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Stump v. Whibco

September 03, 1998


Before Judges King, Kestin and Cuff.

The opinion of the court was delivered by: Kestin, J.A.D

[9]    Argued: February 11, 1998

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Cumberland County.

Plaintiffs sued to quiet title to a parcel of land which they occupied and of which they claimed ownership by adverse possession. Defendant counterclaimed for possession and the removal of plaintiffs' encroachments. After a bench trial, judgment was entered for defendant on the adverse possession claim and the complaint was dismissed. The trial court retained jurisdiction over the encroachment issue.

With a claim for relief retained, the trial court's Disposition is interlocutory, i.e., not "final both as to all issues and all parties," see Pressler, Current N.J. Court Rules, comment 2 on R. 2:2-3 (1997); and the appeal is, therefore, subject to dismissal. Ibid. Nevertheless, given the nature of the case and the posture of the issues, we elect, in the interests of Justice, to regard the notice of appeal as a motion for leave to appeal, which we now grant nunc pro tunc. Ibid.


Plaintiffs, Howard and Catherine Stump, own property along the Maurice River in Maurice River Township adjacent to land owned by defendant Whibco, Inc. The parcel which is the subject of this litigation is along the boundary separating the Stump property from that of Whibco, on the Whibco side of the boundary line. The trial court found the disputed area was triangular and measures 52½ feet at its widest point and narrows as it tapers in a generally southerly direction proceeding away from the bank of the Maurice River [over a course of 618.5 feet]. . . . The disputed area is part of Block 107 Lot 11 on the tax maps of Maurice River Township owned by Whibco and consisting of seven and one-half acres. Part of the disputed area is located within a riparian grant held by Whibco.

Plaintiffs' adverse possession claim was governed by N.J.S.A. 2A:14-30, which requires 30 years of "actual possession" for real estate that is not "woodlands or uncultivated" in order to "vest a full and complete right and title" in the adverse possessor. Whibco's counterclaim for ejectment came under N.J.S.A. 2A:35-1, and its claim for damages for unlawful detainer was under the aegis of N.J.S.A. 2A:39-8.

Whibco purchased its property on June 6, 1974 from the United States Small Business Administration. The Stumps bought their property from Paul and Theania Cox on June 13, 1974. The Coxes had owned the property since 1948, and had operated thereon a boatyard and a small marina. Their son, Paul Cox, Jr., testified that a wire mesh fence was located on the property when his parents first purchased it.

The trial court found that the Coxes had replaced the mesh fence with a railroad tie and cable fence during their tenure as owners and that this was done "without the benefit of a survey." The court determined further "that to the extent Cox, or later Stump, concluded that the fence was the true common boundary line between the properties, such Conclusion(s) is/are mistakes of fact."

According to a survey prepared on January 2, 1990, and revised on December 27, 1994, the fence was an encroachment on Whibco's property. The trial Judge found that the survey "accurately locate[d] the boundary line between the Stump property and the Whibco property and also properly locate[d] the riparian grant area."

The trial court further found that although the Stumps asserted that they were unaware of any indication that the fence was not the boundary line; however, Whibco's records . . . and conversations between Whibco and Stump refer to the "encroachments" as early as 1976. Cox treated the fence as the boundary line and utilized, in mostly a passive way, the area up to the fence. Stump continued the passive use (boat storage, for example) until making a series of improvements to the area commencing in 1981.

These improvements were noted by the court to include a concrete walkway, bulkhead, boat ramps and sign, as well as concealed encroachments, such as underground conduit and septic systems [which were located] to the east of the fence, but yet still on Whibco's land[.]

The trial court, in a letter opinion, held that plaintiffs had not made out their claim for adverse possession:

[Plaintiffs'] claim is based on N.J.S.A. 2A:14-30, which provides that:

Thirty years' actual possession of any real estate excepting woodlands or uncultivated tracts, and 60 years' actual possession of woodlands or uncultivated tracts, uninterruptedly continued by occupancy, descent, conveyance or otherwise, shall, in whatever way or manner such possession might have commenced or have been continued, vest a full and complete right and title in every actual possessor or occupier of such real estate, woodlands or uncultivated tracts, and shall be a good and sufficient bar to all claims that may be made or actions commenced by any person whatsoever for the recovery of any such real estate, woodlands or uncultivated tracts.

New Jersey Courts have held that the burden of proof rests on the party claiming title by adverse possession and that any adverse possession must be open, notorious, continuous, uninterrupted and exclusive for the prescriptive period with the acquiescence of the owner. After evidence is introduced on these jurisdictional elements, then a presumption arises that the use was adverse except when the land is vacant, unimproved, unenclosed and the use is casual rather than customary. Patent v. North Jersey Dist. Water, 93 N.J. 180 (1983), Mannillo v. Gorski, 54 N.J. 378 (1969), Maggio v. Pruzansky, 222 N.J. Super. 567 ([App. Div.] 1988). As Justice Haneman instructs in Mannillo v. Gorski, supra, there is a caveat concerning the presumption and the necessary standard of open and notorious possession. . . . The foundation of so-called title by adverse possession is the failure of the true owner to commence an action for the recovery of land within the period designated by the statute. However, no presumption of knowledge arises from a minor encroachment. That is, the true owner is not charged with knowledge of an encroachment unless or until it takes on characteristics of acts of dominion over the land. ["]That failure [to take action] is relevant only if the owner has had notice, actual or constructive, that another considers himself to be, or is using the property as, the owner. Therefore, one criterion of adverse possession is that the use must be so open and notorious that an ordinarily prudent person would be put on notice that the land is in actual possession of another.["] Patent v. North Jersey Dist. Water, supra[, 93 N.J. at 186].

