In Re: Petition of B. Adams & J. Adams, h/w
In Re: Petition of B. Adams & J. Adams, h/w
Opinion of the Court
In this appeal by allowance, we consider whether Appellees, Burton R. Adams and Joanne M. Adams, demonstrated that opening a private road over the property of Appellant, James M. Corl, was necessary under the Private Road Act, 36 P.S. §§ 2731 - 2891 (Act). We conclude the Adamses have not demonstrated necessity as a matter of law based on their contemplated future use of their property, when, as in accordance with the Act, necessity must be based on the existing use of the property. Accordingly, we reverse the Commonwealth Court's order affirming the trial court's confirmation of the Board of View's (Board) report recommending the grant of a private road in favor of the Adamses.
In 1967, the Adamses purchased a one-half interest in a parcel in Sullivan County from Mr. Adams's uncle.
However, the Adamses own two adjacent properties bordering the subject parcel on the north at the foot of the steep side of the mountain (parcel numbers 02-094-0001 and 02-080-0003). Through parcel 02-094-0001, the Adamses have had access to the subject parcel from the north via Star Road. From Star Road, an unimproved dirt road travels west. This road was once a township road but was abandoned *1006and reverted to a private road. The Adamses' parcel 02-080-0003 lies on one side of this now-private road. N.T., 7/24/15, at 27-30, 44. The now-private road then enters the Adamses' parcel 02-094-0001 and connects with an unimproved logging skid road at the base of the mountain on the northern side of the subject parcel. This logging road is approximately a mile long and has a 1,000-foot elevation change as it travels straight up to the top of the mountain. Using this access point, Mr. Adams has hunted on the property all his life by walking from the bottom up the mountain. Id. at 31-32. However, Mr. Adams estimated that improving this logging road to facilitate vehicular access up the mountain road would cost "over hundreds of thousands of dollars." N.T., 7/24/15, at 24.
To the west and south, the Adamses' parcel borders property owned by Appellants William Dittmar and James M. Corl (collectively, Corl).
Where Holly Hill Road ends, an unpaved and unimproved travelway begins. This travelway is maintained by Chesapeake Oil & Gas Company (Chesapeake), pursuant to access agreements with Corl and the Adamses. Supplement to Report of the Board of View at 4-5. For the right to construct and use this travelway, Chesapeake paid Corl and the Adamses $5.00 per foot of road. Id. at 5 n.4. Presumably, the road, labelled "TA Burts Lane" on the Sullivan County tax map, was constructed by agreement of the parties to provide access to a well pad to accommodate the extraction of natural gas inuring benefits to both parties. From the end of Holly Hill Road, the 22-foot wide Chesapeake travelway runs east 2,136.29 feet (½ mile) over Corl's property, then it enters the Adamses' parcel, continues southeast for approximately 3,387 feet over the Adamses' parcel, and enters other land Corl owns (parcel number 02-080-0002) where Chesapeake's natural gas well pad is located. Id. ; N.T., 7/24/15, at 17-18. The 2,136.29-foot portion of the travelway on Corl's property is the subject of this case. Chesapeake has a right of way over the entire travelway for as long as the gas pad is active, and Chesapeake's subcontractors use the road daily for drilling activity. Id. at 13.
After Chesapeake completed the travelway, Corl permitted the Adamses to access the 2,136.29-foot portion of the travelway (Roadway) that connects Holly Hill Road with the portion of the Chesapeake travelway on the Adamses' property. Id. at 15. However, after approximately two and one-half years, Chesapeake installed two gates on the travelway at Corl's request which discontinued the Adamses' access to the Roadway.
The Adamses intend to build a house or a cabin for seasonal use on top of the mountain in the northeastern portion of their parcel to take advantage of the scenic *1007views. N.T., 7/24/15, at 22, 40.
§ 2731. Proceedings to open private roads
The several courts of quarter sessions shall, in open court as aforesaid, upon the petition of one or more persons ... for a road from their respective lands or leaseholds to a highway or place of necessary public resort, or to any private way leading to a highway, ... direct a view to be had of the place where such road is requested, and a report thereof to be made[.]
36 P.S. § 2731. Further, "[i]f it shall appear by the report of 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 thenceforth such road shall be deemed and taken to be a lawful private road." 36 P.S. § 2732.
On April 2, 2013, the trial court appointed a Board of View (Board) to determine the necessity of granting access to the Roadway to the Adamses. The parties agreed the Board would make its decision based on a site view alone, without an evidentiary hearing. Report of the Board of View, 2/24/14, at ¶ 4. On November 18, 2013, the Board conducted a site visit with the Adamses, Mr. Dittmar, and counsel for both parties. Id. at ¶ 3.
