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Vagnoni v. Gibbons

July 19, 1991

ROBERT VAGNONI AND FAY VAGNONI, HIS WIFE, ET AL., PLAINTIFFS,
v.
THOMAS J. GIBBONS AND PHILOMENA K. GIBBONS, HIS WIFE AND RICHARD MUSTARD, ET AL., DEFENDANTS



Gibson, J.s.c.

Gibson

This is an adverse possession claim in which the competing claimants are neighbors. At stake is a portion of the waterway adjacent to their homes located on the bay in Brigantine, New Jersey. The case was tried without a jury and the following represents the court's findings of fact and conclusions of law.

Findings of Fact.

Plaintiffs, Robert and Fay Vagnoni and Albert and Shirley Rahmer, are the owners of Lot 19 in Block 252, also known as 3717 Brigantine Boulevard, Brigantine, New Jersey. Defendants include Thomas J. Gibbons and various unit owners in the Bonita Bay condominiums located next door at 3709 Brigantine Boulevard, also known as Lots 20 and 21 in Block 252. The City of Brigantine has also been named as a defendant. Both properties are adjacent to the inland waterway known as Bonita Bay and both have docking facilities which extend from the bulkhead line out into the waterway.

For a number of years, plaintiffs and their predecessors in title have utilized certain pilings on defendants' side of the

property line (Lot 20) and have moored boats between those pilings and their dock. Sometime in 1989, representatives of the Bonita Bay Condominium Association requested that plaintiffs cease using the slips. Plaintiffs refused and subsequently instituted this suit seeking a declaratory judgment that they had acquired title to the disputed area by adverse possession. Defendants counterclaimed seeking a declaration that their title was superior and also sought damages for the loss of the use of the slips.

The first factual question which needs to be addressed relates to the underlying title to the waterway. Plaintiffs claim that although the original developer acquired both the upland and the riparian rights and conveyed both to the early purchasers, a break in the title chain occurred in the mid-1950's. At that point, the upland and the riparian rights to Lots 20 and 21 were owned by Heritage Home, Inc. (Heritage). When the lots were sold in 1956, plaintiffs claim that Heritage retained the riparian rights, including the area where plaintiffs now have the three boat slips. However, defendants claim that the riparian rights had previously been sold to the City of Brigantine in 1938 and were held by the city for many years until they were conveyed to defendants in 1990. The more persuasive evidence fails to support either position.

Early deeds demonstrate that the area in which these properties are located was first developed in the 1920's by a developer known as the Island Development Company (Island). When Island acquired the land it also acquired riparian rights. Defendants' property, Lots 20 and 21, was first conveyed by Island to Margate Finance Company in 1928. At that time, the lots were described simply as Lots 20 and 21 "as shown on map 1-B of Island Development Company." An examination of map 1-B, particularly when considered along with the expert testimony submitted during the trial, persuasively demonstrates that the conveyance included not just the upland, but the waterway portion of the lots west of the bulkhead line.

Until 1956, every deed in the title chain carried that same designation. In 1955, Lots 20 and 21 were owned by the Clousers and yet to be developed. The Clousers hired Heritage to construct a residence on the site. During the construction and as security for that transaction, the Clousers conveyed the property to Heritage. Once the home was completed and paid for, Heritage reconveyed the property to the Clousers. For the first time in the title chain, however, Heritage included a metes and bounds description in the deed. Inexplicably, the description reflected dimensions of only 80' by 127' with the outer depth being the high water line of Bonita Tideway. Although the deed also mentioned that the lots were "as shown in Map 1-B of Island Development Company," no explicit reference was made to the waterway.

Plaintiffs' expert opined that the conclusion to be drawn from that description is that Heritage intended to retain the waterway. I disagree. Admittedly, the metes and bounds description and the map reference are inconsistent and thereby create an ambiguity. The deed does not resolve that ambiguity but the surrounding circumstances do and they support the conclusion that the parties did not intend Heritage to retain the waterway.

Heritage was a building company. It had no ability to use the riparian rights unless it also retained the upland. No access to the docks existed except by water. Nor could Heritage have gained access through one of the neighboring properties; they were owned by third parties. Plaintiffs' counsel argues that because there was a ramp not too far from these properties, access could have been achieved by boat. I find that argument unpersuasive. As a fact finder, I am simply unwilling to attribute such an unlikely intent to a builder.

Even if I were to disregard the above circumstances and the testimony of Ned Carrier regarding them, I would still find it highly unlikely that an owner of bayfront lots would convey them ...


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