The factual history presented to this court on motion for summary judgment filed by the defendant-third-party plaintiff, Township of Mantua (hereafter Mantua), requires this court to analyze the legal responsibilities imposed upon the dominant and servient tenants of a public right-of-way and the effect of Title 59, New Jersey Tort Claims Act, N.J.S.A. 59:4-1, as it may pertain to damage claims arising from the dominant tenant's alleged failure to adhere to those recognized legal responsibilities.
This suit in lieu of prerogative writ, R. 4:69-1, was instituted by plaintiffs, George Braun and Marcelyn Braun (hereafter Brauns), to compel Mantua to rebuild a dam and a public roadway, supported by the dam, which abuts his property. Plaintiff's complaint also includes a demand for damages thus invoking a consideration of the applicability of N.J.S.A. 59:4-1 to -9 and issues of governmental immunity.
Mantua filed an answer denying liability and asserted a counter-claim requiring plaintiffs to rebuild the dam and the roadway. It also filed a third-party complaint naming Toby J. Reid and Katherine D. Reid (hereafter Reids), and Frank V. Federico and Mary E. Federico (hereafter Federicos), as third-party defendants. Mantua seeks a judgment compelling Reids and Federicos to rebuild the dam and the supported right-of-way.
Brauns, Reids and Federicos have separate deeds to property adjoining a 400 foot dam situate in Mantua Township. Each deed contains a metes and bounds description, confirmed by survey to be accurate, establishing the centerline of the roadway as one common boundary line of the individually owned tracts.
The exact date(s) of the construction of the dam and/or roadway is unknown, however, maps have been located that cite the existence of the dam, a lake created by the dam, and a roadway atop the dam as early as 1876.
Prior to July 5, 1989, the dam supported a fifteen foot wide asphalt paved road. It is approximately two miles long and connects State Highway, Route 45 with Pinemill Road, situate in East Greenwich Township. All counsel have described this paved road, known as Boody's Mill Road, as an "easement" acquired through general usage. The artificial lake created by the dam is commonly known as Boody's Mill Lake.
Expert reports, submitted as exhibits to motion pleadings, opine that on or about July 5, 1989, unusually heavy rains occurred in Mantua Township and the heavy accumulation of rain produced excessive seepage through the embankment side slopes of the dam. These slopes consist of highly permeable sand soil. The accumulation of excessive water created a condition known as "piping" which gradually eroded the soil embankment resulting in a "breach" of the dam, its ultimate collapse, and the resultant destruction of the public right-of-way.
When Mantua refused to assume responsibility to rebuild the dam and public right-of-way, Brauns instituted this litigation.
It is undisputed that the roadway which is used by the general public has always been primarily maintained and controlled by Mantua. Township personnel provided snow removal, weed clearance, and gravel replacement. Mantua also installed a corrugated pipe in the base of the dam which serves as a funnel for water disposal, and has added gravel to the dam embankments.
Since the origin of the road is unknown, there is no evidence that any plan respecting the installation of the roadway, or of the dam, was ever considered or approved by the Mantua Township governing body or by the New Jersey Legislature.*fn1
It is clear that each property owner whose title in fee encompasses land to the middle of the road is a servient tenant to the owner of a road easement, who by law is deemed the dominant tenant. It is undisputed that a dominant tenant has a duty to maintain and repair an easement on the property of another. Island Improvement Association v. Ford, 155 N.J. Super. 571, 574-75, 383 A.2d 133 (App.Div.1978).
Although Mantua admits that it is the dominant tenant, it contends that its sole responsibility is to maintain the easement by keeping the roadway clear and even for safe passage. Haven Homes v. Raritan Township, 19 N.J. 239, 244, 116 A.2d 25 (1955). Mantua also supports its position by citing Livermore v. Board of Chosen Freeholders of Camden, 31 N.J.L. 507 (E. & A.1864), and Jernee v. Board of Chosen Freeholders of the County of Monmouth, 52 N.J.L. 553, 21 A. 295 (E. & A.1890). In both of those precedents, the county constructed a public roadway across a mill dam, which had been constructed by mill owners, and which, due to unusual storms or otherwise, fell into disrepair. In each case, suit was instituted against the County for maintenance. In both cases, the court found that there was no duty on the part of the
County to maintain the structure, as the County's responsibility was limited to providing safe passage for travelers utilizing the road, Livermore, supra, 31 N.J.L. at 509; Jernee, supra, 52 N.J.L. at 557, 21 A. 295. Mantua contends that it has satisfied its only duty by its continuous efforts of patching and repaving the roadway, and by snow removal during winter storms.
Consistent with this position, Mantua also specifically asserts that N.J.S.A. 58:4-1 (entitled Dams and Reservoirs) and the administrative regulations promulgated by the Division of Water Policy and Supply (specifically N.J.A.C. 7:20-1.11(e)) require the owner of a dam to have a regular inspection performed every four years by a licensed New Jersey professional. Mantua contends: no engineering inspections were ever conducted by the individual property owners; inspections would have revealed the permeable soil conditions of the dam embankments and the continuing erosion; and the failure to conduct inspections constitutes negligence on the part of the property owners and renders them liable to Mantua for the damages to the right-of-way, which occurred with the collapse of the dam. Righter v. Jersey City Water Supply Co., 73 N.J.L. 298, 63 A. 6 (Sup.Ct.1906).*fn2
In response, each property owner has asserted diverse facts to support their individual denials of responsibility to rebuild Boody's Mill Road. Some facts are relevant to the Disposition of these motions.
Federicos specifically claim that although they may own land in fee to the center of the dam, they actually own no lake frontage, do not use the lake for water recreation, and have never undertaken any repairs to the road atop the dam. They assert that their
grantor, one Vasello, had previously conveyed an easement to Reids, over the Vasello property, permitting Reids access, for maintenance purposes, to the dam and its spillway. Federicos contend that any dam maintenance obligation imposed by N.J.A.C. 7:20-1.11(e) is ...