Koresko v. Farley

• Decision Date: 10 March 2004
• Citation: 844 A.2d 607
• Parties: John J. KORESKO, V, and Bonnie J. Koresko, Appellants v. Mark FARLEY, Seaton Ross, L.P., Township of Tredyffrin, Bryn Mawr Custom Home, Inc. and Ollie Bower.
• Court: Pennsylvania Commonwealth Court

844 A.2d 607

John J. KORESKO, V, and Bonnie J. Koresko, Appellants v. Mark FARLEY, Seaton Ross, L.P., Township of Tredyffrin, Bryn Mawr Custom Home, Inc. and Ollie Bower.

Commonwealth Court of Pennsylvania.

Submitted on Briefs October 31, 2003.

Decided March 10, 2004.

Virginia I. Miller, Philadelphia, for appellants.

Susan C. Mangold, West Chester, for appellee, Township of Tredyffrin.

Scott E. Yaw, Malvern, for appellees, M. Farley, Seaton Ross, L.P., et al.

BEFORE: PELLEGRINI, Judge, SIMPSON, Judge, and MIRARCHI, JR., Senior Judge.

OPINION BY Judge SIMPSON.

In this case of first impression we are asked whether a prescriptive easement over land arises from encroaching tree roots and overhanging branches. The Court of Common Pleas of Chester County (trial court) concluded no such easement arose and granted judgment on the pleadings. We affirm.

John J. Koresko and Bonnie J. Koresko (Neighbors) purchased property in the Township of Tredyffrin (Township) in June 1996. Located near the one property line are several trees over 21 years in age, which hang over the boundary with the neighboring property (subdivided property). The impact of proposed development of the subdivided property on these trees is the basis of this litigation.

The subdivided property, containing a single residence, was owned by Ollie Bower. In 1999, Bower agreed to sell the property to M.J. Farley Development Co. Inc. That company submitted a subdivision plan seeking to divide the Bower property and to construct a second residence. The subdivision was approved by the Township supervisors, and the plan was recorded. Neighbors did not appeal subdivision approval.

The subdivision plan proposed the installation of a water line and the construction of a driveway near the boundary trees. Upon learning of the proposal, Neighbors sued in equity seeking injunctive relief and monetary damages.¹ In their complaint, Neighbors averred the driveway and trench would damage the root systems of the boundary trees. Ultimately, Neighbors filed an amended complaint containing several causes of action:

Neighbors claim unreasonable interference with an easement. Specifically, they claim that, because their trees' roots and branches encroached on the subdivided property for over 21 years, a prescriptive easement existed for the tree roots and branches. They assert development of the property would unreasonably interfere with that easement; and

Neighbors claim the subdivision was defective as a matter of law. In particular, the subdivision plan fails to display the existence of the boundary trees and provide notice of the possible existence of an easement, and fails to "list proposed material improvements, including installation of propane tanks in the setback areas." Reproduced Record (R.R.) at 731a. Neighbors also aver they were not given notice of subdivision approval; and

Neighbors aver violations of subdivision approval arising from destruction of trees on the subdivided property, contrary to plans;² and

Neighbors claim violations of the zoning ordinance arising from burying propane tanks in the designated setback area adjacent to their property; and

Neighbors present an undeveloped claim that they were "deprived their property rights without compensation or due process of law ... in violation of the Constitution of Pennsylvania and the United States of America and the applicable provisions of state and federal law." R.R. at 732a.

After considerable litigation, all defendants requested judgment on the pleadings. The trial court granted all judgments on the pleadings, holding, "Pennsylvania does not and will not recognize an easement for tree roots or overhanging branches." Trial Court Order, December 4, 2002. Further, noting that the Pennsylvania Municipalities Planning Code (MPC)³ provides the exclusive means for challenging a subdivision, the trial court determined "the pleadings fail to state any cause of action based upon the subdivision approval." Trial Court Order, December 4, 2002.⁴

Neighbors appeal to this Court presenting several arguments which we address in revised order.⁵ In an appeal from a decision granting judgment on the pleadings, our review is limited to determining whether the trial court committed an error of law or abused its discretion. Smith and McMaster, P.C., v. Newtown Borough, 669 A.2d 452 (Pa.Cmwlth.1995). When reviewing a trial court's decision to grant a motion for judgment on the pleadings, we may consider only the pleadings, accepting as true all well pleaded statements of fact, admissions and any documents properly attached to the pleadings presented by the party against whom the motion is filed. Bradley v. Franklin County Prison, 674 A.2d 363 (Pa.Cmwlth.1996). We may sustain the trial court's grant of judgment on the pleadings only where the movant's right to succeed is certain and the case is so free from doubt that trial would be a fruitless exercise. Id.

