DeSimone v. Kessler, 47 Pa. D. & C.5th 525

Background

Plaintiffs Samuel and Merrilee DeSimone own Lot 5 and built a home (2001) accessed by a gravel driveway that historically crossed a 50' x 170' strip (right of way) later conveyed to defendants by quitclaim.
On December 7, 2004 the parties executed a written agreement in which defendants (Kessler) retained ownership of the right of way but granted plaintiffs, their heirs, successors and assigns the right to "utilize the right of way up to plaintiffs’ current gravel driveway"; the agreement also stated plaintiffs may not give additional rights to third parties without defendants’ written consent.
Plaintiffs and many third parties (deliveries, guests, contractors) used the right of way without restriction from 2001–2011; defendants were aware of this use prior to the 2004 agreement.
In September 2011 defendants installed a drainage ditch with riprap, buried a 16' pipe, placed two iron poles at the driveway entrance and erected survey pins, reducing the driveway mouth and blocking deliveries; defendants also sent a unilateral letter attempting to restrict use.
Plaintiffs sued to quiet title and for trespass; defendants counterclaimed for ejectment and trespass over plaintiffs’ septic sand mound. After a non-jury trial, the court found for plaintiffs, declaring an easement and ordering defendants to restore a 21' driveway opening and remove obstructions.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Existence and scope of easement	DeSimone: 2004 agreement created an express easement allowing plaintiffs to use ROW to gravel driveway, including prior third‑party traffic (deliveries, guests).	Kessler: Agreement limits use to plaintiffs and precludes third‑party use without written consent; he may restrict or narrow access.	Court: Express easement exists; grant construed broadly to include ordinary and prior uses (deliveries, guests, contractors).
Proper interpretation of paragraph limiting third‑party use	DeSimone: Clause prevents plaintiffs from granting new rights, not from ordinary prior uses by invitees and service providers.	Kessler: Clause prohibits any third‑party crossing without his written permission.	Court: Read clause consistently with grant; does not bar ordinary preexisting third‑party use.
Width of ROW and required restoration	DeSimone: Entrance was 21' at time of agreement and must be restored so deliveries can access.	Kessler: Survey evidence showed a smaller width (defendant’s survey ~16.4' or other measures).	Court: Credited plaintiffs’ survey (21' original; reduced to 15.54'); ordered removal of poles/riprap, extension of pipe, restore 21' within 30 days.
Defendants’ ejectment/trespass counterclaims re: sand mound	DeSimone: Sand mound and drain field are wholly within plaintiffs’ property; visible at purchase so defendants had notice; no compensable harm shown.	Kessler: Sand mound encroaches and causes drainage problems that impede maintenance.	Court: Plaintiffs’ survey controls; ejectment and trespass claims fail for lack of possession/ownership proof and insufficient damages.

Key Cases Cited

McNaughton Properties, LP v. Barr, 981 A.2d 222 (Pa. Super. 2009) (rules for construing easement grants and ascertaining parties’ intent)
Zettlemoyer v. Transcontinental Gas Pipeline Corp., 657 A.2d 920 (Pa. 1995) (use of surrounding circumstances to interpret easement scope)
Miller v. Poole, 45 A.3d 1143 (Pa. Super. 2012) (unambiguous contract language controls intent)
Lease v. Doll, 389 A.2d 1096 (Pa. Super. 1978) (ambiguous easement language construed in favor of grantee; ordinary uses included)
National Christian Conference Center v. Schuylkill Tp., 597 A.2d 248 (Pa. Cmwlth. 1991) (easement is an interest in land subject to quiet title actions)
Riverwatch Condominium Owners Ass’n v. Restoration Development Corp., 980 A.2d 674 (Pa. Cmwlth. 2009) (principles governing ejectment actions and plaintiff’s burden)
Doman v. Brogan, 592 A.2d 104 (Pa. Super. 1991) (ejectment requires identification of disputed land and right to possession)