Assoc. of Chapman Lake v. Long, E. & A.

J-A29017-20

2021 PA Super 77

ASSOCIATES OF CHAPMAN LAKE : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

EUGENE J. LONG AND ARYN LONG :

:

Appellants :

: No. 347 MDA 2020

:

EUGENE J. LONG AND ARYN LONG :

:

Appellants :

:

v. :

:

:

ASSOCIATES OF CHAPMAN LAKE, :

INC. AND KEN SREBRO :

Appeal from the Judgments Entered on February 14, 2020,

in the Court of Common Pleas of Lackawanna County,

Civil Division at No(s): 2014-CV-2781,

2014-CV-4917.

BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.*

OPINION BY KUNSELMAN, J.: Filed: April 22, 2021

Eugene and Aryn Long, husband and wife, appeal from the judgments

entered in favor of The Associates of Chapman Lake, Inc. and Ken Srebro

(“Associates”) in these consolidated cases. The Longs own property next to

Chapman Lake, maintain a dock on the lake, and have used the lake

recreationally since buying the land in 2007. The Associates, who bought the

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* Retired Senior Judge assigned to the Superior Court.

J-A29017-20

various parcels of land beneath the lake between 2007 and 2012, began

charging the Longs (and other residents) $100 per year to use the lake, but

the Longs refused to pay that fee. This litigation ensued.

After a bench trial, the Court of Common Pleas of Lackawanna County

ruled that the Longs could not use Chapman Lake for recreation. It deemed

this use to be a trespass into and upon the lake. In making its decision, the

trial court misinterpreted a 19th-century conveyance that granted the prior

owners of the Longs’ property the right to use the lake as if they co-owned it.

Under Pennsylvania property law, that right passed to the Longs. Thus, we

vacate the order denying post-trial relief and remand for the entry of decrees

and judgments in favor of the Longs.

I. Factual History

Chapman Lake has undergone many changes over the past 125 years,

and its history is critical to this case. The lake covers about 100 acres of

Lackawanna County. Although the lake supports motorboats, jet skis, and

other light watercraft, it is closed to the rivers and, thus, the parties agree

that it has always been “non-navigable.”1

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1 “Non-navigable waters” versus “navigable waters” are terms of art. Waters

are navigable if “used, or susceptible of being used, in their ordinary condition,

as highways for commerce, over which trade and travel are or may be

conducted in the customary modes of trade and travel on water.” Mountain

Properties, Inc. v. Tyler Hill Realty Corp., 767 A.2d 1096, 1100 (Pa.

Super. 2001). Pennsylvania’s non-navigable lakes and ponds are private, but

the Commonwealth holds title to navigable waters in trust for the use of all.

See, e.g., Vill. of Four Seasons Ass'n, Inc. v. Elk Mountain Ski Resort,

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In the 1800s, farms bordered Chapman Lake. According to a title

searcher, the Longs’ lakefront property came “from two chains of title. One

would be what you would call the Lee Farm and the other would be what you

would call the Finch Farm.” N.T., 11/7/2018, at 27. The Lee Farm was over

100 acres and originally extended under a portion of the lake.

During the 1890s, The Jerymn and Rush Brook Water Co. purchased the

other parcels of land under Chapman Lake.2 The water company then

announced plans to raise Chapman Lake by four feet. This would submerge

five acres of the Lee Farm. In 1894, P.J. Lee, Ellen V. Vail, S. Esther Lee,

Georgiana Lee, Susie B. Lee, and Hattie X. Smith (“the Lees”) sued the water

company over the impending taking of their property.

The Court of Common Pleas of Lackawanna County assembled a Board

of Viewers, which visited the Lee Farm in 1895 and determined:

That there will be taken of the lands of [the Lee Farm]

about 5 acres, of which three and 85/100 acres were

covered by water of what is known as Chapman Lake, and

about one and 1/10 acres land will be taken . . .

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Inc., 103 A.3d 814, 820 (Pa. Super. 2014). The Commonwealth has never

compiled a formal list of its private and public waters. See Pennsylvania Boat

& Fish Commission, Public Rights in Pennsylvania’s Water F.A.Q. No. 13,

available at https://www.fishandboat.com/LearningCenter/FAQs/Pages/PublicAccess.aspx

(last visited 3/18/21). Still, one commentator observed, “With the exception

of Lake Erie, there are no navigable lakes and ponds bordering on or within

the boundaries of the Commonwealth.” J.D. Lynch, Riparian Title in

Pennsylvania, 41 Pa. B. Ass’n Q. 224, 231 (1970).

