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PETITION THOMAS W. POPE AND ELIZABETH L. POPE v. CHARLES E. MUTH AND ALDA E. MUTH (08/31/84)

SUPERIOR COURT OF PENNSYLVANIA


filed: August 31, 1984.

IN RE PETITION OF THOMAS W. POPE AND ELIZABETH L. POPE, HIS WIFE, FOR THE OPENING OF A PRIVATE ROAD IN LYKENS TOWNSHIP, DAUPHIN COUNTY, PENNSYLVANIA
v.
CHARLES E. MUTH AND ALDA E. MUTH, HIS WIFE, APPELLANTS

No. 00375 HBG 82, Appeal from the Order entered October 13, 1982 in the Court of Common Pleas of Dauphin County, Civil Division, at No. Road Dkt. No. 22 1980.

COUNSEL

W.H. Clay Keen, Harrisburg, for appellants.

Paul E. Baker, Harrisburg, for appellees.

Wickersham, Olszewski and Hoffman, JJ.

Author: Hoffman

[ 332 Pa. Super. Page 265]

Appellants challenge the lower court's order authorizing appellees' placement of utilities within a private road to be constructed on appellants' property. We agree with the lower court's determination and, accordingly, affirm.

In late 1980, appellees petitioned for the right to construct a private road from their property through appellants' property, in order to gain access to a main road. A

[ 332 Pa. Super. Page 266]

Board of View, appointed pursuant to 36 P.S. § 2731,*fn1 recommended that appellees be permitted to build a 25'-wide road and to place utilities therein. The lower court, upon review, determined that a 15'-wide road would suffice and upheld the authorization for utilities.

In the instant appeal, appellants do not challenge appellees' right to construct the road. Rather, they assert that 36 P.S. § 2731, which authorizes private roads, does not discuss utilities. Hence, they argue that the lower court acted contrary to the statute in allowing appellees to place utilities in the road. We disagree. Those petitioning for permission to construct a private road must first successfully meet the requirements necessary for the appointment of a Board of View. See In re Private Road in Nescopeck Township, 281 Pa. Superior Ct. 341, 422 A.2d 199 (1980). Furthermore, because "the determination of necessity is a factual matter to be [made] by the Board, . . . the trial court['s] . . . review is limited to a confirmation or a rejection of the Board's report." Mattei v. Huray, 54 Pa. Commonwealth Ct. 561, 566, 422 A.2d 899, 901 (1980). Here, the Board of View concluded that the placement of utilities was necessary to appellees' use of the road. The lower court, finding that the necessity of the private road had been established, accepted the conclusion that the placement

[ 332 Pa. Super. Page 267]

    of utilities constituted a reasonable use of the road. We agree with the lower court that the necessity of personal and vehicular access to appellees' property reasonably includes access to modern conveniences. As the lower court states: "To grant the petitioners the right-of-way partially, on the basis of their future intended use of building a home, and then to bar them from installing utility lines, would be unreasonable. It would defeat the entire purpose of granting the right-of-way." (Lower Court Opinion at 4).

Dowgiel v. Reid, 359 Pa. 448, 59 A.2d 115 (1948), upon which the lower court relies, is analogous to the instant case. In Dowgiel, the petitioners had an easement in the form of a contract over the private road. Thereafter, they dug holes in the road for the purpose of installing poles for the transmission of electricity. The court queried whether "the right to use a road to and from one's habitation includ[ed] the right to erect poles . . . for the transmission of electricity to and from that habitation" id., 359 Pa. at 451, 59 A.2d at 117, and determined that a reasonable use of the road included the ability "to obtain something which is essential to the liveableness of the home, to wit, electricity . . . ." Id., 359 Pa. at 460, 59 A.2d at 121. Although a contract does not exist between the parties to the instant case, it would be entirely unreasonable to grant appellees permission to construct a road to connect their future home with a main road and then to deny them the ability to live in the home in a manner consistent with accepted, modern standards. Accordingly, we agree with the lower court that the Dowgiel reasoning is equally applicable to the case at hand.

Appellants place great reliance on Little Appeal, 180 Pa. Superior Ct. 555, 119 A.2d 587 (1966), arguing that according to Little, appellees must demonstrate a "present necessity" for the placement of utilities on the road. Appellants, however, fail to distinguish fully the facts in Little

[ 332 Pa. Super. Page 268]

    from the present facts. In Little, the petitioner had access from her house to a main road by virtue of an existing private road. She petitioned for an additional road over the respondents' property so "that the 25-acre portion [of her land] adjoining [respondents'] land [could] suitably be developed into building lots . . . ." Id., 180 Pa. Superior Ct. at 557, 119 A.2d at 588. The Board of View in Little found "that the existing road of appellant [was] sufficient and convenient for the present use of her land . . . but concluded as a matter of law that it would not appropriate [respondents'] land for the contemplated subdivision and commercial enhancement of the 25-acre portion." Id., 180 Pa. Superior Ct. at 558, 119 A.2d at 589. The court concluded that, in admitting that she did not want to invest funds into the subdivision until assured of the road, the petitioner did not "supply the strict necessity required by the Act and would not justify the viewers in ordering the [respondents] to give up their land now to provide access for a contemplated use of the land by [the petitioner]. Id., 180 Pa. Superior Ct. at 559, 119 A.2d at 589. In the instant case, there is no doubt that appellees have demonstrated the strict necessity required by the statute because there is, at present, no access to the main road from their property. Therefore, Little is distinguishable because the petitioner in that case already enjoyed access from her property at the time she requested the view. Hence, the present necessity" test discussed by appellants relates to a petitioner's basic need for a private road, and not to the many purposes such a road may serve.*fn2

Finding no merit in appellants' contention, we affirm the order entered below.

Affirmed.


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