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McNaughton Properties, LP v. Barr

September 1, 2009

THE MCNAUGHTON PROPERTIES, LP AND MIDPENN ESTATES, APPELLANTS
v.
TERRY N. BARR AND QUINN K. BARR, HUSBAND AND WIFE, APPELLEES



Appeal from the Order entered July 22, 2008, Court of Common Pleas, Cumberland County, Civil Division at No. 08-1975.

The opinion of the court was delivered by: Donohue, J.

BEFORE: BOWES, DONOHUE and FREEDBERG, JJ.

OPINION

¶ 1 Appellants, The McNaughton Properties, LP, and MidPenn Estates (collectively "McNaughton"), appeal from the trial court's order dated July 22, 2008 sustaining the preliminary objections of Appellees, Terry N. Barr and Quinn K Barr (collectively, the "Barrs"). This case raises an issue of first impression in Pennsylvania: whether a court may order the relocation of an express easement. For the reasons that follow, we conclude that under existing Pennsylvania law, express easements must be construed according to contract interpretation principles, and thus we are without authority to modify the terms of an unambiguous express easement. Hence, we affirm the trial court's dismissal of McNaughton's declaratory judgment action.

¶ 2 Our review of the record discloses the following averments of fact in NcNaughton's complaint relating to McNaughton's request to relocate the Barr's easement to another location. McNaughton is the owner of 142.07 acres of land in Upper Allen Township in Cumberland County. Complaint at ¶ 4. McNaughton purchased this property, known as the "Failor Farm", in 2007. Id. at 5. The Barrs are the owners of 1.83 acres of land (hereinafter, the Reserved Tract") that was carved out of the Failor Farm in a 1954 deed. Id. at 20. The Reserved Tract does not front directly onto a public road, and thus in the 1954 deed, the grantor provided to the grantee and his heirs and assigns (including the Barrs) the use of two private lanes (the "Two Lanes") -- the first lane running from the Reserved Tract to the second lane, and the second running to Long Level Road (now East Winding Hill Road). Id. at 10, 13. The 1954 deed includes a sketch of the Two Lanes, but does not delineate their precise metes and bounds. Id. at 9, 11.

¶ 3 McNaughton has filed a preliminary subdivision plan with Upper Allen Township to develop the Failor Farm into residential tracts. Id. at 23. The subdivision plan includes a public street system that complies with all local regulations. Id. at 24. The new street system will provide the Barrs with access to the Reserved Tract that will be safer (both because it will be shorter and with improved emergency vehicle access) than the Two Lanes. Id. at 32. The new access (via the new street system), which will constitute "only a minor change from the existing access," is necessary for McNaughton to develop Failor Farm. Id. at 33-34. McNaughton will grant and convey to the Barrs an express easement over the new street system. Id. at 35.

¶ 4 In a written opinion dated July 22, 2008, the Honorable Judge Edgar B. Bayley granted the Barrs' preliminary objections in the nature of a demurrer and dismissed McNaughton's Complaint. Judge Bayley ruled that no Pennsylvania appellate court has ever recognized a cause of action to relocate an express easement without the permission of the owner of the dominant estate. Trial Court Opinion at 6. Judge Bayley further ruled that it was not within his power or jurisdiction to recognize section 4.8(3) of the Restatement (Third) of Property (Servitudes) (2000), which permits the relocation of express easements under certain specified circumstances. Id.

¶ 5 This timely appeal followed, in which McNaughton questions whether the trial court erred in holding that it "lacked the authority to declare that the owner of the servient estate is legally entitled to relocate an express easement." Appellants' Brief at 2. McNaughton further argues that the Barrs' express easement rights are ambiguous, thus entitling the court to compel relocation of the easement to any location suitable for the Barrs' convenient and ordinary use. Appellants' Brief at 14-15.

