Judges Skillman, P.g. Levy and Lesemann.
The opinion of the court was delivered by: Skillman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from Superior Court of New Jersey, Chancery Division, Monmouth County.
In 1883, all of the seaside community now known as the Village of Loch Arbour (Loch Arbour) was owned by developers who prepared a map subdividing the tract into lots, blocks and streets. The 183 lots shown on this map are intersected by three east-west streets, Edgemont, Euclid and Elberon Avenues, which terminate at the beach. The lots are also intersected by a number of north-south streets, the most easterly of which is an unnamed street running along an area the map describes as "Bluff," which immediately adjoins an area the map describes as "Beach."
In 1885, the developers filed the map and commenced to sell lots. *fn1 The deeds from the developers to the predecessors in title of the Loch Arbour property owners conveyed not only the designated lot or lots but also an easement over "a Part of Beach and Bluff," which was described as follows:
"[A] right of way, to be used in common with all other owners and occupants of lots, as shown on said map of Loch Arbour, for the [lot owners] and their tenants and occupants, at any and all times to pass and repass on foot, on, over and across a certain strip of land, being a part of Beach and Bluff, as shown on the aforesaid Map of Loch Arbour, and described as follows: Bounded on the North by Elberon Avenue, East by the Atlantic Ocean, South by Edgemont Avenue, and West by Lots 1, 2, 3, 4, 5, 6, 23, 24, 25, 26, 27 and 28, which said right shall be appurtenant to said Lot ... above granted, and to be conveyed therewith."
Plaintiffs Sophie Bubis and Alcides Ferreira both reside in homes constructed on inland lots on Edgemont Avenue. In 1995, defendants Jack and Joyce Kassin bought eight oceanfront lots on either side of Edgemont Avenue which are bordered to the west by Ocean Place and to the east by the unnamed street shown on the 1883 map. Plaintiff Bubis' property is located directly across the street from the Kassins' property, at the corner of Edgemont Avenue and Ocean Place. Although the previous owner of the Kassins' property operated a commercial, private beach club, the Kassins claim that they bought the property for their own personal use, including entertainment of family, friends and business associates. Shortly after buying the club, the Kassins allegedly used a bulldozer to create a twelve to fourteen foot high sand berm along the westerly boundary of the property.
The erection of the sand berm precipitated this lawsuit. Plaintiffs' complaint alleged that the Kassins, by maintaining a "barrier" along the westerly boundary of their property, had "wilfully interfered" with plaintiffs' right to pass over the Beach and Bluff. Plaintiffs also alleged that the berm and a nearby fence prevented them from using the streets shown on the 1883 map for free access to the beach and ocean. Accordingly, plaintiffs sought an injunction compelling defendants to remove the berm and fence. A second count of the complaint alleged that the Kassins' construction activities interfered with plaintiffs' right to an "unobstructed view" of the Atlantic Ocean. A third count sought to enjoin the Department of Environmental Protection (DEP) from issuing a permit which would authorize the Kassins' construction activities.
In their answer to the complaint and in a certification filed in opposition to plaintiffs' application for a preliminary injunction, the Kassins alleged that plaintiffs no longer had any right to use the Beach and Bluff because it now lies below the high water line. *fn2 The Kassins also alleged that plaintiffs no longer have a right to use the part of Edgemont Avenue lying east of Ocean Place because Loch Arbour vacated that portion of the street in 1978.
The trial court denied plaintiffs' application for a preliminary injunction. The court also dismissed plaintiffs' claim against the DEP.
Plaintiffs subsequently filed a motion for leave to file an amended complaint adding the Board of Trustees of Loch Arbour as defendants and asserting additional claims. A new count in the amended complaint sought a declaration that plaintiffs have a right of access by means of Edgemont Avenue to the "Beach and Bluff" shown on the 1883 map, which the Kassins are preventing plaintiffs from using, and an order requiring the removal of all physical barriers to beach access on Edgemont Avenue. In another count, plaintiffs alleged that Loch Arbour, which owns six oceanfront lots directly north of the Kassins' property, on which it operates a municipal beach club, had improperly erected a gate and fence across Euclid Avenue, which also interferes with plaintiffs' access to the Beach and Bluff area. Plaintiffs sought an order requiring removal of the gate and fence or "free and unrestricted access" through all fences, gates and other physical barriers blocking their access to the beach along Euclid Avenue. Plaintiff also sought a mandatory injunction compelling Loch Arbour's land use officials to bring an action to force the Kassins to restore the topography of the beach to its pre-1995 condition.
The Kassins opposed plaintiffs' motion for leave to file an amended complaint and also filed a cross motion for a summary judgment dismissing the complaint.
The trial court granted plaintiffs' motion to file an amended complaint. The court also granted the Kassins a partial summary judgment dismissing plaintiffs' second count, which alleged that the berm and fence on the Kassins' properties interfered with plaintiffs' right to an unobstructed view of the Atlantic Ocean.
After a pretrial conference, the trial court conducted a two day trial in which the proofs were primarily addressed to the question whether any part of the area which the 1883 map describes as Beach and Bluff is still above the mean high water line. The trial court concluded in an oral opinion, later formalized in a ...