Borgel v. Hoffman , 219 Pa. Super. 260 ( 1971 )

Opinion by

Ceecone, J.,

Plaintiff in this case fell in a driveway which runs between the rear of two rows of houses, one row fronting on Lawndale Street and the other row fronting on Bingham Street in the City of Philadelphia. This rear driveway is used in common by the abutting property owners and opens on both ends to public streets. Homer and Jane G. Hoffman are the owners of an abutting property located at one end of the driveway, their property being known and located as 5950 Lawndale Street. Plaintiff instituted an action against the Hoffmans alleging that her fall and consequent personal injuries were the result of a defect in that portion of the driveway located on the Hoffman property. The Hoffmans, in turn, filed a Complaint seeking to join as additional defendants two owners of properties similarly located on the same side of the driveway and three owners of properties located on the opposite side of the driveway. No other owners of properties abutting the driveway, who also enjoyed easements therein, were named in the Hoffman suit.

In their Complaint the Hoffmans alleged that the negligence, if any, was that of the additional defendants “in that they did own, control and maintain the said common driveway and failed to maintain the same in a reasonably safe condition for public travel thereon”. The Hoffmans claimed the “Additional Defendants are alone liable or jointly or severally liable or liable to the defendant for contribution for injuries or losses which Plaintiff may have sustained.”

The additional defendants filed Answers denying that they had any ownership, possession or control, exclusive or otherwise, of the location at ■which plaintiff fell, and denied that the fall was the result of any condition which was caused, created, maintained, possessed, or controlled by them.

Interrogatories were then directed to the Hoffmans by the additional defendants and after Answers thereto, the additional defendants made motions for summary judgment in their favor on the reasoning that: plaintiff alleged she fell on that portion of the driveway owned by Hoffmans; that defendants did not deny such ownership; that according to Hoffmans’ Answers to Interrogatories, the supposed duty of the additional defendants to maintain and control the driveway arose from their Deeds; and that no such duty or obligation is expressed or implied in their Deeds. The additional defendants claimed there was no genuine issue as to any material fact involved and no cause of action existed against them. The lower court agreed and granted motions for summary judgment in their favor. This appeal by the Hoffmans followed.

The question presented to us can be stated as follows: Where the defendants own an easement over a driveway, a portion of which abuts or is located on their property, and a user contends negligence in their maintenance and repair of that portion of the driveway, are the other owners of properties abutting the driveway, who also enjoy an easement therein, responsible, either solely or jointly with the defendants, in the absence of any express covenant, for the repair and maintenance of that portion of the driveway so abutting or located on defendants’ property?

It is apparent from the record in this case that each owner of property abutting the driveway enjoyed an easement over the driveway in common with all the other abutting owners. This, in general, is characteristic of an easement appurtenant, which, by its very nature, contemplates a tract of land (the servient tenement) used for the benefit of another tract (the dominant tenement) : Woodlawn Trustees, Inc. v. Michel, 418 Pa. 398 (1965). There is no requirement that the servient and dominant tracts be contiguous; the dominant tract may and often is physically separated from the servient tract.

The general rule is that where an easement is used and enjoyed for the benefit of the dominant estate alone, the owner of the dominant estate is under the obligation to make repairs and may be liable to third persons for failure to keep the way in proper state of repair: Reed v. Allegheny County, 213 Pa. 300, 199 A. 187 (1938); Bina v. Bina, 213 Iowa 432, 239 N.W. 68 (1931).

The difficulty arises where, as here (unlike the Bina and Reed v. Allegheny County cases, supra), multiple property owners occupy the dual position of dominant and servient tenants. In this case, each owner of properties abutting the driveway is an easement owner or a dominant tenant of the driveway abutting the other properties. At the same time, each owner of property abutting the driveway is an easement grantee or servient tenant of that portion of the driveway located on his own property.

In these circumstances, the respective rights and burdens of each of the property owners must necessarily be determined by considerations of the equities and expediencies involved. In Bina v. Bina, supra, a case cited most frequently in this regard, but not involving, as already stated, multiple owners who are both dominant and servient tenants, the Iowa Supreme Court held the burden of upkeep distributable between the dominant and servient tenants in proportion to their relative use of the easement as nearly as may be ascertained. In Barnard v. Gaumer, 361 P. 2d 778, 146 Colo. 409, the Colorado Supreme Court, in remanding an easement case for clarification of evidence, nevertheless held that absent any agreement on the question of maintenance of a private way, the burden should be distributed equitably between the easement owners and the easement grantees.

The Pennsylvania courts have not formulated any inflexible rule of law which governs every fact situation with regard to the respective duties of the dominant and servient tenants. While we recognize the general rule, as already stated, regarding the obligation of a dominant tenant to keep in repair an easement which is used and enjoyed for the dominant estate alone, it must be recognized that this general rule is simply an application of the broader rule that the duty of repair should fall where reason, convenience, and equity require it to fall. Where, as in this case, an ease-merit in a driveway is owned and utilized by many abutting property owners, it would be most unreasonable, inconvenient and inequitable to hold each dominant tenant liable for a defect in the driveway no matter how far removed from that dominant owner’s property. It would be equally unreasonable, inconvenient and inequitable to hold only those dominant owners whose properties are close to the defect liable therefor, since we would then have to answer the question, “How close is close?” And, if we were to say that those dominant tenants making the most use of the driveway at the place of the defect should be liable therefor, we would be faced with difficult evidentiary issues as to amount of use and presented with the important legal question of how much use should impose liability. It is our conclusion that the most reasonable, expedient and equitable rule is to require each of the owners to be responsible for the maintenance and repair of only that portion of the driveway abutting or located on his own land.¹

We do not here determine what may be the rights of the Hoffmans to recover from the other easement owners’ contribution toward the cost of repairs and maintenance by virtue of covenants in the respective Deeds, the issue before us being only as to the responsibility and liability of the additional defendants for the actual maintenance and repair of that portion of the driveway abutting or located on the Hoffman property.

Judgment affirmed.

1 Because of the rule here enunciated and applied, it is immaterial whether or not plaintiff was herself an owner of one of the abutting properties, the Complaint alleging her residence at 5932 Lawndale Street. Her residency in proximity to the defect and her use of the driveway may, however, become pertinent to the issue of contributory negligence in her suit against the Hoff-mans.