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In re Petition of Adams

Commonwealth Court of Pennsylvania

September 21, 2017

In Re: Petition of Burton R. Adams and Joanne M. Adams, his wife Appeal of: William Dittmar and James M. Corl

          Argued: December 15, 2016

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JULIA K. HEARTHWAY, Judge [1]

          OPINION

          MARY HANNAH LEAVITT, PRESIDENT JUDGE.

         William M. Dittmar and James M. Corl (Corl)[2] appeal an order of the Court of Common Pleas of the 44th Judicial District, Sullivan County Branch (trial court), overruling their exceptions to a report of a Board of View (Board) issued in a proceeding under the Private Road Act.[3] The Board recommended that Burton and Joanne Adams be granted the right to use an existing private road (Roadway) on Corl's property. The Board found that opening the Roadway to the Adamses was necessary and would serve a public purpose. The trial court confirmed the Board's report, and Corl appealed.

         The Adamses own a 231-acre parcel of land in Colley Township, Sullivan County, and most of this parcel is located on top of a mountain. Corl's 500-acre parcel lies immediately to the west of the Adamses' parcel. Route 87 lies south of both parcels. On the western side of the two parcels, Holly Hill Road travels north from Route 87 up the hill and ends on Corl's parcel, approximately 2, 000 feet from the Adamses' property. On the eastern side of these two parcels, Star Road, a dirt road, travels north from Route 87 in a valley, along a river.[4]Approximately one-half mile after it leaves Route 87, Star Road meets the southern and eastern boundaries of the Adamses' parcel.

         In 2009, Chesapeake Corporation (Chesapeake) built the Roadway to provide access from Holly Hill Road, a public road, to its natural gas drilling site on Corl's land. Notes of Testimony at 12 (N.T. ___); Reproduced Record at 51a (R.R. ___). Chesapeake's Roadway begins where Holly Hill Road meets Corl's property. The Roadway crosses Corl's property for 2, 200 feet, where it meets the Adamses' property line. The Roadway then continues across the Adamses' property for 3, 400 feet before it reenters Corl's property; it continues for two hundred yards to the gas pad on Corl's land. Id.

         After the Roadway was built, the Adamses used the 2, 200-foot stretch of the Roadway on Corl's land to access their property from Holly Hill Road. Three years later, Chesapeake erected gates at two points on the Roadway. The first gate was placed on Corl's land, close to where the Roadway connects to Holly Hill Road. The second gate was placed on the Adamses' land, shortly after it leaves Corl's land. The Adamses have access to the gate on their property, and at one time they had access to the gate on Corl's property. Corl directed Chesapeake to change the lock and not to give the combination to the Adamses.

         On February 26, 2013, the Adamses filed a petition pursuant to Section 11 of the Private Road Act, 36 P.S. §2731, [5] to open a private road. Alleging that their property was effectively landlocked, the Adamses sought the right to resume their use of the 2, 200-foot stretch of the Roadway that was built, maintained and used daily by Chesapeake. The trial court granted the petition and appointed a Board of View to inspect the properties and determine whether the Adamses' use of the Roadway was necessary. The parties agreed that the site visit alone would provide the basis of the Board's decision and, thus, "a full evidentiary hearing was waived." Supplemental Report, 9/15/2015, at 2.

         On November 18, 2013, the Board conducted a site visit. Following the visit, the Board issued a report dated February 21, 2014, where it made, inter alia, the following finding:

f) ... Petitioners' land is effectively landlocked due to the fact that the only other means of access to their land that was identified to the Board would be via an approximately one mile long unimproved logging trail located off of Star Road that involved an extremely steep upward and winding incline to the crest of the Petitioners' land. It was observed to be significantly more narrow and inhospitable than the Roadway, and in the opinion of the Board would be extremely expensive and arduous for the Petitioners to effectively and efficiently construct a [passable] road that would allow for safe and reliable transit to allow a residential construction crew to gain access to the Petitioners' land.

Board Report, 2/21/2014, at 3-4. The Board concluded that the Adamses "should be granted unlimited access over and upon" the Roadway. Id. at 5.

         Corl filed exceptions to the Board's report, arguing that the Adamses' property was not landlocked for the stated reason that Star Road, an abandoned township road, provided "easy access" to their property. Exceptions to Report of Board of View and Request for Remand to Create a Record; R.R. 26a. Thereafter, Corl filed a supplemental objection that the Adamses' intended use of the Roadway would not serve a public purpose. R.R. 27a. The trial court remanded the matter to the Board to create a record. At the Board's hearing on July 24, 2015, the Adamses presented evidence. Corl did not present any evidence to support his exceptions.

         Burton Adams testified about the need to use the existing Roadway to access his property. On direct examination, Adams testified as follows:

[Counsel]: What is the closest township road to your property?
[Adams]: Holly Hill Road.
[Counsel]: And do you have any direct access at all from Holly Hill Road which is also Colley Township Road T-443 to your property?
[Adams]: No.
[Counsel]: Is there a way that you can access your property from Holly Hill Road?
[Adams]: Yes.
[Adams' Counsel]: And describe that access to the Board [].
[Adams]: That access is a commercial road that crosses [Corl's] property two thousand one hundred and thirty-nine point something feet and that road is used constantly by Chesapeake to access the gas pad which is on the other side of my property and which on my property I have 3, 387 feet approximately and there's another couple hundred yards where it's on Mr. Corl's property and that is a gas pad and it's producing and it is providing gas to the general public through a pipeline.

