The opinion of the court was delivered by: Coleman, J.,
ON CERTIFICATION TO Appellate Division, Superior Court
On certification to the Superior Court, Appellate Division, whose opinion is reported at 326 N.J. Super. 591 (1999).
This is an adverse possession case in which the Court must determine which of several statutes of limitations governs the claim. More broadly, this appeal requires us to reconcile the meaning of N.J.S.A. 2A:14-6 and -7 with N.J.S.A. 2A:14-30 and N.J.S.A. 2A:14-31 and to reconcile N.J.S.A. 2A:14-6 and -7 with N.J.S.A. 2A:35-1. We hold that title does not vest in an adverse possessor until the passage of thirty or sixty years and that neither the adverse possessor nor the owner of record determines which statute controls.
First Union National Bank (First Union) owns a large tract of marshland in Egg Harbor Township, New Jersey, consisting of approximately 550 feet of frontage along Northfield-Margate Boulevard. J & M Land Company (J & M) owns an adjoining tract of land consisting of approximately 300 feet of frontage along the Boulevard. In 1956, J & M's predecessor in title, William Bater, leased three sites to R.C. Maxwell Company (Maxwell) for the purpose of erecting and maintaining billboards. Unknown to J & M, Maxwell or First Union, one of the three sites was located on First Union's property.
Shortly after obtaining the lease, Maxwell unknowingly erected two billboards on First Union's property in 1956, one facing eastbound traffic and the other facing westbound traffic. The two billboards have continued to be located on First Union's property, and Maxwell has paid rent to J & M and its predecessors since 1956. First Union, meanwhile, has paid all taxes on the property. Each billboard is illuminated by electric lights. Maxwell maintains the two billboards and the land immediately adjoining them. Except for the billboards, the remainder of the First Union and J & M properties is uncultivated marshland.
In 1996, Egg Harbor's tax assessor increased First Union's tax assessment based on the presence of billboards on its property. Before receiving notification of that tax increase, First Union did not know the billboards were located on its property. A land survey disclosed that the two billboards are located on First Union's property 200 feet from the boundary line between the First Union and J & M properties. First Union demanded that J & M turn over the rents it had received from Maxwell for the billboards. J & M responded to the demand for an accounting with the present litigation.
In its complaint, J & M sought a declaratory judgment that it had acquired a "prescriptive easement" over the area where the billboards are located and the adjacent land used for maintenance. Alternatively, J & M sought title by adverse possession to those areas. First Union counterclaimed for a declaration that J & M has no legal interest in the property and for an accounting for all rents received from Maxwell.
Both parties moved for summary judgment. The trial court concluded that the legal requirements for a prescriptive easement are the same as those to obtain title by adverse possession, relying on Mannillo v. Gorski, 54 N.J. 378, 386 (1969), and Baker v. Normanoch Ass'n., Inc., 25 N.J. 407, 419 (1957). Thus the trial court examined the undisputed evidence and the controlling law and determined that J & M had not established its claim and that First Union had clear title to the property. The trial court made two findings: (1) J & M's adverse possession claim was governed by the sixty-year limitations period for adverse possession claims to "uncultivated tracts," and therefore J & M did not have title because the duration of its possession had been only thirty-nine years; and (2) J & M's possession was not "notorious" because the boundary line between the two properties was not visible to the naked eye. After rejecting all of J & M's claims, the trial court held that First Union was entitled to rents only for the period subsequent to its demand letter to J & M.
Both parties appealed. J & M appealed the court's rejection of its adverse possession claim, arguing that it was entitled to title or a prescriptive easement after twenty years based on N.J.S.A. 2A:14-6. First Union appealed from the limitation of its damages to rents subsequent to the demand letter. The Appellate Division in a published opinion affirmed the trial court's application of the sixty-year statute, thus "rejecting J & M's claim to the part of First Union's tract on which the billboards are located." J & M Land Co. v. First Union Nat'l Bank, 326 N.J. Super. 591, 595-96 (App. Div. 1999). The court stated that "[t]he applicable limitations period . . . is ?a question of substantive law' which is controlled by the factual basis of the adverse possession claim." J & M, supra, 326 N.J. Super. at 596-97 (quoting Braue v. Fleck, 23 N.J. 1, 18 (1956)).
The Appellate Division rejected J & M's claim that its use of the disputed land qualified as a prescriptive easement after twenty years. The court determined that J & M's use of First Union's land was possessory rather than a limited use or enjoyment of the land, as is the case with easements. Based on its conclusion that J & M's claim was governed by the sixty-year adverse possession statute, the Appellate Division declined to address the trial court's alternative holding that J & M's possession was not notorious. We granted J & M's petition for certification. 163 N.J. 395 (2000).
J & M contends that in an adverse possession action the party asserting the rights of an adverse possessor, not the owner of record, has the right to choose which statute of limitations controls. First Union, on the other hand, asserts that the owner of record who is defending against the adverse possession claim is the party entitled to choose which statute of limitations controls. Neither party contends that the time period required for vesting title based on adverse possession should be different for a prescriptive easement.
