Appeal from the Judgment of the Court of Common Pleas of Monroe County, at No. 2537 Civil Term, 1983
James A. Butz, Stroudsburg, for appellants.
Michael R. Muth, Stroudsburg, for appellees.
Olszewski, Montgomery and Lederer,*fn* JJ.
[ 343 Pa. Super. Page 92]
The instant appeal is filed by the Plaintiff-Appellants, and it arises from an order by the lower court which granted summary judgment in favor of the Defendant-Appellees. The Appellants instituted an action to quiet title in the lower court, asserting an entitlement to an easement by necessity across properties owned by the Appellees. The lower court's grant of summary judgment was based upon its conclusion that the Defendant-Appellees were not the proper parties against whom the Appellants should have sought relief. We find merit in the Appellants' assertion that the lower court erred in reaching that conclusion.
The easement dispute in this case involves a forty-five (45) acre tract of land in Barrett Township, Monroe County, Pennsylvania. The record shows that in 1940, the Delaware, Lackawanna & Western Railroad Company conveyed this forty-five (45) acre tract to Stephen Kronick. The deed covering that conveyance contained the following provision.
It is expressly understood and agreed by the Grantee that no portion of the above described lands and premises
[ 343 Pa. Super. Page 93]
abuts upon a public highway and that the Grantor, its successors and assigns, shall not be required to furnish to or obtain for the Grantee, his heirs or assigns, a means of ingress, to, or egress from said lands and premises by a passageway along, across, and or under the adjoining lands of the Grantor, for the purpose of enabling the Grantee, his heirs and assigns, to reach a highway for any purpose whatsoever, and this conveyance is accepted by the Grantee on such express understanding.
Subsequently the entire tract was conveyed to Dr. J.M. DeKay in 1947. Later during the same year, Dr. DeKay and his wife, Della, conveyed a thirty-five (35) acre portion of the property to Inez Schaub. In that transaction, the Dekays did not explicitly reserve or create any right-of-way or easement in favor of Inez Schaub so as to allow her or any subsequent owner of the thirty-five (35) acre parcel to traverse across the remaining ten (10) acres of the original forty-five (45) acre property for egress towards a public road. In 1956, Della W. DeKay conveyed the remaining ten (10) acres to Edward and Elizabeth Harrison. The Harrisons subdivided the ten (10) acres into separate lots which they conveyed to the Appellees. Appellants own the former Schaub acreage.
The Appellants alleged in their Complaint that they have an interest in the Appellees' land as they are entitled to a right-of-way by necessity, in order to gain access to a public road. They asserted that a woods road traverses across the Appellees' lots from Appellants' own thirty-five (35) acre parcel, and provides access to a public road.
In related proceedings in the lower court, the Appellants had presented a petition for rule to show cause why the Appellees' properties should not be inspected and appraised. During a conference concerning that petition, the lower court apparently directed the parties to submit briefs concerning whether or not the Appellants' Complaint in the instant case ...