2 See Longs’ Ex. 2at 775-81; Lackawanna County Deed Book 343 at 519;

Lackawanna County Deed Book 154 at 550-52; Lackawanna County Deed

Book 124 at 522-23.

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That the value of said land, water, or property so

taken or occupied, or to be taken or occupied . . . and [the

water company] having filed a map and a disclaimer of any

interest to raise the water of said lake more than four (4)

feet, or of depriving [the Lees] of the use of the water of the

said lake for all the uses for which it has been used in the

past by [the Lees] (said map and release being attached

hereto and made part of this report), and after having made

a fair and just comparison of said advantages and

disadvantages they estimate and determine that the [Lees]

have sustained damages including the taking and occupying

of the land and water as above stated to the amount of

[$580], and the same shall be paid to [the Lees].

Provided the disclaimer hereinbefore mentioned be

placed on record & remain in full force and virtue.

Lee v. The Jermyn & Rush Brook Water Co., 422 CV Sept. Term (C.C.P.

Lackawanna 1895), Report of the Board of Viewers at 1-3.

The water company and the Lees resolved their lawsuit with a cash

payment of $580, as set by the Board of Viewers, and the water company

granting the Lees and their successors the use of the lake. The Settlement

and Release in that action provided:

that the Jermyn and Rush Brook Water Company . . . doth

hereby release, remise, and forever quit claim to [the Lees],

their heirs, and assigns all and all manner of interest in and

to all land outside of that portion that will be taken and

flowed (of the lands of [the Lees]) by reasons of raising the

outlet of Chapman Lake . . . and do further disclaim any

intention of depriving the owners of said land or their heirs

or assigns of access to the water of said Chapman Lake

where it adjoins the said lands, or of free and uninterrupted

use of said water for the stock and other uses thereof in

connection with said farm as riparian owners of said land

and water, and do give and grant unto [the Lees] the right

to take water from said lake if it recedes or is drawn below

the line of low water mark and to have the use of the same

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as riparian owner and to fish in the water over the land

taken from said plaintiffs.

Lee, supra, Water Company’s Release at 1; see also Longs’ Ex. 2 at 1038;

Lackawanna County Deed Book 167 at 385.

The Recorder of Deeds of Lackawanna County recorded the 1895 Board

of Viewers Report and related court documents (including the Release and

Settlement) into the chain of title for the parcels beneath Chapman Lake. 3

“Chapman Lake was owned by various public utilities from 1896 to 1999,

and [they] held [the waters] as a back-up, fresh-drinking-water source.”

Associates at Chapman Lake v. Gerchman, 10 CV 391, 7/24/2003 Opinion

at 2 (C.C.P. Lackawanna 2003); The Associates’ Ex. 5. Over that same period,

the owners of the various farmsteads around the lake began subdividing and

selling their land to many other owners.

The former Commissioner of Lackawanna County, Robert Pettinato,

testified that his family began renting a summer cottage at Chapman Lake in

the late 1940s or early 50s, when he was about ten years old. See N.T.,

10/24/2018, at 8. In March of 1954, his parents and great uncle purchased

a lakefront tract of land in one of Chapman Lake’s subdivisions. See N.T.,

10/24/2018, at 9. Thereafter, the Pettinato family spent every summer (from

May until Labor Day) at the lake. Id. at 21, 24-25. The Pettinatos could trace

their chain of title for the land to the Lee Farm and the condemnation action.

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3 See Longs’ Ex. 2 at 1039-42; Lackawanna County Deed Book 167 at 386-

88.

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See Longs’ Ex. 1. The Pettinatos immediately built a duplex cottage on the

land, installed a dock on the lake, and built a patio area near the dock. N.T.,

10/24/2018, at 11-12. Commissioner Pettinato recalled that “the dock was

modified many times,” because it “was damaged almost annually by the ice

formations and had to be rebuilt on occasion.” N.T., 10/24/2018, at 12. “And

when it was being rebuilt, often it was enlarged and -- we were always working

on that dock.” Id.

According to Commissioner Pettinato, Chapman Lake was the heart and

soul of the property. The lake “was the reason for being. Everything that we

did at Chapman Lake revolved around the lake.” Id. at 20. Each summer,

he and members of his family used the lake daily for swimming, fishing, or

boating. Id. at 21-22.

