In Re: Petition for Appointment of Board of Viewers for Purpose of Closing Twp. Rd. 444 and/or Compensating Wyoming Land Conservancy, Inc. for the Unlawful Taking of its Property Situate in Windham Twp., Wyoming County, PA

DISSENTING OPINION

BY JUDGE McCullough

I respectfully dissent because I do not bélieve that Windham Township (Township) can acquire a right of way which is per se prohibited by law.

First, I disagree with the Majority that the Act of 18501 does not have any application where a public road already exists.2 The Pennsylvania Supreme Court in Kurtz v. Hoke, 172 Pa. 165, 33 A. 549, 550 (1896), held that the existence of a public road does not foreclose a- challenge to a purported easement-by prescription. Similarly, here, Wyoming Land Conservancy, Inc. (WLCI) should not be precluded from challenging…