Easement by Necessity; Impossibility of Alternative Access
Bartkowski v. Ramondo, 2018 WL 495213 (Pa. Super. 2018) (unreported), allocatur granted Oct. 16, 2018, appeal docket 60 MAP 2018
The Pennsylvania Supreme Court granted allocatur to review a Superior Court decision holding that the trial court properly concluded that the Ramondos failed to establish the elements needed to find an easement by necessity for the use of a driveway on the Bartkowski’s property. Senior Judge Platt wrote the majority opinion, joined by Judge Lazarus. Judge Bowes filed a concurring and dissenting opinion. The majority opinion recited the following facts:
On July 16, 1991, the Ramondos purchased their property (the Ramondo Property). “The Ramondo Property is a ‘flag lot,’ meaning there is a [twenty-five] foot wide strip of land fronting Garrett Mill Road (the ‘pole’), which extends approximately 600 feet [before] reaching the main portion of the Ramondo Property (the ‘flag’). The Ramondo Property is approximately 5.62 acres.” The Bartkowskis bought the partially adjacent property (the Bartkowski Property) on December 11, 2012. “The Bartkowski Property is also a ‘flag lot’ with a [twenty-five] foot wide pole. The Bartkowskis’ pole runs adjacent to the Ramondos’ pole [and the Bartkowski Property] is approximately 5.25 acres.”
The two properties once were owned by common grantors, Adrian and Margaret Teaf (the Teafs). The Teafs filed a third revised subdivision plan on August 9, 1967. The plan shows what would become the Bartkowski Property, the Ramondo Property, and a third property owned by the Coulstons (the Coulston Property).
On April 19, 1968, the Teafs conveyed what is now the Bartkowski Property to the Herbert C. Mansmann and Margaret M. Mansmann (the Mansmanns); and they built their home in 1969. The Mansmanns and all subsequent owners of the future Bartkowski Property shared a driveway with the Coulstons. The Mansmanns still lived there when the Ramondos moved in. At the time the Ramondos purchased the Property in 1991, it was a vacant wooded lot. In April 1992, the Ramondos began construction of a home on their Property. They had their neighbors, the Coulstons and the Mansmanns, walk the property to see if they objected to the proposed placement of the driveway, which was partially through the pole of the Bartkowski Property, then owned by the Mansmanns. The Mansmanns said that they did not care because they shared a driveway with the Coulstons on the other side of their property, as all owners of the Bartkowski Property have done since that time. The Mansmanns did not execute and record a formal easement. Subsequently, the Ramondos’ driveway (the Driveway) was installed. It “extends approximately halfway up the Bartkowskis’ pole before turning back into the Ramondos’ pole and ultimately toward the Ramondos’ home.” The Driveway is constructed where it is “because of a stream, flood plain, steep slope and utility pole, all of which were in place when the Ramondos purchased their property.” The Ramondos have accessed their home via the Driveway since its completion in 1993.
On August 16, 2003, the Mansmanns conveyed the Bartkowski property to F. Ramondo, Inc. Frank Ramondo is president of the corporation, and Kenneth Ramondo, Appellant herein, is vice-president. F. Ramondo, Inc. conveyed the property to the Biancos on May 2, 2007. Frank Ramondo was the signatory on the transfer. The Biancos conveyed the property to the Bartkowskis on December 11, 2012. When the Bartkowskis purchased their Property, they were aware that the Ramondos used the Driveway to access their home. They also knew that their predecessor owner had used the Coulstons’ driveway to access the Bartkowski Property, and that they had an easement over the Coulston driveway allowing them to use it to access their home.
In the summer of 2013, the Bartkowskis approached the Ramondos about the Driveway’s encroachment on their Property. On June 30, 2015, the Bartkowskis’ attorney sent the Ramondos a cease and desist letter. Daniel Malloy, the Ramondos’ civil engineer, authored a report in which he opined “that due to the amount of regulatory relief and permitting that would be required to overcome Township and [Department of Environmental Protection (DEP)] restrictions . . . construction of a new driveway within the Ramondos’ pole is all but impossible [and] the cost . . . is prohibitive.” The Bartkowskis’ civil engineer, Denny L. Howell, P.E., issued a rebuttal report in which he concluded that the engineering and zoning requirements to relocate the Driveway are feasible.
