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HAROLD B. OWENS AND ELOISE MARY OWENS v. JOSEPH P. HOLZHEID AND ANNE HOLZHEID (11/02/84)

filed: November 2, 1984.

HAROLD B. OWENS AND ELOISE MARY OWENS
v.
JOSEPH P. HOLZHEID AND ANNE HOLZHEID



No. 00339 Harrisburg 1982, Appeal from the Order of the Court of Common Pleas, Adams County, Pennsylvania, at No. 80-S-104.

COUNSEL

Wayne L. Weismandel, Gettysburg, for appellants.

Robert E. Campbell, Gettysburg, for appellees.

Wickersham, Del Sole and Montemuro, JJ. Montemuro, J., filed dissenting opinion.

Author: Del Sole

[ 335 Pa. Super. Page 234]

This action was initiated when Appellees (the Holzheids) filed a Complaint In Equity. The Holzheids averred that they owned a right of way across Appellants' (the Owens') land. The Holzheids sought to have the Owens enjoined from interfering with this alleged right of way. The trial court recognized the Holzheids' right-of-way and entered Findings of Fact, Conclusions of Law, and a Decree Nisi, enjoining further interference by the Owens. The Owens timely filed exceptions, which were dismissed. The court, by Order, then made the Decree Nisi absolute.

The Owens raise two issues on appeal: (1) Did the trial court err in finding that a valid easement exists in favor of the Holzheids, and (2) Did the trial court err in finding that the easement extends to the two other tracts of land owned by the Holzheids?

A review of the record reveals the following: In December 1967, the Owens purchased a tract of land (Tract "O"). Tract "O" is bordered by Finkle Hill Road to the south, and

[ 335 Pa. Super. Page 235]

    to the north by an eight acre tract of land (Tract "A") which is owned by the Holzheids. In 1968 and 1969 two separate but contiguous tracts of land, in addition to Tract "A", were purchased by the Holzheids. These two tracts of land will be termed Tract "B" and Tract "C". Tract "A", which is woodland and which does not front on any public road, is bordered by Tract "O" to the south and Tract "B" to the north. To the north of Tract "B" is located Tract "C". At trial several witnesses were asked to draw the approximate location of the alleged right-of-way onto a diagram. They indicated that the right-of-way extended from Finkel Hill Road northward where it transversed Tract "O", and continued northward through Tracts "A", "B", and "C".

None of the deeds by which the parties to this action acquired title mention the right-of-way. However, a deed dated October 28, 1931, which was duly recorded and appears in the Owens' chain of title (hereinafter "Lerew to Bear deed") contains the following wording:

This is also to certify that there is a certain Right of Way hereby reserved for the use of George Harbolt to get to his wood lot and return. Said right of way being granted by the Ahls when they sold these lots. (Emphasis in original deed)

George Harbolt was the Holzheids' predecessor in title to Tract "A". George Harbolt and his wife, Sue, acquired the tract from his parents, Henry G. and Sarah E. Harbold, on March 21, 1906.

The Holzheids rely on the above language to support their position that the right-of-way was acquired by either an express grant or by implication.

We find that the language in the "Lerew to Bear deed" does not operate as an express grant.

Easements which are created by express grants are to be construed in accordance with the intentions of the parties, as determined from examining the agreement as a whole. Nallin-Jennings Park Co. v. Sterling, 364 Pa. 611, 73 A.2d 390 (1950); Graybill v. Hassel, 167 Pa. Super. 284,

[ 335 Pa. Super. Page 23674]

A.2d 686 (1950). The language in the "Lerew to Bear deed" states that there was "hereby reserved" a right of way for the use of George Harbolt.

This clause appears to indicate that the parties intended to create an express easement by way of reservation. The courts of this state have recognized the rights of a grantor to reserve an easement for his own use over land which he has conveyed. Baptist Church in the Great Valley v. Urquhart, 406 Pa. 620, 178 A.2d 583 (1962). The Owens, however, point out that the courts have been reluctant to recognize as valid, a reservation in a deed created in favor of a person who is a stranger to the deed. See: Pribek v. McGahan, 314 Pa. 529, 172 A. 709 (1934). George Harbolt was not a party to the "Lerew to Bear deed" transaction, nevertheless, this fact does not lead us to the conclusion that an express easement was not created.

The circumstance which is fatal to the Appellee's position that an express easement was created by reservation, is the status of the grantor. It is well settled law in Pennsylvania that an owner of land may arrange it as he pleases. Piper v. Mowris, 466 Pa. 89, 351 A.2d 635 (1976); Lauderbach-Zerby Co. v. Lewis, 283 Pa. 250, 129 A. 83 (1925). However, it seems even more elementary that one must be the owner of land before he has the power to dispose of it by granting an easement. Although the deed states that there is "hereby reserved" an easement, the provision continues: "Said right of way being granted by the Ahls when they sold these lots." The grantor, Mrs. Lerew, expressly recognized in the deed that a previous owner already granted this easement. As Mrs. Lerew owned Tract "O" subject to this already existing easement, she did not have the power and/or capacity to create the easement.

In Ozehoski v. Scranton Spring Brooke Water Service Co., 157 Pa. Super. 437, 43 A.2d 601 (1945); allocatur refused, it was held that a reference in a recital of a deed to an existing right-of-way in favor of a person not a party to

[ 335 Pa. Super. Page 237]

    the deed, was not a reservation. It was held that the recital recognized a prior grant or agreement. In that case, the defendants' predecessor in title, the Water Company, laid a pipe under the lands of a coal company in 1889. Subsequently, in 1917, the coal company conveyed their tract to Susquehanna Colliers Co. (Colliers Co.). The deed of conveyance contained the following recital: "This conveyance is made subject also to the following easements, rights of way, etc., viz: 7. All rights of way for pipe lines . . . over and across the premises hereby conveyed . . ." The Colliers Co. later conveyed the subject lot to the Everetts. The Everetts, in turn, conveyed to the plaintiffs. Neither the Everetts', nor the plaintiffs' deed referred to the recital of an easement. Defendants/appellants maintained that the language in the deed reserved for their benefit a right-of-way. Our court stated:

Appellants' argument assumes that the recital in the deed to the Colliers Company was, in law, a reservation. It was not. It did not create the easement but, on the contrary, referred to existing rights in the Water Company which had been enjoyed for many years. The fact, therefore, that the Water Company was not a party to that deed cannot be asserted against the existence of the easement. Cf. Lauderbach-Zerby Co. v. Lewis, 283 Pa. 250, 129 A. 83; Pribek et al. v. McGahan et ux., 314 Pa. 529, 172 A. 709.

Ozehoski v. Scranton Spring Brooke Water Service Co., supra, 157 Pa. Super. at 439, 43 A.2d at 602. Likewise, the "Lerew to Bear deed" does not contain an express grant of an easement, but rather it recognizes and confirms an already existing right.

In this case, as in the Ozehoski case, the circumstances of the original creation of the right-of-way do not appear. Neither the Holzheids', nor the Owens' chain of title could be traced back far enough to establish the initial creation of the passageway. The Owens' chain of title could only be traced back to the crucial "Lerew to Bear deed". Holzheids' chain of title to Parcel "A" could be traced back only

[ 335 Pa. Super. Page 238]

    so far as March 21, 1906. It may well be that the original grantors by express grant created an easement, but never recorded the deed. Alternatively, an implied easement may have been ...


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