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Kruvant v. 12-22 Woodland Avenue Corp.

Decided: November 26, 1975.


Dwyer, J.s.c.


[138 NJSuper Page 6] While sipping a drink and chatting with an attorney at a party about plans to develop what is labeled as Lot 1445-B in Block 152-X on the tax maps of Town of West Orange (Lot B), one of the owners was startled to hear the attorney tell him that those who had been riding horses across Lot B from the nearby stable might have acquired an easement across it because the activity had been going on for as long as the attorney could remember.

Shortly thereafter the owners of Lot B demanded for the first time that the stable either pay rent or stop using Lot B. The stable refused both demands. The owners then commenced this action.

By conveyance from Empire Holding Co. (Empire) to plaintiffs Philip Kruvant, Charles Kruvant and Bobcar Corporation the latter are the record owners of Lot 1445-B in Block 152-X on the tax maps of Town of West Orange Lot B containing 10 +- acres. 12-22 Woodland Avenue Corporation, trading as Suburban Essex Riding Club (club) operates boarding stable for approximately 100 horses, and a riding academy on premises which the club owns on the north side of Nicholas Avenue, a paper street, and which premises face Lot B located on the opposite, or south, side of Nicholas Avenue.

The matters at issue are: (1) the right of plaintiffs to terminate the club's use of the bridle trail which extends approximately 800 feet diagonally across Lot B to an oversize culvert constructed in 1939 by Essex County to permit horses to pass from that bridle trail under Prospect Street and into Eagle Rock Reservation (Reservation) where there are several miles of bridle trails, the right to terminate the club's use of certain other areas of Lot B, and the right of plaintiffs to collect money damages from 1973 based on use and occupancy, and (2) the right of the club, asserted by counterclaim, to have the court declare that it has either title to said bridle trail and said certain other areas under the doctrine of adverse possession, or a prescriptive easement for the bridle trail and those other areas. Depending upon the resolution of the main question, there is a related question of whether plaintiffs have a cause of action against Mayfair Farms Holding Corporation (Mayfair) for breach of Mayfair's full warranty deed executed and delivered to Empire on December 30, 1955, because of the club's rights in the bridle trail and said certain other areas in Lot B.

Although a predecessor in title of the club established a riding stable on the club's premises in 1927 and utilized

both the lands now in Lot B as well as Woodland Avenue, a paved public street which runs parallel to Nicholas Avenue, as a means of travel to reach Prospect Street where the riders crossed into the Reservation, the court finds that the critical point of inquiry begins after 1939.

The subject premises is part of a large block bounded on the north by Nicholas Avenue, on the east by Prospect Street, on the south by Eagle Rock Avenue, and on the west by Terrace Avenue. The same streets existed in 1939. In 1939 Lot B consisted of one tract and a portion of another, i.e. , the Mateer tract and a portion of the Lanzer tract. The Mateer tract embraced all the frontage on Nicholas Avenue between Terrace Avenue and Prospect Street, and had a depth, or frontage, on those streets of 200 feet and 152 feet, respectively. Except for some lots and homes fronting on Terrace Avenue and several other acres in the center of the block connected to Eagle Rock Avenue by a 50-foot strip owned by a corporation related to Mayfair, the Lanzer tract included the remainder of the block which was then wooded, unenclosed and undeveloped. The subject bridle trail starts on the north side of Nicholas Avenue, crosses that street, enters Lot B and runs 800 feet diagonally across Lot B to the culvert which is about 330 feet south of the intersection of Nicholas Avenue and Prospect Street. The bridle trail crosses the Mateer tract and the portion of the Lanzer tract now forming part of Lot B.

Plaintiffs proved their deed and the use by the club. Frank M. Cummins, Assistant County Engineer for Essex County, who holds a B.S. degree in Civil Engineering, a master's degree in Civil Engineering and is a licensed professional engineer, was called at trial by the club to testify about the culvert under Prospect Street through which the bridle trail is connected to the Reservation. He testified that, based on the engineering data in the files of the county engineer, before the culvert was reconstructed in 1939 it could carry storm water and the water of a stream from the Reservation to a stream bed in Lot B on the other side of

Prospect Street, but it was not large enough to accommodate a horse. Subsequent to the construction of the present culvert a horse and mounted rider could pass through it.

During the adjournment overnight he rechecked the files of the office of the county engineer and discovered some correspondence between a Mr. Girdler and the county engineer in 1939, as well as a copy of an unsigned two-year license agreement between the club and Marion Lanzer for use of the bridle trail across the portion of present Lot B that was then part of the Lanzer tract. The form of agreement and correspondence were admitted into evidence for the purpose of showing that the club negotiated with Lanzer in 1939, but not for the purpose of establishing that permission was granted.

