Newman & Co., Inc. v. City of Phila. ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Newman & Co., Inc., :
Appellant :
:
v. :
:
: No. 536 C.D. 2020
City of Philadelphia : Argued: March 15, 2021
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE ANNE E. COVEY, Judge (P.)
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION BY
JUDGE COVEY FILED: April 8, 2021
Newman & Co., Inc. (Newman) appeals from the Philadelphia County
Common Pleas Court’s (trial court) April 12, 2019 order finding in favor of the City
of Philadelphia (City) and dismissing Newman’s Amended Complaint (Amended
Complaint); and the trial court’s March 6, 2020 order denying Newman’s motion for
post-trial relief (Post-Trial Motion).1 Newman presents two issues for this Court’s
review: (1) whether the trial court erred as a matter of law or abused its discretion in
deciding that Newman was not the fee simple owner of a 30-foot-wide strip of land
1
Technically, an ‘[a]ppeal lies from the judgment entered and not the
denial of post-trial motions,’ [Crosby v. Dep’t of Transp., 548 A.2d
281, 283 (Pa. Super. 1988)], and a ‘verdict [does] not become final
for purposes of appeal until properly reduced to and entered as a
formal judgment under [Pennsylvania Rule of Civil Procedure]
[No.] 227.4.’ Crystal Lake Camps v. Alford, 923 A.2d 482, 488 (Pa.
Super. 2007).
Mitchell v. Milburn, 199 A.3d 501, 504 n.3 (Pa. Cmwlth. 2018). Here, judgment was entered on
March 6, 2020, and docketed on March 10, 2020.
in northeast Philadelphia extending from Comly Street to Devereaux Street near the
Delaware River abutting Newman’s real estate (on both the riverfront and land-
locked properties) and through which the former Kensington and Tacony Railroad
(K&T) ran (Disputed Strip); and (2) whether the trial court erred as a matter of law
or abused its discretion in holding that Newman was not entitled to an easement over
the Disputed Strip, and by not providing Newman with the opportunity to present
further evidence on the easement issue despite expressly stating that Newman would
be given such an opportunity. After review, we affirm.
Background
Newman owns several parcels of land in the vicinity of 6101 Tacony
Street adjacent to the Delaware River. The Disputed Strip is a narrow strip of land
which was formerly railroad owned and constituted a right-of-way for a railroad line.
It is close to the shoreline and bounded on each side by property owned by Newman.
There is a railroad track on the Disputed Strip. The railroad owner, Consolidated
Rail Corporation (Conrail), ceased rail service along this line in 1983, and sold the
property to the City in 2005. The City is building a walking trail along the Disputed
Strip as part of its “Rails-to-Trails” program. Newman owns property on either side
of the trail.
K&T acquired the property, which includes the Disputed Strip, through
two deeds. By deed dated August 25, 1887 (Baldwin Deed), The Baldwin
Homestead Association of Wissinoming (Baldwin Association) conveyed to K&T
an interest in a 30-foot-wide strip of land covering 0.965 acres between Dark Run
Lane to the southwest, and the Wissinoming Creek to the northeast, along the
Delaware River (Baldwin Strip). By deed dated January 8, 1891 (Porter Deed),
Charles A. Porter and Rosette M., his wife, John L. Hill and Jennie H., his wife, and
Hamilton Disston and Elizabeth E., his wife (collectively, Porter and others)
2
conveyed to K&T an interest in a 2.882-acre tract extending from Robbins Street to
the Wissinoming Creek (the Porter Tract), which included a 30-foot-wide strip of
land (Porter Strip).
Conrail was a successor to K&T. By November 20, 1981 application,
Conrail requested permission from the Interstate Commerce Commission (ICC) to
abandon rail service on 1.9 miles of its rail line between Frankford Creek (milepost
3.7) and the Delaware Expressway (milepost 5.6) in Philadelphia County, as well as,
2.1 miles of its rail line between Venango Street (milepost 1.6) and Frankford Creek
(milepost 3.7) in Philadelphia County, land which covers part of the Disputed Strip.
On February 23, 1982, the ICC authorized Conrail to abandon service on the rail
line. By March 22, 2006 quitclaim deed (2006 Deed), Conrail conveyed to the City
various pieces of property underlying the former K&T railroad, including the
Disputed Strip.
Newman is the record owner of several parcels of real estate abutting
the Disputed Strip of the former K&T railroad line, by deeds which the parties refer
to as the Original Newman Parcel Deed, the Devereaux Deed, the Tacony Deed, and
the Comly Deeds 1-3. The Original Newman Parcel Deed, the Devereaux Deed,
Comly Deed 1, Comly Deed 2 and Comly Deed 3 all reference the Disputed Strip as
the boundary lines of the landlocked parcels and the riverfront parcels abutting the
Delaware River. None of these deeds included the Disputed Strip within their metes
and bounds descriptions of the parcels conveyed. One of Newman’s predecessors-
in-interest previously owned the land east of the Wissinoming Creek and south of
the Disputed Strip before conveying an eastern portion of that property to the
Wissinoming Yacht Club (Wissinoming Yacht Club Deed).
