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HOWARD BURKETT v. RICHARD P. SMYDER AND CHERYL SMYDER (01/07/88)

filed: January 7, 1988.

HOWARD BURKETT, JR. AND ANNABELL BURKETT, HIS WIFE, AND PERRY CRAMER AND LOLA CRAMER, HIS WIFE, APPELLEES,
v.
RICHARD P. SMYDER AND CHERYL SMYDER, HIS WIFE, APPELLANTS



Appeal from the Order entered April 15, 1987 in the Court of Common Pleas of Indiana County, Civil Division, at No. 16 C.D. 1986.

COUNSEL

Gregory A. Olson, Assistant District Attorney, Indiana, for appellants.

Wayne A. Kablack, Indiana, for appellees.

Brosky, Del Sole and Hoffman, JJ.

Author: Del Sole

[ 369 Pa. Super. Page 521]

Appellees filed a declaratory judgment action against Appellants alleging that they had acquired a prescriptive easement to cross Appellants' land. Appellants filed a motion for judgment on the pleadings in which they argued that Appellees had failed to join a landowner whose land

[ 369 Pa. Super. Page 522]

    was also involved in the instant suit. The trial court denied this motion.

Following a non-jury trial, the trial court found that Appellees had used a roadway which intersects Appellants' land for a period in excess of 21 years. Thus, the prescriptive easement had been established. Following the filing and denial of post-trial motions, this appeal ensued.

By their appellate brief, Appellants raise the following two issues:

1. Have Burkett and Cramer (Appellees), by failing to show open and continuous use for a period of more than twenty-one (21) years, and by failing to establish that the claimed easement does not pass through an unenclosed woodland area, failed to meet their burden of proving the existence of an easement by prescription; and,

2. Is an additional surface owner, across whose lands the claimed prescriptive easement crosses, a necessary party in ...


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