A motion is made to settle the form of an order of judgment in a case involving a right-of-way easement which burdened defendant's land in favor of plaintiff. Along a common property line defendant erected a fence with a gate three feet wide across the easement. Plaintiff alleged that the effect of this metal fence was to deprive him of the use of his premises in such a manner as to cause him substantial damage. Among the damages claimed was the expense of having to demolish certain of his buildings to provide for the access to his plant eliminated by defendant's wrongful closure of the easement. Plaintiff sued to recover compensatory and punitive damages, and for an injunction requiring removal of the fence.
The issue of liability was tried without a jury on October 15, 1971; on November 3, 1971 this court ruled that defendant could keep the fence, but was required to widen the gate across the easement ten feet. The issue of damages was reserved for further argument. However, at that time, the issue of exemplary damages was found in favor of defendant.
On August 2, 1972 argument on the issue of damages was heard by this court, and in a letter opinion dated August 4, 1972 damages were awarded in the amount of $7,322.26 in compensation to plaintiff for the construction necessary and proximately related to the closing off of the easement.
In an order of judgment proposed by plaintiff for defendant's consent, plaintiff included interest at 6% a year from July 13, 1969, pursuant to R. 4:42-11(b). Defendant, in turn, submitted an order in which it omitted this interest payment. Plaintiff objects to the form of this order which excludes the interest.
R. 4:42-11(b) was adopted on December 21, 1971, to be effective January 31, 1972. It reads:
In tort actions, including products liability actions, the court shall include in the judgment interest at 6% per annum on the amount of the award from the date of the institution of the action or from a date 6 months after the date of the tort, whichever is later. The contingent fee of an attorney shall not be computed on the interest so included in the judgment.
Defendant denies that this rule applies to it on two grounds: (1) defendant maintains that the action for interference with the easement lies in contract and not in tort, and that, therefore, this section could not apply regardless of when this action is brought and judgment entered, and (2) even if this action does lie in tort, judgment was rendered on the issue of liability on November 3, 1971, prior to the effective date of the rule. Defendant notes that it objected to the bifurcation of the trial and wanted to argue damages along with liability. But, in any case, defendant argues judgment was rendered prior to the effective date and the mere adjudication of the amount of damages subsequent to that date should not make the rule applicable.
This court finds that the action for obstruction of the right of way easement lies in tort and that the judgment was rendered after the effective date, so that R. 4:42-11(b) should apply in this case.
When the courts of this State have spoken of an action at law to recover for damages caused by a defendant's interference with an easement, they have spoken in tort terms. Thus, in Schaaf v. Pennsylvania R.R. , 77 N.J.L. 115 (Sup. Ct. 1908), plaintiff could not get her hay wagon onto her premises because of defendant railroad's obstruction of her right-of-way. The court there spoke in terms of trespass and ...