With the exception of the parcel owned by the Wissinoming Yacht
Club, Newman’s real estate, taken together, abuts the Disputed Strip on both sides
(on the riverfront side and the land-locked side). The terms of the Original Newman
3
Parcel Deed, the Devereaux Deed, the Tacony Deed, Comly Deed 1, Comly Deed 2
and Comly Deed 3 do not expressly reserve in the grantors2 any fee simple or a
reversionary interest in the Disputed Strip. A portion of one of the parcels conveyed
by James D. Morrissey, Inc. (Morrissey) to Newman along Devereaux Street, north
of the Disputed Strip and east of the Wissinoming Creek, had at one point been
owned by the Connecting Railway. Newman’s real estate south of the Disputed
Strip (along the water) or west of the Wissinoming Creek was not previously owned
by Conrail, the Connecting Railway, or K&T.
Both the Baldwin Deed and the Porter Deed state that the subject
property was being conveyed to K&T in fee. Neither the Baldwin Deed nor the
Porter Deed contain any reversionary interest in the Disputed Strip. The 2006 Deed
quitclaimed all rights to the property owned by Conrail to the City. None of the
deeds by which the City acquired title to the Disputed Strip refer to easements in
favor of any party. None of the deeds by which Newman acquired its abutting
parcels purported to convey any easement or ownership of the Disputed Strip.
Facts
On July 6, 2016, Newman filed a Complaint against the City seeking to
establish an ownership interest in the Disputed Strip. The Complaint contains
several counts in which it seeks to quiet title to the property in Newman’s name,
enjoin the City from building on said property, obtain declaratory relief, recover
damages for trespass, and eject the City. As an alternative to fee simple ownership,
Newman seeks easement rights in the Disputed Strip. On July 14, 2016, Newman
filed an Emergency Motion for Preliminary Injunction (Emergency Motion). On
July 21, 2016, Newman withdrew its Emergency Motion. On September 26, 2016,
2
The grantors were Florence T. Fitzmyer, James D. Morrissey, Inc., N.W. Bachr et al., C.
William Kieser, Powers Truck Service, Inc., and William Kieser.
4
Newman filed a Motion for Summary Judgment (Summary Judgment Motion),
which the trial court denied on December 9, 2016. On January 4, 2017, Newman
filed a Motion for Reconsideration of the trial court’s December 9, 2016 order
(Reconsideration Motion). On January 11, 2017, Newman appealed from the trial
court’s December 9, 2016 order to the Pennsylvania Superior Court, which Newman
later withdrew on February 27, 2017.
On December 8, 2017, Newman filed the Amended Complaint with the
trial court.3 On May 7, 2018, both the City and Newman filed Motions for Summary
Judgment which the trial court denied on July 2, 2018. The trial court conducted a
non-jury trial on January 14 and 15, 2019. On April 12, 2019, the trial court found
in favor of the City and dismissed Newman’s Amended Complaint. On April 22,
2019, Newman filed the Post-Trial Motion seeking a new trial.4 On March 6, 2020,
the trial court denied the Post-Trial Motion and entered judgment in favor of the
City. On April 2, 2020, Newman appealed to this Court.5
3
On December 7, 2017, the parties stipulated to Newman filing an Amended Complaint.
4
On May 10, 2019, Newman appealed from the trial court’s verdict to the Pennsylvania
Superior Court. On June 19, 2019, the trial court dismissed Newman’s post-trial motions due to
the filing of the appeal. On July 23, 2019, the trial court ordered Newman to file a Statement of
Errors Complained of on Appeal pursuant to Pennsylvania Rule of Appellate Procedure (Rule)
1925(b) (Rule 1925(b) Statement). On August 13, 2019, Newman filed its Rule 1925(b)
Statement. On September 6, 2019, the trial court filed its opinion. On October 29, 2019, the
Superior Court quashed the appeal as premature. On November 6, 2019, the original record was
transmitted to this Court. By November 26, 2019 Order, this Court granted the City’s Motion for
Remand and remanded the matter to the trial court for disposition of the Post-Trial Motion.
5
Our appellate role in cases arising from non-jury trial verdicts is to
determine whether the findings of the trial court are supported by
competent evidence and whether the trial court committed error in
any application of the law. The findings of fact of the trial judge
must be given the same weight and effect on appeal as the verdict of
a jury. We consider the evidence in a light most favorable to the
verdict winner. We will reverse the trial court only if its findings of
fact are not supported by competent evidence in the record or if its
findings are premised on an error of law. However, [where] the
issue . . . concerns a question of law, our scope of review is plenary.