The court was subsequently informed by counsel that the law firm which represented Lanzer no longer had any file on the matter. Through the testimony of a witness called by plaintiffs on rebuttal, Leroy DuBois, one of three brothers who started the riding stable in 1927, it was established that Girdler was a relatively wealthy individual whose children boarded horses at the riding stable in the 1930s. He became concerned about the safety of the riders crossing Prospect Street on horseback as automobile traffic developed in the 1930s. DuBois brothers had attended to the business affairs of the stable and he to the horses and riders. He stated the corporate records and business records no longer exist. He said that he recalled that Girdler undertook to negotiate with the county concerning the culvert for the riding stable and those who rented and boarded horses there.

The minutes of the board of freeholders regarding the culvert project reflect that there was inquiry about the right of the riding stable to use the bridle trail on the other side. From the records introduced into evidence there is no definite answer as to what right the riding stable had in 1939 to use the bridle trail on the Lanzer tract in 1939. The court finds that, in respect to Lanzer, the riding stable, predecessor

in title of the club, recognized the paramount rights of Lanzer in 1939 by Girdler negotiations.

DuBois also testified that he recalled a dispute about the riders crossing the Mateer tract before the tract was sold. Although he was not personally involved in the matter, he recalled that it was settled by his brothers, or the riding stable, making a payment of money. He believed that the Mateers wanted them to buy the land but did not have the money. Although DuBois is now in his 80s and his memory weakened by passage of time and advancing age, the court found him a credible witness and finds that this sort of event is of the type that would have been discussed among the owner brothers and particularly with DuBois who lived, and lives, in a home adjoining the club. The court finds that the riding stable did recognize the paramount rights of the Mateers when it made the payment.

Based on the foregoing findings, the riding stable, in or about 1939, but in any event prior to the conveyances by Lanzer and Mateer, recognized the paramount rights of Lanzer and Mateer in what is now Lot B. In light of the inquiry made by the officials of Essex County of Girdler about the rights of riding stable to use the opposite lands for a bridle trail to the proposed culvert before authorizing the project, as well as the correspondence of Girdler in response to that inquiry and the payment to Mateer, the court finds that the riding stable obtained permission to use said lands for a bridle trail in the period between 1939 and the respective dates of the subsequent Lanzer and Mateer conveyances.

By deed dated October 28, 1944 the Lanzer tract, which comprised basically the whole of the block with the exceptions noted above, was conveyed to Mayfair. By deed dated November 1, 1945 the Mateer tract was conveyed to Mayfair.

The critical date for the start of inquiry into the rights of the respective parties to this action is November 1, 1945, the date of the conveyance of the land across which the portion of the bridle trail closest to Nicholas Avenue crossed.

The activities of riding stable in making payment to Mateer and obtaining a license from Lanzer may be considered as evidence of permission and a break in the continuity of any previous period of adverse use. See Kiernan v. Kara , 7 N.J. Super. 600 (Ch. Div. 1950); Penna. R.R. Co. v. Hulse , 59 N.J.L. 54 (Sup. Ct. 1896); Soper v. Conly , 108 N.J. Eq. 370 (Ch. 1929), aff'd 107 N.J. Eq. 537 (E. & A. 1931); Strong v. Baldwin , 137 Cal. 432, 70 P. 288 (Sup. Ct. 1902) (payment for use broke continuity of adverse use). Compare Kana v. Bolton , 36 N.J. Eq. 21 (Ch. 1882); 3 Powell, Real Property , "Easement by Prescription."

However, a person who is using property by permission may become an adverse user by subsequent events where the servient estate is conveyed away. Feldman v. Knapp , 196 Or. 453, 250 P. 2d 92 (Sup. Ct. 1952); First Nat'l Bank v. Vanden Brooks , 204 Mich. 164, 169 N.W. 920 (Sup. Ct. 1918) (conveyance of land ended consensual agreement for use of stairway, so that defendant from date of conveyance was an adverse user); Toney v. Knapp , 142 Mich. 652, 106 N.W. 552 (Sup. Ct. 1906) (written personal license for use of 20 feet of 91-acre tract for private roadway was terminated by user's conveyance of land and subsequent use of roadway was adverse); Foley v. Lyons , 85 R.I. 86, 125 A.2d 247 (Sup. Ct. 1956) (conveyance of servient estate terminated oral license, and use thereafter was adverse); Fine v. Straus , 86 Ga. App. 354, 71 S.E. 2d 580 (Ct. App. 1952) (conveyance of servient estate terminated permissive use, and use thereafter, being by acquiescence, ripened into prescriptive easement).