On July 16, 2015, the Bartkowskis filed an action in ejectment and trespass against the Ramondos, alleging that the Ramondos improperly constructed the driveway on the Bartkowski Property to access their home. On July 31, 2015, the Ramondos filed a counterclaim against the Bartkowskis, alleging that, even if they are not record owners of the disputed area, they have acquired ownership by adverse possession (count I), the doctrine of consentable lines (count II), or have an easement by prescription (count III), necessity (count IV), or implication (count V). The parties agreed to forego a trial, and instead submitted a stipulated record and memoranda of law to the trial court. On September 19, 2016, the court found in favor of the Ramondos on count V, easement by implication, and against them on their other counts. Based on this finding, it found against the Bartkowskis on their action in ejectment and trespass. Both parties filed post-trial motions that the court denied. The Bartkowskis appealed and the Ramondos cross-appealed.
Slip op. at 2-6 (record citations and footnotes omitted).
Before Superior Court, the Bartkowskis argued that there was insufficient evidence to support an easement by implication because there was no common grantor of the parties’ land parcels at the time the Ramondos installed the Driveway, and because there was insufficient necessity where the evidence demonstrated that the Ramondos did have road access through their own property.
The Ramondos in turn argued that the trial court erred when it failed to find an easement by necessity where there were no other feasible means to reach their property and where it held that there was insufficient evidence to grant title of the Driveway to them via the doctrine of consentable lines.
The majority addressed the Bartkowski’s issues first. As to their argument that there could be no easement by implication, the majority held that the trial court erred when it found sufficient unity of title:
While we agree that there was a unity of ownership by the Teafs when they subdivided their property and created the Bartkowski and Ramondo Properties in 1967, we are constrained to disagree with the trial court’s finding that there was a second severance when F. Ramondo, Inc. sold the Bartkowski Property to the Biancos.
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In this case, although . . . Kenneth Ramondo is the vice-president of F. Ramondo, Inc., he and the corporation are separate entities. The August 16, 2003 deed from the Mansmanns identifies only F. Ramondo, Inc. as the grantee, and the deed to the Biancos identifies the corporation as grantor, and is signed by Frank Ramondo. In other words, F. Ramondo, Inc. owned and then sold the Bartkowski Property and Kenneth and Therese-Cecilia Ramondo held title to the separate, previously-severed Ramondo Property. Accordingly, we are constrained to conclude that the trial court erred when it found that one entity held both properties in unity and then severed them to sell one of the parcels. Based on the title history of the two properties, the last time they were held in unity was in 1967 when they were part of the Teafs’ parcel, which did not contain the Driveway.
Therefore, the second prong of the test for an easement by implication is not met where, “before the separation [took] place, the use which gives rise to the easement, [was not] so long continued, and so obvious or manifest, as to show that it was meant to be permanent[.]” Hence, we are constrained to conclude that the trial court committed an error of law when it found that the Ramondos established an easement by implication.
Slip op. at 10-11 (citations omitted).
As to the Ramondo’s claims, the majority agreed with the trial court that although the evidence established that building the Driveway solely on the Ramondo’s property would be difficult and expensive, it still could be done. Hence the easement by necessity claim was properly denied. The majority also found that the trial court’s finding that the Driveway did not serve as a boundary line was supported by credible evidence and that the court thus properly denied the Ramondo’s claim based on acquiescence or the doctrine of consentable lines. On that basis, the majority vacated the trial court’s judgment to the extent it found an easement by implication, remanded for consideration of the Bartkowski’s claims for ejectment and trespass, and otherwise affirmed.
Judge Bowes concurred with the majority’s reasoning on consentable lines but dissented on the basis that the trial court committed an abuse of discretion in rejecting the Ramondo’s position that they enjoy an easement by necessity over the portion of the Bartkowski’s pole that the Ramondos have utilized since 1992. Judge Bowes would so hold based on her conclusion that the evidence establishes that the lower portion of the Ramondo’s pole leading to Garretts Mill Road is virtually unusable.
The Ramondos petitioned the Supreme Court for review which the Court granted on the following issue, condensed from the several stated by the Ramondos and reformulated for clarity:
Must a landowner prove impossibility of alternative access arising from zoning and regulatory prohibitions or otherwise to establish an easement by necessity?