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DONALD W. MINTEER AND MAVILLA O. MINTEER v. KENNETH E. WOLFE AND NOREITA WOLFE (05/28/82)

filed: May 28, 1982.

DONALD W. MINTEER AND MAVILLA O. MINTEER
v.
KENNETH E. WOLFE AND NOREITA WOLFE, HIS WIFE, AND DARREL K. LEWIS AND LESLEY K. LEWIS, HIS WIFE, APPELLANTS. (TWO CASES); APPEAL OF MAVILLA O. MINTEER



COUNSEL

John B. McCue, Kittanning, for the Minteers.

Jerome D. Lombardi, Kittanning, for the Wolfes et al.

Hester, Popovich and DiSalle, JJ. DiSalle, J., did not participate in the consideration or decision of this case.

Author: Popovich

[ 300 Pa. Super. Page 237]

This is an action in quiet title involving an easement by prescription.

Appellant, Mavilla O. Minteer,*fn1 instituted the instant action to quiet title and to enjoin appellee-defendants from interfering with appellant's use of a lane located in Armstrong County, Pennsylvania. The lane in question, extending from a township road to appellant's land, traverses the boundary line of contiguous tracts of land owned by appellee-defendants. Appellant's claim to an easement is based on prescription or adverse use of the lane for a period exceeding twenty-one years.

Following a non-jury trial, an order nisi granting appellant-plaintiffs a prescriptive easement was entered. Appellees then filed exceptions which were adopted in part, and

[ 300 Pa. Super. Page 238]

    the lower court vacated its order nisi and entered a final order in favor of appellees.*fn2 These cross appeals followed.*fn3

On appeal, appellant's sole contention is that the trial court erred when it held that because the record did not contain any direct evidence of usage by appellant's predecessor in title for certain initial years of the prescribed twenty-one year period, appellant failed to establish adverse use for the requisite period and, therefore, had not acquired an easement by prescription. We agree and reverse and remand for proceedings consistent with this opinion.

First, we recognize that findings of the lower court will not be disturbed on appeal absent a clear abuse of discretion or error of law. See Frowen v. Blank, 493 Pa. 137, 425 A.2d 412 (1981). It is equally axiomatic, however, that this court is not bound by the trial court's conclusions of law but is free to draw its own inferences and conclusions from the facts as established. First Pennsylvania Banking and Trust Co. v. Liberati, 282 Pa. Super. 198, 422 A.2d 1074 (1980).

Moreover, we must review a claim to an easement in light of the following axiom:

"The nature of the easement, whether it is seasonal, periodical, or for all periods of the year, the frequency and the extent of the user, its definiteness, and its location in city or rural districts are important factors in a determination of whether an easement exists and exactly what rights have been acquired ...


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