ROBERT A. YOUST, GERALDINE YOUST, AND DENNY S. YOUST, Appellees
KECK'S FOOD SERVICE, INC., Appellant
Argued, January 28, 2014
Appeal from the Judgment of the Court of Common Pleas, Tioga County, Civil Division, No(s): 933 CV 2009. Before DALTON, J.
Richard D. Sheetz, Troy, for appellant.
Joshua J. Cochran, Williamsport, for appellees.
BEFORE: PANELLA, OLSON and PLATT,[*] JJ.
Appellant, Keck's Food Service, Inc., appeals from the judgment entered on July 10, 2013, in favor of Robert A. Youst, Geraldine Youst, and Denny S. Youst (herein collectively " Appellees" or " the Yousts" ) and against Appellant. We affirm in part, vacate in part, and remand.
On September 16, 2009, the Yousts instituted the current action against Appellant. Within the Yousts' Second Amended Compliant, the Yousts averred the following.
Prior to 1992, Eugene and Doris Sargent (hereinafter " the Sargents" ) owned a large parcel of land in Tioga County, Pennsylvania. In 1992, the Sargents severed their unity of title over the property by conveying a portion of their land to Appellant. A few months later, the Sargents conveyed the adjoining parcel of land to the Yousts. The Yousts' Complaint, 3/2/10, at ¶ ¶ 4-7. Appellant now " operates a food service business on its property, including warehouse and distribution facilities, offices, and parking areas." Id. at ¶ 13. The Yousts created a farm on their parcel of property and the Yousts currently use the land for their residence, as well as for " the raising of cattle and horses, and the growing of crops." Id. at ¶ 10.
To travel to and from their property, the Yousts have an express easement across Appellant's property. Id. at ¶ 8. Prior to the commencement of the current action, the travel easement traversed the top of a dam that existed on Appellant's property -- which was named the Charavoyne Dam (hereinafter " the Dam" ) -- and the travel easement provided the Yousts with " ingress, egress, and regress from State Route 328 to [the Yousts'] property." Id. at ¶ ¶ 8 and 14-15. As the Yousts averred, the Dam had existed for about 100 years before the current lawsuit was filed, and, for this entire time, the Dam " held back a pond situate on [Appellant's] property." Id. at ¶ ¶ 16-17.
A stream, named Hammond Creek, runs through both Appellant's and the Yousts' properties. Id. at ¶ ¶ 18-19. At the time Appellant and the Yousts purchased their respective parcels of property, Hammond Creek ran into Appellant's property and then flowed into the dammed pond on Appellant's property. Id. at ¶ 18. Once inside the pond, the Hammond Creek " waters were gathered and detained by the Dam along with stormwater run-off and water from natural springs situate on [Appellant's] property." Id. When the pond water rose, " the gathered waters were discharged through an elevated spillway onto [the downstream property of the Yousts], where the flow of Hammond Creek re-commenced, providing a regular and reliable source of water for [the Yousts'] livestock." Id. at ¶ 19.
In 2005, Appellant " constructed certain improvements to its property, including the construction of a 36,000 square foot warehouse facility, loading docks, [and] a paved parking lot." Id. at ¶ 24. Yet, according to the Yousts, when Appellant constructed these improvements, Appellant " altered the natural terrain of [Appellant's] property and eliminated areas that provided natural drainage and absorption of rainwater, directing storm water, instead, into the pond and, ultimately, through the spillway and onto [the Yousts'] property in increased amounts and with increased velocity." Id. at ¶ 33.
After Appellant completed the improvements to its property, Appellant began to modify the Dam by increasing the Dam's height and width and by increasing the size of the discharge pipes. Id. at ¶ 35. These Dam modifications caused the Dam to extend onto the Yousts' property. Id. Moreover, the Dam modifications -- when combined with the effects from Appellant's 2005 property improvements -- periodically caused " increased and forceful discharge of stormwater through the spillway and onto [the Yousts'] property, causing erosion, periodic flooding, property damage, loss of pasture land, loss of livestock, and interference with [the Yousts'] use and enjoyment of their property." Id. at ¶ 37.
In 2009, Appellant removed the Dam. Id. at ¶ 41. " As part of its effort to remove the Dam, [Appellant] removed discharge pipes previously passing through the Dam, plugged the spillway (stopping the flow of water onto [the Yousts'] property), and began removing portions of the Dam." Id. at ¶ 52. Appellant also began " channeling stormwater runoff onto [the Yousts'] property with no on-site stormwater management system [and] caus[ing] periodic flooding and a continuing trespass on [the Yousts'] property." Id. at ¶ 61. The Yousts averred that, " [b]y removing the Dam and the pond, [Appellant] . . . interfere[d] with the regular and reliable supply of water to [the Yousts'] lands" and caused flooding and erosion on the Yousts' land. Id. at ¶ 63.
