On appeal from Superior Court, Chancery Division, Burlington County.
Bischoff, Botter and Dwyer. The opinion of the court was delivered by, Dwyer, J.A.D.
Defendant Aniela Piasecki appeals from the judgment in favor of plaintiff Gregory S. Ghen determining that Ghen has an easement by way of necessity from Ghen's interior seven-acre parcel across Mrs. Piasecki's 23-acre parcel to reach Tomlinson-Mills Road. The judgment established the easement as:
In his brief Mrs. Piasecki's counsel urged that Ghen is not entitled to an easement by way of necessity under the circumstances herein presented; hence the judgment should be reversed. Counsel argued, alternatively, that if Ghen is entitled to an easement by way of necessity, then under the circumstances of this case he should pay for the quantity of land appropriated by the judgment below.
At oral argument counsel for Mrs. Piasecki stated that there would be no difficulty with the location and extent of the easement if compensation were allowed.
Before considering the novel question of whether there is a right to be compensated for an easement by way of necessity, it is necessary to briefly state the underlying facts which are not in dispute.
In 1950 Mrs. Piasecki and her husband John purchased the 30 acres in question. The parcel measures 600' X 2,154.68' with 600' of frontage on Tomlinson-Mills Road. The frontage on that road is the only access to a public road. The adjoining lands on all other sides are owned by strangers.
Mrs. Piasecki and her husband bought the land to farm it. They developed ten acres in the front for growing blueberries. They built a small house in the front. They created a pond in the front. They did not utilize the rear 20 acres but left it in its natural state.
After the death of her husband Mrs. Piasecki undertook to sell the property although she was 80 years of age and had difficulty with the English language. She was represented by counsel in all negotiations. Joseph L. Baisden contracted to purchase the entire tract.
At the closing on December 14, 1972 Mrs. Piasecki executed a deed for the 30 acres to Penn Valley Development Corporation (Penn Valley) for a recited consideration of $175,000. She received $50,750 in cash and took back a purchase money mortgage of $124,250 which was to be paid in four equal annual installments. This mortgage was a lien on only the front 23 acres and left the seven acres in the rear unencumbered.
Paragraph 10 of the mortgage provided:
RELEASES: In return for each $7,000 of the principal amount paid at settlement and thereafter under terms of the mortgage one whole acre shall be released to the buyer. In return for the $50,750 down payment made hereunder there shall be released and not included in the bond and mortgage a parcel of ground running the full 600 foot width of the property to a depth of 500 feet and situated to the back or most Northerly end and most distant from Tomlinson Mill Road. Further releases shall be ...