On appeal from the Superior Court of New Jersey, Chancery Division, General Equity, Monmouth County, Docket No. MON-C-101-99.
Before Judges Baime, Fall and Axelrad.*fn1
The opinion of the court was delivered by: Fall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In this easement dispute action plaintiffs appeal from entry of summary judgment dismissing their complaint. The issues posed in the appeal are whether a valid, enforceable access easement to the Shrewsbury River running in favor of plaintiffs exists across property owned by defendants Herbert and Ruth Cahn by virtue of a deed of easement executed on June 1, 1962 by Dorothy F. Berg and Robert E. Berg, predecessors in title to defendants' property, and filed on May 24, 1965, or whether the purported easement is void as contrary to public policy or was otherwise extinguished by application of the doctrine of merger.
We conclude that the blanket river-access easement created by the June 1, 1962 deed does not violate the public policy considerations articulated in Levin v. Township of Livingston, 35 N.J. 500 (1961), nor is it contrary to the terms or conditions of the subdivision approval granted by the municipality. We also rule that the subject easement was not extinguished by application of the doctrine of merger, since there was no unity of title in the dominant and servient estates, nor did the circumstances evidence an intent to extinguish.
Our analysis of these issues requires consideration of the following undisputed facts. In 1957, Edward Folker was the owner of a large tract of undeveloped real property located in the Borough of Rumson between Rumson Road and the Shrewsbury River. The tract became known as "Riverfields Estates."
Folker intended to make application to subdivide the tract in stages, or sections. On August 20, 1957, the Planning Board of the Borough of Rumson (Board) approved the subdivision application of Folker as set forth on a "Map of Riverfields Estates, Section One." The map subdivided Lot 1, Block 65, as shown on the Borough of Rumson Tax Map into seven lots of approximately 1.5 acres each, with frontage along the easterly side of Bingham Avenue. From its intersection with Rumson Road, Bingham Avenue runs in a general southerly direction toward the Shrewsbury River. The seven lots created (lots 5, 6, 7, 8, 9, 10 and 11) begin at the northeasterly intersection of Rumson Road and Bingham Avenue (lot 11) and continue in a southerly direction for approximately 1,906.5 feet along Bingham Avenue, stopping at the southeasterly corner of lot 5, which point is located approximately 1293.5 feet from the Shrewsbury River. The balance of property contained in the Riverfields Estates tract, including the portion of the tract fronting along the Shrewsbury River, remained unsubdivided. The subdivision map was approved by the Governing Body of the Borough of Rumson on August 22, 1957.
On April 21, 1959, Folker and Dorothy M. Folker, his wife, executed a deed conveying lot 10, as shown on the Riverfields Estate, Section One, subdivision map, to Howard J. Poduska and Margaret R. Poduska, husband and wife. Thereafter, that deed was recorded in the Monmouth County Clerk's Office.
On February 3, 1960, the Folkers executed a deed conveying lot 9, as shown on the Riverfields Estate, Section One, subdivision map to Seth P. Johnson and Alma C. Johnson, his wife.
Edward Folker died on July 2, 1961. Dorothea Folker, a/k/a Dorothy M. Folker, died on December 10, 1961. Dorothy F. Berg inherited all lands owned by the Folkers delineated on the Map of Riverfields Estates, Sections One, Two and Three, not previously sold, under the last will and testament of Dorothea Folker, recorded in the Monmouth County Surrogate's Office on December 27, 1961. The Bergs were also the named executors of the Estate of Dorothea Folker.
After the death of Edward Folker, Dorothea Folker, with the assistance of the Bergs, pursued the further subdivision of the remaining Riverfields Estates tract. On August 8, 1961, the Board considered the application of the Estate of Folker for a subdivision entitled "Map of Riverfields Estates, Section Two." This subdivision proposed division of the balance of the Folker tract into building lots. It created lots along the westerly side of Tuxedo Road, which, at its northerly point, also intersects Rumson Road and then runs east of and parallel to Bingham Avenue to a point where both Tuxedo Road and Bingham Avenue are approximately 1293.5 from the river. At that point, Bingham Road curves easterly and Tuxedo Road curves westerly until they meet approximately 700 feet from the river. From that point, Tuxedo Road continues toward the river and ends in a cul-de-sac, approximately 180 feet short of the river. The Section Two subdivision map also reflected "Easement A" and "Easement B." Easement B is twenty feet wide and runs, on Lot 22, from the end of the cul-de-sac to the river. A portion of the language contained on the original Section Two subdivision map filed with the Board describing Easement B stated that all persons owning or who had been conveyed lots in Riverfields Estates were granted the right "to pass and repass on foot or vehicle" over Lot 22 to the Shrewsbury River.*fn2
The Board approved the subdivision. However, the minutes of the August 8, 1961 Board meeting reflect the following relevant discussion pertaining to the description of Easement B on the map:
John Toolan an attorney of Perth Amboy, N.J. appeared in behalf of the Folker Estate as did Mr. Robert Berg.
The Chairman afforded the public present an opportunity to be heard and Dr. Harold Hoops [an owner of a non-Riverfields Estate lot fronting along the westerly side of Bingham Avenue] asked whether or not he would have an easement to the river. Dr. Hoops was advised that the Borough was only interested in an easement for drainage purposes. It was recommended that the wording of easement "B" be changed to give the Borough an easement for drainage purposes only.
Mr. Toolan stated that the developer would enter into an agreement with purchasers of lots in the development and giving them access to the river.
Mr. Jacob White [another owner of a non- Riverfields Estate lot fronting along the westerly side of Bingham Avenue] asked whether or not he had access to the river over the easement and he was advised that he did not.
Mr. Howard Poduska [owner of Riverfields Estate Lot 10 in Section One] asked whether or not he had access to the river and he was advised that an easement agreement would be arranged between the developer and all property owners in the development for access to the river.
It was also suggested by the Planning Board that the Borough Council require that the legend concerning easement "B" be changed to give the Borough of Rumson an easement for the maintenance of a drainage pipe only and that private agreements be made between the developer and the purchasers of the individual lots permitting access to the river for the lot owners in this development under this easement.
The Governing Body approved the subdivision at its August 10, 1961 meeting with the notation in the minutes of that meeting "that the Borough Council require that the legend concerning easement 'B' be changed to give the Borough of Rumson an easement for the maintenance of a drainage pipe only and that private agreements be made between the developer and the purchasers of the individual lots permitting access to the river for the lot owners in this development under this easement."
On June 1, 1962, the Bergs executed a deed of easement to the Borough of Rumson and to "all persons who have heretofore or who may hereafter purchase land shown on Map of Riverfields Estates, Sections One, Two or Three; Section One is now on file and Sections Two and Three will hereafter be filed[.]" Pursuant to that deed of easement, the Bergs agreed,
in consideration of the approval of Section One of the Riverfields Estates . . . and the hoped for approval of Sections Two and Three of Riverfields Estates . . . to carry out and perform the agreement heretofore made between the late Edward Folker and the parties of the second part aforesaid for an easement across certain lands (to be hereafterdescribed) from
Tuxedo Road to the Shrewsbury River, referred to and identified as Easement "B" on Map of Riverfields Estates, Section Two . . . dated May 20, 1961, and for an easement ten feet wide from Tuxedo Road to Bingham Road (hereafter ...