5
Newman first argues that the trial court erred as a matter of law or
abused its discretion in deciding that Newman was not the fee simple owner of the
Disputed Strip. Specifically, Newman contends that, since the Disputed Strip was
used as a public road or highway, as a railroad, for public conveyance for over a
half-century by the City’s predecessors-in-interest, K&T created an easement in the
Disputed Strip, which easement terminated when Conrail’s use of the public road,
i.e., the railroad, ended. The City rejoins that the central issue in this case is whether
the Baldwin and Porter Deeds conveyed the Disputed Strip to K&T in fee simple, so
that its successor, Conrail, was able to convey the Disputed Strip to the City in fee
simple. The City maintains that the normal principles of deed interpretation govern
this issue, and that the relevant deeds conveyed a fee simple interest because they
contain no terms indicating that a mere easement was intended.
Initially,
[w]hen construing a deed, a court’s primary object must
be to ascertain and effectuate what the parties themselves
intended. The traditional rules of construction to
determine that intention involve the following principles.
First, the nature and quantity of the interest conveyed must
be ascertained from the deed itself and cannot be orally
shown in the absence of fraud, accident or mistake. We
seek to ascertain not what the parties may have intended
by the language but what is the meaning of the words they
used.
Stephan v. Waldron Elec. Heating & Cooling LLC, 100 A.3d 660, 664-65 (Pa. Super. 2014)
(quoting Wyatt, Inc. v. Citizens Bank of Pa., 976 A.2d 557, 564 (Pa. Super. 2009) (internal citations
omitted)). “[W]hen analyzing a decision by a trial court to grant or deny a new trial, the proper
standard of review . . . is whether the trial court abused its discretion.” Harman ex rel. Harman v.
Borah, 756 A.2d 1116, 1122 (Pa. 2000).
6
Pa. Game Comm’n v. Seneca Res. Corp., 84 A.3d 1098, 1105 (Pa. Cmwlth. 2014)
(quoting Consolidation Coal Co. v. White, 875 A.2d 318, 326 (Pa. Super. 2005)
(citations omitted)).
The Pennsylvania Supreme Court has long held:
It is well settled that a grant of land bounded by or abutting
on a public highway is presumed to carry the fee to the
center line of such highway or easement. A railroad is a
highway within the meaning of this rule. If [a] [r]ailway
[c]ompany acquired by its [] deed merely a right-of-way
or an easement[,] an abandonment by the railroad of its
right-of-way would, in legal effect, [] extinguish this
encumbrance upon the land[.]
Fleck v. Universal-Cyclops Steel Corp., 156 A.2d 832, 834 (Pa. 1959). Further, “[i]t
was recognized early in this Commonwealth that a conveyance or a taking by
eminent domain of a right-of-way usually conveys or creates only an easement.” Id.Moreover, “if and where the granting clause and the habendum clause of a deed are
inconsistent, conflicting or repugnant, the granting clause must prevail.” Id. It is
with these legal principles in mind that this Court examines the deeds at issue herein.
The Baldwin Deed provides, in relevant part:6
This Indenture made the [25th] day of August in the year
of our Lord [1887], Between [the Baldwin Association] of
the one part and [K&T] of the other part Witnesseth that
the said [Baldwin Association] for and in consideration of
the sum of Four Thousand Dollars[7] lawful money of the
United States of America unto them and (illegible 2
words[)] by the said [K&T] of and before the sealing of
these presents the receipt whereof is hereby acknowledged
6
The original Baldwin Deed is handwritten, see Reproduced Record (R.R.) at 541a-544a;
the quoted provisions are a “Transcription of [the] 1887 [Baldwin] Deed.” R.R. at 545a.
7
Notwithstanding, the recording clause provides: “[T]he within Indenture of the within
named [K&T] the sum of Three Thousand Dollars being the full consideration money within
mentioned[.]” R.R. at 546a.
7
has granted, bargained, sold[,] aliened[,][8] enfeoffed,[9]
released, and confirmed and those present Do grant[,]
bargain[,] sell[,] alien[,] en[f]eoff[,] release and confirm
unto the said [K&T] their successor and assigns[.]
All that certain strip or piece of land situate in the
Twenty-Third Ward of the City . . . in the State of
Pennsylvania, bounded and described as follows viz . . . .
Together with all and the singular Improvements, Ways[,]
Waters[,] Water courses[,] Rights[,] Liberties[,]
Privileges[,] Hereditaments[10] and Appurtenances
whatsoever of their [Baldwin Association] in law equity
or otherwise howsoever of in and to the same and envy put
thereof To have and to hold the said strip or piece of
land hereinbefore described Hereditaments and Premises
hereby granted or mentioned and intended so to be the
appurtenances unto the said [K&T] their successors and
assigns for the proper use and behalf of the said [K&T]
their successors and assigns to and for the proper use
and behalf of the said [K&T] their successors and
assigns forever[.]