In 1974, the Pettinato family deeded their Chapman Lake property to

their family-owned corporations: Gerard & Pettinato Construction Co., Inc.

and The North End Lumber Co. See id. at 18. The Pettinatos continued to

visit their cottage each summer and to use the lake for recreation. In 2007,

the Pettinatos’ companies sold the land to Eugene Long, who eventually

reconveyed it to his wife and himself. See id. at 19.

As a child and teenager, Mr. Long regularly visited Chapman Lake in the

1980s. See N.T., 11/7/2018, at 49. He was friends with people who owned

homes at the lake. Since childhood, he continually used the lake in the

summers to jet ski, water ski, swim, and boat. See id. In the past he would

fish the lake, and other members of his family and his guests have continued

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that use. The Pettinatos’ dock was present when Mr. Long bought the land,

and the dock has remained there since.

One of Mr. Long’s neighbors, Ken Srebro, has lived at Chapman Lake

since buying property there in 1992. See N.T., 3/27/2019, at 13. From 1992

until 2007, he used the lake for swimming, boating, water skiing, snorkeling,

scuba diving, and fishing. See id. at 14. Like the Pettinatos and Longs, he

also had a dock on Chapman Lake. Furthermore, Mr. Srebro agreed that “all

of the other adjourning property owners on the lake were also using the lake

during that period of time for the same [i.e., recreational] purposes.” Id. at

15. During this time, Mr. Srebro paid no fee to anyone for the use of the lake.

See id. at 18. His recreational uses prompted the objections of Theta Land

Corporation, which had purchased the land under Chapman Lake in 1999. See

id. at 16; see also Longs’ Ex. 2 at 202-765; Lackawanna Deed Book 167 at

2-565.

John Matines also objected to Mr. Srebro’s use of the lake, even though

he never owned it. Mr. Matines “was a guy [who] was going to buy the lake

from Theta [Land] Corporation and sell it to” Mr. Srebro and six other

Chapman Lake residents. Id. at 17.

On December 14, 2007, to acquire Chapman Lake, Mr. Srebro and his

six neighbors formed and became sole shareholders of The Associates of

Chapman Lake, Inc. They originally incorporated as a non-profit. Two months

before its formation, The Associates of Chapman Lake, Inc. received title to

most of the lands beneath Chapman Lake in an October 23, 2007 deed from

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Lackawanna County. See Longs’ Ex. 2 at 10-14. The Associates acquired the

rest of the submerged property from Theta Land Corporation on July 9, 2012.

See id. at 5-7. They then began charging the approximately 300 residences

around Chapman Lake an annual assessment of $100 to use the lake. N.T.,

3/27/2019, at 20; see also N.T., 11/7/2018, at 50. This was the first time

in the history of Chapman Lake someone had assessed a recreational-use fee

to access its waters. The Longs refused to pay the Associates’ new fee.

In July of 2008, the Associates began leasing the oil and natural gas

rights beneath Chapman Lake to Exco Northcoast Energy, Inc. See N.T.,

3/27/2019, at 20, 22. The Associates of Chapman Lake, Inc. reincorporated

as a for-profit entity, so it could payout that rent as dividends to the seven

shareholders. See id. at 23. Each of the shareholders also received and

recorded deeds from The Associates of Chapman Lake, Inc. granting their

residential properties easements to use Chapman Lake for recreational

purposes. See id. at 24.

Aside from the Longs, two other families opposed the Associates’ annual

fees — the Gerchmans and the Cliffs. The Associates won legal cases against

both families and have thereafter refused to let either family use the lake at

any price. See id. 28-29.

The Associates also sued the Longs for trespassing on the lake.

II. Procedural Posture

The Associates initiated this action in the magisterial district court, and

the case moved to the court of common pleas on May 13, 2014. That court

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docketed the first case at 2014-CV-2781. The Associates filed a Complaint

two weeks later and a Second Amended Complaint the following summer. The

Longs also filed their own Complaint against the Associates at trial-court

docket number 2014-CV-4971.

The Associates alleged that the “Longs have placed docks in the Lake

and have continued to use the Lake for recreational purposes since 2008

without paying [the $100] fee.” Associates’ Second Amended Complaint at 2.

The Associates asked the trial court to order the Longs to remove their dock,

to stop using the lake, and to pay $700 plus interest. See id.

