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Barberi v. Bochinsky

Decided: December 28, 1956.

ALBERT BARBERI AND EDNA BARBERI, PLAINTIFFS-RESPONDENTS,
v.
LEON BOCHINSKY, DEFENDANT-APPELLANT



Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.

Francis

This appeal requires us to review the action of the trial court in adjudging the defendant liable for a continuing trespass on plaintiff's land and in assessing as damages the cost of removal of the encroaching structure.

Plaintiff and defendant are adjoining property owners. Plaintiff acquired ownership from the City of Bayonne in November 1950. Defendant's title to his premises was prior to that date by some years; the exact date does not appear but it antedated 1946. At the rear of defendant's land there was a sharp decline to the west across plaintiff's lot and toward Newark Bay. Rainy weather caused continuing erosion and increased the slope.

In 1946, while plaintiff's predecessor City of Bayonne held title, defendant trespassed on the premises and built a reinforced concrete wall 14 feet long which, for its entire length and width, encroached four feet on the city's land. Thereafter, defendant filled in the land on his side of the wall in order to make the rear of his lot level. Since then, the defendant has used and is still using the wall for the purpose of preserving this level by preventing further erosion from storms or from the action of surface water. The contour of the land became such, its surface becoming level with the top of the wall, that neither the encroachment nor the wall was obvious from the street on which the lot fronted. Defendant does not maintain that by the encroaching construction he intended to appropriate four feet of plaintiff's property.

In 1950, when plaintiff acquired the wall-burdened premises (apparently at public auction), he was not aware of the trespass, and there is no suggestion that the price paid reflected a diminution in value because of the encroachment.

Some time before the suit was brought, when plaintiff was contemplating building garages at the rear of his lot, he discovered that the wall represented a trespass and that it would be necessary to remove it before his construction could proceed satisfactorily. Upon defendant's refusal to remedy the condition, the complaint herein was filed.

At the trial defendant maintained that the cause of action for trespass accrued prior to plaintiff's acquisition of ownership, did not pass to him with the title, and even if it did, the limitation statute barring actions at law unless brought within six years, was an insurmountable obstacle to recovery. N.J.S. 2 A:14-1.

However, the argument overlooks the fact that the wall in question with its continuous and current use by defendant as a means of preventing erosion of his land, constitutes a continuing trespass. Morey v. Essex County , 94 N.J.L. 427 (E. & A. 1920); Milton v. Puffer , 207 Mass. 416, 93 N.E. 634, 32 L.R.A., N.S. , 1010 (Sup.

Jud. Ct. 1911); McGann v. Hamilton , 58 Conn. 69, 19 A. 376 (Sup. Ct. Err. 1889); Annotations , 29 A.L.R. 839 (1924); 32 L.R.A., N.S. 1010 (1911); L.R.A. 1916 E , 997, 1011, 1013, 1043; Restatement, Torts , § 161, comment b (1934). Such a trespass is actionable at least until the wrongdoer has pressed the unlawful and adverse use to the point when it becomes a prescriptive right. Delaware & Raritan Canal Co. v. Wright , 21 N.J.L. 469 (Sup. Ct. 1848); Annotation, L.R.A. 1916 E, supra , 1043, note 38 d; Restatement, supra, comment d. Until that time, defendant remains under a duty to abate the nuisance. Restatement, supra , § 161, comment b; Annotation, L.R.A. 1916 E, supra , at page 1043. And unquestionably damages suffered by the owner of the land within six years of the institution of the suit by reason of the failure to abate, are recoverable. Morey v. Essex County, supra , 94 N.J.L. , at page 430. Transfer of title to the land after the original trespass does not preclude the transferee's action where the wrong is a continuing one unless, of course, the original owner recovered in full for all present and prospective damage therefrom. Note , 27 L. Ed. 739, 740 (1926); Restatement, supra, comments b and d; McCormick, "Damages for Anticipated Injury to Land," 37 Harv. L. Rev. 574, 596-601 (1924); cf. Ballantine & Sons v. Public Serv. Corp. , 86 N.J.L. 331 (E. & A. 1914). In this case no previous action was ever instituted against the defendant.

Defendant charges further that no proof of recoverable damages was introduced at the trial. He urges that the proper measure of damages in such cases is the difference between the market value of the realty before and after the trespass. That is the general rule. Manda, Inc., v. City of Orange , 77 N.J.L. 285 (Sup. Ct. 1909); 52 Am. Jur., Trespass , § 49, at 874 (1944); 87 C.J.S., Trespass , § 117 (1954). Defendant points out that he produced the ...


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