Was Easement by Implication Created by By Severance of Title
In Bucciarelli v. DeLisa, 547 Pa. 431, 691 A.2d 446 (1997) Maxine Keene, in 1986, conveyed a twenty-acre parcel of lakeside land to her son Raymond Keene.
Mrs. Keene retained ownership of other land on the lake, which she subdivided into four lots.
On these lots were cottages which, over the years, the Keene family had rented to others.
In 1987, with Raymond's assistance, Mrs. Keene submitted a subdivision plan to the county planning commission.
This plan indicated that access to the four properties comprising the subdivision would be via an existing road (Cottage Road) that traversed the twenty-acre tract that she had conveyed to Raymond the year before.
Upon approval of the subdivision plan, Mrs. Keene sold the four lots.
In 1988, Raymond conveyed his twenty-acre tract to Al DeLisa.
For approximately ten years prior to this purchase, DeLisa lived across the lake from and within sight of the Keene subdivision, and, in order to get to his house, he drove over an access road, which intersected Cottage Road.
Neither Mrs. Keene's deed to Raymond nor Raymond's deed to DeLisa indicated that an easement was reserved.
Subsequently, DeLisa blocked Cottage Road even though it had been used for access to the lakeside lots within the Keene subdivision.
Thus, the owners of the lakeside lots sought injunctive relief against DeLisa.
The trial court held that DeLisa had constructive notice of the easement by way of the recorded subdivision plan, as well as the planning commission records with regard thereto, which made reference to a fifty-foot-wide right of way along an existing private road that had been approved to serve a previous lakeside subdivision in 1971.
The trial court also found that DeLisa had actual notice of the right of way.
The court based its decision upon the theory that the recorded subdivision plan created an easement by implication, but further noted that an easement by implication appeared to have been created by severance of title.
This Court rejected the trial court's conclusion that the subdivision plan placed DeLisa on constructive notice of the easement because the land purchased from Raymond was not sold in accordance with the plan, and the deed contained no reference to either the plan or the easement.
This Court also held that the trial court had not made any findings which would support an easement by implication at severance of title when the land was conveyed from mother to son in 1986, and that there was insufficient evidence to support either the traditional or Restatement tests for such an easement.
Finally, this Court found insufficient evidence concerning the use of the easement prior to Mrs. Keene's conveyance to Raymond, as well as insufficient evidence to permit an analysis of the factors concerning the creation of easements by implication.
Our Supreme Court granted allowance of appeal to determine whether an easement by implication was created at the time of severance of title and whether DeLisa had actual notice of the existence of the right of way over the property when he purchased it.
Answering the second issue first, the high court, while agreeing that the trial court did not specifically find facts to support its conclusion that an easement by implication at severance of title was created, nevertheless held that the trial court had made sufficient factual findings to support its conclusion that DeLisa had actual notice of the existence and use of Cottage Road prior to his purchase of the twenty-acre tract from Raymond.
Our Supreme Court found this prior use important to the determination of whether an implied easement was created because:
The effect of the prior use as a circumstance in implying, upon a severance of possession by conveyance, an easement results from an inference as to the intention of the parties.
To draw such an inference the prior use must have been known to the parties at the time of the conveyance, or, at least, have been within the possibility of their knowledge at that time.
Each party to a conveyance is bound not merely to what he intended, but also to what he might reasonably have foreseen the other party to the conveyance expected.
Parties to a conveyance may, therefore, be assumed to intend the continuance of uses known to them which are in considerable degree necessary to the continued usefulness of the land.
Also they will be assumed to know and to contemplate the continuance of reasonably necessary uses which have so altered the premises as to make them apparent upon reasonably prudent investigation . . . Bucciarelli, at 436, 691 A.2d at 448 (quoting Restatement of Property, 476, Comment j).
In a footnote, the high court noted that while it "has never specifically adopted Restatement of Property 476 and we decline to do so now, for 476 is merely a list of frequently encountered considerations as to whether an easement by implication at severance of title was created.
Courts may, nevertheless, find the section useful and persuasive in analyzing cases like this." Id. at 437 n.1, 691 A.2d at 448 n.1.