The Longs eventually filed a Second Amended Complaint of their own

on September 19, 2018. They had two counts in that filing: quiet title and

declaratory judgment. In both counts, the Longs sought identical relief –

namely, a declaration quieting title for themselves, their tenants, guests, and

invitees “to use Chapman Lake for fishing, boating, swimming, and other

recreational purposes by virtue of the [1895] Condemnation Documents.”

Longs’ Second Amended Complaint at 11-12. In the alternative, they sought

that same right through a declaration that they, their tenants, guests, and

invitees acquired a prescriptive easement to use the waters of Chapman Lake

for the same purposes. See id. In either event, the Longs sought a

permanent injunction to prevent the Associates from interfering with their use

of the lake and from attempting to charge them a fee to use the lake.

Although never officially consolidated below, the two cases proceeded

simultaneously to a bench trial. The court rendered a decision and enjoined

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the Longs “from using Chapman Lake for recreational purposes and from

otherwise trespassing on the property of Associates.” Trial Court Order,

6/21/2019, at 1. The Longs filed a post-trial motion seeking judgment as a

matter of law, which the trial court denied.

These two timely appeals followed.4 This Court consolidated them.

III. Analysis

The Longs raise five appellate issues. However, we limit our review to

only the first issue, because our disposition of it renders the other four issues

moot.5 That issue is:

Whether the [trial court erroneously] held that the

documents filed in the Condemnation Action created an

easement to use the waters of Chapman Lake for “farm

uses” only and by ignoring other provisions in the

Condemnation Documents . . . expressly granted riparian

rights to the Lee heirs and their successors and assigns?

The Longs’ Brief at 6.

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4 Upon receiving the Longs’ appeals, this Court issued a rule to show cause as

to whether it should quash them under Commonwealth v. Walker, 185 A.3d

969 (Pa. 2018) (dictating that appellants must file separate notices of appeal

for each docket number in order to vest jurisdiction in an appellate court).

The Longs filed an answer to the rule, and the Court deferred the jurisdictional

question to this panel. Based upon the response of the Longs to the rule and

our review of the records, the Longs did not violate Walker. They have

perfected our appellate jurisdiction. Any misstep below was the result of the

accidental fling errors of the Prothonotary of Lackawanna County.

5 The other four issues focus on the trial court’s conclusion that the Pettinatos

did not acquire a prescriptive easement to use the waters of Chapman Lake.

See Longs’ Brief at 6-8.

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The trial court refused to quiet a usufructuary title6 in the Longs to, in,

and upon the waters of Chapman Lake for recreation. That court determined

that the condemnation case of Lee v. The Jermyn & Rush Brook Water

Co., 422 CV Sept. Term (C.C.P. Lackawanna 1895), only established a

usufructuary title in the Lees and their successors for agricultural uses of the

lake, rather than all conceivable uses to which water might be put. Thus,

while the trial court agreed with the Longs that the Lees and their successors

acquired a usufructuary title, the trial court disagreed with the Longs as to the

title’s scope.

This issue requires us to interpret and apply the Settlement and Release

in Lee, supra; various precedents of the trial court; and the common and

statutory law of property. All these matters raise pure questions of law.

“Accordingly, our standard of review is de novo, and our scope of review is

plenary.” MERSCORP, Inc. v. Delaware County, 207 A.3d 855, 861 (Pa.

2019); see also Russo v. Polidoro, 176 A.3d 326, 329 (Pa. Super. 2017).

As mentioned, the parties agree that Chapman Lake is non-navigable.

Regarding “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

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6 Usufructuary (adj.) – “1:

one having the usufruct of property; 2: one having

the use or enjoyment of something.” MERRIAM-WEBSTER ONLINE DICTIONARY,

available at https://www.merriam-webster.com/dictionary/usufructuary (last

visited 3/20/2021).

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another.” Miller v. Lutheran Conf. & Camp Ass'n, 200 A. 646, 650 (Pa.

1938). Still, water rights “are property that may be a subject of a contractual

or conveyance instrument. Landowners in possession of such riparian rights

are generally at liberty to sell the land and retain the rights, or vice versa.”

Mark Cheung, Dockominiums: An Expansion of Riparian Rights that Violates

the Public Trust Doctrine, 16 B.C. Envtl. Aff. L. Rev. 821 at 840-41 (1989).

See also Miller, 200 A. at 648-50, (holding grantee acquired usufructuary

title to boat and to fish in the grantor’s private lake through a deed).