It being understood and agreed by and between the parties
hereto that the said [K&T] their successors and assigns
shall and will at their own proper expense construct and
maintain good and substantial fences on the lines between
the land hereby granted and the remaining land of the said
[Baldwin Association] adjoin the same and that the said
[K&T] shall and will fill in to the level of the bulkhead
now erected on the land of the said [Baldwin Association]
the strip of land lying between the land hereby being
granted and the said bulkhead And the said [Baldwin
Association] for themselves and their successors Do by
here presents covenant grant and agree to and with the said
8
Black’s Law Dictionary defines “alienate,” in relevant part, as “to transfer or convey
(property or a property right) to another.” Alienate, Black’s Law Dictionary (11th ed. 2019).
9
Black’s Law Dictionary defines “enfeoff,” in relevant part, as “to put (a person) in legal
possession of a freehold interest[.]” Enfeoff, Black’s Law Dictionary (11th ed. 2019). “Freehold”
is defined as “an estate in land held in fee simple, in fee tail, or for term of life[.]” Freehold,
Black’s Law Dictionary (11th ed. 2019).
10
“Hereditament” means “[a]ny property that can be inherited; anything that passes by
intestacy. [] Real property; land.” Hereditament, Black’s Law Dictionary (11th ed. 2019).
8
[K&T] their successors and assigns that the said [Baldwin
Association] and their successors all and singular the
Her[e]d[ita]ments and premises herein above described
and granted or mentioned and intended so as to be with the
appurtenances unto the said [K&T] their successors and
assigns against them the said [Baldwin Association] and
their successors and against all and every Person or
Persons whomsoever lawfully claiming or to claim the
same or any part thereof By from or under them or any of
them shall Warrant and forever Defend in Witness
Whereof The said [Baldwin Association] has caused their
Corporate seal to be hereunto affixed duly attested the day
and year final hereinbefore written.
Reproduced Record (R.R.) at 545a-546a (bold emphasis added)
The Porter Deed states, in pertinent part:11
This Indenture made the [8th] day of January in the year
of our Lord [1891] between [Porter and others], all of the
City . . . and State of Pennsylvania, of the one part, and
[K&T], of the other part, witnesseth that the said [Porter
and others] for and in consideration of the sum of
seventeen thousand four hundred and ten dollars lawful
money of the United States of America unto them well and
truly paid by the said [K&T] at and before the sealing and
delivery of these presents, the Receipt whereof is hereby
acknowledged, have granted, bargained, sold,
alienated, (illegible), released, and confirmed, and by
those presents do grant, bargain, sell, alienate,
(illegible), release and confirm unto the said [K&T],
their successors and assigns,
All That Certain lot or piece of land, situate in the thirty
fifth (illegible) Third Ward of the said City . . . bounded
and described as follows viz . . . .
Together with the Buildings and Improvements thereon
erected Being part of a certain large tract and piece of land
which Peter E. Costello and Annie I., his wife, by
Indenture [b]earing the date the [7th] day of July, A.D.,
11
The original Porter Deed is handwritten, see R.R. at 552a-555a; the quoted provisions
are a “Transcription of [the] 1891 [Porter] Deed.” R.R. at 556a.
9
1890 and recorded at Philadelphia in deed Book G.G.P.
No. 684 page (illegible) granted and conveyed, inter alia,
unto the said [Porter and others], in fee together with all
and singular the Buildings, Improvements, ways,
watercourses, rights, liberties, privileges, hereditaments
and appurtenances whatsoever thereunto belonging or in
any wire appertaining, and the reversions and Remainders,
Rents, Issues and Profits thereto, and all the estate, Right,
title, interest, property, claim and demand whatsoever of
the said [Porter and others], in law equity, or otherwise
howsoever, of, in, and to the same and every part thereof.
Reserving unto the said [Porter and others], their heirs
and assigns, owners of the remaining portion of said large
tract of land, the right to lay water, gas, and drainage
pipe and construct sewers under the surface of the said
strip of land to the Delaware River within the lines of
any streets that may hereafter be opened across said
strip of land to have and to hold the said lot or piece of
land with the buildings and Improvements thereon erected
hereinbefore described hereditaments and premises
hereby granted or mentioned and intended so to be with
the appurtenances Excepting as aforesaid unto the said
[K&T], their successors and assigns, to and for the only
proper use and behoof of the said [K&T], their
successors and assigns forever.
It being understood and agreed by and between the
parties hereto that the said [K&T] shall and will
construct planked road crossings at the intersections of
their Railroad with the said streets as they shall be
opened and shall also during the progress of any
construction work provide temporary crossing for the
use of the said [Porter and others], for themselves
respectively and their respective Heirs, Executors, and
administrators do by these presents covenant, grant and
agree to and with the said [K&T], their successors and
assigns (illegible) they the said [Porter and others], their
effective [sic] heirs, all and singular, the [hereditaments]
and premises herein above[-]described and granted or
mentioned and intended so to be, with the appurtenances,
unto the said [K&T], their successors and assigns, against
them the said [Porter and others] and their respective heirs
and against all and every other person or persons
whomsoever from lawfully claiming or to claim the same
10
or any part thereof, by, from or under them or any of them
shall and will warrant said forever defend.
