For remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Haneman. Opposed -- None. The opinion of the court was delivered by Haneman, J.
Plaintiffs filed a complaint in the Chancery Division seeking a mandatory and prohibitory injunction against an alleged trespass upon their lands. Defendant counterclaimed for a declaratory judgment which would adjudicate that she had gained title to the disputed premises by adverse possession under N.J.S. 2 A:14-6 which provides:
"Every person having any right or title of entry into real estate shall make such entry within 20 years next after the accrual of such right or title of entry, or be barred therefrom thereafter."
After plenary trial, judgment was entered for plaintiffs. Mannillo v. Gorski, 100 N.J. Super. 140 (Ch. Div. 1968). Defendant appealed to the Appellate Division. Before argument there, this Court granted defendant's motion for certification. R.R. 1:10-1 A.
The facts are as follows: In 1946, defendant and her husband entered into possession of premises in Keansburg known as Lot No. 1007 in Block 42, under an agreement to purchase. Upon compliance with the terms of said agreement, the seller conveyed said lands to them on April 16, 1952. Defendant's husband thereafter died. The property consisted of a rectangular lot with a frontage of 25 feet and a depth of 100 feet. Plaintiffs are the owners of the adjacent Lot 1008 in Block 42 of like dimensions, to which they acquired title in 1953.
In the summer of 1946 Chester Gorski, one of the defendant's sons, made certain additions and changes to the defendant's house. He extended two rooms at the rear of the structure, enclosed a screened porch on the front, and put a concrete platform with steps on the west side thereof for use in connection with a side door. These steps were built to replace existing wooden steps. In addition, a concrete walk
was installed from the steps to the end of the house. In 1953, defendant raised the house. In order to compensate for the resulting added height from the ground, she modified the design of the steps by extending them toward both the front and the rear of the property. She did not change their width.
Defendant admits that the steps and concrete walk encroach upon plaintiffs' lands to the extent of 15 inches. She contends, however, that she has title to said land by adverse possession. N.J.S.A. 2 A:14-6, quoted above. Plaintiffs assert contrawise that defendant did not obtain title by adverse possession as her possession was not of the requisite hostile nature. They argue that to establish title by adverse possession, the entry into and continuance of possession must be accompanied by an intention to invade the rights of another in the lands, i.e., a knowing wrongful taking. They assert that, as defendant's encroachment was not accompanied by an intention to invade plaintiffs' rights in the land, but rather by the mistaken belief that she owned the land, and that therefore an essential requisite to establish title by adverse possession, i.e., an intentional tortious taking, is lacking.
The trial court concluded that defendant had clearly and convincingly proved that her possession of the 15-inch encroachment had existed for more than 20 years before the institution of this suit and that such possession was "exclusive, continuous, uninterrupted, visible, notorious and against the right and interest of the true owner." There is ample evidence to sustain this finding except as to its visible and notorious nature, of which more hereafter. However, the judge felt impelled by existing New Jersey case law, holding as argued by plaintiffs above, to deny defendant's claim and entered judgment for plaintiffs. 100 N.J. Super., at 150. The first issue before this Court is, therefore, whether an entry and continuance of possession under the mistaken belief that the possessor has title to the lands involved, exhibits the requisite hostile possession to sustain the obtaining of title by adverse possession.
The first detailed statement and acceptance by our then highest court, of the principle that possession as an element of title by adverse possession cannot be bottomed on mistake, is found in Folkman v. Myers, 93 N.J. Eq. 208 (E. & A. 1921), which embraced and followed that thesis as expressed in Myers v. Folkman, 89 N.J.L. 390 (Sup. Ct. 1916). It is not at all clear that this was the common law of this State prior to the latter case. An earlier opinion, Davok v. Nealon, 58 N.J.L. 21 (Sup. Ct. 1895), held for an adverse possessor who had entered under the mistaken belief that he had title without any discussion of his hostile intent. However, the court in Myers v. Folkman, supra, at p. 393, distinguished Davock from the case then under consideration by referring to the fact that "Charles R. Myers disclaims any intent to claim what did not belong to him and apparently never asserted a right to land outside the bounds of his title * * *." (Emphasis supplied) The factual distinction between the two cases, according to Myers, is that in the later case there was not only an entry by mistake but also an articulated disclaimer of an intent by the entrant to claim title to lands beyond his actual boundary. Folkman, although apparently relying on Myers, eliminated the requirement of that decision that there be expressed an affirmative disclaimer, and expanded the doctrine to exclude from the category of hostile possessors those whose entry and continued possession was under a mistaken belief that the lands taken were embraced within the description of the possessor's deed. In so doing, the former Court of Errors and Appeals aligned this State with that branch of a dichotomy which traces its genesis to Preble v. Main Cent. R. Co., 85 Me. 260, 27 A. 149, 21 L.R.A. 829 (Sup. Jud. Ct. Me. 1893) and has become known as the Maine doctrine. In Preble, the court said at 27 A., at p. 150:
"There is every presumption that the occupancy is in subordination to the true title, and, if the possession is claimed to be adverse, the act of the wrongdoer must be strictly construed, and the character of the ...