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In re Petition of Adams

Supreme Court of Pennsylvania

July 17, 2019


          ARGUED: December 5, 2018

          Appeal from the Order of the Commonwealth Court dated September 21, 2017 at No. 863 CD 2016 Affirming the Order of the Sullivan County Court of Common Pleas, Civil Division, dated April 6, 2016 at No. 2013-CV-90.




         In this appeal by allowance, we consider whether Appellees, Burton R. Adams and Joanne M. Adams, demonstrated that opening a private road over the property of Appellant, James M. Corl, was necessary under the Private Road Act, 36 P.S. §§ 2731-2891 (Act). We conclude the Adamses have not demonstrated necessity as a matter of law based on their contemplated future use of their property, when, as in accordance with the Act, necessity must be based on the existing use of the property. Accordingly, we reverse the Commonwealth Court's order affirming the trial court's confirmation of the Board of View's (Board) report recommending the grant of a private road in favor of the Adamses.

         In 1967, the Adamses purchased a one-half interest in a parcel in Sullivan County from Mr. Adams's uncle.[1] N.T., 7/24/15, at 36. Mr. Adam's father owned the other one-half interest. Id. On February 22, 1984, the Adamses acquired Mr. Adam's father's one-half interest for $1.00. Deed, 2/22/84, at 1. The Adamses' parcel, number 02-080-0001, consists of 230.91 acres with a mountain situated on its northern portion. N.T., 7/24/15, at 7, 42. No public roads abut or enter into the Adamses' parcel. The nearby roads include State Route 87 some distance south of this parcel; Star Road, running north from Route 87 to the east of the parcel; and Holly Hill Road, extending north from Route 87 to the west of the parcel.[2]

         However, the Adamses own two adjacent properties bordering the subject parcel on the north at the foot of the steep side of the mountain (parcel numbers 02-094-0001 and 02-080-0003). Through parcel 02-094-0001, the Adamses have had access to the subject parcel from the north via Star Road. From Star Road, an unimproved dirt road travels west. This road was once a township road but was abandoned and reverted to a private road. The Adamses' parcel 02-080-0003 lies on one side of this now-private road. N.T., 7/24/15, at 27-30, 44. The now-private road then enters the Adamses' parcel 02-094-0001 and connects with an unimproved logging skid road at the base of the mountain on the northern side of the subject parcel. This logging road is approximately a mile long and has a 1, 000-foot elevation change as it travels straight up to the top of the mountain. Using this access point, Mr. Adams has hunted on the property all his life by walking from the bottom up the mountain. Id. at 31-32. However, Mr. Adams estimated that improving this logging road to facilitate vehicular access up the mountain road would cost "over hundreds of thousands of dollars." N.T., 7/24/15, at 24.

         To the west and south, the Adamses' parcel borders property owned by Appellants William Dittmar and James M. Corl (collectively, Corl).[3] Corl's parcel, number 02-081-0038, consists of approximately 250 acres. Deed, 6/20/07, at 1. Holly Hill Road runs north from Route 87 and terminates on Corl's property to the west of the Adamses' parcel.

         Where Holly Hill Road ends, an unpaved and unimproved travelway begins. This travelway is maintained by Chesapeake Oil & Gas Company (Chesapeake), pursuant to access agreements with Corl and the Adamses. Supplement to Report of the Board of View at 4-5. For the right to construct and use this travelway, Chesapeake paid Corl and the Adamses $5.00 per foot of road. Id. at 5 n.4. Presumably, the road, labelled "TA Burts Lane" on the Sullivan County tax map, was constructed by agreement of the parties to provide access to a well pad to accommodate the extraction of natural gas inuring benefits to both parties. From the end of Holly Hill Road, the 22-foot wide Chesapeake travelway runs east 2, 136.29 feet (½ mile) over Corl's property, then it enters the Adamses' parcel, continues southeast for approximately 3, 387 feet over the Adamses' parcel, and enters other land Corl owns (parcel number 02-080-0002) where Chesapeake's natural gas well pad is located. Id.; N.T., 7/24/15, at 17-18. The 2, 136.29-foot portion of the travelway on Corl's property is the subject of this case. Chesapeake has a right of way over the entire travelway for as long as the gas pad is active, and Chesapeake's subcontractors use the road daily for drilling activity. Id. at 13.

         After Chesapeake completed the travelway, Corl permitted the Adamses to access the 2, 136.29-foot portion of the travelway (Roadway) that connects Holly Hill Road with the portion of the Chesapeake travelway on the Adamses' property. Id. at 15. However, after approximately two and one-half years, Chesapeake installed two gates on the travelway at Corl's request which discontinued the Adamses' access to the Roadway.[4]Id. According to Mr. Adams, Corl denied his subsequent request for a right-of-way because Corl believed Mr. Adams was disturbing his deer population. Id. at 16. Thus, the Adamses no longer have access to their parcel from Holly Hill Road.

         The Adamses intend to build a house or a cabin for seasonal use on top of the mountain in the northeastern portion of their parcel to take advantage of the scenic views. N.T., 7/24/15, at 22, 40.[5] To facilitate construction vehicle access to the mountaintop, the Adamses prefer to access their property from Holly Hill Road instead of improving the logging skid road they currently access from Star Road. On February 26, 2013, seeking to restore their access from Holly Hill Road via the Roadway, the Adamses filed a petition to open a private road and for appointment of a board of view pursuant to the Private Road Act. Therein, they alleged they "do not have any way whatsoever to access their lands . . . from Holly Hill Road (Colley Township Road T-443) other than to obtain a private roadway over the lands owned by [Corl]." Pet. to Open a Private Road, 2/26/13, at ¶ 7. To remedy this, they sought to have the Roadway opened as a private road pursuant to Section 2731 of the Act, which provides:

         § 2731. Proceedings to open private roads

The several courts of quarter sessions shall, in open court as aforesaid, upon the petition of one or more persons . . . for a road from their respective lands or leaseholds to a highway or place of necessary public resort, or to any private way leading to a highway, . . . direct a view to be had of the place where such road is requested, and a report thereof to be made[.]