¶ 6 An appeal from an order granting preliminary objections in the nature of a demurrer is subject to plenary review. Erdely v. Hinchcliffe and Keener, Inc., 875 A.2d 1078, 1081 (Pa. Super. 2005). In determining whether the trial court properly sustained preliminary objections, the appellate court must examine only the averments in the complaint, together with the documents and exhibits attached thereto, and the impetus of our inquiry is to determine the legal sufficiency of the complaint and whether the pleading would permit recovery if ultimately proven. Id. This Court will reverse the trial court's decision regarding preliminary objections only where there has been an error of law or abuse of discretion. Id. at 1081-82; Brosovic v. Nationwide Mutual Insurance Company, 841 A.2d 1071, 1073 (Pa. Super. 2004). Finally, preliminary objections in the nature of a demurrer require the court to resolve issues solely on the basis of the pleadings, and no testimony or other evidence outside of the complaint may be considered to dispose of the legal issues presented. Mistick, Inc. v. Northwestern National Casualty Company, 806 A.2d 39, 42 (Pa. Super. 2002).

¶ 7 In support of its first issue on appeal, McNaughton argues that this Court's decision in Soderberg v. Weisel, 687 A.2d 839 (Pa. Super. 1997) provided the trial court with the authority to compel the relocation of the Barr's express easement. Appellants' Brief at 10. In Soderberg, we addressed a request by the owner of a servient estate*fn1 to relocate a prescriptive easement to another area on the property to protect young children from the large farm machinery used by the owners of the dominant estate. Id. at 841. The trial court permitted the relocation. Id.

¶ 8 In affirming the trial court's decision, this Court began by recognizing the general rule that "easements may not be modified, changed, altered, or relocated without the consent of both the dominant and servient estates." Id. at 842 (citing Pennsylvania Water and Power Co. v. Reigart, 193 A. 311, 314 (Pa. Super. 1937)). We also acknowledged, however, that prior cases had not established a "per se prohibition" against the unilateral relocation of a prescriptive easement*fn2 by the owner of a servient estate. Id. In this regard, we cited to Palmer v. Soloe, 601 A.2d 1250 (Pa. Super. 1992), in which we affirmed a trial court's decision to order the owner of the servient estate to return a prescriptive easement to its original location. The basis of this ruling was that the new easement location was not as safe as the original one and thus constituted an unreasonable interference with the dominant's estate's easement rights. Id. at 1253. As such, in Soderberg we concluded that the owner of a servient estate may unilaterally (i.e., without prior court approval) relocate a prescriptive easement if the new easement location is as safe as the original location, the relocation is a relatively minor change, and the reasons for relocation are substantial. Soderberg, 687 A.2d at 842.

¶ 9 Having decided that a court may deny relief to a prescriptive easement holder whose easement was unilaterally relocated, we then turned to the question of "whether a court, through the use of its equitable powers, may compel the relocation of an easement." Id. at 843. With no prior Pennsylvania appellate cases having addressed this issue, we looked to cases from other jurisdictions. Courts in some states have held that they lack the authority to order the relocation of an easement for any reason, deciding that once established an easement is not movable without the consent of both parties.*fn3 In contrast, other courts have recognized their authority to order relocation of easements.*fn4

¶ 10 In Soderberg, this Court adopted the latter approach, stating that "we hold that a court may compel relocation of an easement if that relocation would not substantially interfere with the easement holder's use and enjoyment of the right of way and it advances the interests of justice." Id. at 844. We did so to avoid inconsistent results, as the owner of a servient estate could unilaterally relocate an easement without concern that the court would order its return to the original location, but the same owner could not seek relocation of the easement to a new location through judicial proceedings. Id. We also cautioned that "ordering relocation is an extraordinary remedy and should be used sparingly." Id.

ΒΆ 11 McNaughton contends that our holding in Soderberg that a court has the authority to order the relocation of an easement "was not predicated on any differences between the nature of prescriptive and express easements," and thus forms a basis for holding that Pennsylvania law allows a court to order the relocation of any easement (prescriptive or express) "so long as the relocation would not substantially interfere with the easement holder's use and enjoyment of the right of way and advances the interests of justice." Appellants' Brief at 10. We disagree that Soderberg may be interpreted to support a determination that Pennsylvania courts may order the relocation of express easements. The issue addressed in Soderberg was limited to whether the trial court erred in ordering the relocation of a prescriptive easement. In a footnote, we made clear that our analysis was not intended to extend to consideration of express easements, since "[e]xpress grant easements, once acquired, are much more difficult to alter." Id. at 843 n.3 (citing Zettlemoyer v. Transcontinental Gas Pipeline Corp., 540 Pa. ...


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