No. 644 April Term, 1976, Appeal from the Order Dated March 8, 1976, Overruling Exceptions to Decree Nisi and Denying Petition to Vacate Final Decree (Hon. Frederick C. Coffroth), of the Court of Common Pleas, Civil Division of Somerset County at No. 1 Equity Docket, 1968.
Blair V. Pawlowski, Ebensburg, for appellant.
Robert M. Keim, Somerset, for appellees.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
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The plaintiffs in this equity proceeding seek to compel defendant to remove a barricade from a roadway running over defendant's land. Plaintiffs claim a prescriptive right to use the roadway to get from their land to the public
[ 258 Pa. Super. Page 535]
highway. Defendant contends that plaintiffs' rights have been terminated by abandonment.
The lower court found for plaintiffs, concluding that: (1) the evidence showed mere nonuse and not abandonment; (2) a granted easement may only be lost by intentional abandonment, or adverse use for the prescriptive period by the servient tenement; and (3) prescriptive easements should be treated similarly and thus cannot be lost by nonuse.
We agree, and affirm on the following excerpts from the opinion of the court below.
"It is well established in Pennsylvania law that in order to show an abandonment of a right-of-way or easement created by deed, the evidence must clearly show some conduct on the ground by the holder of the right-of-way which manifests that he intended to abandon and give up permanently his right to use it. Such conduct must consist of some affirmative act on his part which renders use of the easement impossible, or of some physical obstruction of it by him in a manner that is inconsistent with its further enjoyment. Mere nonuse of the right-of-way by its holder, no matter how long continued, cannot manifest an intention to abandon the right, because there is no legal obligation upon the right-of-way owner to use it in order to keep his title to it. Hatcher v. Chesner, 422 Pa. 138 [221 A.2d 305].
"In the present case, there has been no use of the right of way for a long time, although it is not clearly shown for how long, according to some of the testimony, use of the right-of-way by the [prior] owners of plaintiffs' land ceased some time in the 1950's, that is, for a period of at most 18 years before the suit was filed in 1968; some other testimony says that use ceased in the late 1940's, which if accepted might extend the nonuse period to more than 21 years depending upon the exact year in which use ceased. Defendant has barricaded the road since 1953 when she acquired her property, a period of ...