No. 359 March Term, 1977, Appeal from the April 7, 1977 order of the Court of Common Pleas of York County at Equity Docket No. 11, August Term, 1974
Kenneth A. Wise, York, for appellants.
Jeffrey C. Bortner, York, for appellees.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., files a dissenting opinion in which Van der Voort, J., joins.
[ 256 Pa. Super. Page 228]
Appellants contend that the lower court erred in restricting the use of their easement to a footpath. We affirm the decree of the court en banc.
In 1952, the common grantor of both appellants' and appellees' land conveyed appellants' land to appellants' predecessor in title. Because the parcel conveyed was completely landlocked, the deed expressly granted appellant an easement over the land retained by the grantor. The easement provides the parcel's only access to a public road and is created by the following language: "UNDER AND SUBJECT to the following restriction: that a right of way is granted to the grantees and their heirs and assigns leading from the southeast corner southward on the West side of the stream of water from the said corner to the public road. That the grantees and their successors may at all times have the right to use same as an outlet from the premises hereby conveyed to the public road." The right of way follows the stream which marks its eastern boundary and extends from the public road to appellants' property.*fn1 In 1953, the common grantor sold his land, the servient tenement, and, in 1956, the original owner of the dominant tenement sold her interest in the property. The original owner of appellants' tract did not own a car. Appellants herein purchased their tract in 1974, appellees in 1971. Prior to 1952, and at the time of the creation of the easement, residents of the area used the western bank of the subject stream as a footpath to travel between two public roads. With infrequent exception, since the 1952 deed severed title, access to appellants' parcel has been by foot. When vehicles were used to gain access to appellant land, appellants' predecessors in title asked and received permission to drive to the tract. Moreover,
[ 256 Pa. Super. Page 229]
due to the generally soft and damp ground next to the stream, the vehicles were driven slightly west of the stream. On two occasions cars that drove over the right of way became mired in the soft ground and had to be pulled out. Two persons testified that between 1953-56 and between 1965-71, they farmed the servient tenement and, in planting crops, they plowed so that only a pathway wide enough for foot traffic existed along the stream bank.
In 1965 or 1967, the prior owner of appellees' land created a small parking area for his own cars along the public road, west of the right of way. This resulted in an embankment defining the eastern edge of the parking lot and limiting the right of way to an area of 12-14 feet between the embankment and the edge of the stream. At certain times of year the owner of the servient estate piled brush on the embankment, again limiting the usable space to a footpath. The embankment and brush were in existence and visible when both parties hereto acquired their respective tracts.
When appellants purchased their land in 1974, they began to improve the right of way by dumping stones to permit vehicle access to their land. Appellants dumped stone in an area just west of the stream bank and to a width sufficient for cars to pass over. Appellees stopped the addition by stone by constructing a fence on their property which effectively limited the easement to a footpath.
On June 25, 1974, appellants filed a complaint in equity seeking to enjoin appellees from interfering with access to the right of way. On July 16, 1974, appellees filed an answer and counterclaim.*fn2 Following the denial of preliminary motions, the court held a hearing on June ...