Leininger v. Trapizona

SMITH, Judge.

Kenneth M. and Cynthia L. Leininger and William and Elizabeth M. Pflugh (collectively Appellants) appeal from the August 27, 1992 final order of the Court of Common Pleas of Allegheny County which denied Appellants’ motion for post-trial relief from the trial court’s January 21, 1992 order denying Appellants’ request for injunctive relief and enjoining them from interfering with the improvement and use of a road constructed by Louis and Irene Trapizona, Richard T. Trapizona, Louis John Trapizona, and Michael Allen Trapizona (collectively the Trapizonas). The issues raised on review are whether the public right-of-way to a road which was never opened or accepted by the municipality had been extinguished by the passage of more than twenty-one years; whether the trial court erred in finding that Appellants consented to the opening of the road; and whether injunctive relief prohibiting the opening of the road is a proper remedy.

The road in dispute is a portion of a residential subdivision located within Aleppo Township (Township). The subdivision plan was recorded with the recorder of deeds on June 18, 1956. The Pflughs acquired two lots within the subdivision in 1973 and subsequently built a house on the property. The Leiningers purchased their home and lot in 1986. The road, as indicated on the subdivision plan, is fifty feet wide, over three hundred feet long, and runs east to west. The Leiningers’ property abuts the north side of the road, while the Pflughs’ property abuts the south side.

In March 1990, Louis John Trapizona and Michael Trapizona acquired land abutting the west side of the subdivision and road in question and subsequently conveyed portions of the property to Richard Trapizona. In February 1991, the Trapizonas recorded a subdivision involving their lands. The Trapizonas wished to construct two residences for their own use, but the land was effectively landlocked except for the road in question. In April 1990, Appellants were contacted by Richard Trapizona, who is also the Township’s chief of police, and were told that the Trapizonas had purchased the abutting land and planned to construct a road to their property as set forth in the 1956 subdivision plan. The Appellants were soon thereafter contacted by Richard Trapizona along with Nicholas Veshio, the Township’s public works supervisor, both of whom informed Appellants that the “paper road” between their properties was a public right-of-way and that the Trapizonas intended to open it to gain access to their property.

Richard Trapizona and Veshio both believed that the road remained a public right-of-way, although it is undisputed that the road had never been accepted or opened by the Township. Appellants expressed concern that construction of the road should comply with Township specifications and were assured that such specifications would be met. Appellants raised no objections regarding the Trapizonas’ proposed building of the road. From the spring of 1990 through late February 1991, the Trapizonas, in reliance on Appellants’ representations, expended substantial time, money, and effort to perform work on the road and other necessary work, which included the clearing of timber, laying of the road bed, and grading of the road. Throughout the nine months that the Trapizonas worked on the road, Appellants constantly observed such work but never objected to the work or to the Trapizonas’ right to use the road.

In late February 1991, Appellants first voiced an objection to the improvement of the road, although the objection was not regarding opening of the road, but instead involved the manner in which the road was being constructed. However, in March 1991, Appellants protested in writing to the Trapizonas and the Township that the representations by the Trapizonas and Veshio were erroneous and that Appellants objected to any use or improvement of the road. Appellants then filed a complaint seeking injunctive relief.

After hearings and testimony, the trial court found that in the spring of 1990, Appellants and the Trapizonas agreed that if the Trapizonas would improve the road in reasonable compliance with the Township ordinances, then Appellants would not object to the improvement and use of the road by the Trapizonas. The trial court concluded that because of the nine months during which the Trapizonas worked on the road and Appellants observed such work but never objected, Appellants’ acquiescence in and approval of the work on the road constituted “consent” within the meaning of the Act of May 9, 1889, P.L. 173, No. 192, as amended, 36 P.S. § 1961 (Section 1961). As well, the trial court determined that Appellants failed to demonstrate that their oral agreement was based on a mutual mistake of fact; denied Appellants’ request for injunctive relief; and enjoined them from interfering with the improvement and use of the road constructed by the Trapizonas. Nevertheless, as the Trapizonas had not fully complied with applicable Township ordinances regarding construction of the road, the trial court directed that the Trapizonas comply with such ordinances within a reasonable time. The trial court denied Appellants’ motion for post-trial relief, and Appellants appealed to this Court.

Appellants first argue that the public right-of-way was extinguished and title to the disputed road reverted to them since more than twenty-one years elapsed without the road being opened or used by the public. The trial court relied upon Section 1961, which provides:

Any street, lane or alley, laid out by any person or persons in any village or town plot or plan of lots, on lands owned by such person or persons in case the same has not been opened to, or used by, the public for twenty-one years next after the laying out of the same, shall be and have no force and effect and shall not be opened, without the consent of the owner or owners of the land on which the same has been, or shall be, laid out.

