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NORMAN W. WALLEY AND EARNESTINE E. WALLEY v. JOSEPH IRACA (01/26/87)

filed: January 26, 1987.

NORMAN W. WALLEY AND EARNESTINE E. WALLEY, HIS WIFE
v.
JOSEPH IRACA, JOSEPH G. IRACA COAL COMPANY, AND BEVERLY COAL MINING COMPANY, APPELLANTS



Appeal from the Order of the Court of Common Pleas, Clearfield County, Civil Division, at No. 82-5-EQU.

COUNSEL

Ervin S. Fennell, Jr., DuBois, for appellants.

Kim C. Kesner, Clearfield, for appellees.

Wickersham, Brosky and Johnson, JJ.

Author: Brosky

[ 360 Pa. Super. Page 439]

This is an appeal from the denial of post-trial relief in an action in equity.*fn1 The issues raised by this appeal are: (1) did the chancellor in equity err in finding that appellants had not met their burden of proof in demonstrating the existence of a prescriptive easement over appellees' property? (2) did the chancellor err in awarding punitive damages? Upon review of the record, we find that the evidence supports the chancellor's findings, as well as the award of punitive damages, and accordingly affirm.

The factual background to this matter is rather lengthy and complex, but shall be summarized as briefly as possible. In 1946, appellant Joseph Iraca*fn2 became the owner of certain coal and mining rights on a fifty (50) acre tract of property owned by Kenneth Fetzer; this tract was later conveyed to George and Buella Malinky, with Mr. Iraca's rights intact. The Malinky property lies on the southeast border of a ninety-one (91) acre tract currently owned by appellees, Norman and Earnestine Walley. The Walleys acquired this tract in 1969 from Mrs. Walley's father, John Earnest, who had held title to the tract since 1947.

[ 360 Pa. Super. Page 440]

Iraca claims that, in order to haul the coal he mined from the Malinky property, to Legislative Route 17077, on the northeastern boundary of the Walley property, he travelled upon a dirt road on the Walley property, which, he maintains began at the Malinky border, and proceeded northeast the entire length of the Walley property, intersecting at the northeast border with L. R. 17077. According to Iraca, his use of the dirt road began in 1948 or 1949, and continued without significant interruption until 1976, when Mrs. Walley's cousin, James Earnest, and Grover Fleck commenced strip mining on the Walley property, and placed a cable across the road. Earnest and Fleck gave Mr. Iraca a key to the lock on the cable, and permitted Iraca to use the road, until the Walleys objected in 1982, and reported Iraca to the Pennsylvania Department of Environmental Resources ("DER"). DER ordered Iraca to cease hauling across the dirt road on the Walley property, and Iraca was forced to use an alternative hauling route across the Malinky property.

Iraca contends that he used the road in question between 1948 and 1976 whenever he chose, without asking permission, and, as such, had a prescriptive easement over the Walley property before the Earnest/Fleck mining operations ever began.

The Walleys maintain, on the other hand, that the road in question never extended as far as the Malinky border until the Earnest/Fleck operations in 1976, and that a two to three hundred foot section of so-called "roadway" between the Malinky border and the site of the 1976 operations, was virtually impassable due to trees and wilderness overgrowth until 1976.

At trial, Iraca presented expert testimony, which concerned certain aerial photographs and a topographical map from the 1950's, which allegedly depicted the dirt road as extending to the Malinky border. The Walleys countered with eyewitness testimony that the dirt road fell short of the Malinky border, and that the ...


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