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In Re: Private Road In Speers Boro

January 18, 2011


Appeal from the Order of the Commonwealth Court entered November 20, 2009 at No. 1016 CD 2008, vacating the Order of the Court of Common Pleas of Washington County entered May 19, 2008 at No. 2007-5749, and remanding.

The opinion of the court was delivered by: Mr. Justice Eakin



ARGUED: October 19, 2010


Appellants, Eddie and Cheryl McGavitt, purchased property in Speers Borough, Washington County in 2002. The property is zoned for heavy industrial use, and is bordered by a Norfolk Southern Railroad line to the west, property owned by an industrial development organization to the north, the Monongahela River to the east, and the property of appellee, Guttman Realty Company, to the south. There is no dispute that although appellants' property has full access to the river, its only land access is over appellee's property.

A public road, across appellee's property, provided access to appellants' property until the road was vacated in 1916. Since then, appellee had permitted prior owners to use the road. However, after appellants purchased the property, appellants and appellee were unable to agree on the road's use. Litigation ensued, and the trial court granted appellants a prescriptive easement. The Superior Court reversed, finding the prescriptive easement improperly included commercial and industrial use of the property. McGavitt v. Guttman Realty Company, 909 A.2d 1, 5 (Pa. Super. 2006). Appellants then brought an action to open a private road over appellee's property pursuant to the Private Road Act (Act).*fn1

The trial court appointed a Board of View; the Board determined it was necessary for a private road to be opened over the existing road over appellee's property. Appellee filed exceptions in the trial court, alleging, in relevant part, the Board should have considered appellant's access to and from the Monongahela River. The trial court overruled appellee's exceptions, finding no case holding access to navigable water prevents property from being landlocked. Trial Court Opinion, 5/19/08, at 3.

An en banc Commonwealth Court vacated and remanded,*fn2 finding the Board should have considered evidence regarding river access. In re: Private Road in Speers Boro, II, Washington County, No. 1016 C.D. 2008, unpublished memorandum at 13-14 (Pa. Cmwlth. filed November 20, 2009). The court further noted the Monongahela River has long been considered a public highway and "place of necessary resort,"*fn3 and other jurisdictions have considered water access in determining whether necessity exists. Id., at 12-13 (citing Balliet v. Commonwealth, 17 Pa. 509, 514 (1851); In re Daniel, 656 N.W.2d 543, 546 (Minn. 2003) (holding access to property by navigable lake was per se bar to finding of necessity)). Thus, the court concluded, "a proper analysis of 'strictest necessity' for a grant of a petition under the Private Road Act requires consideration of the present access by river and the use being made of it where such evidence is available." Id., at 13. The court vacated the trial court's order and remanded to the Board for a new determination which expressly included river access. Id., at 13-14.

Judge Pelligrini filed a dissenting opinion, observing the Commonwealth Court had concluded the Act "was part of a plan for an integrated system of road construction throughout the Commonwealth." Id., at 2 (Pelligrini, J., dissenting) (quoting In re Opening a Private Road ex rel Timothy P. O'Reilly, 954 A.2d 57, 66-68 (Pa. Cmwlth. 2008) (en banc) ("O'Reilly"), rev'd 5 A.3d 246 (Pa. 2010)).*fn4 Because the Act focused on roads, he found consideration of water access to be irrelevant. President Judge Leadbetter also dissented, but without opinion.

Our grant of allocatur included the following issues:

1. Whether or not a Board of View appointed pursuant to the [Act], 36 P.S. § 2731 et seq., must consider water access to determine whether or not a Private Road is necessary?

2. Whether or not under the aforesaid [Act] water access equates to land access?

In re: Private Road in Speers Boro, 994 A.2d 1095, 1095 (Pa. 2010) (per curiam).*fn5 In reviewing a Board of View's decision, "[a]ppellate review is limited to ascertaining the validity of the Board's jurisdiction, the regularity of proceedings, questions of law[,] and whether the Board abused its discretion." In re Packard, 926 A.2d 557, 559 n.2 (Pa. Cmwlth. 2007) (quoting In re Private Road Cogan Township, Luzerne County, 684 A.2d 237, 239 (Pa. Cmwlth. 1996)). Whether the Act requires a Board of View to consider water access is a matter of statutory interpretation, and "[b]ecause statutory interpretation is a question of law, our standard of review is de novo, and our scope of review is plenary." Snead v. Society for the Prevention of Cruelty to Animals of Pennsylvania, 985 A.2d ...

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