Sterner v. Freed
| Decision Date | 02 March 1990 |
| Citation | 391 Pa.Super. 254,570 A.2d 1079 |
| Parties | Margaret STERNER v. Walter and Shirley FREED, Appellant. |
| Court | Pennsylvania Superior Court |
Argued Dec. 12, 1989.
Edmund G. Hauff, Allentown, for appellant.
Frederick P. Rooney, Allentown, for appellee.
Before BROSKY, WIEAND and JOHNSON, JJ.
Walter and Shirley Freed appeal the chancellor's decree permanently enjoining them from interfering with or obstructing plaintiff Margaret Sterner's reasonable use of a driveway located upon the Freeds' property. On this appeal, we decide that an owner's permission that another may use his land will terminate upon sale of the land and further use of the land is hostile unless permission is again granted. The judgment entered upon the decree is affirmed.
The Freeds and Sterner are owners of adjacent properties. What are now the respective properties of the Freeds and Sterner were, in 1923, each held by Sterner's father, William Weaver. By will, William Weaver directed that the properties be sold by his executors after the death of his wife, Ivy. After Ivy Weaver's death, Sterner received title in the property located at 4715 Main Street, Whitehall Pennsylvania (4715 property). She has held uninterrupted title in this property ever since. The second property located at 4719 Main Street (4719 property), now owned by the Freeds, was initially sold by William Weaver's estate to executor Harry Weaver and his wife Wilma Weaver. Harry and Wilma Weaver then sold the property to Sterner's niece Marilyn Kern and her husband, Clarence. In 1962, the Kerns sold the lot to Paul Palko. Palko purchased the property for his niece Shirley Freed. Shirley Freed and her husband Walter Freed began living in the property in 1962. Palko resided with his niece from 1972 until his death in 1987. Shortly before his death in 1987, Palko reconveyed the property to himself and Shirley Freed as joint tenants. Upon Palko's death in 1987, Shirley Freed became the property's sole owner and reconveyed the property to herself and husband Walter Freed.
In 1957 prior to the Freeds ownership, a driveway was constructed upon the 4719 property in order that the owners of each adjacent property could reach their respective lots by a rear alleyway. The driveway was constructed at the expense of the Kerns who then owned the 4719 property and Sterner, the owner of the 4715 property. The occupants of both properties regularly used the driveway. This practice continued after the 4719 property was sold to Palko and the Freeds began to reside at that property in 1962.
In February, 1988, the Freeds erected a barrier which obstructed Sterner's access to the driveway. On March 16, 1988, Sterner initiated the present action, contending that she had acquired a prescriptive easement over the driveway. After a hearing, on May 12, 1988, the chancellor issued a Decision and Decree Nisi enjoining the Freeds from interfering with the reasonable use of the driveway. Post-trial motions were heard before the court en banc and denied on March 30, 1989. Judgment was entered against the Freeds on May 26, 1989.
On appeal, the Freeds request that we consider:
I. WHETHER THE COURT OF COMMON PLEAS OF LEHIGH COUNTY ERRED IN FINDING THAT THE APPELLEE, MARGARET STERNER, OBTAINED A PRESCRIPTIVE EASEMENT BY CONTINUOUS, OPEN, HOSTILE, AND ADVERSE USE OVER THE PROPERTY OF THE APPELLANTS, WALTER AND SHIRLEY FREED?
II. WHETHER, ASSUMING THAT A PRESCRIPTIVE EASEMENT WAS ACQUIRED BY THE APPELLEE, MARGARET STERNER, SAID PRESCRIPTIVE EASEMENT PERMITS THE USE OF SAID DRIVEWAY BY THE APPELLEE'S TENANTS?
Our standard of review of a judgment in equity is to determine whether there has been a clear abuse of discretion or error of law. Walley v. Iraca, 360 Pa.Super. 436, 441, 520 A.2d 886, 889 (1987). The findings of the chancellor, where affirmed by the court en banc, are given the same effect as the jury verdict and will not be disturbed unless based upon insufficient evidence. Tioga Coal Company v. Supermarkets General Corporation, 519 Pa. 66, 75, n. 4, 546 A.2d 1, 5, n. 4 (1988).
At issue I the Freeds dispute the chancellor's determination that the elements of prescription were satisfied. In particular they argue that hostile possession was not established. In order to prevail on a claim of prescription, Sterner was required to show that her use of the Freeds' driveway was actual, continuous, adverse, visible, notorious and hostile for a period of twenty-one years. Hash v. Sofinowski, 337 Pa.Super. 451, 455, 487 A.2d 32, 34 (1985).
The chancellor determined that construction of the driveway was a common undertaking between relatives, Sterner and the Kerns and thus use of the driveway, when first constructed, was permissive. Also, the chancellor found, and the Freeds do not dispute, that Sterner used this driveway openly, continuously and notoriously from the date of construction in 1962 until the Freeds' barrier was erected in 1988. However, the chancellor concluded, and we agree, that permissive use of the driveway was implicitly rescinded upon sale, in 1962, of the servient tenement to Palko, Shirley Freed's uncle. Thus, Sterner's continued notorious use after Palko received title was adverse.
Our resolution of this matter is controlled by this court's decisions in Orth v. Werkheiser, 305 Pa.Super. 576, 451 A.2d 1026 (1982) and Waltimyer v. Smith, 383 Pa.Super. 291, 556 A.2d 912 (1989). The Orth court began with the principle that a permissive use cannot ripen into prescription. The court also recognized that permissive use terminates upon the transfer of ownership in the servient tenement. Orth v. Werkheiser, 305 Pa.Super. at 580, 451 A.2d at 1028. From this the court derived its holding with respect to the effect of a sale of the dominant tenement. It determined that permissive use will also terminate upon transfer of ownership in the dominant tenement since permissive use is personal to the initial grantee. Id. These principles were reaffirmed in Waltimyer 383 Pa.Super. at 295-296, 556 A.2d at 914-915.
Based upon Orth and Waltimyer, we have no difficulty concluding that Sterner's permissive use of the driveway terminated upon the Kern's sale of the servient tenement to Palko in 1962. Where the grantor permits another to use a common driveway, the grantor creates a revocable personal license. See Waltimyer, 383 Pa.Super. at 295, 556 Pa.Super. at 914. Such licenses do not extend beyond the ownership of the grantor. Puleo v. Bearoff, 376 Pa. 489, 103 A.2d 759 (1954); Thompson v. Commonwealth, 214 Pa.Super. 329, 257 A.2d 639 (1969).
The Freeds contend that the supreme court's decision in Margoline v. Holefelder, 420 Pa. 544, 218 A.2d 227 (1966) dictates a contrary result. Specifically, they rely upon the language of Margoline which states, "even where there is no attempt at tacking of uses by the...
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