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Devins v. Borough of Bogota

Decided: July 10, 1991.

JAMES J. DEVINS AND MARY J. DEVINS, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
BOROUGH OF BOGOTA, DEFENDANT-RESPONDENT



On certification to the Superior Court, Appellate Division, whose opinion is reported at 237 N.J. Super. 596 (1989).

The opinion of the Court was delivered by Pollock, J. Chief Justice Wilentz and Justices Clifford, Handler, O'Hern, Garibaldi, and Stein join in this opinion.

Pollock

The primary issue on this appeal is whether adverse possession should apply to municipally-owned property not dedicated to or used for a public purpose. Ruling that adverse possession should not so apply, the Appellate Division affirmed the Chancery

Division's grant of summary judgment for the municipality, Borough of Bogota ("the Borough" or "Bogota"). 237 N.J. Super. 596 (1989). We granted the petition for certification of plaintiffs-appellants, James J. Devins and Mary J. Devins, his wife, 121 N.J. 603 (1990), and now reverse and remand to the Chancery Division. We hold that municipally-owned property neither dedicated to nor used for a public purpose is subject to acquisition by adverse possession.

-I-

Because this matter reaches us on plaintiffs' appeal from a summary judgment for defendant, we accept plaintiffs' version of the facts and give plaintiffs the benefit of all favorable inferences. R. 4:46-2; see Pierce v. Ortho Pharmaceutical, 84 N.J. 58, 61 (1980); Judson v. Peoples Bank & Trust, 17 N.J. 67, 73-77 (1954).

The property is a 25 x 100 foot lot located on Fairview Avenue and identified as Lot 10, Block 98 on the municipal tax map. In 1962, Bogota acquired title to the property through an in rem foreclosure. At that time, the lot was vacant. Since then, Bogota has not improved or used the property, nor has it dedicated the property to public use.

In 1965, plaintiffs purchased from James and Jeanette Geraghty an adjacent single-family residence at 132 Fairview Avenue, identified as Block 98, Lots 11 and 11A on the municipal tax map ("the house lot"). At that time, the Geraghtys, who in 1958 had received a quitclaim deed to Lot 10 from their grantors, also executed a quitclaim deed for that lot. Sometime before 1958, a chain link fence had been erected around Lot 10. That fence matches a fence around the house lot, creating the appearance that the lots are commonly owned. A barbecue pit, which had been constructed before plaintiffs acquired the house lot, remains on Lot 10.

Since 1965, plaintiffs have used Lot 10 for parking, cookouts, lounging, and other recreational purposes. Plaintiffs installed a basketball backboard on the lot in the mid-1970s and erected a shed around 1980. Additionally, they have mowed the grass and otherwise maintained the lot. At some point, a portion of Lot 10 was paved to provide parking for the house lot. Before the institution of suit, Bogota had not challenged plaintiffs' use of the property.

For their part, plaintiffs have never paid taxes on Lot 10. In 1985, however, their attorney sent a letter to the Mayor and Council of Bogota requesting that the Borough concede that plaintiffs had acquired title to Lot 10 by twenty years' adverse possession. The Borough promptly denied plaintiffs' claim, asserting that adverse possession cannot run against a municipality.

Plaintiffs then filed this action seeking a declaration that they had acquired title by twenty years' adverse possession. Although the Chancery Division believed that plaintiffs had established facts that could constitute adverse possession, it ruled that "adverse possession will not run against a municipality." Consequently, the court granted summary judgment for the municipality.

The Appellate Division affirmed. Its opinion begins by noting the general rule "that title to property held by a municipal corporation which is dedicated to public use cannot be acquired by adverse possession." 237 N.J. Super. at 600. The court declined to draw the distinction between public and non-public uses, and rejected plaintiffs' argument that by failing to use the property for a public purpose, Bogota had made "it vulnerable to alienation by adverse possession." Id. at 601. Instead, the court concluded that ...


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