On appeal from the Superior Court of New Jersey, Chancery Division, Ocean County.
Bilder, Stern and Keefe. The opinion of the court was delivered by Bilder, J.A.D.
This is an appeal from an order of the Chancery Division confirming the existence of an easement across plaintiff's property for the benefit of defendant Aline Puzio's adjoining land and dismissing plaintiff's action to quiet title.
Plaintiff is the owner of a bar and restaurant located on the easterly side of Route 35 in Silver Beach and an empty lot across the street on the westerly side of Route 35 (Lot 31 Section E) which it uses to supplement the parking available adjacent to its business premises. Defendant Aline Puzio owns property containing a one-family dwelling house on the westerly side of Route 35 adjacent to the northerly side of the parking lot (Lot 19 Section E). She claims a 12 X 60 foot
easement along the northerly side of the parking lot adjacent to her property. More particularly, she claims a right, derived from and set forth in an April 16, 1964 deed from the then owners of Lot 31 to the then owner of Lot 19, to freely use the 12 foot strip and to erect a fence on its southerly boundary, the cost of maintaining the fence and easement to be borne by the grantee.
The easement came into existence when a common owner, Caserta, severed the tracts by selling the restaurant premises and the parking lot, Lot 31, while retaining the adjoining lot containing her home, Lot 19. To protect her home, a mere two feet from the northerly line of Lot 31, from cars of restaurant customers, she took the easement to permit a fenced-in buffer between her home and the parked cars as part of the overall real estate transaction.
In 1979 the restaurant premises and the ancillary parking area, lot 31, were purchased by defendants Leon and Aline Puzio. The following year, Aline acquired the residential lot, lot 19. The trial judge found these acquisitions created a unity of ownership in the adjoining lots which extinguished the easement. See Niestat v. Equitable Security Co., 6 N.J. Super. 148, 152, 70 A.2d 529 (App.Div.1950) ("an owner cannot have an easement in his own land"). Two years later, in 1982, defendants sold lot 31 and the business property across the street to a grantee who subsequently conveyed the property to plaintiffs.
In an oral opinion of November 8, 1990, the Chancery Judge found, as noted, that the easement had been extinguished by virtue of the unity of ownership resulting from Mrs. Puzio's acquisition of the residential tract, lot 19. However, he found that the subsequent severance resulting from the sale of lot 31 revived the recorded easement. Id. at 152-153, 70 A.2d 529. In so doing, he noted that the easement was a matter of record and that its existence, which he characterized as arising from a reservation of rights by the owner of residential lot 19 at the time of the 1964 severance, see Pilar v. Lister Corp., 38 N.J. Super. 488, 496,
119 A.2d 472 (App.Div.1956), was physically apparent. Quoting from Pilar, the trial judge noted:
Parties to the conveyance are presumed to act with reference to the actual, visible and known condition of the properties at the time and to intend that the benefits and burdens manifestly belonging respectively to each part of the entire tract shall remain unchanged. [ Id. at 495, 119 A.2d 472]
On appeal, plaintiff agrees with the court's finding that the easement was extinguished by defendant's 1980 unity of ownership of lots 19 and 31. However, it contends that the court erred in concluding the easement revived because one of the predicates, the finding of the easement's physical visibility, was not supported by the evidence and the absence of such notice bars the imposition of an implied reservation. This, it says, is particularly true in the face of the defendants' promise in the conveyance that they had done no act to encumber the property (covenant as to grantor's acts).
Although we are not in entire agreement with the trial judge's rationale, we entertain no difficulty with his result. See Pressler, Current N.J. Court Rules, Comment 2 to R. 2:2-3 ...