On appeal from Superior Court of New Jersey, Law Division, Essex County.
Approved for Publication April 9, 1997. As Corrected May 30, 1997.
Before Judges Petrella, Wallace and Kimmelman. The opinion of the court was delivered by Petrella, P.j.a.d.
The opinion of the court was delivered by: Petrella
The opinion of the court was delivered by
This case arises out of the construction, approximately seventy years ago, of an underground cement culvert or pipe through which flows a portion of Nishuane Brook, a natural water course. Plaintiffs, John and Diann Pinkowski, appeal from the Law Division's grant of summary judgment in favor of Montclair Township. Montclair's motion for summary judgment was granted in a March 25, 1996 order and opinion. For purposes of the motion, the court assumed that Montclair constructed the culvert. The judgment dismissed their suit against Montclair for trespass, inverse condemnation, and negligence.
The Pinkowskis argue on appeal that the Judge erred by (1) applying the Tort Claims Act bar against subrogation claims to plaintiffs individually, rather than restricting its application to the title insurance company as subrogee; (2) failing to reach issues of the Township's negligence, palpably unreasonable conduct, gross negligence, and recklessness, conduct that would render inapplicable the limited immunity under the Tort Claims Act; (3) failing to recognize the Township's trespass as a valid claim based on misapplication of the Tort Claims Act ban on claims by subrogees; and (4) failing to recognize plaintiffs' right to be secure in the ownership and possession of their property by concluding that the actions of Montclair could not constitute a taking.
The first count of the complaint alleged that the existence of the culvert on the property constituted a trespass. Count two sought relief through inverse condemnation on the ground that the location of the culvert prevented the Pinkowskis from building on the property and deprived them of beneficial use of their land. Count three alleged negligence by the Township in failing to properly record an easement for the culvert and in approving a subdivision of the parcel from which 20 Melrose Place was created without acknowledging the existence of the culvert.
Alfred J. Clark, Inc. and Alfred J. Clark (Clark) were joined by Montclair as third-party defendants. Montclair alleged that Clark breached his duty to the Township by failing to discover the culvert when he surveyed the property for the 1987 application for minor subdivision approval submitted by the Pinkowskis' predecessor in title. The Pinkowskis then filed a cross-claim against Clark, alleging negligence. *fn1
On December 14, 1995, the Pinkowskis and Montclair filed a stipulation of facts identifying the Pinkowskis' title insurance company as the true party-in-interest insofar as any alleged misfeasance caused a diminution in the property's value. The stipulation notes that the title insurance company paid the Pinkowskis approximately $80,000, and took an assignment of the Pinkowskis' interest in the property.
During the 1920's an underground culvert was built three feet below the surface that was approximately six feet wide and four feet high. The culvert relocated part of the Nishuane Brook from a surface level brook to an underground waterway. The culvert runs south and east through the center of the plaintiffs' property connecting two storm drains which run parallel to each other along Melrose Place and the rear boundary of plaintiffs' lot. Before construction of the culvert, Nishuane Brook ran above ground on the property in question. The brook runs above ground in certain locations as close as 100 feet from the Pinkowskis' lot.
Apparently, an easement for the construction of the culvert beneath the property was never recorded and there is no record of the culvert within the property's chain of title. At the time the culvert was constructed, the property, a vacant lot (now known as 20 Melrose Place), was owned by Lila J. Tufts as part of a larger lot which included the subject property and the immediately adjacent lot to the east. Over the past seven decades the combined parcel was owned by approximately six different owners. On April 13, 1987, the immediate predecessors in title to the Pinkowskis, Dennis and Mary Fry, were granted minor subdivision approval so that they could sell the undeveloped lot, presumably unaware of the underground culvert.
The Pinkowskis purchased the lot from the Frys in 1992, and obtained a permit to construct a one-family home. However, the culvert precluded their proposed development. The title insurance company, Osage Corporation, a subsidiary of Commonwealth Land Title Insurance Company, reimbursed the Pinkowskis for the purchase price of the property, took title to it, and became subrogated to the Pinkowskis ownership rights. The Pinkowskis apparently contend that they are entitled to seek additional damages on their own behalf.
Although the record does not include the deed to the property or the contract of sale, it does include a recorded easement to Montclair on September 22, 1919, by several property owners including Ms. Tufts, providing Montclair with a ten foot right of way to construct a storm drain and sewer along the southern boundary of the property. Although the easement describes the right of way as running parallel to Melrose Pace from Harrison Avenue east to the western boundary of Nishuane Brook, it does not ...