Here, in rejecting the Longs’ argument that the 1895 release in Lee,

supra, granted them all recreational uses of Chapman Lake, the trial court

primarily relied upon its prior holding in Cliff v. Associates of Chapman

Lake, Inc., 2015-CV-99 (C.C.P. Lackawanna 2017).7 According to the trial

court, Cliff “dealt with a nearly identical issue, and [the common pleas court]

rejected the proposition that the Condemnation Documents grant riparian

rights prayed for by the Longs.” Trial Court Opinion, 6/21/2019, at 3. Cliff

“concluded the Condemnation Documents created an easement to use the

waters of the lake for ‘farm uses’ only. The same applies in this case.” Id.

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7 This Court issued a memorandum decision affirming on February 1, 2019.

Cliff v. Associates of Chapman Lake, Inc., 223 MDA 2018 (Pa. Super 2019)

(unpublished) (“Cliff II”). Under Pennsylvania Rule of Appellate Procedure

126(b), only Superior Court memoranda decisions filed after May 1, 2019 may

be relied upon as persuasive precedent. Therefore, Cliff II has no persuasive

value in this Court or the courts of common pleas. See Pa.R.A.P. 126(b)(2)

(limiting persuasive value to Superior Court memoranda filed after May 1,

2019).

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“As a preliminary matter, trial court decisions are not binding upon the

Superior Court.” Echeverria v. Holley, 142 A.3d 29, 36 n.2 (Pa. Super.

2016). Cliff is a trial court precedent and has no binding effect on appeal.

Additionally, judicial dictum is an “opinion by a court on a question that is

directly involved, briefed, and argued by counsel, and even passed on by the

court, but that is not essential to the decision.” BLACK'S LAW DICTIONARY at

465 (7th ed. 1999).

Like the Longs, the Cliffs refused to pay the Associates’ $100 fee to use

Chapman Lake. However, unlike the Longs, the Cliffs could not trace their

chain of title to the Lee Farm. The trial court in Cliff found that the facts of

that case were as follows:

in the 1800s and 1900s, the Lee Farm and the Finch Farm

were two properties which existed just to the west of

Chapman Lake. After the Lee Farm was condemned in

1895, the [water company] granted the Lees certain rights

to use the waters of the lake. [The Cliffs] allege that their

land derives in part from the Lee Farm, which thereby grants

them the rights granted to the Lees by said water company.

However, at the bench trial . . . Title Searcher David

Durkovic . . . stated that [the Cliffs’] property was from the

Finch Farm, and not the Lee Farm.

. . . As the [Cliffs] were unable to show that they derive

rights, including an easement to use the water of Chapman

Lake, from the Lee Farm . . . the Cliffs’ property is not in the

Lee Farm chain of title.

Cliff, 2015-CV-99, December 29, 2017 Decision and Decree at 2 (some

capitalization omitted).

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This factual finding rendered the breadth of the usufructuary title

conveyed in Lee, supra, moot in Cliff, because the Cliffs could not claim any

rights under the Lees’ chain of title. Notwithstanding that mootness, the Cliff

Court went on to opine that the water company “unambiguously limited the

[Lees’] use of the . . . waters of the lake for uses connected to the farm, such

as using water for livestock.” Cliff, December 29, 2017 Decision and Decree

at 2. Because this opinion on the water company’s conveyance to the Lees

was unessential to decide Cliff, the Cliff trial court’s views on the conveyance

was dictum.

“The doctrine of ‘stare decisis’ is limited to actual determinations in

respect to litigated and necessarily decided questions and is not applicable to

dicta or obiter dicta. Thus, a dictum is not binding authority and has no

precedential value.” 1 Standard Pa. Practice 2d § 2:252 (citing In re L.J., 79

A.3d 1073 (Pa. 2013); O’Neill v. Metropolitan Life Ins. Co., 26 A.2d 898,

(Pa. 1942); In re Cassell’s Estate, 6 A.2d 60 (Pa. 1939); City of Lower

Burrell v. City of Lower Burrell Wage and Policy Committee, 795 A.2d

432 (Pa. Cmwlth. 2002)). The trial court therefore erred by relying upon the

dictum from Cliff in the instant matter.

On appeal, the Associates make the same error as the trial court. They

rely upon the trial court’s dictum from Cliff and the unpublished memorandum

of this Court affirming Cliff. See Associates’ Brief at 10-11. That reliance is

misplaced, because neither of those authorities are precedential. See

Echeverria, supra; see also Note 7, supra.

