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Amidano v. Donnelly

Decided: October 28, 1992.

EUGENE AMIDANO AND JOSEPHINE AMIDANO, PLAINTIFFS,
v.
KENNETH DONNELLY AND BARBARA DONNELLY, DEFENDANTS AND APPELLANTS/THIRD PARTY PLAINTIFFS, V. MERIDIAN TITLE INSURANCE CO. AND ARCHER LAWYERS' SERVICE, THIRD PARTY DEFENDANTS AND RESPONDENTS/THIRD PARTY DEFENDANTS



On appeal from Superior Court, Chancery Division, Morris County.

Brody, Landau and Thomas.*fn1The opinion of the court was delivered by Landau, J.A.D.

Landau

This is an appeal by defendants/third party plaintiffs Kenneth and Barbara Donnelly (the Donnellys) from summary judgment awarded to their title insurance company, third party defendant Meridian Title Insurance Company and a searching service, third party defendant Archer Lawyers' Service.

Plaintiffs Eugene and Joseph Amidano together own property in Washington Township which, as previously confirmed in the present case, has enjoyed the benefit of a recorded easement reserved by deed of an earlier common grantor named Ort*fn2 over certain non-contiguous lands purchased in 1986 by the Donnellys. The easement reserved to the original grantor "a perpetual right of ingress and egress unhindered, over the present roadway to and from other lands of grantors." The "other lands" embraced what was to become the Amidano property.

A recorded survey certified to the Donnellys in 1986 depicted an "Old Roadway (Dirt)" running across the property they were about to purchase. Immediately beneath the old roadway depicted on the survey are the words, "Right of way set forth in Book 2237 on Pg. 938 road formerly known as 'Fisher Mine Road'." A "dirt driveway" is also shown on this survey, but is outside the periphery of the Donnelly property. Fisher Mine Road, it is undisputed, has been shown on Washington Township tax maps for over a century but has never been dedicated as a public right of way.

The chain of title to the Donnelly premises includes cross-deeds executed in December 1972 and recorded on Pages 938 and 943 of Deed Book 2237, pursuant to which two parcels were subdivided. Lot 43-1, which the Donnellys later acquired, was conveyed:

[t]ogether with the right and privilege of the grantors, their heirs and assigns, to use a right of way over an existing driveway as shown on survey of April,

1971 by Associated Consultants, as means of ingress and egress from lands retained by the respective grantors to Kings Highway, maintenance costs to be shared equally by the respective grantors, their heirs and assigns; and there shall be no widening or other major improvements of said driveway without the consent of the respective grantors, their heirs and assigns. (emphasis supplied).

This deed also reserves in the grantors a "perpetual right to park not more than two (2) automobiles in two (2) [20 feet X 10 feet] spaces" as shown on the referenced survey, which appears in the same Deed Book at Page 941. A "'[unintelligible]' right of way" following the course of Fisher Mine Road also appears on the Associated survey.

Following the metes and bounds description of the tract in the deed to the Donnellys, the premises are stated as:

Being the same lands described in Book 2237 of Deeds on Page 943.

Together with and subject to the right and privilege to use a right of way over an existing driveway as reserved in Deed Book 2237 page 934 [Lot 43] and in Deed Book 2237 page 941 [Associated Consultants survey].

When the Amidanos sought to enforce their easement in the Chancery Division, the Donnellys joined their title insurance carrier, Meridian Title Insurance Company ("Meridian") and Archer Lawyers' Service ("Archer") as third party defendants. The Amidano easement has since been recognized by a settlement which Meridian does not challenge.

This appeal is taken from an order of summary judgment in favor of both third party defendants dismissing the third party complaint, based upon the motion Judge's interpretation of exceptions in the title policy. We reverse.

Meridian insured title following a title search performed at its behest by Archer. Among the risks specifically insured against "if they affect [the insured's] title on the policy date" were:

1. Someone else owns an interest in your title . . . .

10. Someone else has an easement on your ...


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