J-A27010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JEREMY D. WITNER AND RACHEL A.                    IN THE SUPERIOR COURT OF
WITNER, HIS WIFE, ROBERT BRIAN                          PENNSYLVANIA
SELERT AND MICHELLE A. SELERT, HIS
WIFE

                            Appellants

                       v.

KYLE G. TITUS AND ALLYSON M. TITUS,
HIS WIFE, ROBERT G. PUGH AND
DEBORAH PUGH, HIS WIFE, ROBERT
JOSEPH PUGH, BRANDON PUGH AND
KAREN PUGH, HIS WIFE

                                                       No. 764 EDA 2016


              Appeal from the Judgment Entered February 8, 2016
                In the Court of Common Pleas of Carbon County
                        Civil Division at No(s): 13-0597

                                                               *
BEFORE: PANELLA, J., LAZARUS, J., and FITZGERALD, J.

JUDGMENT ORDER BY PANELLA, J.                      FILED JANUARY 31, 2017

        Appellants, Jeremy D. Witner and Rachel A. Witner, his wife, Robert

Brian Selert and Michelle A. Selert, his wife, appeal from the judgment

entered after a non-jury verdict in favor of Appellees, Kyle G. Titus and

Allyson M. Titus, his wife, Robert G. Pugh and Deborah Pugh, his wife,

Robert Joseph Pugh, Brandon Pugh and Karen Pugh, his wife, and against




____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-A27010-16



Appellants.1    Appellants challenge           the   trial court’s determination that

Appellants failed to establish either a prescriptive easement or an easement

by implication over Appellees’ property. We affirm.

       The trial court accurately summarized the history of this case. See

Trial Court Opinion, 6/26/15, at 1-8. Therefore, a detailed recitation of the

factual and procedural history is unnecessary. We review a verdict following

a non-jury trial as follows.

       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 of 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.

Stephan v. Waldron Elec. Heating and Cooling, LLC, 100 A.3d 660, 664

(Pa. Super. 2014) (citation and brackets omitted). Further, the fact-finder is

____________________________________________


1
   Appellants purport to appeal from the denial of post-trial motions on
February 8, 2016. See Notice of Appeal, filed 3/9/16. This is simply
incorrect. “Orders denying post-trial motions . . . are not appealable. Rather
it is the subsequent judgment that is the appealable order when a trial has
occurred.” Harvey v. Rouse Chamberlin, Ltd., 901 A.2d 523, 525 n.1 (Pa.
Super. 2006) (citations omitted). Here, judgment was entered by order on
February 8, 2016. Despite this error, this Court will address the appeal
because judgment has been entered on the verdict. See Mount Olivet
Tabernacle Church v. Edwin L. Wiegand Division, 781 A.2d 1263, 1266
n.3 (Pa. Super. 2001). We have corrected the caption accordingly.



                                           -2-
J-A27010-16


free to accept or reject the testimony of both expert and lay witnesses, and

to believe all, part or none of the evidence. See Terwilliger v. Kitchen,

781 A.2d 1201, 1210 (Pa. Super. 2001).

       On appeal, Appellants raise two issues. The trial court, in its June 26,

2015 opinion, as well as its February 8, 2016 opinion, has thoroughly

reviewed the claims on appeal and disposed of all arguments on the merits.

We have reviewed the parties’ briefs, the relevant law, the certified record,

and the well-written opinion of the Honorable Roger N. Nanovic. We have

determined that the trial court’s opinions, as well as its findings of fact and

conclusions of law supporting the March 4, 2015 verdict, comprehensively

disposes of Appellants’ issues on appeal, with appropriate references to the

record and without legal error.2 Therefore, we will affirm based on those

decisions. See Trial Court Opinion, dated 6/26/15; Trial Court Opinion, dated

2/8/16.

       Judgment affirmed.




____________________________________________


2
   Through their brief, Appellants argue that the trial court erred in finding
that the 68-acre tract was acquired by John and Mary Gerhard on March 1,
1940, as both John and Mary Gerhard were deceased as of that date. See
Appellants’ Brief, at 20. The trial court concedes that it erred in making this
finding, however, the trial court concludes, and we agree, that this error
does not in any way impact the trial court’s ultimate finding. See Trial Court
Opinion, 2/8/16, at 4 n. 2. It was harmless.



                                           -3-
J-A27010-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/31/2017




                          -4-
                                                                                    Circulated 01/13/2017 11:22 AM




      IN THE COURT OF COMMON             PLEAS OF CARBON COUNTY,               PENNSYLVANIA

                                         CIVIL DIVISION

JEREMY D. WITNER AND,
RACHEL A. WITNER, HIS WIFE,
ROBERT BRIAN SELERT AND,
MICHELLE A. SELERT, HIS WIFE,
      Plaintiffs
           v.                                                NO. 13-0597
KYLE G. TITUS AND
ALLYSON M. TITUS, HIS WIFE,
ROBERT G. PUGH AND
                                                                                    \                               e-:"
                                                                                                                    )
                                                                                     \                              , . . ..-~
DEBORAH PUGH, HIS WIFE,                                                                 \                               \
                                                                                                                        o-~•
                                                                                                                             \ \
ROBERT JOSEPH PUGH,                                                                      \\                                 i._;
BRANDON PUGH AND
KAREN PUGH, HIS WIFE,
      Defendants
                                                                                            \
                                                                                              \
                                                                                                \
                                                                                                 '\
                                                                                                               -
                                                                                                               d)


                                                                                                  \
Cynthia S. Yurchak, Esquire                                  Counsel        for Plaintiffs
Kim Roberti, Esquire                                         Counsel        for Defendants

                                      MEMORANDUM     OPINION

Nanovic,       P.J. - June 26,          2016

        The     ultimate       issue     in this     case    is    Plaintiffs'                  right,         if

any,     to     use    a    private     road     located     on    the     northern                   edge     of

Defendants'           adjoining       properties     as    a means        of   ingress                 to     and

egress        from     Plaintiffs'          property.        Plaintiffs          premise                their

claim     to     an        easement    as      arising     from    adverse        use,                and      by

implication,           necessity,       express     grant,     and    estoppel.                       Each     is

addressed       below.

                            PROCEDURAL      AND FACTUAL BACKGROUND

        All     of     the     parties'        properties      are        located           in         Packer

Township,       Carbon       County,     Pennsylvania,       in an area between                        Wetzel

Run     Drive    on     the    north     and    Quakake     Road     on    the    south.                     Both
                                             [ FN-28-15]
                                                   1
Wetzel       Run    Drive       and     Quakake       Road    run     roughly     in    an    east-west

direction.                Both         are     public        roads     which         intersect      with

Pennsylvania             State Route 93 to the east.

        In    1850,       all of the parties' properties were encompassed

within a           412    acre tract of property owned by                            Dennis Bauman.

(Plaintiffs Exhibit No.6).                       By deed dated April 1,                 1853,     Dennis

Bauman       conveyed           68     acres    of    this property             to     John     Steiner.

(Plaintiffs Exhibit No.7).                        All of Defendants' properties are

contained within this 68 acre tract.                                 By deed dated August 10,

1855,    Mr.       Bauman conveyed 40 acres of his property to Charles

Brandenberg.             All of Plaintiffs' properties are contained within

this    tract.            The     68    and 40       acre tracts are adjacent to one

another, with the 68 acre tract lying on the western side of the

40 acre tract.