R.R. at 556a-557a (bold emphasis added).
In the seminal case, Brookbank v. Benedum Trees Oil Co., 131 A.2d
103 (Pa. 1957), the Pennsylvania Supreme Court explained that “[a]n examination
of [the] agreement in its entirety, including all its language,” is required to determine
whether the parties intended to convey a fee or a right-of-way to a railroad. Id. at
111. The Brookbank Court considered the following factors in making its
determination: (1) the amount of consideration paid; (2) the operative words of
conveyance and whether they are past or present tense; (3) the reference to a strip of
land, a parcel or tract of land, as opposed to a right; (4) the inclusion or omission of
habendum,12 tenendum,13 and/or warranty clauses; and (5) the rights given or
retained.
The Brookbank Court held, concerning the $300.00 consideration , that
in the absence of any evidence of the value of the strip of land in 1903, a finding that
the consideration was inadequate for conveyance of a fee simple title would be based
on conjecture and surmise. The Brookbank Court declared that, since the words
grant, bargain, etc., were used in the past tense rather than the present tense, they did
not, standing alone, compel an interpretation that a fee was intended to be conveyed.
That Court stated:
It is true that in other jurisdictions a judicial ‘yardstick’
has been established by the application of which
conveyances to railroads granting or conveying a strip,
parcel or tract of land are held to pass a fee simple title
whereas conveyances which grant or convey a ‘right’ are
held to pass only a limited estate.
12
The habendum clause defines the type of interests and rights to be conveyed to the
grantee.
13
The tenendum clause is the clause wherein the tenure of the land is defined and limited.
11
Id. at 110. “However, this ‘yardstick’ is only applied in the absence of additional
language cutting down or limiting, directly or indirectly, the estate conveyed, and is
only applicable in this case as one of the factors to be considered in attempting to
determine the parties’ intent.” Id. With respect to the omission of the habendum,
tenendum and warranty clauses, the Brookbank Court opined: “It seems
inconceivable that the railroad would have omitted these clauses from an instrument
of conveyance under whose terms they [sic] intended to receive a fee simple estate.”
Id. Regarding the specific rights given to the railroad, such as the right of entry, the
right to use, construct, maintain and operate a railroad, and the right to use earth,
stones and gravel to grade and fill the roadbed, the Brookbank Court expounded:
“The only rational conclusion from this language is that the parties did not intend to
vest in the railroad any interest in fee simple; any other construction does violence
to the expressed grant of these rights to the railroad.” Id.
Finally, the Brookbank Court declared:
The landowner further release[d] the railroad from any
liability arising from the location, construction and
operation of the railroad. If the railroad were given under
this instrument a fee interest in this land[,] the railroad
would have a complete right to locate, construct and
operate a railroad over the land. The only situation where
any liability might accrue to the railroad from the location,
construction and operation over this land would be in the
event the railroad secured simply a ‘right[-]of[-]way’ over
the land.
Id. The Brookbank Court concluded: “An examination of this agreement in its
entirety, including all its language, convinces us that the parties did not intend the
conveyance of a fee.” Id. at 111.
Here, in contrast to the facts in the Brookbank case, the consideration
given in the Baldwin Deed and the Porter Deed was $4,000.00 and $17,000.00,
respectively, as opposed to nominal amounts. The words grant, bargain, sell and
12
alienate are used in both the past and present tense in the Baldwin Deed (“has
granted, bargained, sold[,] aliened[,] enfeoffed, released, and confirmed and those
present Do grant[,] bargain[,] sell[,] alien[,] en[f]eoff[,] release and confirm unto
the said [K&T] their successor and assigns”),14 and the Porter Deed (“have granted,
bargained, sold, alienated, (illegible), released, and confirmed, and by those presents
do grant, bargain, sell, alienate, (illegible), release and confirm unto the said
[K&T], their successors and assigns”),15 thereby reflecting both rights had, and
rights conveyed. The Baldwin Deed conveys “[a]ll that certain strip or piece of
land,”16 and the Porter deed conveys “All That Certain lot or piece of land[;]”17 as
opposed to a right-of-way. All of the above indicate that a fee simple was conveyed
rather than a right-of-way.
Further, the Baldwin Deed contained the following:
It being understood and agreed by and between the parties
hereto that the said [K&T] their successors and assigns
shall and will at their own proper expense construct and
maintain good and substantial fences on the lines between
the land hereby granted and the remaining land of the said
[Baldwin Association] adjoin the same and that the said
[K&T] shall and will fill in to the level of the bulkhead
now erected on the land of the said [Baldwin Association]
the strip of land lying between the land hereby being
granted and the said bulkhead And the said [Baldwin
Association] for themselves and their successors . . . .