In response, the Yousts instituted the current action and levied multiple claims
against Appellant, including:
Count 2 -- " Trespass" (claiming that, when Appellant removed the Dam, Appellant trespassed upon the Yousts' land);
Count 3 -- " Interference with Express Easement" (claiming that, when Appellant removed the Dam in 2009, Appellant interfered with the Yousts' travel easement and right-of-way);
Count 4 -- " Interference with Implied Easement" (claiming that the Yousts have an easement implied from prior use in the Dam, in the pond, and " for a regular and reliable source of water from lands now owned by [Appellant]" ); 
Count 5 -- " Interference with Easement by Necessity" (claiming that the Yousts have an easement by necessity in the Dam, in the pond, and " for a regular and reliable source of water from lands now owned by [Appellant]" );
Count 6 -- " Private Nuisance" (claiming that Appellant's actions have resulted in both the excessive discharge of water onto the Yousts' property and the interruption of water onto the Yousts' property and, thus, constituted a private nuisance);
Count 8 -- " Demand for a Preliminary Injunction" (claiming that the Yousts are entitled to a preliminary injunction, enjoining Appellant from " obstruct[ing] and interfer[ing] with [the Yousts'] easement [implied from prior use] and/or necessity for a continuous, regular, and reliable source of water" );
Count 9 -- " Demand for a Permanent Injunction" (claiming that the Yousts are entitled to a permanent injunction, enjoining Appellant from " obstruct[ing] and interfer[ing] with [the Yousts'] easement [implied from prior use] and/or necessity for a continuous, regular, and reliable source of water" ).
Id. at ¶ ¶ 75-134.
The parties proceeded to a consolidated trial, where the jury was tasked with deciding the trespass, private nuisance, and interference with express easement counts and the trial court was tasked with deciding the interference with easement implied from prior use, interference with easement by necessity, preliminary injunction, and permanent injunction counts. N.T. Trial, 8/1/12, at 316.
During the trial, the Yousts presented evidence which tended to support the above-summarized factual averments. Further, Denny Youst provided additional testimony as to Appellant's work in 2009 --
and the effects of that work on the Yousts' property.
Denny Youst testified that, prior to 2009, Hammond Creek flowed into the dammed pond on Appellant's land and, once in the pond, the creek water mixed with the fresh spring water that also filled the pond. Id. at 30-31. When the pond water rose, the water drained onto the Yousts' property -- in a relatively controlled, regulated, and continuous fashion -- through two side-by-side overflow drainage pipes: one of which was a 30-inch perforated plastic pipe and the other was an 18-inch perforated plastic pipe. Id. at 41-42. The water then flowed, inside of the Hammond Creek bed, through the Yousts' property. Denny Youst testified that the Yousts pastured their beef cattle, horses, and pigs in the surrounding field and that the animals received their water from the creek. Id. at 30-31.
In 2009, however, Appellant performed significant construction to the Dam, the pond, and Hammond Creek. Denny Youst testified that, in 2009, Appellant drained the pond, breached the Dam, and re-banked the pond approximately 20 feet away from its prior location -- making it so that the pond did not drain into the Yousts' property through the drainage pipes. Id. at 46. Appellant then removed the two side-by-side drainage pipes and replaced the pipes with one large, six-foot-high by six-foot-wide drainage pipe. Id. at 44-46. Finally, Appellant created a rock-lined bed that changed the direction of Hammond Creek. Specifically, where Hammond Creek used to flow into a corner of the pond, Appellant changed the course of Hammond Creek so that it flowed directly into the six-foot-high by six-foot-wide drainage pipe. Id. at 46-48. From there, the creek flowed, unregulated, straight into the Yousts' pasture fields. Id. at 48.
Denny Youst testified that Appellant's year-2009 changes to the Dam, the pond, and the creek have had a deleterious effect on the Yousts' property. Denny Youst testified:
Now . . . if a rainstorm or thunderstorm comes up like last week did, you can . . . take a rowboat . . . [o]ut in my pasture and my barnyard. It just comes up, there's nothing stopping that runoff now, nothing at all, it just comes out full [tilt].
. . . [The pasture field now] floods a lot quicker [than it had previously]. . . . [T]here's actually parts  of my pasture that are kind of indented, the ducks and geese been swimming on it a week after the rains go away. It looks like its own little pond out there.
Id. at 48.
Denny Youst also testified that, when there is no precipitation, Hammond Creek runs dry. Thus, as a result of Appellant's year-2009 construction, the Yousts either have " too much water that you [are] drowned in it, or you have no water. There's no happy medium." Id. at 49.
