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Arland H. Schantz and Maria L. v. Janet M. Bahry

April 18, 2012

ARLAND H. SCHANTZ AND MARIA L. SCHANTZ, HUSBAND AND WIFE, APPELLANTS
v.
JANET M. BAHRY, INDIVIDUALLY, AND DALE L. KOPLIN, AN INDIVIDUALLY



The opinion of the court was delivered by: Renee Cohn Jubelirer, Judge

Argued: December 13, 2011

BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION BY JUDGE COHN JUBELIRER

Before this Court is the appeal of Arland H. Schantz and Maria L. Schantz, husband and wife, (together, Landowners) from the Order of the Court of Common Pleas of Lehigh County (trial court) that entered a verdict against Landowners' Complaint for Declaratory Judgment (Complaint) regarding their right to access a private road near their property and entered a verdict in favor of the Counterclaim for Ejectment (Counterclaim) of Janet M. Bahry (Bahry) and Dale L. Koplin (Koplin) (together, Neighbors) and against Landowners. Landowners argue that Elm Road, a private road created in 1960 when Lower Milford Township

(Township) vacated Elm Road as a public road pursuant to former Section 1101 of

The Second Class Township Code (Code),*fn1 has a right-of-way of twenty-five feet by operation of law and, therefore, abuts one of Landowners' lots, giving them the right to access Elm Road from that lot.*fn2

Prior to 1960, Elm Road was a public road with a 33-foot right-of-way. In 1960, Township enacted Ordinance No. 4, which vacated Elm Road as a public road and designated it as a private road. Elm Road lacks a curb or paving and currently exists as a worn roadbed that varies in width, but is less than fifteen feet wide. Landowners own, individually or jointly, five parcels of land near or abutting Elm Road encompassing approximately 161 acres in total. Bahry owns two parcels of land near or abutting Elm Road encompassing a total of 10 acres. Koplin owns six parcels of land, individually or jointly with his wife, encompassing a total of 45 acres. To facilitate a description, the trial court enumerated eight lots.*fn3 Landowners own Lots 1, 2, 6 and 9. Lots 1 and 2 lie west of Elm Road. Bahry owns Lots 4 and 5. Lot 4 lies west of Elm Road. Koplin owns Lots 7 and 8. Lot 8 lies west of Elm Road. Lots 4, 5, 6, 7, and 8 abut the worn roadbed of Elm Road. Elm Road provides exclusive vehicular access to Lots 4, 5, 6, 7, 8, and 9, and has been used continuously since its vacation as a public road.

Sometime after 1997, Landowners created a ten-foot-wide path (Path) beginning in Lot 1 that crosses Lot 4 (owned by Bahry) to reach the roadbed. Landowners use the Path coupled with Elm Road, as a convenient means of traveling between Lot 1 and Lots 6 and 9. Landowners could alternately reach Elm Road and, thence, Lots 9 and 6 from Lot 1 via a longer route involving public roads. There are two iron pipes that mark the property boundaries between Lots 1 (Landowners), 4 (Bahry), and 7 (Koplin) near the point where the Path meets the roadbed. Pipe One marks the intersection of Lots 4 and 7 and lies within the roadbed. Pipe Two marks the intersection of Lots 1, 4 and 7. Pipe Two lies two or three feet outside the roadbed and approximately seven or eight feet from the center of the roadbed.

In April 2009, Bahry erected a fence, along with "No Trespassing" signs, across the Path where it crosses Lot 4. Landowners continued to cross Lot 4 to reach the roadbed. On March 26, 2010, Landowners filed their Complaint that Lot 1 abutted the thirty-three foot right-of-way vacated by Ordinance No. 4 and that they, therefore, have the right to unimpeded access to Elm Road from Lot 1. In the alterative, they argued that they had the right to use the Path due to the doctrine of adverse possession. Neighbors answered the Complaint averring that, when Elm Road was vacated, it became a private road that did not abut Lot 1 and

Landowners, therefore, did not have a right to access Elm Road from Lot 1. In addition, Neighbors filed a Counterclaim seeking to prohibit Landowners from crossing Neighbors' properties in order to reach Elm Road.

The trial court held a hearing on December 14, 2010. At the hearing, Landowners produced the testimony of Mr. Schantz and Glenn C. Moyer (Moyer), a professional land surveyor who surveyed the area involved on behalf of Landowners. Landowners also introduced Moyer's survey of the properties involved and deeds of the properties involved. Neighbors produced the testimony of Bahry's husband, Koplin, and Alfred O. Werner (Werner), a surveyor who had surveyed the area in 1997. Neighbors also introduced an aerial tax map of the properties involved, depositions and interrogatories of Landowners, survey plans of the Koplin property, as well as a copy of Ordinance No. 4.

On May 27, 2011, the trial court issued its Order, in which it denied declaratory judgment to Landowners and found in favor of Neighbors' Counterclaim. In its accompanying opinion the trial court found that, although Ordinance No. 4 had vacated Elm Road in 1960 and thereby converted it to a private road, the ordinance was silent as to the width of the resulting private road. In response to Landowners' argument that the resulting private road had a right-of- way width of twenty-five feet by operation of Section 1 of the Act of April 17, 1929, P.L. 530, 36 P.S. § 2781 (Section 2781),*fn4 the trial court noted that this provision addresses the vacation of a public road by a court of quarter sessions but, in this case, Elm Road was vacated by an ordinance of the Township. Therefore, the trial court determined that Section 2781 was not applicable. The trial court also noted that, pursuant to case law, the Private Road Act is to be strictly construed and Landowners failed to show the necessity for a private road because Lot 1 is not landlocked. The trial court also found that, in Glennon v. Zoning Hearing Board of Lower Milford Township, 529 A.2d 1171 (Pa. Cmwlth. 1987), this Court affirmed a finding by the trial court that Elm Road did not automatically become an approved private road with a width of twenty-five feet upon its vacation. The trial court also concluded, based on Moyer's testimony, that the description of Elm Road in Ordinance No. 4 was essentially unplottable, and the trial court would essentially be determining the location and width of Elm Road as a private road nunc pro tunc, which it lacks the authority to do. In re Road in Smithfield Township, 29 Pa. D.&C. 208 (Pa. Quar. Sess. Monroe 1937). The trial court also concluded it would be effecting a taking of Neighbors' property between the worn roadbed and Lot 1. The trial court rejected Landowners' adverse possession argument on the basis that they failed to show that the Path had been in use for twenty-one years. Landowners now appeal to this Court.*fn5

This Court must decide whether the trial court erred in determining that Elm Road does not have a twenty-five foot right-of-way and whether the trial court erred in granting Neighbors' Counterclaim.

We first address the issue of whether the trial court erred in determining that Elm Road does not have a twenty-five foot right-of-way and conclude that it did. The central issue in this case is the width of the private road created by Ordinance No. 4. Ordinance No. 4 provides in relevant part that Elm Road, also known as Township Route #380, "having a width of 33.00' . . . is hereby vacated and declared to be a private road." (Ordinance No. 4 at 2, R.R. at 25a.) Neighbors argue that, upon its ...


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