In 1836 the Pennsylvania Legislature enacted a statute that came to be known as the Private Road Act. The gist of the Act was that a property owner who owned land that was landlocked, and who thus had the need of a road or right of way to gain access to that land, could turn to the Courts to establish the location for such a road to be not more than 25 feet in width. The Act further authorized the Court, through the appointment of a Board of View, to determine the amount that the landowner would have to pay his neighbors for the taking of the easement over their properties.
The Private Road Act provided relief for many landlocked property owners over the ensuing decades. All of that came to a screeching halt with a surprising decision of the Pennsylvania Supreme Court in the case of “Opening Private Road for Benefit of O’Reilly”, decided in 2010. In the “O’Reilly” decision, the Supreme Court called into question the general constitutional validity of the Private Road Act. While the Supreme Court did not find the Act was per se unconstitutional, it held that a petitioner seeking a private road must establish that the public is the “primary and paramount beneficiary” of the proposed road.
A recent decision of the Pennsylvania Commonwealth Court, “In Re: Kenneth E. Stake”, decided May 14, 2013, demonstrates how the Public Road Act has become a “paper tiger” since the “O’Reilly” holding. “Stake” involved the appeal of a landowner who sought relief under the Act in order to gain access to a landlocked parcel of land. The trial court determined that a road was necessary, and appointed a Board of View to determine the value to be paid to the neighbors for the road. One of the neighbors filed a motion to dismiss the petition, arguing that it was an unconstitutional taking under the Supreme Court’s holding in “O’Reilly”. The trial court agreed, and the landowner appealed. On appeal, the landowner raised the traditional arguments that were thought to justify the validity of the Private Road Act, including that the public gained because the otherwise inaccessible swath of land would be made available for use for farming, timbering, mining, and other commerce, and because the newly created road would become part of Pennsylvania’s road system. The Commonwealth Court rejected those arguments, holding that they were not the type of direct public benefit necessary to justify a taking under the Private Road Act as required by “O’Reilly”.
The holdings of “O’Reilly” and “Stake” spell serious trouble for property owners who find their land to be without access to a public road. The Private Road Act appears to now be unavailable in most landlocked situations. Those owners will need to turn to other means of establishing an easement, including an express written easement from the neighbor, an easement by implication, an easement by necessity, and a prescriptive easement.
Please don’t hesitate to contact Jeffery W. Stover if you have any questions pertaining to the topics raised in this post.