On February 24, 2014, the Board submitted its report, concluding the Adamses "should be granted unlimited access over and upon [Corl's] land for the stated purpose of constructing and residing in a one-family residence to be constructed upon [the Adamses'] land." Id. at ¶ 6. The Board found that the Adamses sought access to the Roadway on Corl's land to build a residential home and "provided no timeframe for such construction." Id. at ¶ 5(d). The Board further found the Adamses land was "effectively landlocked" because the alternative access up the logging trail off of Star Road was "extremely steep[,]" was "more narrow and inhospitable than the Roadway," and would be "extremely expensive and arduous" for the Adamses to improve. Id. at ¶ 5(f). By comparison, the Board found the Roadway was "the shortest, safest, most convenient, accessible and reliable current means of access, which will result in no discernible injury to [Corl's] Property." Id. at ¶ 5(i) (relying on the factors articulated in In re Laying Out & Opening a Private Rd. in Sullivan Twp., Tioga County ,
*1008On April 28, 2014, Corl filed exceptions to the Board's report, and the trial court remanded the matter to the Board for an evidentiary hearing. At the July 24, 2015 hearing, Mr. Adams was the only witness. Thereafter, the Board issued a supplemental report on August 31, 2015, in which it again concluded the Adamses should be granted access to the Roadway. Supplement to Report of the Board of View, 8/31/15, at ¶ 23. In addition to its prior finding that the Roadway was necessary because the Adamses' parcel was "effectively landlocked," the Board found the public was benefited by Corl allowing Chesapeake to use the Roadway to generate natural gas for public consumption. Id. at ¶¶ 12(h), 16, 19 (distinguishing In re Opening a Private Rd. for the Benefit of O'Reilly ,
In its opinion in support of its order overruling Corl's exceptions to the Board's report, the trial court concluded the Adamses demonstrated access to the Roadway was necessary. Trial Ct. Op., 6/20/16, at 4. Specifically, the trial court explained that its own site view revealed that the access to the mountaintop via the logging road off of Star Road "contains an extremely steep upward and winding one thousand (1000) foot incline to the crest of [the Adamses'] land." Id. Based on this, the trial court agreed with the Board that the Adamses' parcel is "in fact, landlocked." Id.
Additionally, the trial court concluded the opening of the Roadway as a private road for the Adamses would benefit the public in two ways. Id. at 5. First, the court held that Corl "created a public use for their once private roadway" by providing Chesapeake with unlimited access to the Roadway. Id. According to the trial court, the transportation and supply of natural gas is a public use. Id. (citing Westrick v. Approval of Bond of the Peoples Natural Gas Co. , 103 Pa.Cmwlth. 578,
On appeal, Corl challenged both the necessity of the Adamses' access to the Roadway, given they can currently access their parcel from Star Road, and the public purpose of opening the Roadway to enable the transportation of natural gas. In re Petition of Adams ,
*1009On the issue of necessity, the court noted that pursuant to the Private Road Act a landowner may open a private road across another's land upon a finding "that such a road is necessary." Id. at 590 (quoting 36 P.S. § 2732 ). Because the Act does not define "necessary," the Commonwealth Court relied on judicial interpretation that "necessity does not require the property to be 'completely landlocked,' but necessity is more than 'mere inconvenience.' " Id. at 591 (quoting Application of Little ,
Applying case law, the Commonwealth Court concluded the Board's decision to open a private road based on necessity was not an abuse of discretion.
It seems so basic as to require no extended discussion that the necessity be a present one. Contemplated necessities, grounded as they are in but a present opinion of what the future will require, are the weakest kind of material upon which to build a determination that would compel the taking of one [person]'s land for the use of another[.]
The Commonwealth Court rejected Corl's reliance on Little to argue that the Adamses demonstrated only a "mere inconvenience," and not a necessity, because they can access their property via Star Road and are not landlocked. Adams ,
The Commonwealth Court then discussed Sullivan Township , in which the trial court, based on the board of view's recommendation, opened a private road in favor of Hilltop Hunting Club, Inc. (Hilltop) over the land of Tri-County Sportsmen's Club (Tri-County). See Sullivan Twp. ,
Here, the Commonwealth Court analogized Sullivan Township and concluded it was dispositive. Adams ,
Next, the court analogized this case to In re Private Road in Union Township , 148 Pa.Cmwlth. 522,
In its appeal to the Commonwealth Court, the Club asserted res judicata and collateral estoppel barred the landowners from petitioning to open a private road because the trial court had previously denied an easement by necessity.
Here, the Commonwealth Court found Union Township supported the Board's decision because the Adamses faced a similar topographical impediment to accessing the mountainous portion of their parcel, and the Board found the cost of improving the steep logging trail leading to the top of the mountain was prohibitive. Adams ,
On the second issue, the Commonwealth Court recognized that, in addition to establishing necessity, an order to open a private road must be shown to serve a public purpose.
