Shaffer v. Baylor's Lake Ass'n

• Decision Date: 02 May 1958
• Citation: 392 Pa. 493,141 A.2d 583
• Parties: Hazel Wiedman SHAFFER, Appellant, v. BAYLOR'S LAKE ASSOCIATION, Inc.
• Court: Pennsylvania Supreme Court

Page 583

141 A.2d 583

392 Pa. 493

Hazel Wiedman SHAFFER, Appellant, v. BAYLOR'S LAKE ASSOCIATION, Inc.

Supreme Court of Pennsylvania.

May 2, 1958.

Petition for Rehearing Dismissed May 29, 1958.

Thomas J. Foley, John Morano, Paul E. Pendel, Scranton, for appellant.

R. Bialkowski, William J. McDonald, John W. Bour, O'Malley, Morgan, Bour & Gallagher, Scranton, Pa., for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, CHIDSEY, MUSMANNO, BENJAMIN R. JONES and COHEN, JJ.

BELL, Justice.

Plaintiff is the owner of an undivided 7/9ths interest in a certain dwelling and farmland abutting the southerly shores of Baylor's Lake. Baylor's Lake is a nonnavigable body of water in Fleetville, Lackawanna County, Pa. In 1953 plaintiff brought this action to quiet tile to the use of the waters of Baylor's Lake, claiming by prescription swimming, boating, fishing and skating rights, and also commercial boating rights. The jury returned a verdict in favor of the plaintiff. The lower Court entered judgment for the defendant non obstante veredicto, whereupon plaintiff appealed to this Court.

'In considering a motion for judgment n. o. v., it is hornbook law that the verdict winner must be given the benefit of the evidence which is most favorable to him (her or it), together with all reasonable inferences therefrom. Bream v. Berger, 388 Pa. 433, 130 A.2d 708.' Farmers' Northern Market Co. v. Gallagher, 392 Pa. 221, 139 A.2d 908, 910. Considering the evidence in the light most favorable to plaintiff, the jury could have found that plaintiff proved the following facts.

In 1903 plaintiff's grandfather purchased the farm in question and took title in the name of his wife, Tamer J. Wiedman. The farm has a dwelling house and outbuildings, and extends along the highwater make of the lake for a distance of approximately 650 feet. Since 1903 some member or members of the Wiedman family have always held title to and possessed and occupied this property. Plaintiff's niece, Virginia Wiedman, owns the remaining undivided 2/9ths interest and is living in the property with plaintiff and plaintiff's mother.

Commencing in 1903 the Wiedman family have used Baylor's Lake in all seasons of the year. From 1903 until the present time the Wiedman family and their guests used the lake for swimming, boating and fishing during the spring, summer and fall of every year--in other words, in season. Furthermore, they fished all year even in winter when at times they had to cut holes in the ice. They also used the lake in front of their land to water their cattle from the time they purchased the farm until 1947, when they sold their cattle. In 1922 they built a stone dock into the lake and extended it after 1926. This dock has been used by them for over 21 years. An old milk house on their property was converted in 1930 into a boat house and was moved to the shore of the lake and was used inter alia by guests to change into bathing suits. The Wiedman family in the wintertime used the frozen surface of the lake for sleigh riding and for cutter riding, although the evidence on this use was meager. From 1915 to 1918 and from 1923 to 1940 the Wiedman family rented boats, but the evidence as to this commercial renting was meager and inadequate.

In 1953, fifty years after the Wiedman family commenced to use the waters of the lake abutting their farm, defendant purchased Baylor's Lake from their predecessor in title who had acquired ownership of the lake in 1944 by a quitclaim deed. For the first time in 50 years plaintiff's right to use the lake was challenged.

Mere user of land for 21 years or more is insufficient to establish an easement by prescription. The user must be adverse, open, notorious, continuous and uninterrupted for 21 years. Farmers's Northern Market Co. v. Gallagher, 392 Pa. 221, 139 A.2d 908, supra; Shinn v. Rosenberger, 347 Pa. 504, 32 A.2d 747.

In Miller v. Lutheran Conference & Camp Association, 331 Pa. 241, 200 A. 646, 130 A.L.R. 1245, plaintiffs brought a bill in equity to restrain defendant from trespassing on the lake. Plaintiffs acquired, by deed, boating and fishing privileges, but claimed they were entitled to bathing rights by prescription. The Court held that bathing rights could be acquired and were established under the evidence in that case, by prescription and that such rights were assignable. The pertinent principles of law were clearly stated by the Court (331 Pa. at pages 246 et seq., 200 A. at page 649):

'Coming to the merits of the controversy, it is initially to be observed that no boating, bathing or fishing rights can be, or are, claimed by defendant as a riparian owner. Ordinarily, title to land bordering on a navigable stream extends to low water mark subject to the rights of the public to navigation and fishery between high and low water, and in the case of land abutting on creeks and non-navigable rivers to the middle of the stream, but in the case of a non-navigable lake or pond where the land under the water is owned by others, no riparian rights attach to the property bordering on the water, and an attempt to exercise any such rights by invading the water is as much a trespass as if an unauthorized entry were made upon the dry land of another. Baylor v. Decker, 133 Pa. 168, 19 A. 351; Smoulter v. Boyd, 209 Pa. 146, 152, 58 A. 144, 66 L.R.A. 829; Gibbs v. Sweet, 20 Pa.Super. 275, 283; Fuller v. Cole, 33 Pa.Super. 563; Cryer v. Sawkill Pines Camp, Inc., 88 Pa.Super. 71.

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'But, while Frank C. Miller acquired by grant merely boating and fishing privileges, the facts are amply sufficient to establish title to the bathing rights by prescription. True, these rights, not having been granted in connection with, or to be attached to, the ownership of any land, were not easements appurtenant but in gross * * * Certainly the casual use of a lake during a few months each year for boating and fishing could not develop into a title to such privileges by prescription. But here the exercise of the bathing right was not carried on sporadically by Frank C. Miller and his assignee Rufus W. Miller for their personal enjoyment, but systemically for commercial purposes in the pursuit of which they conducted an extensive and profitable business enterprise. The circumstances thus presented must be viewed from a realistic standpoint * * *.

'We are thus brought to a consideration of the next question, which is whether the boating, bathing and fishing privileges were assignable by Frank C. Miller to Rufus W. Miller. What is the nature of such rights? In England it has been said that easements in gross do not exist at all, although rights of that kind have been there recognized. In this country such privileges have sometimes...