[152 NJSuper Page 3] On April 21, 1975 plaintiffs initiated this action seeking damages from defendants, professional
engineers and land surveyors, arising from an alleged error committed by them in March 1963.*fn1 The complaint is framed in six counts and charges defendants with negligence and breach of contract in conducting certain surveys here in issue. As stipulated, the material facts are as follows:
In early 1963 members of the DePuy family contracted to sell to Harold S. Wells, a land developer, a portion of their property located in the neighboring municipalities of Ramapo, New York, and Upper Saddle River, New Jersey. The contract provided that the land to be conveyed was estimated to be 35.688 acres and was to be subject to an accurate survey. Consequently, Wells engaged Conklin Associates to perform the necessary survey and on March 5, 1963 a perimeter survey of the tract was made. Thereafter the DePuy family deeded the property to Fox Hill Estates, an assignee of Wells, for the contract price of $3,500 an acre. Subsequent to this conveyance a subdivision map was prepared and filed with the county clerk; roads and utilities were constructed and installed; individual lots were sold, and residences were built.
In September 1969 the DePuy family sold the balance of its property, located in Ramapo, New York, to the Old Hickory Land Development Company which, in turn, conveyed the land to Wulster Realty, Inc. Both corporations were principally owned by William Wulster, who intended to develop the tract with residential housing. Accordingly, in early 1973 Wulster hired Ostertag and McDougall, another
engineering and surveying firm, to prepare the necessary survey. As a result of this survey it was discovered that the 1963 survey prepared by Conklin Associates had erroneously located the New York State-New Jersey boundary line which served as the dividing line of the Wells and Wulster properties. The true boundary was, in fact, approximately 20 feet further south than the survey of Conklin Associates had indicated. Thus, those residences which abutted the southern border of the Wulster property encroached upon and overlapped approximately six-tenths of an acre of the Wulster tract. Desirous of an expeditious resolution of the problem, Wulster contacted his neighbors to the south and initiated negotiations with them and their title companies. After an extended discussion, a settlement was eventually reached whereby Wulster received $30,000 for the encroachment. As a result, this action was initiated by the two title companies, suing as subrogees, and by the McGoverns suing as uninsured property owners who had contributed $4,000 to the settlement.*fn2
At trial defendants raised the defense of the ten-year statute of limitations, N.J.S.A. 2A:14-1.1. The statute provides in pertinent part:
No action whether in contract, in tort, or otherwise to recover damages for any deficiency in the design, planning, supervision or construction of an improvement to real property, or for any injury to property, real or personal, * * * shall be brought against any person performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property, more than 10 years after the performance or furnishing of such services and construction.
Defendants further urged that the settlement figure of $30,000 was an arbitrary and unreasonable sum to have paid
for the encroachment. Plaintiffs, however, maintained that the statute is inapplicable to the occurrences here, relying on New Market Poultry Farms, Inc. v. Fellows , 51 N.J. 419 (1968), and that the $30,000 accord was, under the circumstances, a reasonable, soundly negotiated settlement.
Of significance in determining the issue of the applicability of the statute of limitations is the fact that subsequent to the 1963 survey, and within ten years of the filing of the complaint, individual surveys were prepared for six of the seven lots surveyed by Conklin Associates.*fn3 In each of these, the erroneous boundary line appears. Thus, plaintiffs suggest that should this court conclude that the statutory limitation is applicable to the 1963 survey, the subsequent acts of ...