Smith, W. v. Dailey, R.

J-A18019-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WILLIAM F. SMITH, DEBORAH A. : IN THE SUPERIOR COURT OF
SMITH, KATHLEEN BLASIC AND : PENNSYLVANIA
DEBORAH L. BESSETTE-PENCILLE :
:
Appellants :
:
:
v. :
: No. 1508 WDA 2021
:
ROBERT DAILEY AND JOYE DAILEY :
Appeal from the Judgment Entered January 21, 2022
In the Court of Common Pleas of Erie County
Civil Division at 12675-2019
BEFORE: STABILE, J., MURRAY, J., and McLAUGHLIN, J.
MEMORANDUM BY MURRAY, J.: FILED: SEPTEMBER 7, 2022
William F. and Deborah A. Smith, Kathleen Blasic, and Deborah L.
Bessette-Pencille (collectively Appellants), appeal from the judgment entered
against them and in favor of Robert and Joye Dailey (collectively the Daileys).1
After careful review, we affirm.
The trial court explained:
The dispute arises out of ownership/easement/use issues on a
portion of Pinar Road in Harborcreek, PA. [Appellants] Smith and
Blasic own [real] property on Pinar Road. [Appellant] Bessette-
Pencille owns property on Schultz Drive, which is close to the
____________________________________________
1 In the caption of their brief, Appellants purport to appeal from the order of
July 16, 2021, entering the trial verdict, and the order of November 22, 2022,
denying their post-trial motion. However, the appeal properly lies from the
entry of judgment. Jackson v. Kassab, 812 A.2d 1233, n.1 (Pa. Super.
2002). We have corrected the caption accordingly.
J-A18019-22
intersection of Pinar and Schultz Roads. [Appellants] filed a Civil
Complaint to quiet title to an “unaccepted” portion of Pinar Road.
A Declaratory Judgment action was also filed requesting that they
be declared sole owners of the disputed property on Pinar Road
and seeking a declaration that no easement or right-of-way exists
over that portion of the road. Finally, [Appellants] are seeking
damages for trespass and damages allegedly caused by the
[Daileys] to [Appellants’] lawn, driveway and land.
The [Daileys] filed counterclaims in ejectment, equity, and
trespass. [The Daileys] assert that all of the properties at one
point in time were part of a larger tract of land owned by the
Schultz family. They also allege that they have a 40-foot right-
of-way over that unaccepted portion of Pinar Road and that
[Appellants] should not be able to interfere with the [Daileys’]
access to and use of the road.
[The Daileys’] ejectment action seeks to compel the removal of all
the obstructions placed within the 40-foot right-of-way, including
trees, fencing, a driveway, parked vehicles, and plowed snow.
The equity action similarly seeks the removal of any objects within
the right-of-way as well as a declaration that [the Daileys] and
their successors have the right to use the entirety of the 40-foot
wide easement over Pinar Road to access their property. The
trespass action seeks damages for property and debris that were
piled on a portion of property owned by [the Daileys].
A non-jury trial was held on February 16, 2021 and March 29,
2021. All parties were represented by counsel at the time. The
[trial c]ourt heard testimony and received exhibits into evidence.
All parties were afforded time to file post-trial briefs after the
record was closed.
Trial Court Opinion, 7/16/21, at 1-2.
By opinion and order dated July 16, 2021, the trial court found against
Appellants and in favor of the Daileys. The trial court made the following
findings of fact:
In 1959, T.C. and Gertrude Schultz subdivided a portion of a
parcel they owned in Harborcreek Township, Pennsylvania. They
recorded a subdivision map depicting a number of lots for
-2-
J-A18019-22
residential use, a large tract of “remainder” retained by the
Schultzes, and three streets forming a U-shape — Elmer Drive
running east to west; Schultz Drive, running north to south and
forming part of the boundary of the Schultz remainder; and Pinar
Road, running east to west. Elmer Drive is depicted on the map
terminating at the intersection with Schultz Drive. Pinar Road is
depicted on the map extending west past the intersection with
Schultz Drive and past the residential lots into the remainder of
the Schultz property and abutting a portion of the Schultz
remainder. See Joint Exhibit 4. The map description contains the
following language:
Know all men at these presents, that we, T.C. Schultz
and Gertrude A. Schultz, owners of the property, do
hereby adopt this plan as a plan to show the location
and width of said streets and hereby release and
dedicate the necessary land to establish the same.