R.R. at 546a. The Porter Deed contained the following reservation clause:
Reserving unto the said [Porter and others], their heirs and
assigns, owners of the remaining portion of said large tract
of land, the right to lay water, gas, and drainage pipe and
construct sewers under the surface of the said strip of land
14
R.R. at 545a (emphasis added).
15
R.R. at 556a (emphasis added).
16
R.R. at 545a (emphasis added).
17
R.R. at 556a (emphasis added).
13
to the Delaware River within the lines of any streets that
may hereafter be opened across said strip of land to have
and to hold the said lot or piece of land with the buildings
and Improvements thereon erected hereinbefore described
hereditaments and premises hereby granted or mentioned
and intended so to be with the appurtenances Excepting as
aforesaid unto the said [K&T], their successors and
assigns, to and for the only proper use and behoof of the
said [K&T], their successors and assigns forever.
R.R. at 557a. Clearly, if the Baldwin Deed was conveying a right-of-way, the
Baldwin Deed would not be obligating K&T to put up fences and fill in the gaps
between the land conveyed and the land retained. Similarly, if the Porter Deed was
only conveying a right-of-way, there would be no need for the Porter Deed to reserve
rights “under the service of the said strip of land” to owners of “the remaining land,”
as they would already have those rights. Id. Both clauses weigh heavily in favor of
a finding that K&T had, in fact, been granted a fee, rather than a right-of-way.
Finally, both the Baldwin and Porter Deeds contain tenendum and warranty clauses,
evidencing the conveyance of a fee.
Examining the language in both the Baldwin and Porter Deeds in its
entirety, and considering the fact that K&T paid significant consideration for both
strips of land, the operative words of conveyance in both the Baldwin and Porter
Deeds were present tense, both deeds referenced a strip of land or tract of land, as
opposed to a right, both deeds included habendum, tenendum and warranty clauses,
and both deeds contained rights given or retained that evidenced a conveyance of a
fee, this Court concludes that the trial court properly determined that the Baldwin
and Porter Deeds conveyed the Disputed Strip to K&T in fee simple. Consequently,
K&T’s successor, Conrail, was able to convey the Disputed Strip to the City in fee
simple.
However, Newman also asserts that because the highway exception
applies to railroads, it owns the Disputed Strip to the center line. Newman cites
14
Dellach v. DeNinno, 862 A.2d 117 (Pa. Super. 2004), to support its position. The
Dellach Court reiterated:
It is well settled that a grant of land bounded by or abutting
on a public highway is presumed to carry the fee to the
center line of such highway or easement[.] A railroad is a
highway within the meaning of this rule[.]
Fleck, 156 A.2d at 834 (citations omitted).
Dellach, 862 A.2d at 119. Thus, “[w]hen a railroad abandons an easement, the right-
of-way is extinguished and the land is owned in fee simple by the owner or owners
of the land on either side of the right-of-way.” Id. at 118.
But, as expressed more fully by the Pennsylvania Supreme Court:
It may now be regarded as settled by our decisions that a
conveyance of land bounded by a public road or street
gives the grantee title to the middle of the road or street, if
the grantor had the title to it and did not expressly or by
clear implication reserve it.
Oliver v. Ormsby, 73 A. 973, 975 (Pa. 1909) (emphasis added) (quoting Neely v.
City of Phila., 61 A. 1096, 1098 (Pa. 1905)).
K&T was granted the Disputed Strip in 1887 and 1891 in fee, and
Newman was not granted its property until 1946, the earliest of its deeds. See R.R.
at 575a. Further, apart from one parcel,18 K&T did not convey Newman’s properties
to Newman. Rather, they were part of the Baldwin and Porter tracts that were sold
to new owners and, eventually, to Newman. Thus, because the Baldwin Association
18
This parcel was formerly part of the Porter Tract. In 1967, the Connecting Railway
Company (K&T’s successor) deeded a parcel along Devereaux Street, north of the Disputed Strip,
to Morrissey. See R.R. at 661a (Connecting Railway Deed). The conveyance listed the railroad
line as a boundary and specified that the land on the other side of that boundary would be the
“remaining land of said [Connecting] Railway Company.” R.R. at 662a (Connecting Railway
Deed). Morrissey in turn sold this parcel to Newman in 1985. See R.R. at 56a (Devereaux Deed).
Because the Connecting Railroad Deed “expressly . . . reserve[d] it[,]” Newman has no title to the
center line of this portion of the Disputed Strip. Oliver, 73 A. at 975.
15
and Porter and others had already conveyed the Disputed Strip to K&T in fee, the
Baldwin Association and Porter and others did not have title to the Disputed Strip
when they sold the remaining land. As a result, because the grantors did not have
title to the Disputed Strip, the conveyance of the land bordered by the Disputed Strip
to Newman did not give Newman title to the center line of the Disputed Strip.