        The     relative             location        of      Plaintiffs'         and     Defendants'

properties          to     one       another         (not    to      scale)     are     depicted     on

Appendix A of this opinion.                          Also shown is the location of the

disputed right-of-way, now named Meyers Drive,1 in relation to

the parties' properties and Wetzel Run Drive, as well as where


1
  What is now known as Meyers Drive was previously part of Pine Tree Lane.  In
late 2012,  early 2013, the Defendants requested the supervisors in Packer
Township to rename that portion of Pine Tree Lane crossing the northern end
of their properties as Meyers Drive in honor of Joseph Meyers who had once
owned their properties, was a relative of many of them, and was a respected
citizen in the Township.    Before this name change, Defendants' home mailing
addresses were for Pine Tree Lane. Even today, Grover Gerhard's home mailing
address is 220 Pine Tree Lane.    Grover Gerhard's property was part of the 40
acre tract.
                                   [FN-28-15]
                                        2
Quakake        Road    and a right-of-way                granted      by Hattie         Gerhard          to J.

Homer    Gerhard        in       1941    are    located.           Finally,       Appendix          A    shows

the      location           of      some       other      properties            and      features              or

characteristics             of the immediate             area referred          to in the text of

this opinion.

        We     do not       know when       farming       began     in the area,              but clearly

by    194 0    most,        if   not    all,     of    the    68    and    40     acre    tracts          were

being farmed,           as well as many               of the surrounding           properties.                 In

1941,    John        Homer Gerhard          ("Homer")         owned      and was      farming           the    68

acre    tract,        and Hattie         Gerhard       ("Hattie")         owned    and was          farming

the 40 acre tract.                  Hattie's      husband,         Samuel 0.      Gerhard,          who had

acquired        the    40    acre      tract    in    1913,    died      on March        2,    1938.           On

February       28,    1941,       Hattie       granted    Homer a 15           foot wide        right-of-

way along the western                   edge    of her property,            850    feet        in   length,

beginning        on Quakake          Road      and running         north    to the       southern             end

of Homer's property.                 (Plaintiffs Exhibit No. 26).

        At     the    time       of this       conveyance,         two    farming       roads       existed

on     either        side    of     Hattie's         property            one    along         the       entire

length        of the boundary            between       the    68    acre   and     40    acie tracts,

and the other along the entire length of the boundary between

the 4 0 acre tract and the adjacent property to the east,                                                 also

farmed.         Meyers Drive, which runs in a west/east direction from

Wetzel Run Drive, intersected with the north/ south road on the

western side of Hattie's property at its northern terminus and
                                                [FN-28-15]
                                                     3
connected        at this intersection                with another                  dirt road        (now     known

as Pine Tree Lane)              which ran across the northern                              end of Hattie's

property,        also in a west/east                direction.                At the easternmost                 end

of   this      other     road,       it      intersected            with       the     north/ south           road

running       along      the    eastern          side       of    Hattie's           property.             All    of

these roads existed at least as early as February                                          28,     1941.

       These        roads    were      all    dirt      paths          running        along       the   edge      of

farmers'         fields.        They      were     wide      enough           to accommodate              farming

equipment        and motor         vehicles       - approximately                   ten feet in width              -

and for the most               part,      they were          unimproved,             some     consisting          of

only     two      tire      tracks.           Some          were       better         defined        and     more

permanent        than others,          remaining            in the same location                   year after

year    due      to   the    frequency         with         which       they       were     used    and      their

destination.             This      included       Meyers          Drive        which       provided        direct

access      to Wetzel        Run Drive,          a public           road.          Others,        sµch as        the

road on the northern                end of Hattie's                property,           were plowed           under

yearly      to    take      full    advantage           of       the        length    of    the     field        for

planting.

        These       roads    were      used      by the owners                of     the    68    and   40    acre

tracts,        who     farmed       these        and        surrounding              fields,        and      their

families       - including          Hattie,       her husband,                and her children               - for

farming       and     for traveling           between          properties            and gaining           access

to     surrounding          public        roads,        such           as     Wetzel        Run     Drive        and

Quakake       Road.      Meyers        Drive for instance                    was used by Hattie,                 her
                                                 [ FN-28-15]
                                                        4
husband,        and    her    children,        not       only    as    a    means   of . access    to

Wetzel    Run        Drive while       moving     farming        equipment      between     fields,

but      also        for      visiting        family           and     friends,      for     moving

construction           equipment        and     materials,            and    for    miscellaneous

reasons.         On        occasion,     Samuel          0.    Gerhard used         this   road    to

gather peonies.              The roads were shortcuts between public roads.

      The use of Meyers Drive in particular by Hattie and the

owners of her property over the years, including Robe.r t; Selert

at the present time, has been far in excess of twenty~one years,

and it     has        been    continuous, open,                 visible,      and uninterrupted

since the late 1930s.                  What is unclear and unproven is when it

started and how.               At the outset, was it permissive, or hostile

and adverse?           And when did it first become open and continuous?

In all likelihood,             the antiquity of the beginning use of Meyers

Drive makes this unknowable.

      Important also is knowing who the users of these ~oads were

and their relationship with one another.                                Samuel 0. Gerhard and

Homer's     father, Charles              Gerhard,             were    brothers.       Samuel      was

Homer's uncle.               Homer owned the 68 acre tract between November

10,   1941,      and August 19,           1961.          At that time the property was

conveyed        to    his     daughter, Mary              E.    Meyers,       and   her    husband,

Joseph Meyers.              When the four lots located on the northern edge

of the 68 acre tract were conveyed to the Defendants, Kyle                                        and

Allyson Titus, Robert and Deborah Pugh,                               Robert Joseph Pugh,         and
                                              [ FN-28-15]
                                                     5
Brandon       and     Karen       Pugh,     in    each     instance      a        twenty-foot-wide

earthen pathway along the northern edge of the property conveyed

was reserved by the grantor as a means of access to. remaining

lands of the 68 acre tract situate on the east.                                      Joseph Meyers

died on April 26,             2002.        After his death, the balance of the 68

acre tract was conveyed by Mary Meyers to her daughter, Deborah

Pugh,    and her son-in-law, Robert G.                      Pugh,      on November 7,                 2002.

Defendants Robert Joseph Pugh and Brandon Pugh are Defendants

Robert G. and Deborah Pugh's children.

        As     to    the     40     acre    tract,        title    to    this        property           was

transferred by Hattie to her son,                          Raymond S.         Gerhard, and his

wife,    Verna        E.     Gerhard,       by     deed     dated      September           23,        1953.