Joint Ex. 4.
Lots now owned by [Appellants] William and Deborah Smith and
Kathleen Blasic were part of the 1959 Schultz subdivision and are
depicted on the map abutting Pinar Road. Harborcreek Township
accepted Elmer Drive and Schultz Drive as well as part of Pinar
Road as public streets. The portion of Pinar Road that extended
west of the intersection with Schultz Drive was not accepted by
the Township.
The Schultz subdivision was replotted in 1970. It created several
additional lots directly west of Schultz Road from part of the
Schultz remainder. [Appellant] Deborah Bessette-Pencille’s lot, at
the corner of Schultz and Pinar Roads, was created as part of the
1970 subdivision. [Appellant] Pencille accesses her driveway via
Pinar Road. Pinar Road is depicted on the 1970 subdivision map,
ending at the Schultz remainder. See Joint Exhibit 7.
In 1972, Gertrude Schultz conveyed the “remainder” of the
Schultz property to Charles and Sandra Morgan [collectively the
Morgans]. The legal description in the deed from Schultz to
Morgan references an iron pipe on the south line of Pinar Road as
a 40[-foot] right-of-way, and an iron pipe at the intersection of
Schultz Drive as a 50[-foot] right-of-way. See Joint Exhibit 11.
That same year, the Morgans also acquired land directly to the
west of the Schultz “remainder” from the Estate of Albert C.
-3-
J-A18019-22
Hadberg. On June 3, 1977, [the Morgans] recorded a subdivision
dividing the property obtained from Schultz and Hadberg into
smaller lots. The Morgan subdivision map also depicts the
location of Pinar Road. See Joint Exhibit 11. On June 3, 1977,
the Morgans conveyed lots 1-5, as depicted on the Morgan
Subdivision map, to Merle C. and Leona B. Dailey. Lots 1, 2, and
3 are comprised of land the Morgans acquired from Schultz. Lots
1[, 2,] and 3 abut Pinar Road. Lots 4 and 5 are comprised of land
the Morgans acquired from Hadberg. Merle and Leona Dailey’s
residence was located on Lot 5. Merle Dailey constructed an
extension of Elmer Road west of Schultz Drive to serve the
residence. Merle and Leona Dailey conveyed the residence on Lot
5 to their son and daughter-in-law, [the Daileys], in 1996. Lots 1
through 4 were conveyed from Leona Dailey to her son and
daughter-in-law in 2019. See Joint Exhibits 14 & 15.
Trial Court Opinion, 7/16/21, at 3-4 (emphasis in original).
In its decision, the trial court emphasized the importance of the
testimony of Connie Cruz, the zoning administrator for Harborcreek Township.
The court described her testimony thusly:
[Ms. Cruz stated] anytime there is a change in a land parcel’s lot
line, there is a subdivision. See N.T., March 29, 2021 at 155. She
also explained that a “lot” is a buildable lot or a lot of record. See
id. For new lot lines to become official, the property owner would
need to seek official approval from the Township for a new
subdivision. See id. at 158. Ms. Cruz further testified that a
developer creating a subdivision now would be required to build a
new road for the subdivision in order to be accepted by the
Township, but that in the past “paper streets” which were depicted
on subdivision maps but were never built or were not accepted by
Township were common. See id. at 159-60. Ms. Cruz explained
that she has always informed residents that any lot abutting a
paper street would have the right to use it to access their
property. See id. at 162 & 176. Furthermore, Harborcreek
Township would not approve any subdivision that would result in
a landlocked parcel. See id. at 171.
Trial Court Opinion, 7/16/21, at 4 (emphasis added).
-4-
J-A18019-22
The trial court found that while the Daileys’ residence on Lot 5 is
currently directly accessible from Elmer Road, Lots 1, 2, and 3 are not, and
are only directly accessible via the Pinar Road right-of-way.2 Id. at 4-5; N.T.,
3/29/21, at 88, 170, 189-90; see also Joint Exhibit 12. Thus, both the
Daileys and their predecessors in title used the Pinar Road right-of-way to
access that portion of the property, as well as Lots 4 and 5, prior to the
construction of Elmer Road. Trial Court Opinion, 7/16/21, at 5; N.T., 3/29/21,
at 183-85.
