Private Road in Union Tp., In re

• Decision Date: 15 June 1992
• Citation: 148 Pa.Cmwlth. 522,611 A.2d 1362
• Parties: In re PRIVATE ROAD IN UNION TOWNSHIP. RALSTON HUNTING CLUB, Appellant, v. Dennis W. SOURBEER, Judy Sourbeer, D. Stewart Martin and Joyce Martin, Appellees.
• Court: Pennsylvania Commonwealth Court

Page 1362

611 A.2d 1362

148 Pa.Cmwlth. 522

In re PRIVATE ROAD IN UNION TOWNSHIP.

RALSTON HUNTING CLUB, Appellant, v. Dennis W. SOURBEER, Judy Sourbeer, D. Stewart Martin and Joyce Martin, Appellees.

Commonwealth Court of Pennsylvania.

Argued April 7, 1992.

Decided June 15, 1992.

Thomas L. Marshall, for appellant.

Larry Linder, for appellees.

Before SMITH, KELLEY, JJ., and LEDERER, Senior Judge.

SMITH, Judge.

Ralston Hunting Club (Club) appeals from the order of the Court of Common Pleas of Tioga County which confirmed the report of the board of view laying out a twenty-foot wide private road across the land owned by the Club and assessing damages of $3,000 against Appellees. The issues raised by the Club are whether the doctrines of res judicata and collateral estoppel bar the present proceeding to open a private road because the trial court in a prior equity action denied an easement by necessity, and whether the Club is entitled to a jury trial on the issue of damages. ¹

Appellees are owners of 103 acres of timberland in Union Township, Tioga County. Appellees' land is divided by a ravine known as the "Whetstone Ditch" which is 80 to 100 feet deep and several hundred feet wide. Approximately fifty-eight acres of Appellees' land lies on the east side of the Whetstone Ditch. Appellees have access to the western portion of the land from the public road with a right-of-way across the Crooks' land (Crooks Right-of-Way) which existed since the 1960's.

In 1987, Appellees filed an equity action to enjoin the Club from interfering with their alleged right-of-way on the Club's land. The trial court found that Appellees acquired an easement by prescription to a twelve-foot one lane right-of-way extending from a township road to Appellees' land traversing a contiguous tract owned by the Club. The easement, however, was limited to logging and timber operations because the right-of-way was used only for those purposes during the prescription period. The trial court determined that Appellees were not entitled to the alternative claim of an easement by necessity since the necessary elements for such easement did not exist.

Thereafter, pursuant to Section 11 of the Act of June 13, 1836 (Act), P.L. 551, as amended, 36 P.S. § 2731, Appellees filed a petition for appointment of a board of view seeking to open a private road between their land lying on the east side of the Whetstone Ditch and Pennsylvania Legislative Route 58055, asserting that portion of the land was landlocked with no access to a public road. ² The trial court granted the petition and appointed a board of view which viewed the property and held a hearing on May 24, 1990.

In its report, the board found the necessity for opening a private road to allow Appellees to use their landlocked land located on the east side of the Whetstone Ditch on the ground that the easement by prescription granted by the trial court in the 1987 equity action is limited in size and use and that the cost of constructing a bridge across the Whetstone Ditch would be prohibitive. The board recommended that a private road be laid out over the Club's land following the same route of the right-of-way which the trial court granted Appellees in the equity action and that the width of the private road be twenty feet. The board assessed damages against Appellees in the amount of $3,000.

First, the Club contends that the present proceeding is barred because the issue of necessity for a right-of-way was fully litigated in the prior equity action and decided by the trial court. To apply the doctrine of res judicata, there must be a concurrence of four elements: (1) identity of the things sued for; (2) identity of the cause of action; (3) identity of persons and parties to the action; (4) identity of the quality in the persons for or against whom the claim is made. Schubach v. Silver, 461 Pa. 366, 336 A.2d 328 (1975); Grim v. Borough of Boyertown, 141 Pa.Commonwealth Ct. 427, 595 A.2d 775 (1991). In determining whether the doctrine should apply, the essential inquiry is whether the ultimate and controlling issues have been decided in prior proceedings. Philadelphia County Board of Assistance v. Vinson, 75 Pa.Commonwealth Ct. 518, 463 A.2d 73 (1983). There is an identity of the cause of action when in both proceedings, the subject matter and the ultimate issues are the same. Madara v. Commonwealth, 40 Pa.Commonwealth Ct. 581, 397 A.2d 1294 (1979). A review of the record demonstrates a lack of identity of the causes of action in the prior equity litigation and the current matter.

An easement by necessity may be created whenever after severance from adjoining property, a piece of land is without access to a public highway. Bodman v. Bodman, 456 Pa. 412, 321 A.2d 910 (1974). For an easement by necessity to arise, there must be a unity of ownership of the dominant and servient estate, and the necessity must exist at the time of severance of the land. Bosch v. Hoffman, 42 Pa.Superior Ct. 313 (1910). Further, an easement by necessity may be claimed only against the owner of the adjacent severed land. Soltis v. Miller, 444 Pa. 357, 282 A.2d 369 (1971). By contrast, a proceeding to open a private road is provided for by the Act under which only a board of view, not the court, is authorized to determine the necessity to open a private road. Section 12 of the Act, 36 P.S. § 2732; Mattei v. Huray, 54 Pa.Commonwealth Ct. 561, 422 A.2d 899 (1980). Further, the determination of necessity must be based upon present use of the property. Little Appeal, 180 Pa.Superior Ct. 555, 119 A.2d 587 (1956). A private road may be laid out over any adjacent properties considering "the shortest distance, the best ground for a road and the least injury to private property." Section 11 of the Act; Section 2 of the Act, 36 P.S. § 1785. Thus, since the ultimate issues for disposition in both proceedings are different, the doctrine of res judicata is inapplicable to the instant matter. The trial court was therefore correct in its view that since Appellees were not entitled to an easement by necessity because the necessary elements did not exist, they were required to petition for a private road. ³

The doctrine of collateral estoppel is likewise inapplicable. Collateral estoppel applies if the following five elements are met: (1) the issue decided in the prior action is identical to the one presented in the later action; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party in the prior action; (4) the party or person privy to the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding; and (5) the determination in the prior proceeding was essential to the judgment. City of Pittsburgh v. Zoning Board of Adjustment of City of Pittsburgh, 522 Pa. 44, 559 A.2d 896 (1989). As indicated, the trial court's consideration of the necessity for a right-of-way in the equity action was unnecessary and therefore not essential to its decision. Collateral estoppel operates only to bar relitigation of issues which were indispensable to the prior action. Pilgrim Food Products Co. v. Filler Products, Inc., 393 Pa. 418, 143 A.2d 47 (1958).

The Club alternatively contends that it is entitled to a jury trial on the issue of damages. In its appeal to the trial court, the Club set forth a...