In this case, the encroachment was nothing more than a wire mesh fence and later a railroad tie cable fence from perhaps as early as 1948 until 1981. Mr. Stump testified that the septic system was installed in 1981, the boat ramp in 1983, the bulkhead in 1985, the sign in 1990. The Court concludes that based upon the testimony the open and notorious aspects of the Stump possession of the lands began in 1981 and became more open and more notorious thereafter as the various improvements were placed. Prior to 1981, the uses of the disputed area by Stump, and earlier by Cox, were passive uses such as occasional storage which did not rise to the level of acts of dominion. Consequently, such passive uses were not open and notorious. Accordingly, the Court concludes that the defendants were not chargeable with knowledge of the plaintiffs' adverse possession claim until 1981.

The Court concludes as a matter of law that no presumption of knowledge arose from the prior minor and passive encroachments along the common boundary line before 1981. The presence of the fence on Whibco property is concluded by the Court to have been a minor encroachment. The Whibco land is a seven and one-half acre parcel. The fence encroaches by 52½ feet at its widest point and tapers to an encroachment of less than 1 foot as it approaches Fish Factory Road. This case amounts to a minor border encroachment that would call for an on-site survey for the determination of the actual boundary line.

As a general rule, successors in title who continue adverse uses may tack the periods of adverse uses of predecessors to establish the statutory period. Kruvant v. 12-22 Woodland Ave. Corp., 138 N.J. Super. 1 ([Law Div.] 1975) [, aff'd, 150 N.J. Super. 503 (App. Div. 1977)]. However, in order for successors to gain the benefit of tacking, the predecessors' uses must also be open and notorious and must meet the other jurisdictional elements. In this case, tacking should not be allowed as a matter of law. The statutory period of thirty (30) years is not met. N.J.S.A. 2A:14-30.

Because the jurisdictional criteria ha[ve] not been met by Stump, judgment of no cause for action is entered in favor of Whibco.


The trial court was correct to posit that "[a]s a general rule, successors in title who continue adverse uses may tack the periods of adverse uses of predecessors to establish the statutory period." In this connection Whibco contends that the Stumps did not, even with such tacking as may properly be recognized, establish continuous occupancy for thirty years, as is required to prevail on their adverse possession claim. There is a specific contention stemming from the fact that before they took title to the Cox property, the Stumps and their business partner, Ed Borowski, first leased the property from the Coxes. The partners fell out, and Borowski prevented the Stumps from entering the property for at least a year.

The tacking principle is well established in this State. See Kruvant v. 12-22 Woodland Ave. Corp., 138 N.J. Super. 1, 16 (Law Div. 1975), aff'd, 150 N.J. Super. 503 (App. Div. 1977) (citing Davock v. Nealon, 58 N.J.L. 21 (Sup. Ct. 1895). See also Maggio, supra, 222 N.J. Super. at 574; Leach v. Anderl, 218 N.J. Super. 18, 29 (App. Div. 1987); Heck v. Cannon, 24 N.J. Super. 534, 540 (Ch. Div. 1953). When ownership during the statutory period involves more than one adverse possessor, each owner who acquires title must satisfy all the elements of adverse possession. 7 Powell on Real Property § 1014[2], at 91-61 (Dannenberg rev. 1990). Tacking is generally permitted "unless it is shown that the claimant's predecessor in title did not intend to convey the disputed parcel."

Id. at 91-60.

What constitutes continuous possession depends on the nature of the land at issue. Some property is only used seasonally, for example.


§ 1013[2], at 91-23. In general, however, "periodic or sporadic acts of ownership are not sufficient to constitute adverse possession."

Id. at 91-24.

Accordingly, The claimant must have affirmatively and consistently acted as if he were the owner, taking into due account the reasonable uses for which the land in question was suitable. It thus suffices if land chiefly timbered is fenced and is cultivated in the areas suitable for cultivation; if land most suitable for seasonal or weekend and holiday use is used for these purposes, even though not during the winter; or if ravined range land is used for the purposes possible in view of its topography.

[Id. at 91-27.]

The adverse claimant must prove that he or she "has acted towards the land in question as would an average owner, taking properly into account the geophysical nature of the land."

Id. at 91-44.

Powell on Real Property lists storage as one of the activities which, if consistently done, meets this standard; and includes fencing- - - -"substantial enclosure"- - - -as one of the two most significant activities. (Paying taxes on the property is the other.)

Id. at 91-46-47.

Abandonment by the adverse possessor breaks the continuity, but departure caused by a "supervening force" does not.

Id. at 91-28.

When a third party, one who is neither the true owner nor the adverse possessor, interferes with possession, "it seldom ...

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