Land Use; Private Road Act
In re Petition of Adams, 170 A.3d 584 (Pa. Cmwlth. 2017), allocatur granted March 27, 2018, appeal docket 9 MAP 2018
A Board of View convened by order of the 44th Judicial District (Sullivan County) recommended that one landowner (Adams) be granted the right to use an existing private road, across the property of an adjacent landowner (Corl), because it fulfilled the two statutory requirements. First, the right to use the road was necessary to allow Adams to use his land. Second, allowing use of the private road would serve a public purpose because (a) the private road was constructed to access a Marcellus Shale wellpad on Corl’s property, and natural gas benefits the public; and (b) Adams has a cooperative agreement with the Game Commission to allow hunters to use Adams’ property for hunting and to access it through the private road. The trial court agreed and the Commonwealth Court affirmed.
The Private Road Act authorizes a landowner to petition for the use of, or the creation of, a private road across another’s land to access his property. In re Opening Private Road for Benefit of O’Reilly, 5 A.3d 246, 284 (Pa. 2010). Section 12 of the Private Road Act states as follows:
If it shall appear by the report of the viewers to the court directing the view, that such road is necessary, the said court shall direct what breadth the road so reported shall be opened, and the proceedings in such cases shall be entered on record, as before directed, and thenceforth such road shall be deemed and taken to be a lawful private road.
36 P.S. §2732 (emphasis added). The standard for granting a private road petition is a finding that “such road is necessary.” Id. “Necessary” is not defined in the Private Road Act. The case law reveals that necessity does not require the property to be “completely landlocked,” but necessity is more than “mere inconvenience.” Moreover, a Board of View has broad authority to determine whether a private road is necessary.
As to public purpose, the Supreme Court has found that a public purpose exists where the public is the “primary and paramount beneficiary of the taking” associated with the opening of a private road. In re Opening Private Road for Benefit of O’Reilly, 5 A.3d 246, 284 (Pa. 2010), citing Middletown Township v. Lands of Stone, 939 A.2d 331, 337 (Pa. 2007).
In this case, the Board of View found, and the trial court agreed, that Adams had a necessity to use the private road because his land is effectively landlocked:
In the opinion of the Board of View, the Petitioners’ land is effectively landlocked due to the fact that the only other means of access to their land that was identified to the Board would be by way of an approximately one mile long unimproved logging trail located off of Star Road that involved an extremely steep upward and winding 1000 foot incline to the crest of the Petitioners’ land. Access via Star Road was personally observed by the Board to be significantly more narrow and inhospitable than the route from Holly Hill Road to the Roadway, and in the opinion of the Board the cost of improvement of the logging trail to allow for the safe and reliable transit of vehicular traffic to and from the Petitioners’ land would be prohibitively expensive and arduous for the Petitioners to have effectively and efficiently constructed and would not be financially feasible or cost-effective. Consequently, unless an appropriate alternate means of access is identified, the Board is of the opinion that the Petitioners’ land is indeed landlocked and otherwise inaccessible to the Petitioners for their stated use and purpose.
Slip op. at 6.
The Commonwealth Court agreed with the Board and the trial court.
As for public benefit, the Commonwealth Court likewise affirmed the findings of the Board and the trial court:
The Board found a public purpose for the opening of the Roadway. It relied upon Westrick v. Approval of Bond of Peoples Natural Gas Co., 520 A.2d 963, 965 (Pa. Cmwlth. 1987), which held that the transportation and supply of natural gas constitutes a public use. The Board also noted that a taking does not lose its public character merely because a “private interest may also be benefited.” Belovsky v. Redevelopment Authority of Philadelphia, 54 A.2d 277, 283 (Pa. 1947). The trial court agreed with the Board’s public purpose analysis. It also found that the Roadway will provide a public benefit because the Adamses have entered into a Public Access Program Cooperative Agreement with the Game Commission that will give hunters access to the Adamses’ property.
Slip op. at 15-16.
Judge Hearthway dissented, disagreeing on both points. She would have found a lack of necessity and that Adams failed to prove that the public is the primary beneficiary of the private road sought to be opened.
The Supreme Court has granted allocatur to decide the following issues, as stated by petitioner Corl:
(1) Whether the private road act compels another land owner to open up his private land to allow an adjoining landowner access to a specific desired portion of his or her property when that landowner already has access to his property?
(2) Whether the Respondents established that the public is the primary and paramount beneficiary of the opening of the private roadway over the petitioner’s property?
(3) Did the Commonwealth Court of Pennsylvania abuse its discretion in affirming the lower court’s decision in dismissing Petitioner’s exceptions to supplemental report of the board in that the report stated that the Petitioner’s land was “essentially land locked” when the record demonstrated ready access to same was available via Star Road, an abandoned township road?
(4) Did the Commonwealth Court of Pennsylvania abuse its discretion in affirming the lower court’s decision in dismissing [Petitioner’s] exceptions to supplemental report of the board in that the access recommended by the board of view over [Petitioner’s] land was clearly not of primary benefit to the public as required by law?