The opinion of the court was delivered by: Judge Smith-ribner
BEFORE: HONORABLE DORIS A. SMITH-RIBNER, Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE JIM FLAHERTY, Senior Judge.
Louis J. Mazzante, III (Mazzante) appeals from an order of the Court of Common Pleas of Lycoming County that denied his petition for appointment of a board of view to open a private road pursuant to Section 11 of the Act commonly known as the Private Road Act (Act), Act of June 13, 1836, P.L. 551, as amended, 36 P.S. §2731. Mazzante questions whether the trial court erred as a matter of law in failing to appoint a board of view pursuant to 36 P.S. §2731 because Mazzante's pleadings showed that he already had an access road connecting one part of his land to a public highway and because his allegations that a road across his property connecting this access road to a second part of his property was difficult and burdensome to use did not require appointment of a board of view. He questions also whether the trial court's interpretation of Section 11 and Section 12, 36 P.S. §2732, usurps the broad authority of a board of view to determine whether a requested road is necessary and therefore constitutes error of law.*fn1
Mazzante filed a petition for appointment of a board of view to open a private road on May 21, 2008, which alleged that he purchased real estate in Penn Township, Lycoming County (Tax Parcel No. 44-315-164) on October 12, 1998. It stated that the subject property is at the end of a private road known as Owl Hill Road, which is used by the named respondents and their families and guests and members of a fishing club, and that four of eight respondents who assertedly own portions of the road or have a recorded right-of-way to use it had executed agreements permitting Mazzante to use their portions. It further alleged that Mazzante's only current access is by way of a township road known as Holmes Hollow Road, which intersects with an unpaved logging road that runs approximately three miles across Mazzante's property to Strawbridge Lake, which road assertedly is rough, eroded, extremely dangerous, difficult, burdensome and so rocky that it cannot be traveled by a regular passenger vehicle and would be extremely cost-prohibitive to improve.
Jack McClintock and his wife Mary McClintock filed a response to the petition with new matter. They denied that the unpaved logging road is three miles long, alleging that it is a maximum of 2500 feet, and in new matter they noted that under the Act a taking of a right-of-way must be done only for strictest necessity, which necessity may not be created by the petitioner. They asserted that from the face of the petition it was clear that Mazzante has access to the property; because of that access the condition of any adjacent logging road is immaterial; any alleged necessity was created by Mazzante in not properly maintaining or improving the logging road; and as a matter of law the proposed road cannot be of strictest necessity. Others filed identical responses.
Mazzante filed a reply to new matter, stating that the only routes across his property are unpaved logging roads 1.1 and 1.4 miles in length of the same condition as originally alleged and that appointment of a board of view is required pursuant to Lobdell v. Leichtenberger, 658 A.2d 399 (Pa. Super. 1995) (holding that appointment was required for allegation that the sole access along a creek had become dangerous). Mazzante denied creating the necessity and stated that improving the roads for passenger vehicle use would be extremely expensive, citing Mattei v. Huray, 422 A.2d 899 (Pa. Cmwlth. 1980).*fn2
The trial court heard argument on July 25, 2008, and it issued an order August 12, 2008 denying Mazzante's petition. The trial court stated that Mazzante had failed to show that existing access to his property is extremely difficult and burdensome, as is required before a court will consider taking of the respondents' property for Mazzante's use, citing Application of Little, 119 A.2d 587 (Pa. Super. 1956). The trial court noted that although Mazzante had alleged that access across his property is difficult and burdensome, he has access to his property by way of a township road, and there was no allegation that travel over the township road is difficult and burdensome.
Mazzante filed a motion for reconsideration, and in an order of August 27, 2008 the trial court rejected Mazzante's argument that the road that was required to be extremely difficult and burdensome to use in Little was the petitioner's existing road on her own property. The purpose for her petitioning for a private road was that a 25-acre portion suitably could be developed into building lots if she secured the private road across adjacent property for direct access to a highway. Without direct access, it would be necessary for her to construct a longer roadway over her own land in order to reach the state road. The board of view refused to hear any testimony concerning the proposed development of the 25 acres on the basis that it is only the present situation that governs and that such a proposed subdivision and commercial development were not within the contemplation of the Act as "necessary." The present road was adequate for the present use, but the owner admitted that she did not want to go to the expense of laying out her subdivision until she was assured of a road over her neighbors' land. That, however, could not supply the strict necessity required by the Act.
The trial court distinguished cases cited by Mazzante primarily because most of them concerned the state of access over lands of others. In the light of holdings that "the Act is in the nature of eminent domain and, therefore, must be strictly construed[,]" Graff v. Scanlan, 673 A.2d 1028, 1031 (Pa. Cmwlth. 1996) (citing Little), and that the Act requires "strictest necessity[,]" id. (quoting In re Road in Plum Creek Township, 110 Pa. 544, 548, 1 A. 431, 433 (1885)), the trial court rejected Mazzante's assertion that he was entitled to appointment of a board of view when he has access to a public road over his own property.*fn3
Mazzante first contends that the trial court erred in declining to appoint a board of view because Sections 11 and 12 of the Act do not say that a landowner may never secure a second private road to his or her property; nor do they specify that an existing access road must be difficult or burdensome to use and not a road crossing the property to a second access point where the owner seeks to lay out a second road to another public highway. In In re Private Road in Nescopeck Township, 422 A.2d 199 (Pa. Super. 1980), where a trial court declined to appoint a board of view under the Act in part because the termini of the proposed road had not been specified and no assurances of just compensation had been provided, the Superior Court held that nothing in Section 11 of the Act required setting forth the termini or provision of security as a condition precedent to appointment of a board of view, and it stated that it would not substitute its judgment for that of the legislature.
The purpose of these statutes is to give a landowner adequate access to use and enjoy his or her property. Pope v. Muth, 481 A.2d 355 (Pa. Super. 1984). A public policy reason for construing the Act to permit opening of a private road to a property that already has access is that with many large tracts of forest and mountain land in Pennsylvania, it may be prohibitively expensive to build a road all the way across when access to the far side could be achieved inexpensively by opening a short private road. The Act serves the public interest by opening up otherwise inaccessible land for development. In re Opening Private Road ex rel. O'Reilly, 954 A.2d 57 (Pa. Cmwlth. 2008).
Mazzante asserts that it was his burden to allege that "the existing access is extremely difficult and burdensome in its use and warrants the appropriation of another more convenient course." Lobdell, 658 A.2d at 403. He did that with his allegations of the condition of the logging roads in his amended petition, which state a cause of action sufficient to defeat a demurrer under Lobdell. He states that there is no appellate authority squarely on point, but he finds support in county cases. In In re Road in Brecknock Township, 2 Woodw. 437 (C.P. Pa. 1874), the trial court sustained exceptions to a report of viewers laying out a public road but stated that a citizen who is surrounded by lands of others has a right to obtain access to a public highway by means of a private road even where the evidence shows that he has access over his own land but the route would be extremely difficult and burdensome.
Mazzante notes that in Little the trial court appointed a board of view even though the owner had access from her house. He argues that the fact that the Superior Court favorably cited Brecknock Township and did not rule that the trial court erred in appointing the board of view indicates that the Superior Court implicitly decided that a private road could be opened to a public highway even though the owner already had access to a public highway from another private road on his property, so long as the existing road was "extremely difficult and burdensome in use" for the current use of the property.*fn4 Mazzante's related second argument is that the trial ...