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GERRY P. TOMLINSON & BETTINA L. TOMLINSON v. CHARLES A. JONES & SHARON L. JONES (05/02/89)

filed: May 2, 1989.

GERRY P. TOMLINSON & BETTINA L. TOMLINSON
v.
CHARLES A. JONES & SHARON L. JONES, APPELLANTS



Appeal from the Order entered July 27, 1988, Court of Common Pleas, Northumberland County, Civil Division at No. 1506.

COUNSEL

Harry V. Klein, Jr. Sunbury, for appellants.

Myron M. Moskowitz, Shamokin, for appellees.

Tamilia, Popovich and Johnson, JJ.

Author: Johnson

[ 384 Pa. Super. Page 177]

Charles Jones and Sharon Jones appeal from the order of the trial court requiring them to remove from their property a barricade which prevented Gerry Tomlinson and Bettina Tomlinson, Appellees, from making continued use of an easement across the Appellants' property for egress and ingress to their own home. We affirm.

The Appellees live on land-locked property in West Cameron Township, Northumberland County. Since buying their home in 1986, the Appellees have made continuous use of a roadway that extends across the Appellants' private property in order to reach their land from Legislative Route 49012. The Appellees can only access their property from legislative route 49012 by use of the roadway in question. The trial court found that the roadway has been used and in certain instances maintained by the Appellees and their predecessors in title since the turn of the century.

The dispute between the parties arose in April, 1987 when the Appellees filled potholes on the roadway with gravel in order to permit easier passage on the roadway. After the Appellants discovered that the gravel was placed on the roadway they decided to barricade the road to prevent its use by the Appellees. The Appellees brought an action in equity asking that the Appellants be ordered to remove the barricade since the Appellees had acquired an easement either by prescription, implication or necessity over the roadway. A hearing in this matter commenced before the Honorable Samuel C. Ranck on December 10, 1987. On July 15, 1988, having found that the Appellees were entitled to an easement by prescription, Judge Ranck entered an order directing that the Appellants remove the barricade and refrain from further interfering with the Appellees use of the easement. The Appellants' motions for post-trial relief were filed and denied. This appeal is taken from entry of the final decree.

[ 384 Pa. Super. Page 178]

Initially, the Appellants argue that the Appellees could not have acquired an easement by prescription since the Appellants' roadway transverses private unenclosed woodland property and is therefore subject to 68 P.S. 411 which provides in pertinent part:

No right of way shall be hereafter acquired by use, where such way passes through unenclosed woodland; but on clearing such woodland, the owner or owners thereof shall be at liberty to enclose the same, as if no such way had been used through the same before such clearing or enclosure.

"The character of the land itself is determinative of the application of the Act of 1850." Minteer v. Wolfe, 300 Pa. Super. 234, 242, 446 A.2d 316, 321 (1982) citing Humberston v. Humbert, 267 Pa. Super 518, 521, 407 A.2d 31, 32 (1979). After viewing the property in question, the trial court was satisfied that the area was a woodland within the meaning of the act. The trial court, however, declined to apply 68 P.S. 411 to the facts in this case. It found that the Appellants and their predecessors were well aware of the roadway's use by owners of adjacent properties and therefore the statute's purpose of protecting owners who were not aware of trespassers and who could not afford to enclose their expansive properties would be unavailing. The Appellants ask that we find that the trial court erred by concluding that 68 P.S. 411 was inapplicable even though this was woodland property.

The findings of the trial court will not be disturbed absent a clear abuse of discretion or error of law. However, this court is not bound by the lower court's legal conclusions and is free to draw its own inferences and conclusions from the established facts. Minteer v. Wolfe, 300 Pa. Super. at 238, 446 A.2d at 318. We conclude that Appellees acquired an easement by implication which is an easement not prohibited by 68 P.S. 411. Accordingly, we do not reach Appellants ...


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