It is undisputed that between the 1956 recording of the subdivision plan and 1990, the Township took no action to open the road.¹ The public’s right to a portion of a subdivision reserved for a street is effectively foreclosed where the municipality does not use or open the street within twenty-one years of its dedication to the public. Ferko v. Spisak, 373 Pa.Superior Ct. 303, 541 A.2d 327 (1988), aff'd, 522 Pa. 503, 564 A.2d 157 (1989).

Where a municipality does not open the street within the twenty-one year period set forth in Section 1961, the abutting lot owners acquire the fee in the street to the center line. Rahn v. Hess, 378 Pa. 264, 106 A.2d 461 (1954). It is evident that the road’s status as a public right-of:way was extinguished by the time of the events herein. However, while a public easement or right of use in such roads is lost as a result of the passage of time and lack of use, the purely private rights of easement of individual property owners in the plan of lots to use the road is not extinguished. Riek v. Binnie, 352 Pa.Superior Ct. 246, 507 A.2d 865 (1986); Drusedum v. Guernaccini, 251 Pa.Superior Ct. 504, 380 A.2d 894 (1977). Section 1961 is therefore inapplicable to a private contract between grantor and grantee. Rahn.

Nevertheless, the focal question addressed by the trial court in this instance was whether Appellants’ acquiescence in and approval of the work on the road constituted “consent” within the meaning of Section 1961. Appellants argue that the trial court erred in finding that they consented to the opening of the road and contend that a review of the record shows that they were never requested to consent. Further, Appellants assert that to the extent there was consent, it was based upon a mutual mistake of material fact and therefore, the parties could not have reached an agreement.

The trial court properly determined that “consent” as set forth in Section 1961 should be liberally construed. See 1 Pa.C.S. § 1928(c). Although there is no dispute that Veshio and Richard Trapizona told Appellants that the Trapizonas had a right to open the road, their statements represented legal opinions. It is clear that neither the police chief nor the public works supervisor for the Township is qualified to give legal opinions in such matters. A similar situation was presented in Center Township v. Zoning Hearing Board of Center Township, 104 Pa.Commonwealth Ct. 487, 522 A.2d 673 (1987), in which this Court held that where statements were made by a township supervisor to a buyer of the supervisor’s property that certain uses were legal, such statements cannot be imputed to the township because the supervisor was only one of three township supervisors and he had an apparent self-interest in telling the buyer he could use the land in any way he wanted. Moreover, this Court held that it was incumbent upon the buyer to find out what the law in fact is, especially where the applicable laws were available to the buyer. Therefore, Appellants did not reasonably rely upon Veshio’s and Trapizona’s statements regarding the road.²

It is also not necessary that Appellants should have given their express consent for construction of the road. In Maust v. Pennsylvania & Maryland St Ry. Co., 219 Pa. 568, 69 A. 80 (1908), an abutting landowner sought to enjoin a railway company from constructing its track upon a township road running through the landowner’s farm. The trial court dismissed the landowner’s bill and the Pennsylvania Supreme Court affirmed, holding that where the railway company has been allowed to construct its lines without objection by the abutting landowners, and expended large sums of money in the process, the operation of the line will not be enjoined by one who either gave his consent or stood by and said nothing while the work was going on. The Court further noted that the landowner consented to, or acquiesced in, the laying of the track despite the fáct that there was no consent in writing or in express words, and there was conflicting testimony as to the circumstances of the consent.

As found by the trial court sub judice, the Trapizonas expended substantial time, money, and effort to construct the road throughout nine months during which Appellants observed the work but never objected to it. Under the circumstances, the trial court properly determined that Appellants consented to construction of the road within the purview of Section 1961. Accordingly, the trial court’s order is affirmed, and Appellants’ remaining issue need not be addressed.³

ORDER

AND NOW, this 6th day of July, 1994, the order of the Court of Common Pleas of Allegheny County is affirmed.

1 . A street becomes public when it is (1) dedicated to public use and (2) accepted by the municipality: where lots are sold as part of a subdivision plan submitted to a governing body, the implication arises that the streets are dedicated to public use. Nat'l Christian Conference Ctr. v. Schuylkill Township, 142 Pa.Commonwealth Ct. 308, 597 A.2d 248 (1991), appeal denied, 530 Pa. 635, 606 A.2d 904 (1992).

2 . As in Center Township, it was incumbent upon Appellants to find out what the law was. In addition, Appellants improperly paint the parties’ incorrect assumption that the road was a public right-of-way as being a mutual mistake of fact: rather, the instant situation presents a mistake of law. In such instances, the Court will refuse relief where there is a pure mistake of law without moving equitable considerations. Thrasher v. Rothrock, 377 Pa. 562, 105 A.2d 600 (1954); Villani v. Italian Workingmen Bldg. & Loan Ass’n, 129 Pa.Superior Ct. 330, 195 A. 476 (1937).

3 . The Trapizonas assert that the questions presented in Appellants’ brief are new questions which did not appear in their motion for post-trial relief filed with the trial court and thus were not preserved for appeal. The Trapizonas' argument is without merit however because review of the motion for post-trial relief reveals that these issues were adequately addressed, albeit by alternative wording.