Consequently, in its order, the trial court directed Appellants to “remove
all improvements and obstructions from the full length and width of the right[-
]of[-]way over Pinar Road and restore Pinar Road to its condition prior to the
erection of the improvements and obstructions.” Order, 7/16/21 at 1
(unnumbered). The court also found in favor of the Daileys’ right to “possess
a right to utilize the full dimensions of the Pinar Road right[-]of[-]way for
ingress and egress to their property.” Id. Appellants filed a post-trial motion
which the court denied in an opinion dated November 22, 2021. The trial
court entered judgment on the verdict on January 21, 2022. The instant,
timely appeal followed.3
____________________________________________
2 The record reflects Lots 4 and 5 were originally accessible only through the
Pinar Road right-of-way. N.T., 3/29/21, at 183-85.
3 The trial court did not order Appellants to file a Rule 1925(b) statement and
did not author an additional opinion.
-5-
J-A18019-22
Appellants present two issues for our review:
A. Did the trial court commit an error of law in granting [the
Daileys] an easement by implication over a dedicated but
unaccepted portion of Pinar Road, Harborcreek Township, Erie
County, Pennsylvania?
B. Did the trial court abuse its discretion in granting [the Daileys]
a 40[-foot] wide easement by implication over Pinar Road,
Harborcreek Township, Erie County, Pennsylvania when the grant
was solely for ingress and egress to the dominant estate and the
amount of width granted will cause Appellants to remove natural
vegetation and other improvements?
Appellants’ Brief at 17.
We begin by recognizing:
Our appellate role in cases arising from non-jury [matters] 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.
Metro Real Estate Investment, LLC v. Bembry, 207 A.3d 336, 339 (Pa.
Super. 2019) (citations omitted). The “credibility of witnesses is an issue to
be determined by the trier of fact. On appeal, this Court will not revisit the
trial court’s determinations regarding the credibility of the parties.” Garwood
v. Ameriprise Financial, Inc., 240 A.3d 945, 948 (Pa. Super. 2020)
(citations omitted).
-6-
J-A18019-22
In their first issue, Appellants contend the trial court erred in finding
there was an easement by implication. Appellant’s Brief at 34-46. Appellants
assert:
[T]here was no common grantor between the Schultz and Morgan
Subdivisions. … Prior to the creation of the Morgan Subdivisions,
[the Daileys’] lots (1 through 5) were not entirely owned by
Schultz. Indeed, [the Daileys’] lots come from lands owned by
Schultz (Lots 1-3 and parts of 4 and 5) as well as the Hadberg
Estate (the remaining portions of Lots 4 and 5). Thus, the Morgan
Subdivision is comprised of land from two grantors, not a common
grantor.
Appellants’ Brief at 35. Appellants also claim the parcel can be accessed
without the existence of the easement. Id. at 43-45. Lastly, Appellants
contend, “there is no evidence that Schultz, prior to conveying the remainder
to Morgan, ever used the Pinar Road Extension to access the remainder.” Id.
at 45. Upon review, we disagree.
With respect to easements by implication, our Supreme Court has
stated:
An easement by reference to a map or plat[ ] is … an easement
by implication. … [W]e look to the following well established
principles concerning an easement by reference to a map or plat[
]:
It is well settled that the grantee of a lot, which is sold
according to a plan of lots on which streets or alleys
not previously opened or projected as a public street
are plotted out by the grantor, acquires an easement
over those streets and alleys as a private right of
property arising out of the grant, of which he cannot
be deprived without compensation[.]
Cox’s Inc. v. Snodgrass, 92 A.2d 540, 541 ([Pa.] 1952).
References to a plan contained in deeds make the plan a part of
-7-
J-A18019-22
the deed or conveyance and constitute a dedication of the streets,
alleys and ways shown on the plan, to the use of the purchasers
as public ways[.] ... Where a street called for a boundary in a
deed is not a highway nor dedicated to public use, the grantee
does not take title in fee to the center of it, but by implication
acquires an easement, or right of way, over the lands. There is in
such a case, an implied covenant that there is a way
corresponding with the one described in the deed, that so far as
the grantor is concerned it shall be continued and that the
grantee, his heirs and assigns, shall have the benefit of it.