Eugene        Gerhard,        who     at     different         times         purchased           various

properties from Homer for farming, is Raymond's brother.                                                The

three        lots    at    the     northern        end    of     the    40    acre        tract        were

transferred           by    Raymond        and      Verna      Gerhard         to     their           three

children, Grover Gerhard, Donald Gerhard and Mildred Selert,                                            and

their respective spouses, in 1975 and 1976.                                  In each case,              the

deeds    of     conveyance          reserved        and    excepted          to     the    grantor        a

twenty        foot        right-of-way           across    the     northern           end·       of     the

properties conveyed.                  In addition, the deed to Grover Gerhard

excepted and reserved a 20 foot right-of-way along the western

side of the property conveyed.                          The deed to Mildred Selert also

excepted        and       reserved     a    twenty        foot    right-of-way             along        the
                                             [FN-28-15]
                                                    6
eastern     side    of     the       property,       which      is        depicted      on     a     map

attached to the deed as connecting with an existing earth road

located along the eastern edge of the 40 acre tract.

        On August 8,       1977,      Raymond Gerhard conveyed a 1.3 acre lot

to Nancy C.        Hinkle; this lot is to the immediate south of the

properties previously                conveyed       to     Donald Gerhard             and     Mildred

Selert and their spouses.2                    This lot         is     now owned by Robert

Selert.      By     deed      dated     January          19,   1978,       Raymond and             Verna

Gerhard conveyed the balance of the 40 acre tract to Arnold and

Mildred Selert, who in turn conveyed this property to their son,

Robert    Selert,       one     of    the    Plaintiffs, on                January      19,        1978.

Appendix     B     to    this    opinion        charts         the        family      relationship

between the farmer and current owners of                                  the 68      and 4 6       acre

tracts.

        Rachel A.       Witner,       another       Plaintiff, is             Robert        Selert's

daughter.        The property now owned by Rachel A.                             Witner and her

husband, Jeremy D.            Witner, previously consisted of two separate

lots:    the western half of this property is the same lot which

Raymond    and Verna          Gerhard       originally         conveyed          to    Donald        and

Patricia Gerhard, and the                   eastern half             is    the     same property

which Raymond and Verna Gerhard originally conveyed . to Arnold

and Mildred Selert.                  Arnold and Mildred Selert conveyed this

2
  The deed for this conveyance was not placed in evidence, and we do not know
what, if any, rights-of-way were granted or reserved for access to this
property.
                                            [FN-28-15]
                                                7
property     to    their    son,     Edward      J. Selert, and his wif~, Rebecca

A.    Selert, on June 25,           1990.        Edward and Rebecca Selert built a

home on this property in 198 9,                      which burned down in 19 9 6,       and

was    not   rebuilt.         While       residing       in    this    home,   Edward   and

Rebecca Selert used Meyers Drive to gain access back ~nd forth

to their home.             The Wi tners became the owners of the western

half of their property on January 29,                         2010,   and of the eastern

half on March 8, 2011.

       In October 2009,            Defendants erected a gate on Meyers Drive

near its intersection with Wetzel Run Drive.                            Almost two years

later, on         June 21,        2011,   the Witners commenced this suit by

filing a      claim for access to their property pursuant                          to   the

Private Road Act,            36    P.S.     §§   2731-2891, in the Carbon County

Clerk of Courts office.3              This action was subsequently amended to

include additional counts and to join Rachel Wi tner' s parents,

Robert B.     Selert and Michelle A.                  Selert, as claimants.        On the

basis of In re Opening Private Road for Benefit of O'Reilly, 22

A.3d 291     (Pa.Cmwlth. 2011),             Plaintiffs' claim under the Private

Road Act was stricken and the case was then transferred to the

law side of the court and assigned the present docket number.

       A bench trial was held before the court on August 28, 2014,

October 6, 2014, December 3, 2014, and December 4, 2014.
3
  This suit was conunenced less than two weeks before Defendants had Robert B.
Selert, Michelle A. Selert, and Rachel A. Witner arrested for trespassing on
Meyers Drive on July 4, 2011.        (Plaintiffs Exhibit Nos. 42-44).    These
charges were dismissed by the magistrate.
                                          [FN-28-15]
                                                 8
                                             DISCUSSION

                                     Prescriptive         Easement

      A   prescriptive               easement        is     created       by    adverse,         open,

notorious,         continuous,         and        uninterrupted          use   of    land       for      a

period    of twenty-one          years.            Newell    Rod and Gun Club,                Inc.,     v.

Bauer,    597     A.2d 667,          669-70        (Pa.Super. 1991)            (noting·that the

chief distinction between the doctrines of "adverse possession"

and "prescription" is that "in adverse possession the claimant

occupies or         'possesses' the land of the fee owner, whereas in

prescription the claimant makes some easement-like use of it").

      The use is open and notorious if it is sufficiently visible

and   manifest          to      place         a     landowner        exercising           reasonable

vigilance on notice of the claimed usage.                                 Boyd v.        Teeple, 331

A.2d 433,         434   (Pa.    1975)         (continuous use of a roadway over a

servient estate establishes open and notorious use); see                                              also

Watkins      v.     Watkins,          775         A.2d    841,     846     (Pa.Super.           2001).

Continuous        use    is     use     which       evidences        "a    settled course               of

conduct indicating an attitude of mind on the part of the user

or users that the use is                      the exercise of a property right."

Keefer    v.      Jones,       359     A.2d       735,    737     (Pa.    1976).          A    use      is

"uninterrupted" if "those against whom the use is adverse do not

initiate and bring to successful conclusion legal proceedings or

otherwise cause a              cessation of the use."                      RKO-Stanley Warner

Theaters, Inc. v. Mellon Nat'l Bank                         &    Trust Co.,        436    F.2d 1297,
                                              [FN-28-15]
                                                     9
1301 n.14 (3d Cir.          1970).        Here,    the Plaintiffs have met their

burden of proof as to these three elements beginning in the late

1930s with Hattie and Samuel O.                    Gerhard's use of the 40 acre

tract and Meyers Drive to access Wetzel Run Drive.

       Prescriptive        rights must        be    established by        a    user     with

hostile intent, and not through indulgence, permission or mutual

accommodation.           The word "hostile" as an element of adverse use

does    not    mean      "ill     will"     or     "hostility,"     but       implies     an

assertion of        rights adverse to             that of the true owner.                Cf.

Watkins,      775    A.2d    at     846     (discussing elements          for     adverse

possession) .        Where one uses an easement whenever he sees fit,

without asking leave,             and without objection, it is adverse and

an uninterrupted adverse enjoyment for twenty-one years cannot

be   afterwards disputed.                Adshead v.        Sprung, 375 A.2d       83,     85

(Pa.Super. 1977).           Where a use has been open and continuous into

the indefinite past such that how,                     when and why the use began

predates living human memory and is incapable of present proof,

the use is "presumed to have been in pursuance of an unqualified

grant [i.e.,        a prescriptive easement), and the burden of showing

the contrary is upon the party denying the presumption.11                             Wedge

v.   Schrock,       22   A.2d     305,    309-10       (Pa.Super. 1941);        see     also

Predwitch      v.    Chrobak,       142    A.2d     388,     389   (Pa.Super.      1958).

However, where a familial relationship exists, "permissive use

will be presumed, thereby negating the element of hostility."
                                          [FN-28-15]
                                              10
Watkins,     775    A.2d    at     846.          Not     only       is     "[t]he        use   of    the

disputed     land      deemed     permissive           when     a    familial          relationship

exists,"     the       familial      relationship               need       not      be     with      "an

immediate     family member."              Id.     at    847        (emphasis in original).

