to include "domestic and farm purposes". The present appeal ensued, with appellants contesting not the route but rather the restricted use of their right-of-way.
The chancellor was clearly correct on this record in ruling that appellants possess a right-of-way of necessity over appellees' land. ". . . It is a well-settled principle of law that, in the event property is conveyed and is so situated that access to it from the highway cannot be had except by passing over the remaining land of the grantor, then the grantee is entitled to a way of necessity over the lands of his grantor: Commonwealth v. Burford, 225 Pa. 93, 98." ...