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Penn Bowling Recreation Center v. Hot Shoppes

179 F.2d 64 (1949)

Tags:ย Property, Easements

tl;dr: An easement-holder who had used it in an unauthorized way had not forfeited the easement altogether.

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This case involves a dispute between Penn Bowling Recreation Center, Inc. and Hot Shoppes, Inc. over the use of a right of way that was conveyed to Hot Shoppes in 1938. Hot Shoppes erected a barrier within the right of way, interfering with Penn Bowling's use of the easement. Penn Bowling filed a complaint to enjoin Hot Shoppes from maintaining the structure and interfering with the use of the right of way. Hot Shoppes argued that Penn Bowling had forfeited and extinguished the right of way by abandonment due to an additional and enlarged use of the servient tenement in connection with other premises. They also claimed that Penn Bowling had misused the easement by using it for parking motor vehicles and that certain masonry constructions had made it impossible to use the right of way for egress and ingress. The district court granted Hot Shoppes' motion for summary judgment, which Penn Bowling appeals. The appellant constructed a building that occupies a part of the dominant tenement and the additional property, and has been using the right of way to bring in supplies and remove trash. However, the total area of the portion of the dominant tenement and the non-dominant property over which the building is constructed is smaller than the area of the original dominant tenement, which may be a violation of the original easement. Misuse of an easement right is not enough to constitute forfeiture, waiver, or abandonment of such right. The right to an easement is not lost by using it in an unauthorized manner or to an unauthorized extent, unless it is impossible to sever the increased burden so as to preserve the owner of the dominant tenement's entitlement and impose only the original burden on the servient tenement. The lower court erred in granting Hot Shoppes' motion for summary judgment, and the case is now being appealed.

The court cannot determine the full impact of the appellant's use of the right of way on the servient tenement, and the appellee cannot obtain a decree extinguishing the easement or a permanent injunction based on current evidence. However, if authorized and unauthorized uses are mixed, an injunction may be necessary until the building is altered to allow only authorized use. The trial court must determine if the loading dock can be removed to allow the use of the right of way for the dominant estate. The appellant cannot use the easement for parking, but is entitled to a reasonable use for ingress and egress. The case is sent back to the lower court with a reversed decision, and the appellee has the option to seek a preliminary injunction.

IRACIssue, Rule, Analysis, Conclusion

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Facts & Holding

Facts:Norment Estate sold a piece of its property to Hot...

Holding:The court held that Penn Bowling had not forfeited the...

Penn Bowling Recreation Center v. Hot Shoppes

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