On appeal from the Superior Court of New Jersey, Law Division, Ocean County.
Approved for Publication March 14, 1995.
Before Judges King, Muir, Jr. and Eichen. The opinion of the court was delivered by King, P.j.a.d.
The opinion of the court was delivered by: King
This is a trespass case precipitated by a substantial encroachment, about nineteen feet, by Stanley and Wendy Szymczak's home on the neighboring undeveloped sixty-foot-front lot of Anthony LaFerrara. The Judge granted a mandatory injunction to LaFerrara and ordered the Szymczaks to remove their encroaching home. The judgment was stayed pending this appeal. We find the injunction inequitable in the circumstances. We reverse and remand for a plenary hearing to establish the fair market value of LaFerrara's vacant lot and his other provable consequential damages in lieu of injunctive relief.
In 1970 LaFerrara purchased his vacant lot on Oceanic Drive in Dover Township, Ocean County for $3,500. This rectangular-shaped lot had a sixty-foot frontage, a 100-foot depth, and was a conforming, buildable lot. LaFerrara had been an employee of the Department of Community Affairs for about eleven years at the time of trial in August 1993. He testified that before this employment he had been a plumbing and building contractor. He bought the lot because he planned to build a house there and sell it some day. He had never listed the property for sale. His building plans were never precise but he did obtain construction and site plans from an architect in about 1982. He never proceeded further with any firm construction efforts.
LaFerrara considered the lot essentially in inventory for "you know, a speculation house." He had paid the taxes for over twenty-three years, a total of about $6,900 by 1993, or an average of about $300 a year. Taxes were $550 in 1993. He estimated his investment expenses at about $2,000, in addition to the purchase price, for various fees, surveying and title insurance.
LaFerrara knew nothing of the encroachment until February 1992. He lived in Cranford and had not visited the property during the time Szymczak was building or after completion.
In 1981 Stanley Szymczak, then single, purchased the adjacent, vacant lot to the west of LaFerrara's lot on Oceanic Drive. The record does not disclose what Szymczak paid for the lot. He also bought a title insurance policy at that time. Szymczak's rectangular-shaped lot had about an eighty-foot-front and was 100-feet deep. In 1986 Szymczak, by then married, began to build the house on his vacant lot. Before beginning the foundation work himself, Szymczak obtained and relied upon a survey which erroneously indicated that the house, as proposed and commenced, was within his lot's purported boundary lines.
In 1987 Szymczak obtained a bank loan of $60,000 to finance the remaining construction on the house. Szymczak had purchased the basic plans for the house and altered them himself. He acted as his own general contractor and did the electrical and interior finish work himself. The Szymczaks and their two children have lived in their home since 1987.
The bank required a new survey in 1987. This new survey showed an apparent overlap of Szymczak's true boundary line onto two lots to the rear of his lot, owned by the O'Kanes and the Reisens. The Szymczaks then filed this action in 1987 in the Law Division to settle the location of their rear boundary line. A number of defendants were named but LaFerrara was not originally joined. Boundary line commissioners were appointed and their February 6, 1992 survey first revealed the encroachment onto LaFerrara's lot. Szymczak then amended this complaint to add LaFerrara as a party defendant.
In March 1992 the commissioners issued their final report settling all boundary lines. In May 1992 a consent order was entered which stated that the litigation had been settled among all parties with the exception of LaFerrara's claim arising from the nineteen-foot encroachment by Szymczak's house upon his lot. The order granted LaFerrara the right to file a counterclaim for the encroachment. LaFerrara then filed this counterclaim demanding an injunction compelling the Szymczaks to remove their home from his lot. In October 1992 Lawyers Title Insurance Company entered the litigation. Lawyers Title had issued title policies to both Szymczak in 1981 and LaFerrara in 1970.
The bench trial began in August 1993; the Szymczaks accepted the burden to present "proofs as to why the encroachment should not be removed," notwithstanding the fact that LaFerrara sought the injunctive relief. After the Szymczaks rested, LaFerrara successfully moved to strike the opinion on value by Szymczak's expert, Nicholas Monte, who testified that the market value of LaFerrara's lot in 1992, based on ten "comparable" sales of vacant residential lots, was $24,000 without the encroachment. The Judge struck Monte's testimony because there had been no "independent verification" by him of the comparable sales data which the Judge thought was required by N.J.S.A. 2A:83-1 and N.J. Sports & Exposition Auth. ...