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BODMAN v. BODMAN (07/01/74)

decided: July 1, 1974.

BODMAN
v.
BODMAN, APPELLANT



Appeal from decree of Court of Common Pleas of Columbia County, May T., 1971, No. 488, in case of Gerald Bodman and Albert Sabo, Jr. v. Albert Bodman.

COUNSEL

Hervey B. Smith, with him Smith, Eves and Keller, for appellant.

Cleveland C. Hummel, for appellees.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts.

Author: Roberts

[ 456 Pa. Page 413]

Gerald Bodman and Albert Sabo, Jr. brought an action in equity to compel appellant Albert Bodman to remove a chain barricade from a lane which crosses his property and provides access to appellees' land. The chancellor enjoined appellant from interfering with appellees' future reasonable use of the lane.*fn1 This appeal followed;*fn2 we affirm.

Appellant does not question the right of appellee Gerald Bodman to use the land in question; the dispute centers on whether and to what extent Sabo may use the easement. The chancellor found that Gerald Bodman has for more than thirty years transported farm machinery and other vehicles over this lane.*fn3 The court held that Gerald Bodman had acquired an appurtenant easement by prescription.*fn4 Appellant, however, maintains that when Gerald Bodman conveyed part of his land to Sabo and Sabo used the easement for access to four recreational cabins which he built, the permissible extent of the easement was exceeded. The chancellor concluded that the right of access exercised

[ 456 Pa. Page 414]

    by Sabo did not unreasonably enlarge the use of the easement. We agree.

The inquiry conducted by the chancellor was whether in the circumstances of this case Sabo's use of the easement was reasonable. This is the correct approach. Restatement of Property § 478 (1944); 3 R. Powell, The Law of Real Property § 416 (1973). In his discussion, the chancellor stated that the case was controlled by Soltis v. Miller, 444 Pa. 357, 282 A.2d 369 (1971). While we cannot agree that Soltis controlled, we affirm because the court reached the correct result. See Concord Township Appeal, 439 Pa. 466, 469, 268 A.2d 765, 766 (1970); Ridley Township v. Pronesti, 431 Pa. 34, 37, 244 A.2d 719, 720-21 (1968); see also Prynn Estate, 455 Pa. 192, 315 A.2d 265 (1974).

In Soltis, this Court held that the chancellor had erred in limiting the extent of an easement by necessity to the use made at the time of its creation. We concluded that both logic and the policy of maximum land use dictated that the extent of an easement by necessity be defined by the reasonable and lawful uses of the dominant tenement. 444 Pa. at 360, 282 A.2d at 370-71.

The difference between easements by necessity and by prescription is, of course, the manner of their creation. An easement by necessity may be created when, after severance from adjoining property, a piece of land is without access to a public highway. See Soltis v. Miller, supra at 359, 282 A.2d at 370; Borstnar v. Allegheny County, 332 Pa. 156, 159, 2 A.2d 715, 716 (1938); Restatement of Property § 474 (1944). An easement by prescription, on the other hand, is created by adverse, open, continuous, notorious, and uninterrupted use of land for the prescriptive period -- in Pennsylvania, twenty-one years. Act of March 26, ...


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