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Varriano v. Miller

Decided: December 21, 1959.

CHARLES VARRIANO AND LINDA VARRIANO, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
ISIDORE MILLER AND HELEN MILLER, HIS WIFE, DEFENDANTS-RESPONDENTS



Goldmann, Freund and Haneman. The opinion of the court was delivered by Freund, J.A.D.

Freund

This is an action concerning the rights of adjoining property-owners under an easement agreement. Plaintiffs Charles Varriano and his wife appeal from a final judgment of the Chancery Division dismissing their amended complaint and adjudging that the defendants Isidore Miller and his wife are entitled to relief on their counterclaim.

The Varrianos and the Millers have their permanent residences in Jersey City. In 1955 and for some years prior thereto the parties were very friendly. They went on picnics together at Lake Hopatcong and both families liked the area. In the spring of 1955 Charles Varriano was "looking for a place to buy." A real estate agent showed him property at Lake Hopatcong owned by Hans Fuetterer. The lot had about 150 feet of lake frontage. There were two dwellings thereon, and the total price was $42,000.

The parties agreed to purchase the property together and had a survey prepared dividing the parcel into two lots. The Millers paid $27,000 for the larger home, on the northerly half. The Varrianos paid $15,000 for the smaller home, on the southerly half. Both lots had lake frontage on the east and fronted on Maxim Drive on the west. Mr. Fuetterer had occupied the home which the Millers acquired and had rented what became the Varriano home.

The evidence reveals that access to the respective homes is gained primarily by a single 12 foot wide common driveway which leads from Maxim Drive onto the plaintiffs' property, crossing in front of the Varriano dwelling and then making a complete circle in front of the Miller home. But the Varriano property, although possessed of the principal vehicular approach, had no independent water supply. The well supplying drinking water was located on the Miller lot, and the pump for this well was located in the basement of the Miller house. Moreover, there was another pump in the Miller boathouse which was used to provide lake water to both houses for hot water and toilet facilities. Both the well and lake water pumps were controlled by electric switches located in the Miller home. Water from both sources was pumped to the two houses through underground pipes.

Upon their simultaneous purchases from Mr. Fuetterer in June 1955, the parties had an oral understanding that the Millers could use the driveway as it then existed across the plaintiffs' property, and the Varrianos would be furnished with water from the defendants' facilities.

In December 1955 an agreement was executed by the parties. It contained four separate paragraphs, the first two reading:

"1. The First Party [the Varrianos] hereby grants unto the Second Party, their heirs and assigns, an easement and right of way to the present driveway and common entrance, now used on said property, for ingress and egress and as and for driveway purposes.

2. The Second Party [the Millers] grants unto the First Party, their heirs and assigns, the right to the use of the well and pump

which is now located on the property, and the right to use lake water and pump. The Second Party agrees to the outright purchase of any new equipment such as pumps, etc. The First Party will only share the cost of maintenance."

In the third paragraph they agreed to share maintenance costs of the driveway, well, lake-water pump and entrance gate; and in the fourth, each was given first ...


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