IN RE: PETITION OF BURTON R. ADAMS AND JOANNE M. ADAMS, HIS WIFE APPEAL OF: WILLIAM DITTMAR AND JAMES M. CORL
ARGUED: December 5, 2018
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.
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY,
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
1967, the Adamses purchased a one-half interest in a parcel
in Sullivan County from Mr. Adams's uncle. 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.
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.
west and south, the Adamses' parcel borders property
owned by Appellants William Dittmar and James M. Corl
(collectively, Corl). 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.
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.
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.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.
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. 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,
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.
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.
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.
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.
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.
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.
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)).
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. §
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