I.

Neighbors assign as error the failure to recognize a prescriptive easement for encroaching tree roots and overhanging branches.

A prescriptive easement is a right to use another's property which is not inconsistent with the owner's rights and which is acquired by a use that is open, notorious, and uninterrupted for a period of twenty-one (21) years. Waltimyer v. Smith, 383 Pa.Super. 291, 556 A.2d 912 (1989). A prescriptive easement, once acquired, may not be restricted unreasonably by the possessor of the land subject to the easement. Palmer v. Soloe, 411 Pa.Super. 444, 601 A.2d 1250 (1992).

In Jones v. Wagner, 425 Pa.Super. 102, 624 A.2d 166 (1993), the Superior Court held that overhanging tree branches are a trespass. A landowner has the right to compel removal of overhanging branches or engage in self-help. However, in discussing the appropriateness of self-help, the Superior Court mused in a note:

The Restatement notes that a continuing trespass is not a trespass at all if the actor causing the trespass has obtained an easement by adverse possession. Restatement (Second) of Torts § 161, comment d. We cannot help but wonder whether the continued presence of encroaching tree branches, held openly, notoriously, hostilely, and continually for 21 years would create a prescriptive easement in the airspace which they hang. If this would be the case, and we can find no Pennsylvania law which would indicate that a prescriptive easement is not available in this situation, a landowner who suffers actual harm for the first time during the tree owner's twenty-second year of hostile ownership, might very well be precluded from seeking a judicial, or even self-help, remedy. This result, while not entirely unforeseeable, is anomalous. However, if an action is available without a showing of damage, the landowner has no reason to complain if a neighbor's tree causes damage after the prescriptive period has run. See, contra, Pierce v. Casady, 11 Kan.App.2d 23, 711 P.2d 766 (1985) (holding that airspace is generally not subject to prescriptive rights).

Jones, 624 A.2d at 171, note 3 (emphasis added).

Citing this language from Jones, Neighbors argue their amended complaint sufficiently pleads a cause of action for unreasonable interference with an easement. In contrast, defendants assert Neighbors fail to sufficiently establish the existence of an easement. Specifically, they argue the encroachment of the tree roots and branches is not "open and notorious" conduct sufficient to create an easement.

We conclude Neighbors fail to state a claim for prescriptive easement as a matter of law, for several reasons. First, encroaching tree roots and limbs by themselves cannot notify a landowner of a claim to use the ground. Second, no Pennsylvania case recognizes such easements. Third, well-reasoned authority from another jurisdiction persuades us that such easements should not be recognized. Finally, the potential of widespread uncertainty occasioned by such easements convinces us that they should not be recognized as a matter of public policy.

"The requirement that, to be adverse, a use must be open and notorious is for the protection of those against whom it is claimed to be adverse. It enables them to protect themselves against the effect of the use by preventing its continuance." Restatement of Property, Servitudes § 458, comment h. This requirement may be satisfied by a showing that either the land owner against whom the use is claimed has actual knowledge of the use or has had a reasonable opportunity to learn of its existence. Id.

Encroaching tree parts, by themselves, do not establish "open and notorious" use of the land. Neither roots below ground nor branches above ground fairly notify an owner of a claim for use at the surface. In the absence of additional circumstances, such as use of the ground for maintenance or collection of leaves or fruit, roots and branches alone do not alert an owner that his exclusive dominion of the ground is challenged. This conclusion is analogous to our Supreme Court's decision that the known presence of windows near a lot line does not create a prescriptive easement for light and air. Maioriello v. Arlotta, 364 Pa. 557, 73 A.2d 374 (1950). Indeed, such an easement cannot be created by prescription. Id.

Jones, upon which Neighbors rely, does not hold otherwise. The Court in Jones actually held that encroaching tree limbs are a trespass which a property owner may remove. Dictum in a footnote does not recognize an encroaching tree part prescriptive easement. Rather, the court concedes that no prior Pennsylvania case addresses the issue. In any event, the dictum is not precedential.

In Pierce v. Casady, 11 Kan.App.2d 23, 711 P.2d 766 (1985) the Court of Appeals of Kansas held an easement by prescription cannot be acquired by overhanging tree branches. Writing for the Court, Chief Judge Abbott noted that defendants could not make the tree safe because the work would have to be done in the plaintiffs airspace. Id. at 768. Defendan...