By: Paula J. Leicht, Esq.
For property owners whose property does not adjoin a public road and does not have access thereto either through an express access easement or easement across adjoining property by implication involving a common owner in the chain of title, the Private Road Act (the "Act") of June 13, 1836 P.L. 551 as amended, 36 P.S. §§ 1781-2891, offered the landlocked property owner a remedy.
Since the Act was adopted in 1836, the owner of landlocked property could petition the court of common pleas in the county where the property is located for a Board of Viewers to lay out a road on adjoining properties for access to a public road for the landlocked property. The damages for same as determined by the Board of Viewers would be paid by the landlocked property owner.
Several recent appellate court cases on the subject, however, have called into question the constitutionality of this remedy and its availability to redress the problem. The argument goes that a petitioner must establish that the public be the primary and paramount beneficiary of the opening of the road to the landlocked property, otherwise the taking of another's property for an access easement would in effect be an unconstitutional taking of another's property in the absence of a public purpose.
The original case which brought us to this end is In the matter of: Opening a Private Road for benefit of O'Reilly, 954 A.2d 57 (Cmnwth., 2008) (the "First O'Reilly Appeal"). In this First O'Reilly Appeal to Commonwealth Court, the Commonwealth Court upheld the Court of Common Pleas of Allegheny County in determining that the Act is constitutional for many reasons, including the long history of the Act's use to provide an access remedy for truly landlocked parcels. The Commonwealth Court held that the opening of a road to an otherwise landlocked property serves a public purpose because "otherwise inaccessible swaths of land in Pennsylvania would remain fallow and unproductive, . . . making the land virtually worthless and not contributing to commerce or the tax base of this Commonwealth."
The parties whose land would be taken for the private access road appealed the First O'Reilly Appeal to the Pennsylvania Supreme Court, 5 A.3d 246 (2010) (the "Second O'Reilly Appeal"). The Pennsylvania Supreme Court sent the case back to the Commonwealth Court to "determine whether the public may be fairly regarded as the primary and paramount beneficiary of a taking under the Act." Following a further remand by the Commonwealth Court, 22 A.3d 291 (Cmnwth., 2011) to the Court of Common Pleas of Allegheny County to develop additional evidence, the Court of Common Pleas concluded that the petitioner did not establish that the public would be the primary and paramount beneficiary of the O'Reilly application. The petitioner appealed this decision to the Commonwealth Court in the Third O'Reilly Appeal, 100 A.3d 689 (2014), which upheld the lower court's last conclusion, i.e., that the public benefit was not established in this case.
In conclusion, the above series of appellate cases, although not outright determining that the Act is unconstitutional, certainly will make any future petitioner's case for access to landlocked property over land of another a very difficult one to win. This result may affect members of the farming community because very often historically agricultural lands were conveyed together with a wood lot on the nearby forested hills, parcels which were not necessarily contiguous to the agricultural lands and parcels for which access easements to a public road were not granted.