Lastly, Newman contends that the City is bound by the stipulation
entered on November 13, 2015, between 5250 Unruh Avenue Associates and Dock
TMC & Realty Corporation, and the City (Unruh Stipulation) and, since the City
stated therein that it did not own that portion of the strip in fee, it cannot claim it
owns the Disputed Strip in fee. Significantly, as to the land that covered certain
portions of the real property located at 5200 and 5250 Unruh Avenue (Abandoned
Railroad Right-of-Way), the Unruh Stipulation provides: “The City has no
ownership, leasehold, estate or property interest of any kind in any portion of 5200
Unruh Avenue or 5250 Unruh Avenue, including, but not limited to the Abandoned
Railroad Right[-]of[-]Way.” R.R. at 697a.
However, unlike the Baldwin and Porter Deeds, the Unruh Deed
specified, in pertinent part:
Doth grant bargain and sell unto the said [K&T] their
successors and assigns the full right[,] liberty and
privilege of laying down and forever establishing
operating and using a [r]ail[]road with one or more tracks
as the said [K&T] may deem necessary or advantageous
through[,] over and upon All that Certain strip or piece of
land . . . .
R.R. at 710a (bold emphasis added). The Unruh Deed also included:
Together with the free and uninterrupted right and
privilege of passing at all times hereafter forever over[,]
through and along the same with or without locomotive
passenger freight baggage[,] mail or other cars[.]
16
And together with the right liberty and privilege of
[c]onstructing[,] erecting[,] maintaining and using upon
the said above described strip or piece of land . . . .
R.R. at 711a (emphasis added).
The language in the Unruh Deed evidences a clear intent to convey a
right as opposed to a fee. Consequently, the City agreed in quiet title litigation that
it has no property interest in 5200 or 5250 Unruh Avenue, including the railroad
corridor on those properties. Nothing in the terms of the Unruh Stipulation applies
to the Disputed Strip, which is a different piece of property with a separate deed
history.
In the alternative, Newman argues that the trial court erred as a matter
of law or abused its discretion in holding that Newman was not entitled to an
easement over the Disputed Strip, and by not providing Newman with the
opportunity to present further evidence on the easement issue despite expressly
stating that Newman would be given such an opportunity. Specifically, Newman
contends that it is entitled to an easement in three ways: (1) pursuant to the now-
repealed Railroad Act of 1849 (Railroad Act);19 (2) by necessity; and (3) by
implication. Newman claims that, had the trial court fully considered these issues
and/or allowed for the presentation of evidence in this regard, all the requirements
for an easement under the Railroad Act, by necessity and by implication, were
satisfied and met.
The City rejoins that the Railroad Act applied to eminent domain
takings of land for railroad purposes and, thus, does not apply to the instant case.
19
Act of February 19, 1849, P.L. 79, repealed by Section 2 of the Act of July 1, 1978, P.L.
598. Any rights that vested under the Railroad Act remained after the Railroad Act was repealed.
See Estate of Spickler v. Cnty. of Lancaster Bd. of Comm’rs, 577 A.2d 923, 925 n.1 (Pa. Super.
1990).
17
Further, the City asserts that Newman has not satisfied the elements for an easement
of necessity, nor has Newman satisfied the elements for an easement by implication.
The City avers that Newman waived any argument as to whether it was precluded
from presenting evidence on the easement issue for failure to raise it prior to its Post-
Trial Motion.
Initially, former Section 12 of the Railroad Act20 “require[d] that a
railroad under these circumstances construct . . . a good and sufficient causeway or
causeways, whenever the same may be necessary to enable the occupant or
occupants of said lands to cross or pass over the same, with wagons, carts and
implements of husbandry, as occasion may require[.]” Del., Lackawanna & W. R.R.
Co. v. Shuman, 115 A.2d 161, 162 (Pa. 1955). However, “in proceedings under the
[Railroad Act], there must be a taking.” Darlington v. United States, 82 Pa. 382,
388 (1876); see also Marsh v. Lehigh & N.E.R. Co., 64 A. 366, 366 (Pa. 1906)
(affirming the lower court which held that Section 12 of the Railroad Act “applies
only where a railroad company constructs its road on lands taken in the exercise of
the right of eminent domain, and when that happens the duty to maintain a crossing
is imposed by the statute creating the duty”). Because the land in the instant case
was acquired contractually, rather than by taking, the Railroad Act does not apply.
Notwithstanding, Newman relies on Estate of Spickler v. County of
Lancaster Board of Commissioners, 577 A.2d 923 (Pa. Super. 1990), to support its
alleged entitlement to an easement under the Railroad Act. Therein, the Spickler
Court quoted from a lower court decision, opining:
Under the plain meaning of the [Railroad] Act . . . , a
property owner whose land was severed by the taking
of a right-of-way for railroad purposes was given a
vested right to a private crossing on their own lands over
the railroad’s right-of-way. It is a right as sacred as any
20
67 P.S. § 631, recodified at 15 P.S. § 1401, then transferred to 15 P.S. § 4291.
18
other property right. It was granted by the [s]tate, and no
power but that of the [s]tate could deprive them of it:
Green v. Baltimore & Ohio R[.R.] Co., . . . [91 A. 248]
[(Pa. 1914)].