Further, if a use commences permissively, it will be deemed to

continue as permissive "in the absence of a clear showing that

the    user brought        home    his      intention to                 make    an      adverse use

without recognizing the rights of the owner."                                    Gehres v.          Falls

~,      948 A.2d 249, 252 n.2 (Pa.Cmwlth. 2008)                             (quoting Wanczycki

v. Svoboda, 36 Lehigh L.J. 59, 64                      (1974)).

       Samuel 0. Gerhard, who died on March 2,                             1938,      acquired the

40 acre     tract on May 1,           1913.            Upon his death, this property

passed to his widow, Hattie Gerhard, who conveyed title to her

son,   Raymond S.        Gerhard, and his wife, Verna E.                                 Gerhard, on

September 23, 1953.             Raymond and Verna then transferred title to

their "da uqht.e r ,    Mildred L.         Selert, and her husband, Arnold R.

Selert, on January 16, 1978.

       The 68 acre tract was               acquired by Samuel Gerhard's father

and mother, John and Mary Gerhard, on March 1,                                   194 0, · who later

transferred this property             to their grandson, John Homer Gerhard

("Homer"), on          November      10,         1941.         Homer        and       Raymond       were

cousins.       The      property      was        next     conveyed          by     Homer       to    his

daughter, Mary E.          Meyers, and her husband, Joseph Meyers, on

August 19, 1961.
                                           [FN-28-15]
                                               11
        As is evident           from this          recital,         during       the twenty-one           year

span    from     March     1,        1940    to    August       19,       1961,        the    relationship

between      the owners         of the 68          acre and 40 acre tracts varied                         from

that    of    father-      and       mother-in-law             (John       and       Mary    Gerhard)       and

daughter-in-law           (Hattie           Gerhard);         to      nephew         (Homer)        and   aunt

(Hattie);        to    first         cousins         (Homer         and     Raymond          Gerhard);       to

second cousins           (Mary       Meyers       and Mildred          Selert).             These   familial

relationships         are all close and raise a presumption                                   that the use

of     Meyers     Drive         by     the       owners       of      the       40     acre     tract       was

permissive.           Plaintiffs        have presented               no evidence             to rebut this

presumption.           Rather,         consistent            with     this       p re sumpt i on ,    Eugene

Gerhard,        Samuel Gerhard's                  son    and Raymond              Gerhard's         brother,

testified clearly that Meyers                           Drive existed during this time

period and was used freely by his immediate family.                                             Because of

this     familial        relationship,              Plaintiffs' predecessors'                         use    of

Meyers Orive was not hostile.                            See also           Sterner v.          Freed, 570

A. 2d 107 9,     10 82    (Pa. Super. 1990)                  (where a familial or fiduciary

relationship exists, permissive use will be presumed).

        The     presumption           of     a     permissive             use     by    virtue       of     the

familial relationship between the owners of the 68 and 4 0 acre

tracts continued at least until the erection of the gate by the

Defendants in          October 2009.                    At    that time,             Deborah· Pugh and

Robert Selert,           the principal owners of these two t.r act s ,                                    were

third cousins.           The erection of this gate is the first time that
                                                  [FN-28-15]
                                                      12
the     owners    of    the       68   acre    tract made             clear      that   the     prior

permissive use was over.

        Nor did the owners of the 40 acre tract at any time prior

to this date assert that their use by a predecessor in title of

Meyers Drive was other than permissive. Margoline v. Holefelder,

218 A.2d 227,          229    (Pa.     1966)    (holding that a prior permissive

use by a predecessor in title will be deemed to continue until

the contrary is shown); Orth v. Werkheiser, 451 A.2d 1026,                                       1028

    (Pa. Super. 1982)     (holding that permissive use by a predecessor

in title is personal to that predecessor, is non-assignable, and

that adverse use by                a   successor owner if continued for over

twenty-one        years      will      ripen    into           a    prescriptive        easement).

Though      disputed,        we    accept      as        true       and    corroborative        of    a

permissive use that Robert Selert sought permission from both

Robert G.      Pugh and Kyle G.           Titus to allow his daughter, Rachel

Witner,      to   use     Meyers        Drive       as     a       means    of   access    to        her

property.4


4
  A use which is permissive to one property owner becomes adverse for purposes
of calculating the prescriptive period when continued hostilely by the
purchasers of that property.      Orth v. Werkheiser, 451 A.2d 1026, 1029
(Pa.Super. 1982). Consequently, in relation to the Witner property which was
severed from the 40 acre tract in 1975 and 1976, adverse use of Meyers Drive
by the new owners for a period in excess of twenty-one years will support a
prescriptive   easement.     However, in this     regard, the    evidence   is
insufficient. No evidence was presented as to what use Donald Gerhard made
of Meyers Drive following the conveyance to him of the western half of what
is now the Witner property in 1975 by Raymond and Verna Gerhard.          With
respect the eastern half of the Witner property, even if it were established
that Edward and Rebecca Selert's use of Meyers Lane between 1989 and 1996
when their home burned down was adverse, this usage is far short of the
twenty-one years required to obtain a prescriptive easement.
                                          [FN-28-15]
                                                13
                                     Easement by Implication

       To    establish           an      easement        by    implication,             the· following

three factors must be proven: (1)                           first,     a separation of title;

(2) that, before the separation takes place, the use which gives

rise to the easement, shall have been so long continued, and so

obvious       or    manifest,            as   to    show       that     it     was       meant      to    be

permanent;         and        ( 3)     that     the      easement          must         be   reasonably

necessary to the beneficial enjoyment of                                   the land granted or

retained.          Bucciarelli v.             Delisa,     691 A.2d          446,    449 (Pa.        1997);

Possessky v.         Diem,           655 A. 2d 1004,          1008    (Pa. Super. 19 95) .              When

these factors exist, the grant or reservation of an easement is

implied       from    the       conveyance,           and      the    owner        of    the      property

subject       to    the       easement        is   charged           with     notice         of    it    and

knowledge of          the       facts that could have been                         acquired by           the

exercise of reasonable diligence.                               Anania v.          Serenta, 119 A.

554,   556    (Pa. 1923).

       The existence of the first factor is not in dispute.                                              The

68 and 40 acre tracts were once held in common ownership:                                                by

Dennis       Bauman      in      1850.         However,         as    to     the     second        factor,


   Nor are the Witners able to tack any adverse usage claimed by Robert Selert
to the benefit       of their    property.       Mr. Selert   did not acquire       title     to his
property    until   1978, after     title    to the Witner property       was severed      from the
40 acre tract.        Therefore,     even if Robert Selert        was able to establish         that
his use of Meyers Drive after             1978 was adverse and continuous        for a period of
twenty-one     years or more, such right,           at best,   would attach     to the property
owned by him and for             whose benefit        the prescriptive      easement      would be
appurtenant.       See Lindenmuth        v. Safe Harbor Water Power Corp. , . 163 A. 159,
161 (Pa. 1932) (an appurtenant              easement is attached       to a specific       property
and may not be separated         from it; it is not independently         alienable).
                                             [ FN-28-15]
                                                    14
Plaintiffs           have        failed     to     clearly          prove       that    Meyers           Drive

existed       when ownership             of the 68         and 40 acre tracts was severed.

