No. 140 March Term, 1977, Appeal from Final Decree dated April 26, 1976 of the Court of Common Pleas, Civil-Action Equity, County of Dauphin, at No. 3385 Equity, 1975.
David C. Eaton, Harrisburg, with him Nauman, Smith, Shissler & Hall, Harrisburg, for appellants.
Rod J. Pera, Harrisburg, with him H. Lee Roussel, Harrisburg, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., notes his dissent. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 253 Pa. Super. Page 377]
This is an appeal from an order of the Court of Common Pleas of Dauphin County, sitting in Equity, refusing to order defendant-appellee to restore a country lane it plowed over, a lane which plaintiffs-appellants claim a prescriptive right to use.
The parties to this action own adjoining plots of farmland near Hershey, Pennsylvania (See sketch as Appendix to this opinion). The Hershey tract extends north to U.S. Route 322 and beyond; the portion involved in this case is bounded on the south by the Cramer property. The western portion of the Hershey tract was previously owned by John Moyer, and the eastern portion had been owned by Menno Hershey. Richard and Rhoda Cramer and William and Carol Sponaugle purchased the Eby property from John Eby's estate in 1973. The Cramers and the Sponaugles then divided the property among themselves with the Sponaugles receiving a portion bounded on the South by Eby Road. A lane known as Eby Lane runs from Eby Road through the Sponaugle property, then through the Cramer property; until the part of the lane on the Hershey tract was plowed over, it continued through the Hershey tract to Route 322.*fn1 The exact location of the lane as it had run through the Hershey tract is not clearly established in the record; that is, it is not clear whether the lane occupied portions of both the prior John Moyer-Menno Hershey tracts of the now present Hershey Trust tract or whether the lane was solely on the Moyer portion or solely on the Menno Hershey portion.
[ 253 Pa. Super. Page 378]
The events by virtue of which the Cramers claim an easement over the Hershey tract by way of the lane all occurred while their present property was part of the Eby farm, which was successively owned by various ancestors of John Eby.
The Cramers contend that the testimony of surviving and knowledgeable members of the Eby family showing more than 21 years of the Eby family use of Eby Lane to get to Route 322 establishes an easement by prescription. They cite Garrett v. Jackson, 20 Pa. 331 (1853) for the following proposition:
"A passage by one man over the land of another, with the special permission of the owner on every occasion of its use, will not raise the presumption of a grant, no matter how often it may occur, nor how long continued. So a license to use the road for a certain defined period, and the enjoyment of it under such license, will give no right after the expiration of the time. But where one uses an easement whenever he sees fit, without asking leave, and without objection, it is adverse and an uninterrupted adverse enjoyment for twenty-one years is a title which cannot be afterwards disputed. Such enjoyment, without evidence to explain how it began, is presumed to have been in pursuance of a full and unqualified grant. The owner of the lane has the burden of proving that the use of the easement was under some license, indulgence, or special contract inconsistent with a claim of right by the other party."
Appellee's response is that, assuming that the 21 years of use has been shown, the presumption of a grant is overcome by the evidence that the use in question was part of a mutual exchange of advantages. Appellee relies on Shinn v. Rosenberger, 347 Pa. 504, 507, 508, 32 A.2d 747 (1943), a case involving the use of a portion of a lake by the owner of another portion of the lake, where the court said:
"[W]here the evidence produced by the claimant in support of his alleged right to an easement fully explains the manner in which the ...