N.T. 9-10; R.R. 48a-49a.

         Adams also testified about Star Road, a dirt road, that abuts the eastern border of his property, which lies in the valley. Adams testified that Star Road was an abandoned township road.[6] Star Road ends in a logging trail on the Adamses' land. However, the logging trail cannot be used to access the hilltop part of the Adamses' property. Adams testified as follows:

[Counsel]: Can you describe the alleged other access suggested by [Corl] to the Court?
[Adams]: Yes sir…[b]asically from where the public road [Route 87] ends and I can access my property it's an old - the lower end of it is actually a skid road and then part way up is nothing more than a path where they skidded logs down and that's how we access the property.
[Counsel]: And is that access steep?
[Adams]: Yes. It's over a thousand foot rise and it's over a mile long to get there.
[Counsel]: And approximately what would be the cost of making that road [passable] so you could access your property?
[Adams]: I don't know an exact cost but we're looking at over hundreds of thousands of dollars to do that I suspect.

N.T. 24; R.R. 63a.

         Following the hearing, the Board issued a supplemental report dated August 31, 2015, finding the Adamses' land to be effectively landlocked. The Board explained its decision as follows:

h) In the opinion of the Board of View, the Petitioners' land is effectively landlocked due to the fact that the only other means of access to their land that was identified to the Board would be by way of an approximately one mile long unimproved logging trail located off of Star Road that involved an extremely steep upward and winding 1000 foot incline to the crest of the Petitioners' land. Access via Star Road was personally observed by the Board to be significantly more narrow and inhospitable than the route from Holly Hill Road to the Roadway, and in the opinion of the Board the cost of improvement of the logging trail to allow for the safe and reliable transit of vehicular traffic to and from the Petitioners' land would be prohibitively expensive and arduous for the Petitioners to have effectively and efficiently constructed and would not be financially feasible or cost-effective. Consequently, unless an appropriate alternate means of access is identified, the Board is of the opinion that the Petitioners' land is indeed landlocked and otherwise inaccessible to the Petitioners for their stated use and purpose.

Board Report, 8/31/2015, at 6 (emphasis added).[7]

         The Board found that the "Roadway [is] the shortest, safest, most convenient, accessible and reliable current means of access, which will result in no discernible injury to [Corl's] Property." Id. at 10. Accordingly, the Board concluded that "[the Adamses] should be granted the requested access over and upon [Corl's] land for the stated purpose of constructing and accessing a seasonal cabin to be constructed upon [their] land." Id. The Board did not award compensation to Corl, noting that Corl did not ask for it. The Board further explained that the Roadway was maintained by Chesapeake and that the additional use by the Adamses would be minimal, particularly when compared to Chesapeake's heavy and daily truck traffic over the Roadway.

         Corl filed exceptions to the Board's supplemental report. He argued that the Board erred in finding that the Adamses' land was effectively landlocked and that the Adamses' opening of the Roadway was for a public purpose. On March 24, 2016, the trial court overruled Corl's exceptions and accepted the Board's report. Corl appealed to this Court.

         On appeal, [8] Corl raises several issues. Corl contends that the Adamses have access to their land by way of Star Road. Although the Adamses may prefer to use Holly Hill Road and the existing Roadway to access their land, they are not entitled to the access of their choice. Corl also argues that the Board erred in finding that the Roadway's use to generate natural gas for public consumption provides a public benefit that warrants the establishment of a private road.

         The Private Road Act authorizes a landowner to petition for the use of, or the creation of, a private road across another's land to access his property. In re Opening Private Road for Benefit of O'Reilly, 5 A.3d 246, 284 (Pa. 2010). Section 12 of the Private Road Act states as follows:

If it shall appear by the report of the viewers to the court directing the view, that such road is necessary, the said court shall direct what breadth the road so reported shall be opened, and the proceedings in such cases shall be entered on record, as before directed, and thenceforth such road shall be deemed and taken to be a lawful private road.

36 P.S. §2732 (emphasis added). The standard for granting a private road petition is a finding that "such road is necessary." Id. "Necessary" is not defined in the Private Road Act. Our Superior Court has construed Section 12 as follows:

While the [Private Road] Act does not require an absolute necessity, such as being completely landlocked, the mere inconvenience in the use of an existing road is not enough. Pocopson Road, 16 Pa. 15, 17 [(1851)]. The existing road must be of a limited privilege, Stewart's Private Road, 38 Pa. Super 339, 342 [(1908)], or 'extremely difficult and burdensome' in its use….

Application of Little, 119 A.2d 587, 589 (Pa. Super. 1956). In short, necessity does not require the property to be "completely landlocked, " but necessity is more than "mere ...


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