filed: August 2, 1985.
FRANK J. POTIS AND ANGELA POTIS, HUSBAND AND WIFE, APPELLANTS,
PAUL COON AND BEVERLY COON, HUSBAND AND WIFE, AND RANSOM TOWNSHIP
Appeal from the Judgment entered October 26, 1984 in the Court of Common Pleas of Lackawanna County, Civil Division, at No. 80 Equity 29.
John A. Mihalik, Bloomsburg, for appellants.
Joseph P. Lenahan, Scranton, for appellees.
Cavanaugh, Olszewski and Hoffman, JJ.
[ 344 Pa. Super. Page 445]
The sole issue on appeal is whether lot owners in a subdivision acquired a private easement over an unopened road because their deeds referred to a map of the subdivision showing such road where the map was unrecorded and the lots in question did not abut on the road. We find that appellants acquired an easement over the unopened road and, accordingly, reverse.
[ 344 Pa. Super. Page 446]
In 1968, Samuel J. Coon and Mary N. Coon (Samuel and Mary) owned a piece of property in Ransom Township which they decided to develop into a residential subdivision. On September 5 of that year, upon Samuel's request, Kenneth C. Seamans, a professional surveyor and engineer, prepared a map (1968 Map) showing a subdivision composed of various lots and two parallel "40-foot" roads. See Diagram A. On July 9, 1969, appellants, James P. Whitman and Judith Whitman, (the Whitmans) purchased Lot No. 1 in the subdivision from Samuel and Mary and received a deed which referred to the 1968 Map. (N.T. December 13, 1983 at 14-15). On October 26, 1970, Seamans prepared a second map (1970 Map) which added a plan for lots to be sold on the northwest side of the upper 40-foot road. See Diagram B. On April 5, 1972, Samuel and Mary conveyed Lot No. 2 to Edward H. Coon and Anna Coon (Edward and Anna). On May 21, 1972, Seamans prepared a third map (1972 Map) which reflected the same area as that shown on the 1968 Map and merely extended the southeastern portion. See Diagram C. None of the three maps was ever recorded. (N.T. December 13, 1983 at 4).*fn1 Both the 1970 May and the 1972 Map show a "U"-shaped 40-foot road encircling the portion of the subdivision containing the lots in question, and both open ends of this "U" are anchored on Ransom Road.
On June 29, 1973, appellants, Fred Vrabel and Mary Ann Coury, purchased Lot No. 2 from Edward and Anna and received a deed which referred to a map based on the 1972 Map. (N.T. December 13, 1983 at 15). After these purchasers were married, they conveyed the lot to themselves as Fred Vrabel and Mary Anne Vrabel (the Vrabels) on May 28, 1974. In October or November of 1974, appellants, Frank J. Potis and Angela Potis, (the Potises) entered into a purchase agreement with Mary Coon*fn2 for Lot No. 4. The
[ 344 Pa. Super. Page 447]
Potises made monthly payments until December 8, 1976, when Mary delivered the deed to Lot No. 4 to the Potises. This deed referred to the 1972 Map. (N.T. December 13, 1983 at 17-18).
Meanwhile, on July 16, 1975, appellees, Paul Coon and Beverly Coon, acquired by deed ownership of the lands surrounding the subdivision in question from Mary Coon. In 1976 or 1977, Mary transferred the remainder of her property to appellees.*fn3 Appellees then decided to resubdivide the acquired lands. This resubdivision would effectively eliminate the upper leg of the 40-foot road by changing it into a cul-de-sac. See Diagram D. This upper leg is an unopened road (i.e., a road not opened or used as a public street). On June 4, 1979, appellee Ransom Township approved of the proposed resubdivision plan.
