On appeal from Superior Court, Law Division, Passaic County.
Petrella, Baime and Ashbey. The opinion of the court was delivered by Petrella, P.J.A.D.
[222 NJSuper Page 569] This appeal involves a dispute between neighbors as to their common property boundary line. The trial judge, after a bench trial, entered judgment for plaintiffs Carmen J. and Edythe Maggio with respect to a strip of land running parallel to a masonry retaining wall which was entirely on the property of the adjoining owners, defendants Stuart and Hermyne Pruzansky. The Pruzanskys appeal, arguing that the trial judge misinterpreted Mannillo v. Gorski, 54 N.J. 378 (1969), and failed to apply that case correctly when he concluded that the "encroachment"*fn1 was a major, rather than a minor one. Defendants
also argue on this appeal that the trial judge erroneously assumed that the dividing line was open and notorious.
The facts are not complicated. Unfortunately, the neighbors were unable to resolve their differences over a relatively small strip of land which defendants might rarely have been called upon to use either for maintenance of their wall or in any other fashion, although it might affect side yard requirements under the zoning ordinance. The matter was tried over a period of three days.
The Maggios own the property at 25 Witherspoon Road in Clifton, New Jersey (Lot 32, Block 74-4 on the tax map) on which is situated a one-story frame dwelling. They purchased this property in 1972 and obtained a survey of those premises. The Pruzanskys live in a one-family residence at 19 Witherspoon Road (Lot 33, Block 74-4) which they purchased in or around 1983.
The Maggios filed a complaint on September 3, 1985 seeking various relief. They claimed title to the disputed strip alternatively by deed and by adverse possession. They also asserted claims of trespass on that strip and intentional destruction by the Pruzanskys of their personal property thereon. The Pruzanskys denied the allegations of the complaint and counterclaimed against the Maggios, asserting their entitlement to the strip and alleging trespass on the part of the Maggios. The claim by the Maggios for title by deed was dismissed on summary judgment since their 1972 deed did not include the disputed strip of property. After a three-day trial the judge awarded adverse possession to the strip to the Maggios and dismissed all their other claims as well as the counterclaim, with prejudice.
The Maggios purchased their property by deed dated September
26, 1972 from the Gilmans*fn2 who had lived there from on or about August 14, 1957. The 1972 survey obtained by the Maggios, the 1957 deed under which the Gilmans took title, and the deed to the Maggios, did not refer to the wall (the record is not clear as to when that was constructed, but presumably it was about the time when the house was built in which the Pruzanskys presently reside). Both deeds recite that they are subject to "any state of facts which an accurate survey may show."
In 1983 the Maggios had a swimming pool installed and in connection therewith erected a four foot high chain-link fence around the pool on the rear half of the property. Propane tanks, apparently portable from the depiction in the photographs, were also placed on the property for use with the pool. Apparently the Pruzanskys took title in 1983 from a family named Matzler*fn3 and undertook extensive renovations which took about six months, before they moved in around June 1984 -- which is about a year after the Maggios had installed the pool, fence and propane tanks. The common line between the Maggio property on its westerly side and the Pruzansky property on its easterly side runs 152.13 feet from street to rear property line. A masonry wall*fn4 retains the soil on the higher elevated Pruzansky property and starts at about two to four inches above the ground at the front of the property (and some 1.18 foot clear of the westerly property line), rises to a height
of about 44 inches in the middle of the property line (where the wall is clear of the line by about 1.4 feet) and then drops off to a height of about four to ten inches at the rear where it is about 1.9 feet clear of the line. Except for the trial judge's decision on adverse possession, it is indisputable, based on the deeds and surveys in evidence, that the wall is entirely placed on the property of the Pruzanskys, but not at a uniform distance.
A survey dated February 5, 1986 of the Pruzansky property shows that the Maggios' four foot high chain-link fence intruded over the westerly property line onto the Pruzanskys' property by some 1.13 feet at the front and 1.35 feet at the rear. It also showed the two small round metal propane tanks, apparently portable and refillable, on the line and intruding over the line.
The surveyors found the iron boundary line marker pipes which had at some earlier time been placed at the front and rear on the common property line. Presumably they were on the property back in 1957 when the Gilmans had purchased it since the stakes are at the same point where the property lines are shown on the May 5, 1972 survey of the Maggio property obtained at the time the Maggios purchased their house. The retaining wall is not shown or delineated on that May 5, 1972 survey.
The survey obtained by the Pruzanskys dated, February 5, 1986, shows what is the true deed course and distance of the dividing line between the subject properties. The line was also shown on a filed subdivision map for the "College Croft Development." This survey shows the masonry wall and encroachments into the Pruzansky property by the Maggios' chain-link fence at the rear of the property and the two small propane tanks which also intruded slightly into the one-foot strip east of the masonry retaining wall. Pruzansky testified that the distance from the side of his house to his property line on the west, including the strip east of the wall, was 12 feet and that if
he did not have that strip area, he would not be in compliance with the side-yard requirements of the Clifton zoning ordinance.
Mr. Maggio testified that when they moved into the property in 1972, the Matzler family lived next door. There was never any discussion or dispute between them concerning the location of the wall or any property on the side of the wall next to the Maggio property. Maggio testified that when he purchased the property from Mrs. Gilman he "assumed" he owned to the wall and had maintained it by cutting the grass, mulching and planting flowers. Due to the unavailability of Mrs. Gilman for the trial, her deposition was read into evidence. She said that she had maintained the one-foot strip as a part of her yard and had cut the grass up to the wall, planted flowers in that area (they never planted shrubs or bushes), and had maintained a vegetable garden for a time at the very rear portion which apparently went up to that wall on one side. She also said that she never had any discussion with the Matzlers about the actual property line. She was unaware whether the Matzlers realized the actual location of the dividing line. The Gilmans never made a claim of adverse possession of that property.
Maggio testified that it was his "understanding" that he owned the property "Right up to that wall, up to and including that wall." He appeared at that point to claim that he thought that he owned the entire wall and for the entire length of the property. He claimed he ...