Written by attorney James S. Tupitza

Creating an Easement Chapter 6 Easement by Prescription pt 3

  1. Relocation – "[T]here is no per se prohibition against a landowner relocating a prescriptive easement unless such action completely denies the easement holder the intended use of the original easement. [cite omitted]. Rather, courts employ the test of whether the relocation will unreasonably interfere with the easement holder's use and enjoyment of his right of way. [cite omitted]. What constitutes unreasonable interference on the part of the servient owner depends upon the owner and his desired use, as well as the disadvantage to the owner of the easement. [cite omitted]. Our court has indicated that it would permit a servient estate to relocate a prescriptive easement where the resulting easement is as safe as the original location, the relocation results in a relatively minor change, and landowner's reasons for moving the easement are substantial." Soderberg v. Weisel, 455 Pa. Super. 158, 687 A.2d 839 (1997), citing Palmer v. Soloe, 411 Pa. Super. 444, 601 A.2d 1250 (1992).

  2. Extinguishment

a. A prescriptive easement is extinguished in the same manner as any other type of easement (i.e., in the same manner as an easement by either grant, implication, exception or reservation).

b. An easement “created by prescription could not be terminated for mere non-use and the party seeking to terminate another's right to use the easement must present evidence demonstrating some conduct by the holder of the right that manifests his intent to abandon and permanently terminate his right to use the easement." Sabados v. Kiraly, 258 Pa. Super 532, 393 A. 2d 486 (1978) and Croyle v. Dellape, 2003 PA Super 328, 832 A.2d 466, (2004)

  1. Special Rules : Unenclosed Woodlands

a. A prescriptive easement cannot be acquired through unenclosed woodlands. 68 P.S. § 411; Martin v. Sun Pipe Line Co., 542 Pa. 281, 666 A.2d 637 (1995); Humberston v. Humbert, 267 Pa. Super. 518, 407 A.2d 31 (1979).

b. Even where a right-of-way runs through improved land as well as unenclosed woodlands, 68 P.S. § 411 nonetheless applies to preclude the property owner from claiming the right to any easement by prescription. Trexler v. Lutz, 180 Pa. Super. 24, 118 A.2d 210 (1955), (citing Kurtz v. Hoke, 172 Pa. 165, 33 A. 549 (1896)).

  1. Tacking It has been held that in order to tack a predecessor's prescriptive use, a conveyance of the property to the claimant is all that is required, not a written instrument or reference in the deed to the inchoate right. This is because easements pass by conveyance of the estate to which they are appurtenant. Predwitch v. Chrobak, 186 Pa. Super. 601, 142 A.2d 388 (1958); Partidge v. Ruttenberg, 54 Del. Co. 334 (1967) Matakitis v. Woodmansee, 446 Pa. Super. 433, 667 A.2d 228 (1995). However in light of the decision of the Supreme Court in Baylor v. Soska, 540 Pa. 435, 658 A.2d 743 (1995), caution must be exercised. While it may be true that easements pass with title to the land to which they are appurtenant, there is no authority to support the contention that an unripened claim to an easement must be afforded the same treatment. The Supreme Court almost addressed this issue in 1998 when they agreed to hear an appeal where the framed issue was whether or not the holding in Baylor v. Soska, supra. regarding the necessity of privity for tacking also applied to prescriptive easements. Unfortunately, before the matter could be decided the appeal was dismissed as improvidently granted.

  2. Use --- “A prescriptive easement, once acquired, may not be restricted unreasonably by the possessor of the land subject to the easement." Palmer v. Soloe, 411 Pa.Super. 444, 601 A.2d 1250 (1992).

  3. Expansion “the degree of use of a prescriptive easement may increase in certain circumstances to accommodate the normal evolution of the dominant tenement where reasonable[.] but “[t]he extent of an easement created by prescription is fixed by the use through which it was created."" Hash v. Sofinowski, 337 Pa.Super. 451, 487 A.2d 32, 36 (Pa.Super.1985) that “any changes in the use of a prescriptive easement cannot result in an unreasonable increased burden on the servient estate and … the increase in use must be reasonably foreseeable at the time the easement is established."

“any changes in the use of a prescriptive easement cannot result in an unreasonable increased burden on the servient estate and ••• the increase in use must be reasonably foreseeable at the time the easement is established." Hash, 487 A.2d at 35.

  1. Conversion -- “our courts have uniformly declined to accept conversions from private residential use to commercial use as “normal evolution" of the dominant tenement." McGavitt v. Guttman Realty Co --- A.2d ----, 2006 WL 2474343 (Pa.Super.), 2006 PA Super 242.

  2. Trees.

a. “Encroaching tree parts, by themselves, do not establish “open and notorious" use of the land. Neither roots below ground nor branches above ground fairly notify an owner of a claim for use at the surface." Koresko v. Farley 844 A.2d 607 Pa.Cmwlth.,2004.

b. “(E)ncroaching tree limbs are a trespass which a property owner may remove." Jones v. Wagner, 425 Pa.Super. 102, 624 A.2d 166 (1993)

  1. Air and Light. “(T)he known presence of windows near a lot line does not create a prescriptive easement for light and air." Maioriello v. Arlotta, 364 Pa. 557, 73 A.2d 374 (1950).

(c) James S. Tupitza 2010

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