Spickler, 577 A.2d at 924 (emphasis added). However, Newman’s land was not
severed by the taking of a right-of-way for railroad purposes. The Baldwin
Association and Porter and others conveyed the Disputed Strip to K&T before
Newman acquired its properties. Thus, Spickler is inapposite. Accordingly,
Newman is not entitled to an easement pursuant to the Railroad Act.
Concerning an easement by necessity, the Pennsylvania Supreme Court
has explained:
The three fundamental requirements for an easement by
necessity are:
1) the titles to the alleged dominant and servient
properties must have been held by one person; 2)
this unity of title must have been severed by a
conveyance of one of the tracts; and 3) the
easement must be necessary in order for the owner
of the dominant tenement to use his land, with the
necessity existing both at the time of the
severance of title and at the time of the exercise
of the easement.
Youst [v. Keck’s Food Serv., Inc.], 94 A.3d [1057,] 1075
[(Pa. Super. 2014)]. We have long recognized that a
‘right[-]of[-]way from necessity over the land of another .
. . is always of strict necessity.’ Ogden v. Grove, 38 Pa.
487, 491 (1861) (internal citations and quotation marks
omitted). Thus, a right[-]of[-]way never exists ‘when a
man can get to his own property through his own land,’
and ‘[c]onvenience is no foundation for the claim.’ Id.Bartkowski v. Ramondo, 219 A.3d 1083, 1092 (Pa. 2019) (emphasis added). “An
easement by necessity is created when, after severance from an adjoining property,
a piece of land is without access to a public highway.” Tricker v. Pa. Tpk. Comm’n,
717 A.2d 1078, 1082 (Pa. Cmwlth. 1998).
19
Here, Newman cannot show that any claimed necessity existed at the
time that the Baldwin Association and Porter and others severed the Disputed Strip
from the surrounding land. The riverfront parcels were accessible via Dark Run
Lane and Robbins Street. The Baldwin Association’s and Porter and others’
successors-in-interest later subdivided the lots to include parcels that did not abut
those streets, but the eventual owners (including Newman) would have been on
notice of that fact. Because there was a lack of unity of ownership when the alleged
necessity arose, Newman cannot satisfy the third element. Accordingly, Newman is
not entitled to an easement by necessity.
Likewise,
an easement by implication is established ‘where an owner
of land subjects part of it to an open, visible, permanent
and continuous servitude or easement in favor of
another part[y].’ Tosh v. Witts, . . . 113 A.2d 226, 228
([Pa.] 1955). If an owner ‘then aliens either, the purchaser
takes subject to the burden or the benefit as the case may
be, and this [sic] irrespective of whether or not the
easement constituted a necessary right[-]of[-]way.’ Id.Cunningham v. Cronin, 206 A.3d 569, 572 n.4 (Pa. Super. 2019) (emphasis added).
Newman relies upon the following clause in the Porter Deed to support
its entitlement to an easement by implication:
It being understood and agreed by and between the parties
hereto that the said [K&T] shall and will construct planked
road crossings at the intersections of their [r]ailroad with
the said streets as they shall be opened and shall also
during the progress of any construction work provide
temporary crossing for the use of the said [Porter and
others], for themselves respectively . . . .
R.R. at 557a. However, an agreement to provide crossings at intersecting streets
does not establish an easement in favor of Newman, as its properties do not contain
any intersecting streets with the Disputed Strip. Further, any temporary easement
20
provided during the construction of the railroad ended when the construction ended.
Because Newman cannot show that any easement existed at the time the Disputed
Strip was conveyed, or that the parties intended any additional easements, Newman
is not entitled to an easement by implication.
Finally, because this Court concludes that the trial court properly
determined that Newman was not entitled to an easement, and Newman has not
proffered what evidence it was either precluded from presenting, nor would have
presented to the trial court that would have affected said determination, there is no
merit to Newman’s argument that the trial court erred as a matter of law or abused
its discretion by not providing Newman with the opportunity to present further
evidence on the easement issue.
For all of the above reasons, this Court affirms the trial court’s orders.
_________________________________
ANNE E. COVEY, Judge
21
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Newman & Co., Inc., :
Appellant :
:
v. :
:
: No. 536 C.D. 2020
City of Philadelphia :
ORDER
AND NOW, this 8th day of April, 2021, the Philadelphia County
Common Pleas Court’s April 12, 2019 and March 6, 2020 orders are affirmed.
_________________________________
ANNE E. COVEY, Judge