Fortney v. Bell Telephone
Fortney v. Bell Telephone
Opinion of the Court
This appeal comes to us from the lower court’s order sustaining appellees’ preliminary objections in the form of a demurrer to appellant’s complaint. For purpose of this appeal, we must accept as true the facts averred in appellant’s complaint and we accord him all the inferences reasonably deductible therefrom. Allstate Insurance Company v. Fioravanti, 451 Pa. 108, 299 A.2d 585 (1973); Barto v. Felix, 250 Pa.Super. 262, 378 A.2d 927 (1977); Stringert & Bowers,
Appellant Fortney, t/d/b/a Fortney’s Garden Center is engaged in the business of landscaping and buying and selling Christmas trees at 5329 East Trindle Road in Mechanicsburg, Cumberland County, Pennsylvania. The record owners of these premises are the trustees of the Penn Central Transportation Company, who leased the land to one Harry E. Cupp, who in turn subleased to Fortney, during the time in question. Appellant’s property does not directly abut East Trindle Road, but is separated therefrom by a narrow strip of land, the ownership of which is not plead.
In 1976, appellee Bell Telephone, a public utility, contracted with appellee Counties Contracting and Construction Company to lay a conduit along East Trindle Road in front of appellant’s business. Work began October 15, 1976 and was completed about two months later. During this time, Counties intermittently blocked access to the Garden Center by placing equipment, barriers, and other construction forms along the road surface fronting appellant’s business. In addition, these obstructions shielded the Garden Center from the view of passersby on the road, “thereby creating an impression that no business was being carried on at [Fortney’s] place of business.” At divers times, Fortney requested the construction crews to remove their equipment from in front of the Garden Center, to no avail. When injunctive relief was threatened, the obstructions were finally removed, but not before appellant incurred substantial losses in business and good will which were the subject of the instant lawsuit initiated by Fortney on March 9, 1978.
Throughout the proceedings below, appellant pursued the theory that his rights as an owner of land abutting a road
The relative rights of the public and abutting landowners
The term “abutting property” implies property which actually adjoins another property or a highway. Petition of City of Pittsburgh, 82 Pa.S. 8 (1923); 25 P.L.E. Municipal Corporations, § 369 p. 597. In another context, the legislature has defined abutting property as “any property physically adjoining [a] street . . .” Borough Code, Act of February 1, 1966, P.L. (1965) 1656, No. 581, § 111 (53 P.S. § 45111). Appellant Fortney concedes his property does not physically adjoin, is not contiguous at any point to, East Trindle Road, but asks us to extend the abutter’s right of access to him. This we decline to do. As enunciated in Breinig, supra, these rights arose as a unique concomitant of ownership of land adjoining a highway and have never been shared by the general public. Courts of other jurisdictions have likewise declined to extend an abutter’s right of access to one whose land does not adjoin at any point the road surface. See, e. g., Farnsworth v. Soter’s, Inc., 24 Utah 2d 199, 468 P.2d 372 (1970) (owner’s land separated from edge of road by 10-14 foot strip of land); State v. Fuller, 407 S.W.2d 215 (Tex., 1966) (owner’s land separated from road by railroad tracks). As a landlocked property owner, the abutter’s rights do not accrue to appellant Fortney and this ground for his claim must fail.
Appellant advances an alternate theory of recovery grounded in tort liability and refers us to Restatement, Second, Torts, § 435(1):
If the actor’s conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm*581 or the manner in which it occurred does not prevent him from being liable.
A review of the record reveals that this particular contention was not posited by appellant at any time during the proceedings below. Fortney’s theory of recovery was consistently grounded in his alleged status as an abutting property owner and it is this issue which was briefed extensively by both parties below and provided the basis for the court’s decision. Clearly, a cause of action founded in tort and the Restatement has not been preserved for our review. See, Commonwealth v. National Federation of the Blind, 471 Pa. 529, 370 A.2d 732 (1977); Wenzel v. Morris Distributing Company, 439 Pa. 364, 266 A.2d 662 (1970); Corabi v. Curtis Publishing Company, 437 Pa. 143, 262 A.2d 665 (1970).
Order affirmed.
. In briefs filed with the lower court, appellant-plaintiff averred that railroad tracks run along this narrow strip and are owned by the Penn Central.
. In his original complaint, Fortney alleged that he possessed an easement by necessity across the narrow strip of land to the roadway and that appellees’ conduct constituted, inter alia, an interference with the easement. In his amended complaint, Fortney abandoned his easement theory.
. Fortney is, of course, not a landowner of the premises in question, but only a sublessee. In view of our disposition of this case, we need not decide whether he can properly enforce an abutting landowner’s rights. A lessee’s capacity to bring suit on such a theory has been upheld in other jurisdictions. Iowa State Highway Commission v. Smith, 248 Iowa 869, 82 N.W.2d 755 (1957); Royal Transit v. Village of West Milwaukee, 266 Wis. 271, 63 N.W.2d 62 (1954).
. Fortney’s complaint also alleged the conduct of appellees obstructed the view of his business from the roadway and that passersby
Reference
- Full Case Name
- Clarence FORTNEY, t/d/b/a Fortney's Garden Center v. BELL TELEPHONE OF PENNSYLVANIA and Counties Contracting and Construction Company
- Cited By
- 2 cases
- Status
- Published