36 P.S. § 2731. Further, "[i]f it shall appear by the report of 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 thenceforth such road shall be deemed and taken to be a lawful private road." 36 P.S. § 2732.

         On April 2, 2013, the trial court appointed a Board of View (Board) to determine the necessity of granting access to the Roadway to the Adamses. The parties agreed the Board would make its decision based on a site view alone, without an evidentiary hearing. Report of the Board of View, 2/24/14, at ¶ 4. On November 18, 2013, the Board conducted a site visit with the Adamses, Mr. Dittmar, and counsel for both parties. Id. at ¶ 3.

         On February 24, 2014, the Board submitted its report, concluding the Adamses "should be granted unlimited access over and upon [Corl's] land for the stated purpose of constructing and residing in a one-family residence to be constructed upon [the Adamses'] land." Id. at ¶ 6. The Board found that the Adamses sought access to the Roadway on Corl's land to build a residential home and "provided no timeframe for such construction." Id. at ¶ 5(d). The Board further found the Adamses land was "effectively landlocked" because the alternative access up the logging trail off of Star Road was "extremely steep[, ]" was "more narrow and inhospitable than the Roadway," and would be "extremely expensive and arduous" for the Adamses to improve. Id. at ¶ 5(f). By comparison, the Board found the Roadway was "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 ¶ 5(i) (relying on the factors articulated in In re Laying Out & Opening a Private Rd. in Sullivan Twp., Tioga County, 964 A.2d 495, 505 (Pa. Cmwlth. 2009)). Finally, the Board concluded Corl was not entitled to compensation because Corl did not request it, and Chesapeake is obligated to pay the maintenance costs of the Roadway. Id. at ¶ 7.

         On April 28, 2014, Corl filed exceptions to the Board's report, and the trial court remanded the matter to the Board for an evidentiary hearing. At the July 24, 2015 hearing, Mr. Adams was the only witness. Thereafter, the Board issued a supplemental report on August 31, 2015, in which it again concluded the Adamses should be granted access to the Roadway. Supplement to Report of the Board of View, 8/31/15, at ¶ 23. In addition to its prior finding that the Roadway was necessary because the Adamses' parcel was "effectively landlocked," the Board found the public was benefited by Corl allowing Chesapeake to use the Roadway to generate natural gas for public consumption. Id. at ¶¶ 12(h), 16, 19 (distinguishing In re Opening a Private Rd. for the Benefit of O'Reilly, 5 A.3d 246 (Pa. 2010)). Additionally, the Board found the Adamses' assertion that the taking of the Roadway would serve a public purpose by permitting the general public to hunt on their parcel, which they had enrolled with the Pennsylvania Game Commission's "safety zone program," was irrelevant because the Adamses did not enroll their property in the program until 22 months after they filed the petition to open. Id. at ¶ 12(f) n.5. Corl filed exceptions, which the trial court overruled on March 30, 2016. Corl then filed a timely appeal with the Commonwealth Court.

         In its opinion in support of its order overruling Corl's exceptions to the Board's report, the trial court concluded the Adamses demonstrated access to the Roadway was necessary. Trial Ct. Op., 6/20/16, at 4. Specifically, the trial court explained that its own site view revealed that the access to the mountaintop via the logging road off of Star Road "contains an extremely steep upward and winding one thousand (1000) foot incline to the crest of [the Adamses'] land." Id. Based on this, the trial court agreed with the Board that the Adamses' parcel is "in fact, landlocked." Id.

         Additionally, the trial court concluded the opening of the Roadway as a private road for the Adamses would benefit the public in two ways. Id. at 5. First, the court held that Corl "created a public use for their once private roadway" by providing Chesapeake with unlimited access to the Roadway. Id. According to the trial court, the transportation and supply of natural gas is a public use. Id. (citing Westrick v. Approval of a Bond of the Peoples Natural Gas Co., 520 A.2d 963 (Pa. Cmwlth. 1984)). Second, the trial court relied on the agreement the Adamses entered into with the Pennsylvania Game Commission to open their parcel to public hunting. Id. Opening the Roadway, the court reasoned, would benefit the public seeking access to the Adamses' parcel to hunt. Id. Accordingly, the trial court overruled Corl's exceptions to the Board's report. Id.

         On appeal, Corl challenged both the necessity of the Adamses' access to the Roadway, given they can currently access their parcel from Star Road, and the public purpose of opening the Roadway to enable the transportation of natural gas. In re Petition of Adams, 170 A.3d 584, 590 (Pa. Cmwlth. 2017). The Commonwealth Court affirmed, holding the Board properly exercised its discretion in finding necessity for the Roadway and in concluding the Roadway served a public purpose. Id. at 594-95. The court explained it reviews a board's decision on necessity for an abuse of discretion, and it will affirm the board's determination "unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will." Id. at 591 (quoting Belleville v. David Cutler Group, 118 A.3d 1184, 1195 (Pa. Cmwlth. 2015)).

         On the issue of necessity, the court noted that pursuant to the Private Road Act a landowner may open a private road across another's land upon a finding "that such a road is necessary." Id. at 590 (quoting 36 P.S. ยง 2732). Because the Act does not define "necessary," the Commonwealth Court relied on judicial interpretation that "necessity does not require the property to be 'completely landlocked,' but necessity is more than 'mere ...

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