In a dissenting opinion, Judge Hearthway disagreed that the Adamses demonstrated either the necessity of a private road or its public purpose. Id. at 595 (Hearthway, J., dissenting). On the issue of necessity, Judge Hearthway highlighted Mr. Adams's testimony that he was able to access the parcel below the mountain from Star Road, and he had walked up the mountain to the top of his property. Id. at 596-97. Based on this fact, she distinguished Sullivan Township because the board in that case found that alternative access did not permit the landowner to access any portion of the property. Id. at 598. Similarly, she found Union Township was not applicable because in that case half of the property was truly landlocked, and necessity was not at issue. Id.
*1012Instead, Judge Hearthway likened this case to Mazzante v. McClintock ,
While the Adamses may be entitled to access to their property, they are not entitled to the access of their choice. The Board overlooked the Adamses' admitted access to their property via Star Road, and instead, focused on the access across their property via the logging trail to the crest of their property. The Board evaluated whether the Adamses have access over their property to a specific portion of their property, rather than determining whether a private road is necessary for access to the Adamses' property. Such misplaced focus constitutes an error of law and an abuse of discretion.
Adams ,
On the issue of public purpose, the dissent concluded the record was insufficient to support a finding that opening the Adamses' parcel to hunters was a public purpose because the Board deemed the evidence irrelevant because the Adamses did not enroll their property in the Game Commission's program until 22 months after filing their petition to open.
We granted allowance of appeal to consider whether the Act authorizes the opening of a private road when the petitioning landowner already has access to his property and whether a public purpose exists to support opening the Roadway. In re Petition of Adams ,
To open a private road, the petitioner must demonstrate both that the road is necessary and that opening it will serve a public purpose. O'Reilly ,
In response, the Adamses maintain the Board properly exercised its discretion in deciding that a private road was necessary. Adamses' Brief at 16. They note the Board found their parcel was "effectively landlocked" because the only other access to the top of the mountain was the unimproved logging trail with a 1,000-foot elevation change.
Based on these facts, the Adamses argue that Pennsylvania law supports the Board's finding of necessity to open the Roadway. Id. Applying Little , the Adamses maintain necessity exists when a property is not landlocked, but other access is "extremely difficult and burdensome." Id. at 18. They analogize this case to Sullivan Township because the logging trail is not a feasible access point due to the steep incline, and the alternate access over the Roadway employs an existing roadbed. Id. Similarly, the Adamses liken this case to Union Township because converting the logging trail to a useable road is cost prohibitive due to geographical features. Id. The Adamses contend that they demonstrated opening the Roadway was necessary because the Board found Star Road was "narrow and inhospitable," the logging trail was a steep route that was cost-prohibitive to improve, and accessing the boundary line is not meaningful access to the "usable portion" of the parcel. Id. at 18-19.
This case presents an issue of first impression for this Court, which is whether a landowner who has adequate access to their land for their current use of the property can demonstrate a private road is necessary for a different proposed future use. Our standard of review over such a question of statutory interpretation is de novo, and our scope of review is plenary. Speers Boro ,
*1014In this case, we conclude that a determination of necessity must be based on the present use of the property, where such a present use exists. In this regard, we agree with the Little Court's conclusion that the necessity must be a present one because a contemplated necessity does not meet the strictest necessity requirement of the Act. See Little ,
Here, the Board, the trial court, and the Commonwealth Court framed their analyses by looking at the necessity of the Adamses' future contemplated use of the property for a seasonal cabin. They concluded that the Adamses demonstrated necessity because the access from Star Road was inadequate to permit construction vehicles to access the mountaintop where the Adamses wanted to build the cabin. This was an error of law because a proposed use cannot form the basis of the necessity. See Little ,
Instead, the proper framework to evaluate necessity is to consider whether there is a present use for which the landowner cannot access the property. Proceeding from the premise that the current use must form the basis of the necessity shows the Commonwealth Court erred in concluding Sullivan Township is dispositive. In Sullivan Township , Hilltop could not access the cabin it had already constructed on its property, and alternative access routes were too burdensome. Sullivan Twp. ,
We find this case is analogous to Little in which the Superior Court concluded the landowner did not demonstrate strict necessity because "the present roadway which gives to appellant access to [a public road] is adequate for the present use and enjoyment of her land." Little ,
Based on these considerations, we reverse the orders of the Commonwealth Court and the trial court.
Justices Baer, Donohue and Dougherty join the opinion.
Justice Wecht files a concurring opinion in which Chief Justice Saylor and Justice Todd join.
The Adamses do not reside on this parcel; their residence is located elsewhere.
