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ROBERT E. HANN AND FANNIE M. HANN v. DAVID E. SAYLOR AND SANDRA P. SAYLOR (08/02/89)

filed: August 2, 1989.

ROBERT E. HANN AND FANNIE M. HANN, HUSBAND AND WIFE, HARRY HOUCK, ROGER HOUCK AND HARRY BRANT, DECEASED AND ROBERT E. HANN, AS EXECUTOR
v.
DAVID E. SAYLOR AND SANDRA P. SAYLOR, HUSBAND AND WIFE AND HARRY E. BRANT, DECEASED AND ROBERT E. HANN, AS EXECUTOR. APPEAL OF DAVID E. SAYLOR AND SANDRA P. SAYLOR, HUSBAND AND WIFE



Appeal from Order of the Court of Common Pleas, Civil Division, of Fulton County, No. 144 of 1984-C.

COUNSEL

Robert B. Stewart III, Huningdon, for appellant.

James M. Schall, McConnellsburg, for appellee.

Wieand, Popovich and Hester, JJ.

Author: Wieand

[ 386 Pa. Super. Page 250]

In this equity action, the trial court held that defendants' land was subject to an implied easement for right of way purposes over a strip of land twenty-five (25) feet in width and continuing for a distance of five hundred twenty (520) feet. On appeal, defendants contend that the trial court erred when it determined (1) that their land was subject to an implied easement and (2) that the portion of the right of way on their land was twenty-five (25) feet in width.

Harry Brant and his wife owned a tract of land containing approximately 166 acres in Licking Creek and Dublin Townships, Fulton County. By deed dated April 7, 1976, they conveyed to Frank Mellott and his wife, from the southeastern part of the land, a tract containing 5.979 acres. Attached to the deed and recorded therewith was an engineer's drawing showing that the northern property line bisected an intended fifty (50) foot access road leading from a township road to other lands of the grantor. By deed dated June 9, 1976, Brant and his wife conveyed to David Saylor and Sandra Saylor, husband and wife, a tract of 14.40 acres lying to the north of the Mellott tract. The Saylor deed contained no language expressly referring to a right of way along any part of the southern property line. However, the deed description provided that the property being conveyed contained "in all 14.40 acres according to a survey by Robert W. Taylor, P.E., on May 26, 1976, as shown on the draft attached hereto." An engineer's drawing was attached to and recorded with the deed and depicted an intended fifty (50) feet wide right of way lying between land of the Saylors and Mellotts, half of which was on Saylors' land. The right of way extended for a distance of five hundred twenty (520) feet from the township road to other lands of the grantor. After these two conveyances had been made, the grantor continued to make intermittent use of a visible lane, generally following the depicted right of way, to get to his remaining land from the township road. In fact, however, this lane was unpaved and consisted of tracks approximately twelve (12) feet in width.

[ 386 Pa. Super. Page 251]

In June, 1979, Brant, now a widower, conveyed a remainder interest in the balance of his land to Robert Hann and wife, Harry Houck, and Roger Houck. In 1984, the Saylors placed stakes on their land within the area which had previously been marked on their plan as right of way. An action followed by Brant and the remaindermen to enjoin the Saylors from interfering with use of the right of way. The trial court, after hearing the evidence, found that twenty-five (25) feet of Saylors' land was subject to a right of way and enjoined the Saylors from interfering with plaintiffs' use thereof.

"It has long been held in this Commonwealth that although the language of a granting clause does not contain an express reservation of an easement in favor of the grantor, such an interest may be reserved by implication, and this is so notwithstanding that the easement is not essential for the beneficial use of the property." Burns Manufacturing Co. v. Boehm, 467 Pa. 307, 313-314, 356 A.2d 763, 767 (1976). See generally: 12A P.L.E. Easements ยงยง 31, 32. "[W]here an owner of land subjects part of it to an open, visible, permanent and continuous servitude or easement in favor of another part and then aliens either, the purchaser takes subject to the burden or the benefit as the case may be." Tosh v. Witts, 381 Pa. 255, 258, 113 A.2d 226, 228 (1955). This is so irrespective of whether or not the easement constitutes a necessary right of way. Id.; Burns Manufacturing Co., Inc. v. Boehm, supra, 467 Pa. at 314, 356 A.2d at 767.*fn1 See also: Lauderbach-Zerby Co. v. Lewis, 283 Pa. 250, 254-255, 129 A. 83, 84 (1925). An easement by implication may be acquired where the intent of the parties is clearly demonstrated "by the terms of the

[ 386 Pa. Super. Page 252]

    grant, the surroundings of the property and other res gestae of the transaction." Tomlinson v. Jones, 384 Pa. Super. 176, 179, 557 A.2d 1103, 1104 (1989), quoting Thomas v. Deliere, 241 Pa. Super. 1, 4, 359 A.2d 398, 399 (1976). See also: Philadelphia Steel Abrasive Co. v. Louis J. Gedicke Sons, 343 Pa. 524, 527, 23 A.2d 490, 492 (1942).

In the instant case, it seems clear that when the Saylors took title to their tract it was subject to an open, visible, permanent and continuous right of way which had been used by their grantor to get from the township road to another part of his land. Therefore, the trial court ...


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