In Feldman v. Knapp, supra , plaintiff sought (1) an injunction against defendant's interference with plaintiff's use of a driveway which started at a public street, crossed defendant's property and then entered plaintiff's property, and (2) a declaration of right that plaintiff had a permanent easement. The record established that plaintiff's predecessor in title had divided the tract into two lots under separate

ownership prior to construction of the driveway and separate homes on each lot. After construction of the driveway, the common predecessor in title reacquired the second lot and mortgaged it. In lieu of foreclosure the common predecessor conveyed title for the second lot to the mortgagee without reservation of an easement for the driveway.

In 1944 the common predecessor conveyed the other tract to plaintiff's precedessor in title by warranty deed. The record established that plaintiff's predecessor in title had used the driveway openly, continuously and exclusively ever since 1933. The applicable statutory period was ten years.

The court concluded that no permission was requested or given after 1933. It said:

Under the facts and circumstances of this case a presumption arose that the user by plaintiffs and their predecessors in interest of this driveway was adverse and under a claim of right. There is no evidence in the record to rebut that presumption. The burden of proof was upon defendants to rebut the same if, in fact, it could be rebutted. Evidence of mere acquiescence in, as distinguished from permission for, such use on the part of the owners of the servient estate is insufficient for the purpose. In Shephard v. Gilbert, 212 Wis. 1. 249 N.W. 54, 58, the court said:

"* * * It is our conclusion that neither friendship nor close social relations of the owner and initial user can be effective to rebut the presumption. Such evidence may indicate acquiescence, but it plainly falls short of proving a permission acted upon by Smith. Mere acquiescence at the commencement of a use would not affect its adverse character." [Italics supplied]

In 17 Am. Jur., Easements , 976, ยง 65, the rule is stated:

'The foundation of the establishment of a right by prescription is the acquiescence on the part of the owner of the servient tenement in the acts which are relied upon to establish the easement by prescription. This makes it necessary that he know of those acts, or be charged with knowledge of them if he did not in fact know of them. * * * It is presumed, however, that every man knows the condition and status of his land; and if anyone enters into open and notorious possession of an easement therein under claim of right, the owner is charged with knowledge thereof." [196 Or. at 472, 250 P. 2d at 101-102].

The court affirmed relief for plaintiff.

These decisions are consistent with the law of New Jersey. Kiernan v. Kara, supra , and East Jersey Iron Co. v.

Wright , 32 N.J. Eq. 248 (Ch. 1880); Page v. Gaskill , 84 N.J.L. 615 (E. & A. 1913).

The main question for resolution is what was the nature of the use and the relationship between the riding stable, the intermediate owner and the club as user of the bridle trail, and the series of owners of what is now Lot B after November 1, 1945 and until the commencement of this action on July 11, 1973.

Mrs. Mayrl Walker testified for Club. She has been riding at the club since 1934 and has boarded a horse there since 1936 when the operation was known as the Montclair Riding Club. Prior to the enlargement of the culvert riders rode their horses up Woodland Avenue and crossed Prospect Street into the Reservation, or rode across the bridle trail to the stream and crossed Prospect Street at grade level into the Reservation. The bridle trail has always been in its present location except for some regrading to permit horses to reach the lower level to enter the enlarged culvert.

She identified a meadow in a photograph as a schooling path. Other witnesses referred to it as a dressage field. It is located near Prospect Street in an area close to the slope of the bridle trail to the culvert. She said that the riders had used this area probably longer than the bridle trail. She did not recall whether the meadow area had been wooded and cleared by bulldozers by plaintiffs after they acquired Lot B.

She testified that no one ever interrupted use of the bridle trail. No one ever posted any signs denying use. She testified that she never heard that anyone had ever given permission to use the lands across Nicholas Avenue. She assumed that she had permission, or that the club and its predecessors did.

Other witnesses with many years of association with the club and its predecessors testified that, subject to severe weather when the bridle trail is not used, riders use the bridle trail every day to go to the Reservation. They testified that the bridle trail is the only route to the Reservation.

They testified to the dangers of riding horses on a hard surface such as paved Woodland Avenue and the dangers of crossing Prospect Street at grade.

James Allen, the present stable manager, testified that he started working at the club at eight years of age when his father was the stable manager. He is now 44. He testified that as a youngster he had walked horses in the meadow or schooling area. He did not know that anyone had ever interrupted use of the bridle trail. He further testified that he recalled the schooling area as a berry patch where he exercised horses. Other youngsters did, and still do, exercise horses in the meadow. He did not recall anyone bulldozing that area. In 1959 he was away from the club premises, driving a tractor trailer for a period of several months.

Martin L. Horn, Jr., was called by plaintiffs as a rebuttal witness and testified that he, his brother and his father are the principals in Mayfair. He further testified that between 1939 and 1943 he had ridden at the Montclair Riding Club, a predecessor of the club, over the bridle trail and through the culvert. After returning from military service he had ridden occasionally with a friend over the bridle trail and ...

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