Potis v. Coon, 496 A.2d 1188, 1191-93 (Pa. 1985) (some citations and
quotation marks omitted).
Pennsylvania Courts have held an easement by implication exists if the
party claiming such an easement establishes three things: (1) a separation of
title; (2) prior to the separation, the use giving rise to the easement was “so
long continued, and so obvious or manifest, as to show that it was meant to
be permanent”; and (3) the easement is “necessary to the beneficial
enjoyment of the land granted or retained.” Gurecka v. Carroll, 155 A.3d
1071, 1076 (Pa. Super. 2017) (en banc) (citation omitted) (emphasis
removed); see also Estojak v. Mazsa, 562 A.2d 271, 274 (Pa. 1989)
(“[W]here a municipality fails to accept or open a dedicated street in a plan
within twenty-years, the owners of property within the plan or subdivision
retain private rights of easement by implication over the unopened streets
(citations omitted)). We presume parties to a conveyance expect and intend
knowable and reasonably foreseeable prior uses of the land to continue after
the conveyance. Bucciarelli v. DeLisa, 691 A.2d 446, 448 (Pa. 1997)
(citation omitted).
-8-
J-A18019-22
Here, the trial court found an implied easement. The trial court
concluded there was a common grantor, Schultz, and
[Appellants’] argument overlooks the fact that the Schultz
remainder, as depicted on the map, was property owned by and
retained by the grantor of the lots in the Schultz subdivision. It
was not adjoining property owned by an unrelated third party.
The map shows Pinar Road extending beyond the plotted tracts
into the remainder and evidences an intent to use Pinar Road to
access that section of the Schultz remainder. The plan is clearly
depicted, and the easement to use Pinar Road passes to
subsequent owners of the property. The creation of the Hadberg
and Morgan subdivisions did not extinguish the easement. The
1970 replot of the Schultz subdivision did not extinguish the
easement either. Pinar Road[,] west of Schultz Drive[,] continued
to abut the Schultz remainder even on the 1970 map. The [trial
c]ourt does not find that the cable erected by Merle Dailey
evidences an intent to abandon the easement over … Pinar Road.
Defendant William Dailey testified that his father used Pinar Road
occasionally over the years. Moreover, the single cable is more
evidence of trying to keep people off of the property than evidence
of abandoning the use of a road. It was not a permanent,
immobile structure that completely precluded the use of the road
and evidenced an intent to abandon it. See, e.g., Croyle v.
Dellape, 832 A.2d 466 (Pa. Super. 2003).
Trial Court Opinion, 7/16/21, at 8.
Here, Appellants both misconstrue the record and fail to provide legal
support for their claim. The Daileys, with citation to the record, state:
There is no dispute that Schultz owned all of the property that is
at issue in this case, including Dailey Lots 1-3, Appellants’ parcels
as well as the area designated as Pinar Road lying west of Schultz
Drive. (R–271a). This fact was stipulated to by the parties, and
there was no testimony to contradict that at trial. In fact, all
evidence introduced at trial supported the clear fact that Schultz
owned what are now Dailey Lots 1-3 and the same were included
as part of the Schultz subdivision plan. (R-271a, 369a).
-9-
J-A18019-22
The Daileys’ Brief at 12-13. The trial court specifically found Lots 4 and 5,
portions of which came from the Hadberg Estate, were currently accessible
via Elmer Road, and the easement at issue concerned the landlocked Lots 1-
3, all of which came from Schultz. Trial Court Opinion, 7/16/21 at 4-5; N.T.,
3/29/21, at 88, 189-90; see also Joint Exhibit 12. These findings of fact are
supported by competent evidence.
