Riggle v. Garber , 1966 Pa. Dist. & Cnty. Dec. LEXIS 12 ( 1966 )

Sweet, P. J., and Curran, J.,

In this equity action, defendants own and occupy a parcel of land in Blaine Township which is subject to a long, regularly used and highly visible right of way of the Washington Oil Company. Plaintiffs own and occupy the real estate on all relevant sides of defendants’ parcel. Defendants blocked the right of way with “a series of stout posts or poles”, thus denying the use of this right of way or roadway to the oil company. It is alleged that the oil company has “been forced and compelled to obtain access over a new and different route, which new and different route is over lands of the plaintiff”. The oil well is on a portion of plaintiffs’ tract adjacent to defendants’ land.

It will at once be observed that the trespass to the lands of plaintiffs is not by defendants personally, but by the agents, servants, vehicles and beasts of the oil company. It will also be noted that plaintiffs in the action are not the parties whose right of way, ingress, egress, etc., is denied by the series of stout posts or poles referred to hereinabove.

Both sides feel that this case is ruled by Restatement, Torts 2d §158(a), Comment j. It is quoted:

“j. Causing entry of a third person. If, by any act of his, the actor intentionally causes a third person to enter land, he is as fully liable as though he himself enters. Thus, if the actor has commanded or requested a third person to enter land in the possession of another, the actor is responsible for the third person’s entry if it be a trespass. This is an application of the general principle that one who intentionally causes another to do an act is under the same liability as though he himself does the act in question. So too, one who by physical duress causes a third person to go upon the land of another or who carries the third person there against his will is liable as a trespasser, although the third person may not be liable”. (Italics supplied.)

We are unable to agree with plaintiffs’ contention. It would seem that it is the right of way of the oil company, and not of plaintiffs, which has been denied and that the allegations of blockade would come better from the oil company. Not only should the oil company be a party plaintiff, but for these plaintiffs, it would be a better defendant were it not for the right of way, since it is the oil company whose servants, etc., are now traversing the lands of plaintiffs. Either way you look at it, the oil company should be a party.

We also think the present plaintiffs’ reliance on §158 of the Restatement is unwise. Defendants have not forced the oil company on the lands of plaintiffs in the sense of physically pushing men or equipment onto that realty vi et armis. It is quite possible that these problems have an economic root and, therefore, an economic solution. The oil company’s action is not a trespass as to plaintiff, as the right of way of the oil company covers the whole larger tract.

In addition to the reasons suggested hereinabove, we are also inclined to feel that this is a rather petty dispute to bring here and that the parties should have resorted to negotiation, discussion, and bargaining before turning to the ultimate remedy of a suit in equity.

Order

And now, December 22, 1966, the preliminary objections relevant to paragraphs 6 and 7 of the complaint in equity are sustained. Defendant may now answer the remaining portion of the complaint, particularly paragraph 5, unaffected hereby, within 20 days.