Denny Youst testified that this inconsistent cycle of flooding and drought has caused some of his cows and horses to die in the field and has harmed his ability to pasture and water his animals. Id. at 50. As Denny Youst testified:
A:  I got pictures of a lot of down cows [lying] out there stuck in the mud because once this [area] dries out they -- it gets real extremely muddy. I mean, the cows can't make it through it. And
I feel bad, but I have enough -- you know, it's my barn, I mean, that's why I never replaced them. Until we get [this] done I'm [at] a standstill.
. . .
Q: . . . [W]hen's the last time you lost a cow because of the condition of the land from the flooding?
A: I got one right now it has a bad leg and that it got caught up in some barbed wire that -- when that fence that was in my pasture it had fallen down because it gets flooded out so many times and that one there we put down because it was . . . infected and that . . . was, oh, I'd say March.
. . .
A: . . . between 2009 and [2010,] we lost all our calves for both years[,] like  of them. And we lost, I think, seven -- I know seven [bred] cows. I had a horse go down on the ice. I lost a mare.
. . .
Q: Has the condition now with the six-foot pipe and the water that comes into your field has that [affected] how you feed your beef cows?
A: Yeah. We rotate our feed lots. We feed at the barnyard and we used to feed there at the gate there where [Appellant] raised it and then we'd rotate that because if you get even a couple cows eat[ing] at the same spot and it thaws and it freezes it just turns to mud and slop so we rotate where we put our round bales in and our corn silage.
Q: Are you able to feed your cows from food that you grow on your own property?
A: No. We had . . . to rent ground to bail hay because I had to replace the pasture ground that we lost that we can't use because, again, I -- we got pictures. It's -- it doesn't grow, just weeds grow in [the field] now. So, I had to rent ground to replace . . . my farm fields, my hay fields that I had to turn into pasture because I lost pasture.
. . .
Q: And when did this practice start where you had to start renting . . . your neighbors['] hay land and buying bales privately?
A: Well, it really started right around the 2008, 2009 we started needing mostly 2009 and  is when we opened up the two big fields that we used to cut hay off of. We needed to get more pasture ground because down below here where our pasture is at the barn, it's, it's gone, it's no good anymore.
Id. at 50 and 52-54; N.T. Trial, 7/31/12, at 63-64.
Hence, Denny Youst testified that, because of the flooding, the Yousts were forced to transform portions of their hay field into their new pasture field and that, because they lost some of their hay field, the Yousts were forced to rent hay ground, where they could harvest hay and supplement their hay supply.
At trial, the Yousts also presented the expert testimony of hydrologist Dr. Richard Crago. At the outset, during Dr. Crago's testimony, Dr. Crago testified as to the location of Hammond Creek; and, with respect to this issue, Dr. Crago contradicted the averments in the Yousts' complaint and the trial testimony of all other witnesses in this case.
In this case, the Yousts' complaint averred (and all other trial witnesses testified) that -- when Appellant and the Yousts purchased their property from the Sargents -- Hammond Creek ran through Appellant's property and then flowed into the dammed pond on Appellant's property. The Yousts' Complaint, 3/2/10, at ¶ ¶ 18-19. The Yousts' complaint averred that, once
inside the pond, the Hammond Creek " waters were gathered and detained by the Dam along with stormwater run-off and water from natural springs situate on [Appellant's] property." Id. Then, when the pond water rose, " the gathered waters were discharged through an elevated spillway onto [the downstream property of the Yousts'], where the flow of Hammond Creek re-commenced, providing a regular and reliable source of water for [the Yousts'] livestock." Id. at ¶ 19.
With the exception of Dr. Crago, all trial witnesses testified consistently with the above-described location of Hammond Creek. Thus, all trial witnesses testified that -- when Appellant re-banked the pond and removed the Dam in 2009 -- Appellant removed Hammond Creek from the pond and re-channeled Hammond Creek, making it so that the creek ran directly into the Yousts' property.
However, Dr. Crago testified that -- prior to Appellant's 2009 construction -- the headwater of Hammond Creek was the pond that existed on Appellant's land -- and that the water that ran through Appellant's property (and that fed the pond) was simply surface water that drained from the upper watershed. Dr. Crago testified:
Q: Okay. Now, [w]e've heard the term Hammond Creek referred to [as] the creek here that  runs. As far as your research[,] what is Hammond Creek?
A: [T]he maps I've seen don't label it  Hammond Creek until it leaves . . . [Appellant's] pond. So as it flows through the Youst property that seems to be when it's labeled Hammond Creek. Now, a lot of documents say the pond is the headwaters of the creek[,] meaning the furthest [upstream] point of the creek.
Q: So, . . . that channel that takes water [through Appellant's property,] underneath Route 328[, formerly] into the pond[,] and now directly onto the Youst farm[,] what was that called?
A: I haven't seen . . . a name for that.
Q: Does that . . . channel have water flowing through ...