Consequently, on March 24, 1980, appellants (the Whitmans, Vrabels, and Potises)*fn4 filed a complaint against appellees (Paul and Beverly Coon, and Ransom Township), seeking an injunction against the transfer of any lots or the issuance of any permits in connection with the proposed resubdivision which would interfere with their rights to ingress and egress through the unopened road (i.e., the upper leg of the 40-foot road). Appellants' lots front on the bottom leg of the 40-foot road, and it is undisputed that appellants have never used the upper leg of the road. See Lots 1, 2, and 4 in Diagrams A and C. After appellees filed their answers, the lower court held a hearing on December 13, 1983 for the presentation of evidence. Subsequently, on February 28, 1984, the lower court filed an opinion and order denying appellants' request for injunctive relief. The court held that appellants had failed to establish the existence of an easement by implication over the unopened road. Appellants then filed a motion for post-trial relief on March 8, 1984, requesting modification of the February 28 order so
[ 344 Pa. Super. Page 448]
as to grant the injunctive relief sought. Finally, on September 28, 1984, the lower court filed an opinion and order dismissing the motion for post-trial relief. This September 28 order was reduced to judgment and entered upon the docket on October 26, 1984, thereby prompting the instant appeal.*fn5
Appellants contend that, by reference to the 1968 and 1972 Maps in their deeds, an express easement by reference to map or plate was created in them over the top leg of the "U"-shaped road, and that such easement cannot be extinguished by appellees' resubdivision of the northwestern portion of the property. Appellees assert, however, that the lower court correctly ruled that appellants failed to meet the criteria for an implied easement as stated in Thomas v. Deliere, 241 Pa. Superior Ct. 1, 359 A.2d 398 (1976).*fn6
We find that neither position is entirely correct. An easement by reference to a map or plate is not an
[ 344 Pa. Super. Page 449]
express easement*fn7 but, rather, an easement by implication. See McAndrews v. Spencer, 447 Pa. 268, 290 A.2d 258 (1972); Rahn v. Hess, 378 Pa. 264, 106 A.2d 461 (1954). However, the criteria enumerated in Thomas v. Deliere do not apply to an easement by reference to a map or plate, which is a particular type of implied easement controlled by its own principles.*fn8 Instead, we look to the following well established principles concerning an easement by reference to a map or plate:
It is well settled that the grantee of a lot, which is sold according to a plan of lots on which streets or alleys not previously opened or projected as a public street are plotted out by the grantor, acquires an easement over those streets and alleys as a private right of property arising out of the grant, of which he cannot be deprived without compensation[.]
Cox's Inc. v. Snodgrass, 372 Pa. 148, 152, 92 A.2d 540, 541 (1952). Accord In re Penn Avenue (Whittaker Appeal), 386 Pa. 403, 407-08, 126 A.2d 715, 717-18 (1956); Cohen v. Simpson Real Estate Corp., 385 Pa. 352, 355, 123 A.2d 715, 716 (1956); Peterson v. Pittsburgh Public Parking Authority, 383 Pa. 383, 387, 119 A.2d 79, 81 (1955); Dillon v. Klamut, 278 Pa. Superior Ct. 125, 132, 420 A.2d 462, 464 (1980); Travaglia v. Weinel, 191 Pa. Superior Ct. 323, 327, 156 A.2d 597, 599 (1959); Oxford Falls Industrial Park, Inc. v. Evans, 59 D. & C.2d 783, 788-89 (Bucks Co. 1972).*fn9
[ 344 Pa. Super. Page 450]
that the grantee, his heirs and assigns, shall have the benefit of it." . . .
Vinso v. Mingo, 162 Pa. Superior Ct. 285, 287-88, 57 A.2d 583, 584-85 (1948) (citations omitted) (emphasis added). See also Hunsicker v. Katz, 310 Pa. Superior Ct. 213, 456 A.2d 576 (1983). Additionally,
The rights of a non-abutting property owner within the plan are no less than those of a property owner abutting upon the street in question[.] . . . The non-abutting property owner's rights in the street grid of the plan are not limited to those streets which are necessary to the enjoyment of his property or which materially benefit or add to its value[.]
Drusedum v. Guernaccini, 251 Pa. Superior Ct. 504, 508-09, 380 A.2d 894, 895-96 (1977) (citations omitted). Accord Cohen v. Simpson Real Estate Corp., supra 385 Pa. at 355-56, 123 A.2d at 716-17; Grimes v. Schmidt, 184 Pa. Superior Ct. 159, 162-63, 132 A.2d 406, 407-08 (1957); Oxford Falls Industrial Park, Inc. v. Evans, supra at 789-91.*fn10
[A] sale of land and a conveyance by deed making reference to an unrecorded plan which plan includes streets or parks is sufficient to create an enforceable interest, or private right of use, mainly an easement, in the buyer and will normally create an irrevocable offer to dedicate such streets and parks.
Reed v. Reese, 473 Pa. 321, 329, 374 A.2d 665, 669 (1976) (emphasis added);*fn11 accord Jones v. Sedwick, 383 Pa. 120,
[ 344 Pa. Super. Page 452117]
A.2d 709 (1955) (fact that plan of subdivision marking location of each lot and the drive had not been recorded was immaterial); see also Ott v. Reager, 313 Pa. Superior Ct. 365, 370, 459 A.2d 1272, 1275 (1983) ("Incorporation of streets and alleys into a plan, recorded or unrecorded, constitutes an offer to dedicate the streets and alleys for use by the public (as well as owners of land within the plan)").*fn12
In the instant case, we must examine appellants' respective deeds and the maps referred to therein in order to determine whether appellants acquired an easement over the unopened road by reference to such maps. The Whitmans' deed, dated July 9, 1969, contains the following description of Lot No. 1:
[ 344 Pa. Super. Page 453]
BEGINNING at a point in the center line of Ransom Road, said point is located 365 feet North 50 degrees 20' West from a bolt at the intersection of the center line of said Ransom Road with the center line of Red Oak Drive, also being southeasterly corner of a proposed 40 foot wide road and running thence from said point of beginning along the center line of said Ransom Road North 50 degrees 20' West, 125 feet to a point, being the southeasterly corner of a parcel of land conveyed by the Grantors herein to Andrew G. Hitzel, et ux; thence along the lands of Hitzel North 49 degrees 40' East, 200 feet to a point; thence along the proposed 40 foot wide road South 49 degrees 40' West, 200 feet to the point and place of beginning. Containing 0.5739 Page 453} of an acre and being Lot 1, Block B, as shown on Map # 3, made by Kenneth C. Seamans, Registered Surveyor, dated September 5, 1968. A copy of said map is attached hereto and made a part hereof.
