January 24, 1994, Decided. On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County.
Before Judges Shebell, Long and Landau.
The opinion of the court was delivered by
Plaintiffs, Joseph P. Slowinski and Stacey C. Slowinski, filed an action in the Chancery Division to enjoin defendant, County of Monmouth, from implementing a road-widening of County Route 537 which passes in front of plaintiffs' eighteenth-century home. Defendant was granted summary judgment. Plaintiffs appeal the grant of summary judgment to the County, as well as the denial of plaintiffs' own motion for summary judgment. We affirm these rulings.
Plaintiffs filed a two-count complaint on August 25, 1990, seeking to restrain defendant from widening the existing thirty-two foot roadway which passes in front of their home and asking for a declaration that the Legislature's 1765 grant of a return for a sixty-six foot roadway is invalid. Before defendant answered, plaintiffs filed an amended complaint, the first two counts of which were identical to the original complaint. However, plaintiffs added a third count alleging that plaintiffs' property is in an historic district and that defendant should be restrained from any action until it has obtained a required permit from the Commissioner of Environmental Protection. Plaintiffs then, for the first time, requested a "trial by jury of all issues raised under Count Two of the Complaint. . . ."
Defendant answered the original complaint on November 9, 1989, asserting it had a valid and enforceable right to widen the roadway to sixty-six feet. In its answer to the amended complaint, defendant, on December 19, 1989, further asserted that it owned the property upon which the roadway would be widened so that no permit from the Commissioner would be required.
Plaintiffs, in January 1990, moved for summary judgment. This was denied by order of March 16, 1990. Plaintiffs filed a second amended complaint on September 24, 1990, repeating count one, restating as count two their earlier allegations regarding the need for a permit to encroach on land in an historic district, and asserting in counts three and four that, if anything was established in 1765, it was merely an easement which was superseded by the Turnpike Act of 1866, leaving defendant with a road limited to the current thirty-two feet in width. It appears that plaintiffs failed to renew their jury demand in this complaint. Defendant's answer of October 26, 1990, denied the substance of the complaint.
On September 8, 1990, defendant moved for summary judgment. Plaintiffs cross-moved for summary judgment on December 11, 1990. Argument on these motions was heard on January 25, 1991. By order of February 27, 1991, the court granted partial summary judgment to defendant, declaring the road return recorded in 1765 (for a road sixty-six feet wide) valid and denying summary judgment relief to plaintiffs.
On November 8, 1991, plaintiffs sought reconsideration of the court's grant of partial summary judgment to defendant, followed by a brief in support of this relief, as well as in support of plaintiffs' demand for a jury trial. After argument on December 19, 1991, the court, by order of January 8, 1992, denied reconsideration and denied plaintiffs' demand for a jury.
Defendant, in April 1992, moved for summary judgment on all remaining issues. This was followed in May 1992, by plaintiffs' motion for summary judgment on all issues. After argument on July 2, 1992, the court entered its order of July 7, 1992, granting summary judgment to defendant and recognizing defendant's ownership of land thirty-three feet on either side of the center line of the existing road, County Route 537. The court's amended order of July 20, 1992, added denial of plaintiff's motion for summary judgment to the relief granted.
The pertinent facts surrounding this controversy are as follows. In 1760, the colonial General Assembly adopted "An ACT for regulating Roads and Bridges," allowing the public, after notice, to establish public roads by survey and to take possession of such roads as public property. There was no provision for or requirement of compensation to affected property owners. A "return of a road," Number A-102, was recorded in September, 1765, for the purpose of removing "a certain four Rod Road" in the Town of Shrewsbury "leading from John Polhemus' land to the Highway Southerly of the Falls Mill . . . . " The return asserted that the "old former road", to which the new return and road crossing would connect, "shall be and remain a public four rod road" (66 feet). A new road return, signed June 24, 1776, declared the 1765 return null and void and described the new road by survey description. This return further confirmed the road as "a publick four rod road." The 1766 return appears to have been judicially invalidated in 1767, as further appears herein.
In 1866, the Legislature passed an act to incorporate the Tinton Falls Turnpike Company to "construct and make a turnpike road in the county of Monmouth" which would be "on and along the public highway" with the authority to straighten out the roads where necessary by taking and paying compensation for necessary lands. The improved road was to be paid for by tolls and "constructed not to exceed thirty-two feet in width along the middle, as near as may be, of said highways." The Tinton Falls Turnpike Authority conveyed the turnpike to Monmouth County on June 11, 1901.
On December 12, 1985, plaintiffs contracted to purchase block 66, lots 10 and 11, in Tinton Falls from William and Gertrude Barrett. Prior to closing in April 1986, plaintiffs received a survey showing the County's road return A-102 extending thirty-three feet from the centerline of the existing road through the porch and near the house plaintiffs intended to purchase. In reply to plaintiffs' attorney, the County, by letter of April 25, 1986, stated that the County owned the sixty-six foot area shown for the road return and would not pay compensation when and if the road was widened.
Plaintiffs negotiated a price reduction of $25,000 with the Barretts in return for agreeing to make no claims against the sellers and closed title on May 2, 1986. Their written agreement acknowledged the fact that the front entrance of the house encroached on the public right-of-way and recited that this "will reasonably require that the house located on the subject premises be relocated by the Buyer subsequent to closing."
Plaintiffs' property is located in an historic district and includes a barn believed to have housed a blacksmith's shop more than 200 years ago. Plaintiffs' deed conveyed to them lots 10 and 11 to the center of Monmouth County Route 537, locally named Tinton Avenue, subject to the County's rights in the road. Plaintiffs' title survey included both the existing roadway at fourteen and one-half feet from the road's centerline, as well as the County's right-of-way thirty-three feet from that centerline. The latter cuts through most of plaintiffs' porch and the existing front yard, placing the house on the curb line of the road if it is extended to maximum width.
The County's plans, drawn up in July 1988, show expansion of the bridge and widening of the roadway within the sixty-six foot right-of-way but less than the full width. The County right-of-way goes through plaintiffs' front porch although the proposed widened roadway would actually be several yards away from the porch.
The chancery Judge ruled that the County had a right-of-way to sixty-six feet, extending thirty-three feet from the centerline of the existing roadway, which was essentially the centerline of the roadway actually established before and after passage of the A-102 road return, and which was also the centerline of the 1866 turnpike road.
The Judge in making these findings added that even if he were wrong and plaintiffs were right in asserting that the County was only entitled to the existing roadway, then plaintiffs were still not entitled ...