EPHRATA SC. DIST. v. County of Lancaster

• Decision Date: 17 November 2005
• Parties: EPHRATA AREA SCHOOL DISTRICT, Appellant v. COUNTY OF LANCASTER, Borough of Ephrata and Lancaster County Agricultural Preserve Board.
• Court: Pennsylvania Commonwealth Court

886 A.2d 1169

EPHRATA AREA SCHOOL DISTRICT, Appellant v. COUNTY OF LANCASTER, Borough of Ephrata and Lancaster County Agricultural Preserve Board.

Commonwealth Court of Pennsylvania.

Argued September 13, 2005.

Decided November 17, 2005.

Kenneth C. Notturno, Lancaster, for appellant.

Melvin E. Newcomer, Lancaster, for appellee, County of Lancaster.

BEFORE: SMITH-RIBNER, Judge, and SIMPSON, Judge, and KELLEY, Senior Judge.

OPINION BY Judge SIMPSON.

In this case of first impression, we are asked whether the holder of a prior open space easement must consent to the grant of a subsequent right-of-way which does not interfere with the open space easement. In particular, Ephrata Area School District (School District) asks whether it was required to obtain the approval of Lancaster County, which secured a prior open space easement from a private landowner, before the private landowner may grant it a right-of-way. Because County approval is not required unless the right-of-way interferes with the existing open space easement, we reverse.

I.

The underlying facts of this case are largely undisputed. In 2000, the School District purchased approximately 80 acres of land on which it proposed to construct a public elementary school on the south side of Market Street in Ephrata Township, Lancaster County. The proposed site borders Ephrata Borough.

The School District originally proposed primary access to the elementary school through Market Street. Citing serious traffic and safety concerns, Ephrata Township and Ephrata Borough objected to the use of Market Street for primary access and instead recommended primary access through Hummer Road and secondary access through Meadow Valley Road.

The School District subsequently entered into an agreement to purchase a 50-foot strip of land totaling 2.3 acres from Nelson and Miriam Nolt and David and Erma Lauver to construct an access road from Meadow Valley Road to the school. The parties later modified the agreement to reflect acquisition of a right-of-way under and subject to the rights of the Lancaster County Agricultural Preserve Board (Board), a County agency, in an open space easement over the Lauvers' property.

The Board voted to approve removal of the 50-foot strip of land from the open space easement. In addition, it subsequently voted to recommend the grant of a right-of-way over the Lauvers' land.

Thereafter, the School District requested the County approve the relinquishment of its easement over the 50-foot strip of land or, in the alternative, approve the School District's acquisition of a right-of-way from the Lauvers. The School District alleges it initially believed County approval was required but now believes such approval is unnecessary. Nevertheless, the School District, hoping to obtain County approval, proceeded with a hearing before the Lancaster County Commissioners on its request.

The County Commissioners subsequently voted to deny the School District's request that it consent to a right-of-way over the 50-foot strip of land and denied the request to extinguish the open space easement. The School District appealed the County's decision to the Court of Common Pleas of Lancaster County (trial court).

Several months later, the School District filed a declaratory judgment action in the trial court seeking a declaration that County approval was not required for the acquisition of a right-of-way over the Lauvers' land. It also sought a declaration its proposed right-of-way did not violate the County's open space easement. The trial court stayed the School District's appeal of the County's decision pending resolution of the declaratory judgment action.

After the close of the pleadings in the declaratory judgment action, the School District filed a motion for judgment on the pleadings or, in the alternative, summary judgment. The School District argued it was entitled to judgment as a matter of law because County approval was not required to obtain a right-of-way over land owned by private landowners. The County filed a cross-motion for summary judgment asserting approval was required. Of particular import here, in its submissions to the trial court, the County conceded the proposed right-of-way would not violate its open space easement.

Ultimately, the trial court issued an opinion and order granting the County's cross-motion for summary judgment and denying the School District's motion. The trial court determined, pursuant to Section 11(a) of what is commonly known as the Open Space Lands Act (Act)¹, the School District was required to obtain County approval for the acquisition of a right-of-way over the Lauvers' property because of the County's open space easement. The trial court further determined, because the County declined to grant approval, it was entitled to summary judgment. The School District appealed to this Court.²

II.