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Next, the Associates claim the language of the Lee documents “clearly

qualifies and limits the use of water.” Associates Brief at 11. They believe

that, because a condemnation document states, “all uses for which [the lake]

had been used in the past by the [Lees],” the Longs needed to prove the Lees

used the lake for recreational purposes before the Lees sued the water

company. Id. (quoting Lee, Report of the Board of Viewers at 2).

This argument does not float. The Associates quote the Report of the

Board of Viewers, but that was not the conveyance. A representative of the

water company did not sign the Report of the Board of Viewers. The court-

appointed Viewers signed that document.

Under the Statute of Frauds, conveyances of real property must be a

writing that bears “the signature of the grantor.” Nolt v. TS Calkins &

Assocs., LP, 96 A.3d 1042, 1047 (Pa. Super. 2014) (emphasis added). Thus,

the Report of the Board of Viewers is not a conveyance of the water company’s

interests in Chapman Lake. Instead, the release is the conveyance.

The release itself determines the scope of the usufructuary title that it

grants. Our review is confined to the four corners of the release, because the

meaning of a conveyance is “gleaned solely from its language.” Teacher v.

Kijurina, 76 A.2d 197, 200 (Pa. 1950) (emphasis added). As the Associates

observe, “effect must be given to all the language of the instrument and no

part shall be rejected if it can be given meaning.” Associates’ Brief at 12

(quoting Brookbank v. Benedum-Trees Oil Co., 131 A.2d 103, 107 (Pa.

1957)) (emphasis added).

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We therefore turn to the language of the instrument in which the water

company granted the Lees the usufructuary title at issue. The water company

wrote and two of its officers signed the following:

that the Jermyn and Rush Brook Water Company . . . doth

hereby release, remise, and forever quit claim to [the Lees]

their heirs and assigns all and all manner of interest in and

to all land outside of that portion that will be taken and

flowed (of the lands of said plaintiffs) by reasons of raising

the outlet of Chapman Lake . . . and do further disclaim any

intention of depriving the owners of said land or their heirs

or assigns of access to the water of said Chapman Lake

where it adjoins the said lands, or of free and uninterrupted

use of said water for the stock and other uses thereof in

connection with said farm as riparian owners of said land

and water, and do give and grant unto [the Lees] the right

to take water from said lake if it recedes or is drawn below

the line of low water mark and to have the use of the

same as riparian owner and to fish in the water over the

land taken from said plaintiffs.

Lee, supra, Water Company’s Release at 1; see also Longs’ Ex. 2 at 1038;

Lackawanna County Deed Book 167 at 385 (emphasis added).

The Associates would have us focus on every clause other than the one

highlighted above. However, doing so, would violate Brookbank, supra,

wherein the Supreme Court of Pennsylvania directed courts to give effect to

all the language of an instrument, if possible. If we limited the instrument to

only agricultural uses – as the Associates suggest and as the trial court did –

then the clause granting the Lees and their successors “the use of the same

[i.e., the waters of Chapman Lake] as riparian owner” would have no effect.

Such an interpretation confers only the specific uses granted elsewhere in the

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conveyance and essentially removes the general-use-as-riparian-owner

clause from the Settlement and Release. This contradicts Brookbank.

The Associates would have us construe the conveyance as narrowly as

possible, but they produced no evidence as to why that narrowest reading

should prevail. Moreover, the plain language of the use-as-riparian-owner

clause is not narrow.

The classic example of narrow conveyance of water rights appears in

Miller v. Lutheran Conf. Camp, supra. There, the grantor-corporation

expressly limited the grant in its deed “to boat and fish the water” that the

corporation owned. Miller, 200 A. at 648. This was a specific, clearly limited

grant of water rights. Miller could do two things under his deed – boat and

fish.

In the matter at bar, had the water company desired to grant the Lees

the right to use the water of the lake for their “farm use only,” as the trial

court concluded, the water company could have done so by using this limiting

language in the Settlement and Release. For example, the water company

could have written that it “gives and grants unto the Lees the right to use the

waters of the lake for farm uses only.” That is not what the water company

wrote. It conveyed much more than that to the Lees, namely, “the use of

[the waters of Chapman Lake] as riparian owners.” Lee, supra, Water

Company’s Release at 1; see also Longs’ Ex. 2 at 1038; Lackawanna County

Deed Book 167 at 385. This language is the broadest grant of water rights

possible under Pennsylvania common law. The use of water “as a riparian

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owner” of non-navigable waters, such a Chapman Lake, is the use of those

waters as if the grantee were a private owner of those waters. See Vill. of

Four Seasons Ass'n, Inc. v. Elk Mountain Ski Resort, Inc., 103 A.3d 814

at 820 (Pa. Super. 2014).