The burden          of proving          the existence           of Meyers       Drive at this time

was upon       Plaintiffs.              Stein v.         Bell     Telephone      Co.,        151 A.       690,

692   (Pa.     1930).

        The    68     acre       tract    was     conveyed         by    Dennis      Bauman        in    1853,

and   the      40    acre       tract     in     1855.       At     that    time,       it    is     unclear

whether       the     right-of-way             for the       public      road     between          Weatherly

and   Tamaqua,         which       at     some    point         crossed     through          the    68    acre

tract    and        would       have    provided       a    clear       means   of     access       to    this

property        from        a    public        road,       then    existed.            See     Plaintiffs

Exhibit Nos.20              (Mary Ulshafer Tract - Parcel #2)                            and· 38         (1885

Beers Atlas) .              More importantly, what is clear is that the 1855

deed for the 40                  acre tract has as                 its southern boundary the

public road leading from the L&S Turnpike to Tamaqua, .now known

as Quakake Road, thus establishing open access to this ·property.

(Plaintiffs Exhibit Nos. 10 and 38).

        Neither deed from Dennis Bauman references Meyers Drive.

In fact, the furthest back Plaintiffs' evidence goes to show the

existence of Meyers Drive is either 1937 or 1938, near the time

of Samuel Gerhard's death.                       Eugene Gerhard, who testified he was

nine years old when his father died,                                 provided this testimony.

However, at this time,                    Meyers Ori ve was               at best a narrow dirt

farmer's path running along the edge of a field.                                        Further, 1937
                                                 [FN-28-15]
                                                     15
is    eighty-four           years        after    title       to the     68    and     40    acre        tracts

was    severed.             This     evidence          does     not    prove      that      at    the         time

title     was      severed,         the     critical          point    of     our     analysis,              there

existed      an open, visible,               continuous          and permanent             use of Meyers

Drive,       or       that        such     use        was     necessary        to     the        beneficial

enjoyment         of the 40 acre tract.                      To the contrary,          no evidence              or

testimony         was presented            as to how the 68 and 40 acre tracts                                were

used    in relation           to one another                 - or even      what      use was made              of

these    properties           -    by     Dennis       Bauman    before        the    1853       conveyance

to    John   Steiner.              Moreover,          Plaintiffs'       contention           that       Meyers

Drive proceeded              in an easterly              direction      to intersect             with        what

is now State Route                 93 is not supported                by the credible             evidence.

See     Plaintiffs Exhibit No. 38                       (1885     Beers Atlas) which, while

depicting         Wetzel          Run     Drive,        contains no           reference to              Meyers

Drive or any other public road at this location extending to

State Route 93.

                                        Easement by Necessity

        An easement by necessity may be implied upon the division

of property if:              (1) title to the properties has been held by one

person,         (2)        this    unity         of     title    has      been       severed            by     the

conveyance            of     one    of     the        tracts,     and       (3)      the    easement            in

question is necessary for the use of the severed tract.                                                      Graff

v.    Scanlan, 673            A.2d 1028,              1032    (Pa.Cmwlth. 1996).                  "It        is a

well-settled principle of law that, in                                  the event property is
                                                  [FN-28-15]
                                                        16
conveyed     and      is   so     situated          that    access           to   it    from      the highway

cannot     be had      except          by passing          over        the    remaining          land        of    the

grantor,    then the grantee                  is entitled          to a way of necessity                          over

the   lands       of       the        grantor."            Possessky,               655        A.2d     at        1010

(citation and quotation                  marks omitted).                     Further,          the measure          of

necessity        is    that      of     actual       necessity,               not      mere      convenience.

Graff,     673    A.2d      at       1032.      As    with        an    easement          by     implication,

Defendants       do not dispute               that the first two prongs                          of this test

have been met.

      As    previously           stated,        at    the     time           Dennis       Bauman        conveyed

the 68     acre tract           in    1853,    he     retained          ownership          of the        40       acre

tract.      However,         because          the    legal description                    of    this    40        acre

tract bounds          on a public            road,    it     is    clear this property                       is    not

landlocked.            See       Phillippi v.              Knotter,           748      A.2d      757,        760-61

(Pa.Super. 2000)             (determining that plaintiff failed to establish

the   existence of               an    easement by necessity                        over an           adjoining

parcel because a portion of plaintiff's property was accessible

from a public road), appeal denied, 760 A.2d 855 (Pa. 2000).

      Nor was the northeast corner of the 40 acre tract, what is

now the Wi tners'             property, landlocked by this conveyance.                                             The

doctrine of an             easement by necessity is not meant to "ensure

that each         portion of             [a]    singular property                      has      access        to     a

public road," rather only that the property has                                                 some access.

Phillippi, 7 4 8 A. 2d at 7 61.                       "The right of way from necessity
                                                [ FN-28-15]
                                                      17
over the land of another.               is always of strict necessity,                   and

the   necessity    must    not   be    created     by   the party        claiming the

right-of-way.       It never exists when a man can get to his own

property through his own land."                  Ogdon v.       Grove, 38         Pa.    487

( 18 61)   (quoting M' Donald v. Lindall, 3 Rawle 4 92, 4 93 ( 1827)) .

       Plaintiffs nevertheless argue that due to distance, slope

and wet areas,     access to the Witners' property along the eastern

boundary     of   Robert    Selert's        property     from    Quakake      Road        is

extremely     difficult     and burdensome,         such that          use   of    Meyers

Drive is not simply a matter of convenience, but a question of

actual      necessity     within      the   meaning      of     this     term.           See

Application of Little, 119 A.2d 587, 589                 (Pa.Super. 1956).              This

notwithstanding, to the extent a necessity exists to justify the

grant of an implied easement to the Witners' property, it was

not created when title to the 68 and 40 acre tracts was severed

in 1850, but by the conveyances in 1975 and 1976 of what is now

the   Witners'    property       to   Donald Gerhard          and Mildred         Selert,

respectively.      These conveyances by Raymond and Verna Gerhard to

their children severed these two properties                      from the 40            acre

tract.      To the extent the conveyances in 1975 and 1976 meet the

criteria for granting an easement by                    necessity, the Wi tners'

recourse is against the owner of the 40 acre tract from which

their property was severed, not against the owners of adjacent

land who were strangers to the severance.
                                      [FN-28-15]
                                          18
                                   Easement               by Express Grant

        Plaintiffs           at    the            time     of      filing         their      amended          complaint

apparently          were     under          the mistaken               belief        that the           1941 deed        of

right-of-way           from       Hattie            Gerhard            to    Homer      Gerhard           ( Plaintiffs

Exhibit      No.26)        was a grant of easement                               rights by Hattie              to Homer

in    what     is    now     known           as    Meyers          Drive.          It   is      clear     Plaintiffs

were    wrong.         The        1941       grant         was     for a          south/north           right-of-way

from Quakake           Road       along           the western               side of the            40    acre    tract.

The     easement            Plaintiffs               claim            in     Meyers         Drive        runs      in     a

west/east           direction           from        Wetzel            Run     Drive        and     is     across        the

northern       end     of    the        68    acre        tract,           not    the western            edge    of     the

40    acre tract.            As significant,                     if not more,              is     that this        grant

gives    Defendants,              as    the owners               of the 68           acre       tract,        the right

to cross the western                    edge of the 40 acre tract,                                not vice       versa,

and therefore           is    of        no benefit               to    Plaintiffs            who    seek       to cross

Defendants'          property.