The parties did not provide any maps of the area. However, as the Commonwealth Court noted, searching for "Holly Hill Road, Dushore, PA 18614" on Google Maps (www.google.com/maps) provides an aerial view of the area; and a more detailed terrain view is available through Google's "Earth" program. In re Petition of Adams ,
After the Board of View's February 21, 2014 report, Mr. Dittmar conveyed his entire interest in the property to Mr. Corl. Trial Ct. Op. at 2 n.2.
The Adamses have keys to one of the gates, but they do not have keys to the other. N.T., 7/24/15, at 15, 37.
Mr. Adams acknowledged, "I could build a house a lot of places but I want to build it on top of the mountain." N.T., 7/24/15, at 33.
The Commonwealth Court majority found Mazzante inapposite because the board in that case did not find any facts, and the trial court decided to dismiss based on the pleadings. Adams ,
Due to our conclusion that the Adamses did not demonstrate necessity, we need not reach the issue of whether there was a public purpose to support the taking.
Concurring Opinion
I concur in the result. The Majority reverses on the basis that the Adamses' future intended use of the property is irrelevant to determining necessity under the Private Roads Act.
In In re Opening Private Road for Benefit of O'Reilly ,
it is not within the power of the Legislature to invest either an individual or a corporation with the right to take the property of a private owner for the private use of some other individual or corporation, even if a method is provided for ascertaining the damages and paying what shall be deemed just compensation.
The O'Reilly Court acknowledged that there is an "indirect benefit" to the public in opening a road for a private property owner because "otherwise inaccessible swaths of land in Pennsylvania would remain fallow and unproductive, whether to farm, timber or log for residences, making that land virtually worthless and not contributing to commerce or the tax base of this Commonwealth." O'Reilly ,
In the case before us, it is clear that opening the Chesapeake roadway to the Adamses primarily serves their interests. Any benefits to the public are tenuous and incidental, at best. Before the Board of View, Mr. Adams testified that he sought an opening of a private road in order to reach a portion of his property for the purpose of "build[ing] a house or a cabin on the corner where it has a good view." N.T., 7/24/2015, at 22. On cross-examination, when Mr. Adams was asked if the "need for access ... is so that you may construct a single family residential home on your land overlooking the valley below," Mr. Adams responded, "That's accurate...." N.T., 7/24/2015, at 32. The Board of View recognized as much when it concluded that the Adamses "should be granted the requested access over and upon [Corl's] land for the stated purpose of constructing and accessing a seasonal cabin...." Board of View Report, 8/31/2015, at 10. Based upon these admissions and the Board's findings, it seems clear that the "true purpose" of opening the Chesapeake roadway to the Adamses was to benefit the Adamses.
At different points in the proceedings below, the Adamses invoked two separate public purposes in order to justify opening the Chesapeake roadway. Neither of these established that "the public is the primary and paramount beneficiary." See O'Reilly ,
The Adamses next invoked the public purpose of allowing the public to hunt on their property. Mr. Adams testified that, on December 15, 2014, he entered into a "contract with the Pennsylvania Game Commission under the Safety Zone Program to allow ... the general public to hunt" on his property. N.T., 7/24/2015, at 19-20. I do not mean to foreclose the possibility that, under certain circumstances, opening a private road to allow for recreational hunting may be considered a public purpose. But such a proposed use must not be "post-hoc or pre-textual." See Middletown Twp. ,
We are required to analyze openings under the Act pursuant to principles of eminent domain. The Adamses, not the public, would be the primary and paramount beneficiaries of the opening of the Chesapeake roadway. I would reverse the decision of the Commonwealth Court on that basis.
Chief Justice Saylor and Justice Todd join this concurring opinion.
36 P.S. §§ 2731 -2891 ("the Act"). Under the Act, the owner of a landlocked property is permitted to petition the Court of Common Pleas for the appointment of a Board of View to evaluate the necessity of a private road to connect the property with the nearest public thoroughfare. See
U.S. Const. amend. V ("[N]or shall private property be taken for public use, without just compensation."); Pa. Const. art. 1, § 10 ("[N]or shall private property be taken or applied to public use, without authority of law and without just compensation being first made or secured.").
The O'Reilly Court stopped short of declaring the Act unconstitutional. However, the circumstances under which the opening of a private road would be constitutionally permissible under the Act appear tightly circumscribed. Indeed, on remand in O'Reilly , one judge posited that this Court's decision in O'Reilly "for all intents and purposes rendered the Act constitutionally unenforceable." In re O'Reilly ,
Mr. Adams testified that Chesapeake built the roadway five or six years before he sought to open the private road, and that the gas pad had been operational for two years preceding the instant litigation. N.T., 7/24/2015, at 12-13.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.