Resolution of what sounds like a simple proposition requires a highly complex analysis. We begin with the four statutes of limitations referenced by the parties. N.J.S.A. 2A:14-6 provides "[e]very person having any right or title of entry into real estate shall make such entry within 20 years next after the accrual of such right or title of entry, or be barred therefrom thereafter." N.J.S.A. 2A:14-7 provides "[e]very action at law for real estate shall be commenced within 20 years next after the right or title thereto, or cause of such action shall have accrued." Although the plain language of neither of those two statutes specifically establishes title in the adverse possessor after twenty years of adverse possession, they have been construed "to mean that a possession adverse for 20 years gives a title by adverse possession – an actual title as distinguished from a mere right of entry." Braue, supra, 23 N.J. at 9. J & M maintains it is entitled to a judgment for adverse possession based on the twenty-year statutes.
The two other pertinent statutes provide:
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.
Thirty years' actual possession of any real estate, . . . wherever such possession commenced or is founded upon a proprietary right duly laid thereon, and recorded . . . pursuant to law, or wherever such possession was obtained by a fair bona fide purchase of such real estate from any person in possession thereof and supposed to have a legal right and title thereto . . . shall vest an absolute right and title in the actual possessor and occupier of all such real estate.
Adverse possession for either thirty or sixty years under those two statutes "establish[es] a full and complete title in the occupier of the land." Braue, supra, 23 N.J. at 9. First Union contends that because J & M has been in possession of uncultivated land for less than sixty years, J & M is not entitled to a judgment.
Our ultimate determination of which statute of limitations applies to this case requires us to begin with the consanguinity of our adverse possession statutory history. The common law did not recognize a transference of title through adverse possession. "Such seemed to be oppugnant to one of the most fundamental axioms of the law." Predham v. Holfester, 32 N.J. Super. 419, 421 (App. Div. 1954). "For true it is, that neither fraud nor might can make a title where there wanteth right." Ibid. (quoting Altham's case, 8 Coke Rep. 150b, 153b, 77 Eng. Rep. 701, 707 (1610)). Under the English common law:
Before 1237 claimants had been required to prove seisin on the day in 1135 when King Henry I died; then they were restricted to the day in 1154 when Henry II was crowned; in 1275 the boundary was moved forward to the coronation of Richard I in 1189 and there it remained for many years. Indeed, the length of the period progressively enlarged until in 1541 a claimant might be obliged to establish an adverse holding for over 300 years in order conclusively to sustain his title. [Predham, supra, 32 N.J. Super. at 422].
During the reign of Henry the Eighth, a comprehensive course was taken by statute, 32 Hen. VIII, c. 2, which inaugurated the policy of designating a definite period of years counting backward from the time of the litigation. It fixed 60 years as the period in real actions, but the statute did not apply to the increasing number of ejectment actions, and that circumstance, inter alia, doubtless motivated the enactment of the statute of limitations, 21 Jas. I, ch. 16 (1623), which forbade entry on land by one against whom it had been adversely held for 20 years or more. [Predham, supra, 32 N.J. Super. at 422.]
The province of New Jersey was created in 1664 by a grant of "Charles II to James, Duke of New York." Toth v. Bigelow, 1 N.J. 399, 404 (1949). The English statute of 21 Jam. 1, c. 16 "was declared in force in the province of New Jersey in 1728." O'Connor v. Altus, 67 N.J. 106, 131 (1975) (Pashman, J., concurring and dissenting). The New Jersey Constitution of 1776 provided that "the common law of England, as well as so much of the statute law, as have been heretofore practiced in this colony, shall still remain in force, until they shall be altered by a future law of the legislature." N.J. Const. of 1776 art. XXII.
In England, "[t]he sole historical basis of title by adverse possession [was] the development of statutes of limitation on actions for the recovery of land . . . [for example,] the ancient writ of right, the possessory assizes and writs of entry and the modern action of ejectment which displaced the earlier actions." Rufford G. Patton, Title by Adverse Possession, in 3 American Law of Property § 15.1, at 755 (A. James Casner ed., 1952). In 1623, the Statute of Limitations, 21 Jam. 1, ch. 16, provided:
For quieting of men's estates, and avoiding of suits, be it enacted (2) that stated actions for the recovery of lands shall be sued and taken within twenty years next after the title and cause of action first descended or fallen, and at no time after the said twenty years; . . . (4) and that no person or persons shall at any time hereafter make any entry into any lands, tenements, or hereditaments, but within twenty years next after his or their right or title which shall hereafter first descend or accrue to the same; and in default thereof, such persons so not entering, and their heirs, shall be utterly excluded and disabled from such entry after to be made. [Id. § 15.1, at 756.]
That statute's "effect was to bar ejectment after twenty years by barring the right of entry on which the plaintiff's right to maintain ejectment depended." Ibid.
That statute was repealed by the Real Property Limitation Act of 1833, 3 & 4 Wm. 4, c. 27, which "provided for a direct limitation on the action of ejectment and created one period of limitation for both rights of entry and of action (sec. 2). It abolished the old real actions (sec. 36) and expressly provided that the right and title of the former owner should be extinguished by the running of the twenty year period of limitation (sec. 34)." (Emphasis added). Patton, supra, § 15.1, at 757 n.6. Patton remarks that in every state "the law is equally settled that the effect of the operation of the statute is to extinguish the former owner's title so as to eliminate not only ejectment but each and every other remedy at law or in equity by which his title might be enforced." Ibid. The Act of 1833, however, never became effective in New Jersey because of earlier legislation that had occupied the field.
As early as 1787, New Jersey had enacted two adverse possession statutes specifying that title would not vest before passage of thirty or ...