Construing that clause as the Longs assert, by its plain and natural

language, we hold that this broad, general language granted the Lees and

their successors all the same uses as if they owned the waters of Chapman

Lake (“as riparian owners” of the waters). This interpretation gives the clause

its natural meaning and its full force and effect, while the other more specific

clauses concerning livestock, taking water for domestic use, and fishing

likewise remain in effect.

We further observe that, “if doubt arises concerning the interpretation

of the instrument, it will be resolved against the party who prepared it . . .”

Brookbank, 131 A.2d at 107 n.6 (emphasis added). The water company

prepared the release. Thus, we resolve any doubt against the water company

and its successors in interest – the Associates. The trial court therefore erred

by not interpreting the general clause that gives the Lees use of the lake as

riparian owners, according to its plain meaning and by not construing it

against the Associates, i.e., the drafter’s successors in interest.

We therefore hold that, under the Settlement and Release, recorded in

Lackawanna County Deed Book 167 at 385, the Lees and their successors in

title to the Lee Farm acquired usufructuary title to an easement. This

easement grants them access to, in, and upon the waters of Chapman Lake

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as if they themselves were, are, and will hereafter be “riparian owners” of the

lake.

We must next decide what type of easement the Lees’ chain of title

acquired. “In determining whether a certain easement in connection with

water is appurtenant or in gross, the nature of the right, the surrounding

circumstances, and the intention of the parties creating it are to be

considered.” George Thompson, COMMENTARIES ON REAL PROPERTY § 264 at

363-64 (1980 ed.) (citing Lindenmuth v. Safe Harbor Water Power Corp.,

163 A. 159 (Pa. 1932)).

The water company granted this easement to the Lees and their

successors in conjunction with the company’s condemnation of five acres of

the Lees’ land. The water company received a deeper reserve of drinking

water in exchange for giving the Lees and their successors the right to use

Chapman Lake as if co-owners of its waters. This quasi-co-ownership served

as part of the Lees’ compensation for the water company’s taking. Thus, the

easement is tied to and runs with the Lees’ land, for the benefit of the Lees

and all successors to their lands. The easement created in the release is an

easement appurtenant, rather than an easement in gross.

Finally, we agree with the Longs that this easement appurtenant flowed

down to them, as a matter of law. See Longs’ Brief at 34. Our legislature

has dictated, “All deeds or instruments in writing for conveying or releasing

land hereafter executed, granting or conveying lands, unless an exception or

reservation be made therein, shall be construed to include all . . .

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hereditaments, and appurtenances whatsoever . . .” that belong to the land.

21 P.S. § 3. The usufructuary title in question was for an incorporeal

hereditament, i.e., an easement appurtenant to the land conveyed from the

Lees. No prior owner in the Longs’ chain of title expressly reserved that

easement appurtenant. See Longs’ Ex. 1. Hence, the easement appurtenant

to use the waters of Chapman Lake, as riparian owners, vested in the Longs.

In sum, the trial court erred, as a matter law, by not reversing its

decision and decree in these cases. It should have granted the Longs’ motion

for post-trial relief in its entirety. We vacate the order denying post-trial relief

and remand for the entry of an order awarding quiet, usufructuary title to the

Longs, their heirs, and assigns for an easement appurtenant to, in, and upon

the servient waters of Chapman Lake, including for all recreational uses

thereof. The trial court shall enter a permanent injunction against the

Associates and their successors. That injunction shall prohibit the Associates

and their successors from interfering with the Longs’ quiet use and enjoyment

of Chapman Lake and from assessing the Longs or their successors a fee to

use its water. Similarly, the trial court shall award judgment to the Longs in

the action that the Associates filed. The Longs’ dock and recreational uses of

Chapman Lake are not trespasses; they are within the scope of the easement

created in the 1895 release.

Judgments and order denying post-trial relief vacated. Case remanded

for further proceedings consistent with this Opinion.

Jurisdiction relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 04/22/2021

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