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In re Laying Out and Opening a Private Road in Sullivan Township

January 28, 2009

IN RE: LAYING OUT AND OPENING A PRIVATE ROAD IN SULLIVAN TOWNSHIP, TIOGA COUNTY, PENNSYLVANIA
APPEAL OF: TRI-COUNTY SPORTSMEN'S CLUB



The opinion of the court was delivered by: Judge Simpson

Argued: December 8, 2008

BEFORE: HONORABLE ROCHELLE S. FRIEDMAN, Judge*fn1, HONORABLE ROBERT SIMPSON, Judge, HONORABLE JOHNNY J. BUTLER, Judge.

OPINION

In this private road case, Tri-County Sportsmen's Club (Tri-County) appeals an order of the Court of Common Pleas of Tioga County (trial court) opening a private road in favor of Hilltop Hunting Club, Inc. (Hilltop). The trial court's order confirmed a board of viewers' (Board) report finding necessity for the road under what is commonly referred to as the Private Road Act*fn2 and locating it on the existing roadbed. Discerning no error or abuse of discretion in the Board's findings and conclusions, we affirm the trial court's confirmation of the Board's report.

Tri-County and Hilltop are currently owners of contiguous parcels of real property in Sullivan Township, Tioga County. Their properties are used for hunting camps and recreational activities. In 1966, Hilltop, a small hunting club, acquired its property, consisting of approximately 1.73 acres, from Bruno and Anna Wallenburg, who owned approximately 130 acres. Hilltop's property is located near the top of a mountain. In August 1966, Hilltop constructed a cabin on its property. In 2004, Hilltop acquired an adjacent 19.97 acre-lot tract between its 1.73 acre-lot and Tri-County's property.

Tri-County holds title to an adjacent tract of land east of Hilltop's property. Tri-County's trustees owned this property since 1960.

Since purchasing its lot in 1966, Hilltop accessed its property by driving over an existing dirt road that passes over Tri-County's land and terminates on Township Route 850. The existing road essentially bisects Tri-County's property. Hilltop never used any other access to its property. The 1966 Wallenburg deed to Hilltop provided for a right of way for ingress and egress to a public road over the former Wallenburg property. Hilltop assumed the former Wallenburg property included Tri-County's property. However, a title search revealed the Wallenburgs never owned Tri-County's property. As a result, Hilltop did not possess a deeded right of way over Tri-County's property.

Beginning in 1971, differences arose between the two clubs. Nevertheless, Tri-County permitted Hilltop to continue to use the road. However, in November 2003, Tri-County advised Hilltop it could no longer use the road unless it signed a 10-year lease. Hilltop signed the lease, which required a $10 per month payment to use the existing road.

In August 2004, Hilltop filed a petition for an appointment of viewers under the Private Road Act to lay out and open a private road over the existing road. Because it had no deeded right of way from a public road to its land, Hilltop alleged the existing road provided the only practical and best access from its property to a public road. Thereafter, the trial court appointed a board of viewers.

In its response to Hilltop's petition, Tri-County alleged the Wallenburg deed to Hilltop provided for un-delineated access to Hilltop's property over the former Wallenburg property, not the existing road over Tri-County's property. Tri-County asserted Hilltop should use the former Wallenburg property for access to a public road.

In April 2005, the Board viewed the property. In August 2007, following the resignation and replacement of a Board member, the Board held a hearing on the necessity for a private road. Although Hilltop acknowledged its 1966 deed granted an easement over the Wallenburgs' remaining lands, Hilltop presented evidence showing this terrain is extremely steep and the proposed route over the former Wallenburg property is very close to an electric company's right of way for its transmission poles.

In particular, Hilltop's engineer, Scott Bray (Engineer) testified the power line route Tri-County proposed would go straight up the mountainside next to the electric company's right of way and be constructed on slopes of 16-33 percent.*fn3 Notes of Testimony (N.T.), 08/08/07, at 33-40. Construction of this 1100-foot*fn4 road up an extremely steep slope would cost about $30,000-$40,000. Id. at 40. The change in elevation from the township road up to Hilltop's property would be 220 feet. Id. at 37-38.

Engineer further testified ongoing maintenance, as well as runoff and erosion control of the power line route, would also be very expensive. Id. at 36-40. In addition, such a steep road would be treacherous during the winter hunting season. Id. at 37-38. Plowing uphill to gain access would be extremely difficult. Id. Also, the poles supporting the electric company's active power lines may be undermined by construction of the proposed road. Id. at 35-36.

As an alternative to a road straight up the face of the mountain next to the power line, Engineer testified a 1600-foot switchback road to a public road could be built to the north of Hilltop's property. Id. at 46-47. However, the extra portion of road would create increased runoff and erosion problems. Id. at 47-48. Also, the cost to construct the switchback road would be approximately $60,000. Id. at 55.

Engineer further testified he examined the topography of the remaining 130 acres of the original Wallenburg property, which mostly lies to the west of Hilltop's property. Id. at 43. Hilltop would run into the same issues anywhere on the property. Id. Accordingly, Engineer opined the existing road across Tri-County's property constituted the most reasonable and best location for an access road to Hilltop's property. Id. at 44. The existing road is safe, and it requires no construction and no extra maintenance. Id. at 43-44.

Tri-County did not present an engineering expert. Rather, it presented testimony from Charles Fogarty (Title Searcher), who examined the parties' deeds and chains of title. Title Searcher testified the Wallenburgs granted Hilltop un-delineated legal access to a public road anywhere over their remaining lands. Id. at 91. However, the Wallenburgs never owned the property Tri-County currently owns. Id. at 92. Also, Tri-County never granted Hilltop an easement or right of way over the existing road. Id. at 92-93.

Tri-County also asserts Engineer testified sufficient land exists on the former Wallenburg property north of Hilltop's lot to construct a switchback road to a public road.

In addition, Tri-County presented testimony from one of its members, Timothy Neiss, that if it was necessary for Hilltop to cross Tri-County's property, a better location would be across the southwestern corner of Tri-County's property bordering Hilltop's property. Id. at 131. Tri-County's members do not hunt in this area so there would be no danger of crossfire. Id. at 132. In contrast, the existing road bisects Tri-County's property. Id. at 133. This poses dangers for hunters and children present in that area. Id. at 133-34.

Following the hearing, the Board, with its new member, conducted a second viewing of the premises. The Board viewed the potential location across the southwestern section of Tri-County's property. Thereafter, the Board held a second hearing.

On March 31, 2008, the Board filed its report recommending opening a private road over the existing road. See Reproduced Record (R.R.) at 43a-47a. By a two-to-one vote, the Board concluded "necessity" for a private road, as defined in the Private Road Act and case law, exists here. Id. at 46a. The Board further concluded the trial court should award Hilltop a private road where the current road exists. Id.

Also on March 31, 2008, the trial court entered an order confirming the Board's report and awarding Hilltop a private road as per the terms of the Board's recommendations. Notably, the trial court did not style its order as a decree nisi and did not advise the parties they could file exceptions. See In re Brinker, 683 A.2d 966 (Pa. Cmwlth. 1996) (proper procedure in a private road case is for common pleas to confirm nisi the board's report and allow 30 days for the parties to file exceptions to the finding of necessity or appeal the assessment of damages before entering final confirmation).

Tri-County nonetheless filed exceptions to the Board's report and a motion for reconsideration.*fn5 Tri-County also ...


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