Kenneth F. Lee, Chambersburg, for appellants.
Rudolf M. Wertime, David S. Dickey, Greencastle, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix, and Manderino, JJ.
Appellee and appellants are the owners of adjoining lands in a rural section of Franklin County. Appellee
brought an action in equity inter alia to enjoin the appellants from interfering with his use of a roadway running from a public highway across appellants' land to appellee's land. After an evidentiary hearing, the chancellor entered a decree nisi granting the injunction and ruling that appellee had established an easement or right to use the roadway by prescription. The court en banc, although sustaining one of appellants' exceptions, entered a final decree in favor of the appellee. The appellants appealed.
Appellants assert that the evidence presented at trial was insufficient to establish an open, notorious, continuous, uninterrupted, adverse, and hostile use for twenty-one years. Such evidence is essential to prove the right to use the roadway arose by prescription. Loudenslager v. Mosteller, 453 Pa. 115, 307 A.2d 286 (1973); Stiegelman v. Pa. Yacht Club, Inc., 432 Pa. 111, 246 A.2d 116 (1968); Shinn v. Rosenberger, 347 Pa. 504, 32 A.2d 747 (1943). Specifically, appellants argue the use was not shown to be continuous or adverse. Moreover, appellants argue that use by the public for hunting and fishing should not have been considered because such use was of no benefit to appellee's land. The chancellor found that, although the evidence of use during the immediate past twenty-one years was not sufficient to establish an easement by prescription, the evidence as to the use prior to that time by appellee's predecessors in title, as well as by those claiming the right to use the road under the predecessors in title, and by the public at large was sufficient to support an open, notorious, continuous, uninterrupted, adverse, and hostile use for twenty-one years.
Appellants' argument that the use shown was not continuous is predicated on the fact that there is an absence of direct evidence showing a use at various times during the necessary twenty-one year period. Initially, we note that the chancellor's findings, including that of a
continuous use, when confirmed by a court en banc, will not be disturbed on appeal unless such findings are not supported by adequate evidence. Stewart v. Watkins, 427 Pa. 557, 235 A.2d 604 (1967); Sterrett v. Sterrett, 401 Pa. 583, 166 A.2d 1 (1960). Furthermore, the evidence need not show a constant use in order to establish continuity; rather, continuity is established if the evidence shows a settled course of conduct indicating an attitude of mind on the part of the user or users that the use is the exercise of a property right. Restatement of Property, Servitudes, Chap. 38, § 459(b). See generally, Zerbey v. Allan, 215 Pa. 383, 64 A. 587 (1906) and Shaffer v. Baylor's Lake Ass'n, Inc., 392 Pa. 493, 141 A.2d 583 (1958). We believe sufficient evidence of use over a period in excess of twenty-one years was presented to support the finding of continuity and this is particularly so after consideration is made of the nature of the easement asserted and the rural area in which the land involved is located. Cf. Shaffer v. Baylor's Lake Ass'n, Inc., supra.
At trial, evidence showed the right of use instantly asserted involved the use of a roadway in a rural district. Further, one witness testified that the roadway had existed for over one hundred years and was fenced along the sides at various times and in various sections. While gates were erected across the roadway at various times and in ...