In Re: Petition for Appointment of Board of Viewers for Purpose of Closing Twp. Rd. 444 and/or Compensating Wyoming Land Conservancy, Inc. for the Unlawful Taking of its Property Situate in Windham Twp., Wyoming County, PA
2016 Pa. Commw. LEXIS 481
Pa. Commw. Ct.2016Background
- WLCI owns land in Windham Township through which an unpaved Cemetery Road runs for ~0.93 miles; the Township has maintained and used the road for decades.
- WLCI filed a petition seeking (a) appointment of a board of viewers to vacate the portion of Cemetery Road on its land or (b) alternatively, compensation for a de facto taking.
- The Township filed preliminary objections asserting: statute of limitations/laches, statutory public-road status under the Second Class Township Code (21+ years of maintenance), and a prescriptive easement/public use for 21+ years.
- After an evidentiary hearing the trial court sustained the Township’s preliminary objections, finding Cemetery Road a public road by prescription; the court dismissed WLCI’s petition with prejudice.
- On appeal WLCI raised for the first time that Section 21 of the Act of 1850 (prohibiting acquisition of a right‑of‑way by user through unenclosed woodland) barred the Township’s claim. The majority deemed that argument waived and rejected it on alternative grounds.
- The appellate court affirmed, holding competent evidence supported a prescriptive/public easement and that WLCI had waived or failed to meet the burden for the "unenclosed woodland" defense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Township acquired a public prescriptive easement over Cemetery Road | WLCI: road use did not satisfy the uniform, adverse, continuous 21‑year public use requirement | Township: long‑standing public use and township maintenance for 21+ years established a prescriptive/public easement | Held for Township — trial court’s finding of public use supported by competent evidence |
| Whether Section 21 (Act of 1850) bars acquisition of a right‑of‑way because road traversed unenclosed woodland | WLCI: statute forbids acquiring any right‑of‑way by user through unenclosed woodland; thus prescriptive claim invalid | Township: issue not raised below and prescriptive/public road established; statute does not preclude challenge once a road already exists (majority view) | Majority: WLCI waived the defense and in any event inconsistent with remedies sought; defense not proven by WLCI; issue not considered on merits |
| Whether WLCI could seek vacatur of the road and also assert the unenclosed‑woodland defense | WLCI: statute should preclude Township’s right regardless of remedy sought | Township: seeking vacatur presumes public road; pursuing damages admits taking; inconsistency with claiming the road never existed as a public way | Held: remedies pursued are inconsistent with asserting statute; limitation on invoking §21 in that procedural posture |
| Procedural waiver: may §21 be raised for first time on appeal? | WLCI: raised on appeal (arguing statutory bar) | Township: waiver; issues not raised in preliminary objections or 1925(b) statement are waived | Held: waiver — appellate court declined to consider §21 because WLCI failed to raise it below and in the Rule 1925(b) statement |
Key Cases Cited
- Sprankle v. Burns, 675 A.2d 1287 (Pa. Super. 1996) (Act of 1850 applies equally to private and public prescriptive easements)
- Brake v. Crider, 107 Pa. 210 (Pa. 1884) (historical authority on prescriptive rights)
- Humberston v. Humbert, 407 A.2d 31 (Pa. Super. 1979) (character of land controls application of the Act of 1850)
- Minteer v. Wolfe, 446 A.2d 316 (Pa. Super. 1982) (unenclosed woodland bars prescriptive right)
- Morgan v. Richter, 724 A.2d 983 (Pa. Cmwlth. 1999) (elements for declaring a road public by prescription)
- Steivart v. Watkins, 235 A.2d 604 (Pa. 1967) (uniform, adverse, continuous public use requirement)
- Southeastern Pennsylvania Transportation Authority v. Pennsylvania Public Utility Commission, 505 A.2d 1046 (Pa. Cmwlth. 1986) (public use must be by the public in general, not a limited segment)
- Kurtz v. Hoke, 33 A. 549 (Pa. 1896) (unenclosed woodland statute admits of but one meaning — no prescriptive right through unenclosed woodland)
- Martin v. Sun Pipe Line Co., 666 A.2d 687 (Pa. 1995) (reaffirming that prescriptive easement may not be acquired through unenclosed woodland)
- Keefer v. Jones, 359 A.2d 735 (Pa. 1976) (continuity established by settled course of conduct indicating claim of right)