(Emphasis added). The Vrabels' deed, dated May 28, 1974,*fn13 describes their lot, as follows:
BEGINNING at an iron pin corner on the northwest side of a proposed forty (40) foot road leading from Ransom Road to said lot, this corner also being the southeast corner of Lot # 1, Block B Map # 3; thence along the right of way of proposed forty (40) foot road North thirty-nine (39) degrees forty (40) minutes East two hundred (200) feet to an iron pin corner of Lot # 3, Block B; thence along line of Lot # 3 North fifty (50) degrees twenty (20) minutes West one hundred twenty-five (125) feet to an iron pin corner of Lot # 2A, Block B; thence along line of Lot # 2A South thirty-nine (39) degrees forty (40) minutes West two hundred (200) feet to an iron pin corner of Lot # 1, Block B; thence along line of Lot # 1, South fifty (50) degrees twenty (20) minutes East one hundred twenty-five (125) feet to iron pin corner in right of way of road place of beginning. Containing 25,000 square feet of land be the same more or less.
BEING the same premises which were conveyed from Samuel J. Coon, et ux, to Edward H. Coon, et ux., recorded in Deed Book 774, page 228. The above mentioned Map # 3 is a map of lands of Samuel J. Coon, et ux, in Ransom Township as surveyed by Kenneth C. Seamans, Registered Surveyor, which map is dated April 5, 1972, and is recorded in Deed Book 774, at page 228.
ALSO BEING the same premises conveyed by deed of Edward H. Coon, et ux. to Fred Vrabel and Mary Anne
[ 344 Pa. Super. Page 454]
Coury, now by marriage Mary Anne Vrabel, Grantors herein, which deed is dated June 29, 1973, and is recorded in Lackawanna County in Deed Book 802, at page 736, et seq.
(Emphasis added).*fn14 The Potises' deed, dated December 8, 1976, describes their lot, in part, as follows:
BEGINNING at a corner on the west side of a 40 ft. road leading from said lot to Ransom state road, this corner also being the southeast corner of lot # 3 owned now or formerly by George A. Ross; thence along right-of-way of said road North thirty-nine (39) degrees forty (40) minutes East two hundred (200) feet to corner of lot # 5; thence along line of lot # 5 North fifty (50) degrees twenty (20) minutes West one hundred twenty-five (125) feet to corner of lot # 4A; thence along line of lot # 4A South thirty-nine (39) degrees forty (40) minutes West two hundred (200) feet to corner of lot # 3 owned now or formerly by George A. Ross; thence along line of . . . .
Surveyed August 17, 1974 by Kenneth C. Seamans, Factoryville, Pennsylvania, and being known as Lot # 4, Block B, on Map # 3 of Mary N. Coon, widow. The said map is recorded in the Office of the Recorder of Deeds in and for Lackawanna County in Deed Book Volume 836 at page 362.
As we have previously stated, the Whitmans' deed refers to the 1968 Map whereas the Vrabels' and Potises' deeds refer to the 1972 Map. These (unrecorded) maps show a subdivision plan bounded on two sides by two legs of a 40-foot road. See Diagrams A and C. This 40-foot road (as well as other lots in the subdivision) is expressly referred to in the deed descriptions of appellants' lots. Moreover, the Whitmans' deed specifically states that the 1968 Map is to be made a part of the deed. Under the
[ 344 Pa. Super. Page 455]
above-cited caselaw, then, we are compelled to conclude that appellants, as grantees of lots in the subdivision, acquired an easement over the unopened road in question (i.e., top leg of the "U") because their lots were sold according to a plan of lots on which the road was plotted out by the grantor.*fn15 Additionally, under the principles we have cited above, the fact that the maps were unrecorded and the fact that appellants' lots do not abut on the road in question do not affect appellants' contractual rights to the easement; nor do the requirements of prior use or necessity apply to an easement created by reference to a map or plate.
Therefore, we hold that appellants have a private easement over the unopened road plotted on the subdivision plans referred to in their deeds which has not been surrendered and therefore cannot be extinguished without their consent. Accordingly, we reverse the order and judgment below denying appellants' motion for post-trial relief and remand the case for proceedings consistent with this opinion.
Reversed and remanded. Jurisdiction is not retained.
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