                                         Easement             by Estoppel

        This        theory,            apparently               advanced           by      the      Witners        only,

appears      to      proceed           on     the        basis         that       Defendants            are    estopped

from    denying        an     easement               in     Meyers           Drive      because          the    Wi tners

relied on the existence                           of a right to use Meyers                         Drive when they

purchased            their         property                 and            thereafter            expended         money

preparatory          to building              a home.              The problem             with    this theory           is

that neither          the facts nor the law support                                  it.
                                                         ( FN-28-15]
                                                              19
     "An     easement       by       estoppel                traditionally          considered       an

irrevocable        license          in        Pennsylvania                will     arise     when     a

landowner        permits        a        use     of        property       under     circumstances

suggesting       that the permission              will not be revoked,               and the user

changes     his     or    her       position          in     reasonable         reliance     on    that

permission."             Kapp       v.        Norfork        Southern         Railway      Co.,     350

F.Supp.2d        597,    611-12          (M.D.Pa. 2004).                  See     also     Bieber    v.

Zellner, 220 A.2d            17,         19    (Pa.        1966)    ("A    license to        use the

promiser's land will become irrevocable for the duration of the

license term when the promisee in justifiable reliance treats

his land in a way he would not otherwise treat it, that is, by

making expenditures of money for such changes as would prevent

his being restored to his original position."}.

     As to Defendants' actions, no evidence was presented of any

oral or written representations made by any of the Defendants to

Plaintiffs which authorized the use of Meyers Drive.                                        At most,

as   discussed           with       respect            to     Plaintiffs'          claim      for     a

prescriptive easement, given the familial relationship between

the parties, the owners of the 40 acre tract were allowed to use

Meyers Drive as a courtesy.                      No evidence was presented, such as

the formal grant of easement from Hattie to Homer in 1941, that

this was ever intended to be anything more.                                      The Witners have

pointed     to     no    conduct          attributable             to   the      Defendants       which


                                               [FN-28-15)
                                                      20
suggests          that         this       accommodation              was        or         would      become

irrevocable.

        Nor was there any evidence                     of any conduct                by the Defendants

which       the   Wi tners      reasonably           relied       upon    to    their       detriment        so

as     to    est op     the     Defendants        from      revoking           the    permissive           use.

The Witners            purchased      their property             in 2010 and 2011.                  This was

after       Defendants         erected     the gate         in     October       2009,       as    were     all

the     other          expenditures            the     Witners           claim        to     have         made.

(Plaintiffs Exhibit               Nos.    50 and 51).              Many of these expenditures

were    also      incurred       after Rachel           Witner      learned          from    her     friend,

Tiffany       Titus,      Defendant        Kyle      Titus'       daughter,          in May        2011    that

Mr.    Titus would not consent                  to the Witners             using Meyers             Drive to

access       their       property        and    to     transport         construction             · materials

and equipment;            after       Plaintiffs       filed suit on June 21,                      2011; and

after       Plaintiffs         had been arrested            by Defendants              for trespassing

on Meyers         Drive on July 4,             2011.        These circumstances               preclude        a

finding of detrimental                 reliance.


                                               CONCLUSION

        "When      a    right     or title        is    of ancient             origin       or where        the

transaction            under    investigation          is    so    remote       as    to be incapable

of direct         proof.                 the   law,     of necessity,            relaxes .the             rules

of evidence            and requires        less evidence            to     substantiate             the    fact

[in]        controversy."             Tomlinson        v.     Jones,       557       A.2d     1103,        1104

                                                [FN-28-15]
                                                    21
(Pa. Super.         198 9)    ( citation      and       quotation         marks     omitted) .           This

is of course          true and has obvious bearing                        on this case where the

transactions          and conduct          in question             are more        than     seventy-five

years     old       and,     with    respect           to    the     severance         of    title,       one

hundred       and     sixty-two       years      old.          But    this      relaxation          of    the

rules        does     not     mean     we       ignore         the        rules,       or    engage        in

supposition          or speculation.

        When dealing          with questions                of ancient      and adverse           use,    the

law wisely          provides        that    " [ i] f    all     of   the     elements        of    adverse

[use]     other        than    hostility          are        established,           the      element       of

hostility       is    implied.n            Watkins,         775 A.2d       at   846.        At the       same

time,    the law also wisely                 accounts         for human         nature,      here,       that

in the absence             of contrary        evidence,            "[t]he    use of the disputed

land    is    deemed       permissive        when      a familial          relationship           exists."

Id. at 847.

        As to proof that Meyers Drive existed when title to                                               the

subject properties was                     severed in           1853,       there was         no     direct

proof, and little indirect proof, and it defies common sense to

believe that Meyers Drive at that time was part of a public road

which extended several miles to the east and which was abandoned

before the 1885 Beers Atlas was printed, which, it                                           is argued,

would     explain why           no    reference to                 this     road appears           in     the

Atlas.        If this were the case,                    not only is the abandonment of

the road inexplicable, it makes no sense that none of the deeds
                                              [FN-28-15]
                                                  22
for the 68 and 40 acre tracts,             which      Plaintiffs          argue fronted    on

this    road,     include      the     road     in        their    metes      and     bounds

description     or    even   make    reference       to    the    road.      Yet,   this   is

what Plaintiffs       ask us to believe.

       Finally,      in denying      Plaintiffs'      relief       against     Defendants,

we do not find that          the Witners      have no remedy,             only that   it   is

not against     Defendants     on the evidence presented.


                                         BY THE COURT:




                                                                                       P.J.




                                       [ FN-28-15]
                                           23
                                 '   I




w etzel   Run Drive-~
                                                          Heyer.s Drive                         Pine Tree Lane Ext.

----l                   J
                        ......
                            '
                                                                 I
                                                                 T
                                                                                                        ---     . -...,...- -
                                                                                                                                l                              -··

                                  CJ ~
                                 ... ~              -
                                             .L..., -::     Robert rr•ndon
                                                           J,   Pugh       Pugh
                                                                                                        I.I
                                                                                                        C> ::
                                                                                                        >..:::
                                                                                                        O I.I
                                                                                                                t;

                                                                                                                CJ
                                                                                                                                Rac~e1
                                                                                                                                Nit~e:::
                                 ~~
                                     ...J

                                            g£
                                             0:::

                                                                       I                            I
                                                                                                        I.I

                                                                                                        ~       "                     I

                                                                                                                                 Forn:-erly            I
                  t
                                                                                                                                     Uancy.
                  i                                                                                                                 Hinkle
                  I
                  l                                                                                 r                                                  I
                                                                                                                                                       I
                  I
                  I                                                                                 I                                              I


                  I                                                                             ,~
                                                                                                I        v
                                                                                                         ''"'

                                                                                                        ...,
                                                                                                         :.,
                                                                                                                                           ~I
                                                                                                                                           -,·--
                                                                                                                                           E
                                                                                                                                           _,
                                                                                                I::;
                                              Deborah                Pugh                                                                  01
                                                52.22                Ac
                  :
                  I                                                                             I                                                  i
                                                                                           Qj Robert                             Selert
                                                                                           ,'                        32.3 Ac                       I
                                                                                           ~.                                                              l