In order to fully evaluate the claims presented, some discussion of the common law principles regarding easements is necessary. We begin by determining the appropriate classification for the County's open space easement.

A.

Generally, easements are of two types: easements appurtenant and easements in gross. An easement appurtenant is a liberty, privilege or advantage without profit which the owner of one piece of land has in the land of another. See Morning Call, Inc. v. Bell Atlantic-Pennsylvania, Inc., 761 A.2d 139 (Pa.Super.2000)

. Stated otherwise, "it is a service which one estate owes to another—or a right or privilege in one man's estate for the advantage or convenience of the owner of another estate." Perkinpine v. Hogan, 47 Pa.Super. 22, 25 (1911). The land enjoying the privilege is referred to as the "dominant tenement," and the land subject to the privilege is known as the "servient tenement." See Ladner on Conveyancing in Pennsylvania, § 11.01 at p. 1 (Bisel, 4th ed. 1979).

An easement in gross, on the other hand, is a mere personal right in the real estate of another because it is not appurtenant to other land owned by the grantee. An easement in gross benefits a particular entity rather than a particular piece of land. See Ladner, § 11.01 at p. 2. An easement in gross is an easement with a servient estate but no dominant estate. Kent's Run P'ship, Ltd. v. Glosser, 323 B.R. 408 (Bankr.W.D.Pa.2005).

The open space easement at issue here is properly classified as an easement in gross because it benefits a particular entity, i.e., the County, rather than a particular piece of land, and there is no dominant estate. See, e.g., John L. Hollingshead, Conservation Easements: A Flexible Tool for Land Preservation, 3 Envtl. Law. 319, 328 (1997) (characterizing conservation easement as "a negative easement in gross"). Indeed, the easement agreement at issue here expressly states (with emphasis added), "[t]he restrictions contained herein shall apply to the land as an open space easement in gross ...." Reproduced Record (R.R.) at 12a. The agreement further states, "this grant of easement in the nature of a restriction is intended to be an easement in gross ...." Id. (emphasis added).

B.

Easements are also properly classified as affirmative or negative. See Restatement (Third) of Property, Servitudes § 1.2 (2000). Easements are considered "affirmative" if they convey privileges on the part of one person or owner of land to use the land of another in a particular manner or for a particular purpose. Id. Easements are considered "negative" if they convey rights to demand the servient owner refrain from certain otherwise permissible uses of his own land. Id. With regard to negative easements, the Supreme Court of Virginia recently explained:

Negative easements, also known as servitudes, do not bestow upon the owner of the dominant tract the right to travel physically upon the servient tract, which is the feature common to all affirmative easements, but only the legal right to object to a use of the servient tract by its owner inconsistent with the terms of the easement. In this sense, negative easements have been described as consisting solely of `a veto power.'

At common law, an owner of land was not permitted at his pleasure to create easements of every novel character and annex them to the land so that the land would be burdened with the easement when the land was conveyed to subsequent grantees. Rather, the landowner was limited to the creation of easements permitted by the common law or by statute. The traditional negative easements recognized at common law were those created to protect the flow of air, light, and artificial streams of water, and to ensure the subjacent and lateral support of buildings or land.

United States v. Blackman, 270 Va. 68, 76, 613 S.E.2d 442, 446 (2005) (citations omitted).

The County's open space easement is also properly classified as a "negative easement" as it requires the Lauvers to retain their property in its agricultural and open space condition. See R.R. at 9a-12a.

C.

Easements are also classified as exclusive or non-exclusive. An "exclusive easement" deprives a servient owner of all beneficial use and enjoyment of his land. 7 Summary of Pennsylvania Jurisprudence 2d, Property, § 18:20 (2000). Under Pennsylvania law, "[t]he fee in land may be in one person and the exclusive right to use it as a right of way may be in another, but to accomplish that result the deed creating the right of way must specifically so covenant." Fedorko Props., Inc. v. C.F. Zurn & Assocs., 720 A.2d 147, 149 (Pa.Super.1998)

(emphasis added). Absent an express provision in a grant or reservation, an easement is not an exclusive interest in the burdened land. Id.

Nothing in the easement agreement here indicates the Lauvers intended to grant the County an exclusive easement. To the contrary, under the agreement, the Lauvers retain the right to use their property in any manner that does not impair its open space and agricultural values. R.R. at 10a. In addition, the agreement does not prohibit...