Appellants’ reliance on the Pennsylvania Supreme Court’s decision in
Kao v. Haldeman, 728 A.2d 345 (Pa. 1999), to support their claim is
misplaced. See Appellant’s Brief at 36-40. The Supreme Court recognized
the issue in Kao was a narrow one, and limited to whether “an easement
holder has a right to enjoin a trespasser from using the easement.” Kao, 728
A.2d at 347. Our Supreme Court specifically explained Kao was not a case
involving an easement by implication, but rather use of an easement by
preference. Id. at 346. Appellants have failed to explain how this case is
relevant to the instant matter. Appellants do not cite to any other law which
supports their claim. See Appellants’ Brief at 35-43. We see no error in the
trial court finding that the requirement of a common grantor was not defeated
where portions of a party’s land, which are not at issue in the case, were
granted by a third party.
- 10 -
J-A18019-22
Appellants’ argument that Lots 1-3 may be accessed without use of the
easement lacks any factual support in the record.4 While Lots 4 and 5 of the
Dailey’s property are currently accessible via Elmer Road, Lots 1-3 are not.
Trial Court Opinion, 7/16/21, at 4-5. The record reflects Lots 1-3 can only be
accessed through the easement or by crossing over a separate parcel of land.5
Id.; N.T., 3/29/21, at 88, 170, 189-90; see also Joint Exhibit 12.
Lastly, Appellants contend there is no evidence “Shultz, prior to
conveying the remainder to Morgan, ever used Pinar Road Extension to access
the remainder.” Appellants’ Brief at 45. Appellants fail to cite to any place in
the record where there is any testimony or exhibits concerning this issue and
this Court has been unable to locate any. See Appellants’ Brief at 45. It is
not this Court’s responsibility to comb through the record seeking the factual
underpinnings of Appellants’ claim. Commonwealth v. Mulholland, 702
A.2d 1027, 1034 n.5 (Pa. Super. 1997) (“In a record containing thousands of
pages, this Court will not search every page to substantiate a party’s
incomplete argument”).
____________________________________________
4 Appellants continue to disregard our standard of review, and portray the
facts in the light most favorable to their argument, rather than the light most
favorable to the prevailing parties. See Metro Real Estate, 207 A.3d at 339.
5 While the Daileys can currently access Lots 1-3 through their own property,
Mr. Dailey testified he wished to sell Lots 1-3. N.T., 3/29/21, at 118, 191.
Ms. Cruz testified Harborcreek Township would not approve development on
lots that could only be accessed through other parcels of land. Id. at 171.
- 11 -
J-A18019-22
We have thoroughly reviewed the record and the legal arguments of the
parties on this issue. The trial court’s findings of fact are supported by
competent evidence, and we discern no error of law in its finding an easement
by implication existed in this matter. See Metro Real Estate, 207 A.3d at
339. Appellants’ first issue does not merit relief.
In their second and final issue, Appellants maintain the trial court erred
“in granting [the Daileys] a 40[-foot] wide easement over Pinar Road because
the easement should be limited to what is necessary.” Appellants’ Brief at 46;
see also id. at 46-48. However, Appellants’ argument on this issue is
undeveloped, as they fail to point to a single case which supports their claim
that the trial court had the authority to modify the width of the easement.
The trial court stated:
The [trial c]ourt’s determination of the existence of the easement
was based upon the Schultz 1959 Subdivision Plot depicting the
location of Pinar Road, including the unimproved portion of Pinar
Road at issue, as well as the Schultz 1970 Subdivision Replot and
the 1972 conveyance or the Schultz remainder referencing Pinar
Road as [a] 40-foot right of way. See Joint Exhibits 4, 7 & 11.
Trial Court Opinion, 11/22/21, at 7 (unnumbered) (emphasis added).
Appellants do not and cannot dispute the maps depict a 40-foot right-of-way.
See Appellants’ Brief at 46-48. This Court has located no law which would
allow a court to change the dimensions of an easement which are set forth in
a recorded map. See Croyle, 832 A.2d at 472-73 (rejecting argument trial
court erred in ordering appellants to remove obstructions within easement,
because easement was still sufficiently wide to allow use and stating,
- 12 -
J-A18019-22
“[Appellees] and the other lot owners in the Sylvan Hills plan have an
easement by implication to use the entire sixty foot width of Larch Street
as plotted.” (emphasis added)). Appellant’s second issue does not merit
relief.
Accordingly, for the reasons set forth above, we affirm.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/7/2022
- 13 -