                                                                                                                                                           l
                                                                                                                                                   l       I
                                                                                                                                                   11
                                                                 Hattie to Home:::                                                                 I
                                                                   Right of Way



                                            Quakake             Road                    JI lt
                                  ----4-·I · ·-·-                                 ---
                 -··                                       Appendix A
                                                            [FN-28-15)
                                                                 24
                John Gerhard and Mary Gerhard




                                                Samuel 0. &
                                                  Hattie




                     Alice               Millie
                                         Selert

Deborah
 Pugh


  Robert, Jr.                          Rachel
                                       Witner




                      Appendix     B

                     [FN-28-15)
                         25
                                                             Circulated 01/13/2017 11:22 AM




   IN THE COURT OF COMMON   PLEAS OF CARBON COUNTY,    PENNSYLVANIA

                            CIVIL

JEREMY D. WITNER AND,
RACHEL A. WITNER, HIS WIFE,
ROBERT BRIAN SELERT AND,                                                                  ,...,
MICHELLE A. SELERT, HIS WIFE,
      Plaintiffs
                                                                                          -
                                                                                          =         {;J"

                                                                                                        ·'T1
           v.                                NO. 13-0597     1
                                                             i
                                                                            --·~
                                                                       •t_}(J
                                                                        .........
                                                                          ...
                                                                        c,:..:.:
                                                                        -- .. l.:.;
                                                                        :I: c.:,)
                                                                                          -ri
                                                                                          f'Tl
                                                                                           o:>
                                                                                             I
                                                                                                        .... .
                                                                                                        ~, ....
                                                                                                               -   ~---
KYLE G. TITUS AND                                            l           cs z:             0)              t
ALLYSON M. TITUS, HIS WIFE,                                              '.J'. ,-;
                                                                         we   briefly      explain      our     reasons           for    denying     Plaintiffs'      Post-

Trial Motions.

       The     factual        and      procedural              background     of     this    case,

together     with     the reasoning           for       our denial     of Plaintiffs'        claim

of    an     easement         across        Defendants'             properties,      was     fully

explained        in     our      Memorandum               Opinion      of    June     2 6,     2015

("Memorandum Opinionn). Against the background of that Opinion,

we address the two issues raised in Plaintiffs' Motion for Post-

Trial Relief.

                                 Prescriptive Easement

       Plaintiffs first claim that our denial of their claim for

an easement by prescription across Defendants' properties was in

error because we looked at the wrong twenty-one year period in

determining whether             Plaintiffs had                 established a        prescriptive

easement.

       Plaintiffs         claim        that      they          obtained     an      easement    by

prescription in the area where Meyers Orive is now located to

cross Defendants' properties as a means of access to Wetzel Run

Drive, a public road.1                 In   our Memorandum Opinion of June 26,

2015, we explained that Defendants' properties were at one time



   Meyers Drive,         as it presently       exists,    is a private        road with a 20 foot
right-of-way      cutting      across the northern        edge of Defendants'       properties   and
providing     Defendants       with access     to their     properties      from Wetzel Run Road.
The condition        and width of Meyers Drive is vastly                 improved from the narrow
dirt    farmers'      lane existing      prior    to 1940 on which Plaintiffs            base their
claim for a prescriptive            easement.       Nevertheless,      for ease of reference,     we
frequently     refer     in this opinion to the disputed          area as being Meyers Drive.

                                              [FN-6-16]
                                                    2
part of a       68    acre tract of        land owned by John Homer Gerhard

("Homer")    and that Plaintiffs' properties were all part of a 40

acre    tract        of   land    owned     and      farmed    by   Hattie     Gerhard

(''Hattie") .        This 40 acre parcel lies to the immediate east and

adjacent to the 68             acre parcel.         What is now known as Meyers

Drive is a private road which intersects Wetzel Run Ori ve near

the northwest corner of the 68 acre tract and crosses the entire

width of this 68          acre tract along its northern boundary line

where it ends at the western boundary line of the 40 acre tract.

This is all depicted in Appendix "A" attached to our June 26,

2015 Memorandum Opinion.

       An   easement      by     prescription       requires    proof   of    adverse,

open, notorious, continuous, and uninterrupted use of another's

land for a period of twenty-one years. With respect to these

elements, Plaintiffs established that a dirt path or road in the

same area where Meyers Drive is now located existed in the late

1930s along the edge of a farmer's field.                     This path was part of

a network with other dirt roads which existed along the edges of

farming fields on the 68              and 4 0       acre parcels, as      well as     on

surrounding properties. These roads were used for moving farming

equipment       between    fields    and    also by      the    farmers      and   their

families for traveling between properties and as shortcuts for

gaining access to public roads.                 We also noted in our Memorandum

Opinion that some of these roads were plowed under yearly, while

                                       [ FN-6-16)
                                            3
others,      such as Meyers            Drive, were more permanent                    in nature         "due

to     the       frequency         with       which          they      were        used      and      their

destination."            (Memorandum Opinion,                  p.4)

        We accepted           Plaintiffs'         evidence          that   since     the     late     1930s

until      the     present        time,       the        use    of     Meyers       Drive     has     been

continuous,           open,        visible,          and        uninterrupted.               (Memorandum

Opinion,       p.5).         We also      found,      however,         that   during        the twenty-

one year period              between     March      1,    1940,       and August       19,    1961,     the

owners       of the     68    and 40      acre tracts           were    related      to one another

and that        such relationship             raised       a presumption            that     the use of

Meyers       Drive by the          owner      of the       40    acre      tract    was permissive.

(Memorandum         Opinion,        p.12).2         Plaintiffs argue that we erred in

in examining this period, that by 1940 adverse usage of Meyers

Drive by the owners of the 40 acre tract for a period of twenty-

one      years       had       already         been        established,            and       that      once

2
    Plaintiffs      correctly       state      in their       Post-Trial        Motions     that     we erred
factually      on page 11 of the MemorandumOpinion in stating                           that     the 68 acre
tract    was acquired       by Homer's grandparents,               John and Mary Gerhard,             on March
1, 1940, and that they later                transferred       this    property     to Horner on November
10, 1941. In reviewing            the exhibits,          the 68 acre tract         was conveyed to John
Horner Gerhard and his wife, Mary R. Gerhard,                      by deed dated March 1, 1940 from
Coxe Brothers       & Company, Inc.,           not to Homer's grandparents,              John Gerhard and
Mary Gerhard.       (Plaintiffs       Exhibit      No. 20).      A second deed dated November 10,
1941,     from John Horner Gerhard                and his       wife,    as grantors,          conveys    this
property,      with other lands,          to John Homer Gerhard,             as grantee,       in Deed Book
Volume 133, page 129. (Plaintiffs                Exhibit     No. 5).
   While acknowledging          this    error,      it is immaterial         to the purpose          for which
it was cited,        that    the familial         relationships       between the owners of the 68
and 40 acre tracts           was indicative           of a permissive,         rather    than an adverse,
use.      Whether Horner' s grandparents               owned the 68 acre tract              for the period
between March 1, 1940 and November 10, 1941, or whether,                                 more accurately,
Homer first      acquired     ownership of the 68 acre tract                at an earlier         time, March
1, 1940, rather        than November 10, 1941, either                   way, both the 68 acre tract
and the 40 acre tract           were owned by relatives              of one another        during the same
time period referred          to in the MemorandumOpinion.

