On appeal from Superior Court of New Jersey, Law Division, Morris County, L-1382-00.
Before Judges Wefing, Payne and C.S. Fisher.
The opinion of the court was delivered by: Payne, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff Randolph Town Center, a real estate development company, appeals from a judgment against it, based on the jury's determination that defendant County of Morris had established a prescriptive easement to drain water through a culvert under the Sussex Turnpike onto property, owned by Randolph, that Randolph sought to develop as a shopping center, creating wetlands that made commercial development difficult or impossible.
At trial, which commenced on June 30, 2003 and concluded on July 9, 2003, the court without objection charged that the period required to establish a prescriptive easement was twenty years. After the trial had concluded and this appeal had been perfected, on August 9, 2004, Randolph's counsel moved for leave to amend the issues on appeal to assert the argument that an incorrect prescriptive period had been utilized, noting that in a decision rendered two years before the trial, the Supreme Court had established the correct period to be thirty or sixty years, depending on the state of development of the property. See J & M Land Co. v. First Union Nat. Bank, 166 N.J. 493 (2001). We granted Randolph's unopposed motion, but denied its additional motion for summary disposition and remand. The County has not otherwise sought to respond in writing to Randolph's substantive arguments on this newly raised issue.
In addition to the issue of the proper period for prescription, in its initial brief, Randolph charged error in (1) the court's order barring evidence of a 1983 written easement; (2) the court's denial of Randolph's motion for a directed verdict barring the County's defense of prescriptive easement; and (3) the court's refusal to permit the jury to consider its claim of inverse condemnation once a prescriptive easement had been found to exist.*fn1 We reverse and remand for a new trial.
In J & M Land, supra, the Supreme Court undertook to analyze and harmonize various existing statutes governing possessory rights to property in the context of a claim by J & M of adverse possession of marshland upon which two billboards had been erected, for which J & M had collected rents since 1956. Following an extensive review of historical precedents and a critical analysis of relevant New Jersey statutes and cases construing them, the Court determined that New Jersey's laws contained separate provisions establishing a twenty-year statute of limitations applicable to actions for ejectment, N.J.S.A. 2A:14-6 and -7, and establishing either a thirty- or sixty-year period for perfection of claims to adverse possession, N.J.S.A. 2A:14-30 and -31. Id. 166 N.J. at 516-20. However, the Court found the ejectment statutes and their limitations periods, set forth at N.J.S.A. 2A:14-6 and -7, had been superseded by the provisions of N.J.S.A. 2A:35-1, which authorized actions for possession of property but contained no specified time in which proceedings must be instituted. Id. at 520-21. Thus, a right of action against an unlawful possessor was maintained throughout the period required to obtain adverse possession.
The Court additionally found that the marshland upon which the billboards at issue had been erected constituted an"uncultivated tract" to which the 60-year period set forth in N.J.S.A. 2A:14-30 applied, rather than the 30-year period applicable to all land"excepting woodlands or uncultivated tracts." Id. at 518-19. The Court then noted that, because J & M's adverse possession for thirty-nine years had been interrupted at more than twenty years but less than sixty years, J & M had sought to argue that it had obtained possessory rights by prescriptive easement, and thus it was not bound by the time periods of N.J.S.A. 2A:14-30, which addressed adverse possession only. Id. at 519. However, the Court rejected the argument, concurring in our determination that J & M's use of the land was possessory in nature, and not merely an easement permitting a limited use and enjoyment of the land that was not a normal incident of a possessory land interest. Ibid. (citing J & M Land Co. v. First Union Bank, 326 N.J. Super. 591, 598 (App. Div. 1999)).
In our decision in J & M, we had not sought to dispositively determine the period required to establish a prescriptive easement. However, in a footnote, we had observed:
The prevailing rule, as expressed in comment a to section 460 of the Restatement of Property (1944) is that"[t]he'period of prescriptions' is fixed, in the absence of specific statutory provision, by analogy to the period derived from the local statutes of limitations for the acquisition of title to land by adverse possession," which in this case would be the sixty-year limitations period for"uncultivated tracts" provided by N.J.S.A. 2A:14-30.
[J & M, supra, 326 N.J. Super. at 598 n.1.]
Significantly, the Supreme Court quoted that footnote in its opinion. J & M, ...