                                                 [FN-6-16]
                                                      4
established,       a   subsequent      familial        relationship         between    the

owners    of     the   properties      involved       would    not    extinguish       the

easement.        We agree with Plaintiffs' logic, but disagree that

the evidence supports the existence of a prescriptive easement

before 1940.

     Eugene Gerhard, Hattie Gerhard's son,                     testified that his

earliest recollection of the dirt road was when he was eight or

nine years old, and also that the road has been open and visible

since he was nine years old.                (N.T., 8/28/14, pp. 13,           40). Since

Eugene    Gerhard      was    born    on    June     19,    1928,    this     dates    his

recollection of the           road to       either    1936 or       1937.      At    best,

Eugene Gerhard's testimony points to the existence of the road

approximately four years before both tracts were owned by the

same family members.

     Eugene Gerhard's testimony did not establish how long the

road was in existence or when the use of this road by the owners

of the 40 acre tract began or under what circumstances:                             was it

adverse     or    permissive.        Nor    did    Eugene     Gerhard's       testimony

establish that the use of the road by the owners of the 40 acre

tract was        continuous, open,         visible, and uninterrupted               for a

period of at       least twenty-one years before 1940.                  To claim, as

Plaintiffs do,         that   the    road    existed and       was    being     used    by

Hattie's husband, Samuel Gerhard, as early as 1913, the year in

which he acquired ownership of the 4 0                     acre tract, is       at best

                                       [FN-6-16]
                                             5
optimistic speculation on Plaintiffs' part.                        It is not supported

by the evidence, especially when the nature and circumstances of

this   dirt    road    and   the    other dirt         roads with        which       it    was

connected is taken into account: the roads were located along

the edges of farmers' fields primarily to allow the farmers to

move their equipment from one field to another; the location of

these roads often changed as the fields were farmed each year,

at times being totally farmed under; and the roads were easily

created and just as easily torn up.

       Not only would it be inappropriate to presume that the use

of   Meyers    Drive     before     1940     was     adverse       and   hostile,         what

evidence was       presented       on   this    issue       is    contrary to      such      a

finding.      Specifically,    Eugene        Gerhard        testified       that   it      was

common at the time of his youth for adjoining property owners

and others in the neighborhood to work with one another and to

cross one another's property in                  getting from one location to

another    (N.T.      8/28/14, pp.18,        38,     78),        and that    Homer      often

crossed Hattie's property in going from one field to another,

and Eugene's family often crossed Homer's property in going from

one field to another. (N.T.             8/28/14, pp.85-86).              Eugene Gerhard

further testified that before Homer acquired the 68 acre tract

in 1940 on which Meyers Drive is located, the property was owned

by the Coxe Brothers, that his family rented this property from

Coxe Brothers and farmed it,             and that their use of the property

                                        [ FN-6-16]
                                             6
was    permissive.      (N.T.,         8/28/14,           pp.34,        41-42,          65,      68) .

Accordingly,    when    all       of   the    record         evidence         is       taken     into

account, not just that reproduced by Plaintiffs for their Post-

Trial Motions, we believe the weight of the evidence supports

and j usti fies our conclusion that a prescriptive easement was

not established.

                            Easement by Implication

       Plaintiffs also contend that we erred by not finding that

an easement by implication exists over Meyers Drive.                                    Plaintiffs

refer to the testimony of both Eugene Gerhard and Robert Selert

regarding    their     observations          of      what      they       believe        are      the

remnants of    an abandoned            road running east                 from the             present

course of Meyers Drive towards State Route 93.                                (N.T.,     8/28/14,

pp.21-24,   79-81,     91-93,      126-27,        129-33).            Eugene Gerhard also

testified that Homer told him that Meyers                              Drive at one time

extended as far east as Route 93.                         ( N. T. ,   8 I 2 8 / 14,    pp. 31-3 2) .

Plaintiffs also submitted into evidence deeds concerning their

properties and a map             of their properties and the surrounding

area from the 1885 Beers Atlas.                      Plaintiffs further argue that

Defendants presented no evidence to rebut their contention that

an easement by implication exists upon Meyers Drive.

       Plaintiffs    bore        the   burden        of      proving        an        easement      by

implication at trial.             In our Memorandum Opinion we determined

Plaintiffs did not meet this burden.                         We found that Plaintiffs

                                         [FN-6-16]
                                             7
had not proven the second element of an easement by implication:

that,    before    the   separation     of        title   of    properties          held   in

common    ownership, the use which                gives   rise to       the        easement,

shall    have     been   so   long   continued,           and    be    so     obvious       or

manifest, as to show that it was meant to be permanent.                                    See

Bucciarelli v.      Delisa, 691 A.2d 446,            449 (Pa.        1997).    As stated

on page 16 of our Memorandum Opinion:

            [The Plaintiffs'] evidence does not prove that at
            the time title [to the 68 and 40 acre tracts] was
            severed [in 1853], the critical point of our
            analysis,   there   existed   an  open,   visible,
            continuous and permanent use of Meyers Drive, or
            that such use was necessary to the beneficial
            enjoyment of the 40 acre tract. To the contrary,
            no evidence or testimony was presented as to how
            the 68 and 40 acre tracts were used in relation
            to one another - or even what use was made of
            these properties - by Dennis Bauman before the
            1853 conveyance to John Steiner.         Moreover,
            Plaintiffs'    contention    that  Meyers    Drive
            proceeded in an easterly direction to intersect
            with what is now State Route 93 is not supported
            by the credible evidence. See Plaintiffs Exhibit
            No.38 (1885 Beers Atlas) which, while depicting
            Wetzel Run Drive, contains no reference to Meyers
            Drive or any other public road at this location
            extending to State Route 93.

Additionally,       as   we   concluded       on     pages      22    and     23     of    the

Memorandum Opinion:

            As to proof that Meyers Drive existed when title
            to the subject properties was severed in 1853,
            there was no direct proof, and little indirect
            proof, and it defies common sense to believe that
            Meyers Drive at that time was part of a public
            road which extended several miles to the east and
            which was abandoned before the 1885 Beers Atlas
            was printed, which, it is argued, would explain

                                     [ FN-6-16]
                                          8
             why no reference    to this road appears   in                     the
             Atlas.    If this were the case, not only is                      the
             abandonment of the road inexplicable, it makes                     no
             sense that none of the deeds for the 68 and                        40
             acre tracts, which Plaintiffs    argue fronted                     on
             this road, include the road in their metes                        and
             bounds description or even make reference to                      the
             road.

After    reviewing     Plaintiffs   argument       on     this   issue,   we    see     no

reason to change our decision.

        Accordingly,    for the reasons         stated,    Plaintiffs'    Motion       for

Post-Trial    Relief has been denied.




                                     BY THE COURT:



                                                                                     P.J.




                                    [FN-6-16]
                                         9