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Hertz v. Nowacki

October 30, 2006

BARBARA J. HERTZ, PLAINTIFF-APPELLANT,
v.
MICHAEL NOWACKI, SR. AND RUTH NOWACKI, H/W; JOHN L. MCLOUGHLIN AND CAROLINE A. MCLOUGHLIN, H/W; AND KENNETH TRAVERS AND LYNNE TRAVERS, H/W; AND THE BOROUGH OF LINCOLN PARK, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Chancery Division, Morris County, Docket No. C-55-99.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 11, 2006

Before Judges Skillman, Lisa and Grall.

Plaintiff Barbara Hertz owns an approximately fifteen-anda-half acre lot in Lincoln Park. This lot is located at the end of a meandering dirt path that crosses lots owned by defendants Michael and Ruth Nowacki, John and Caroline McLoughlin and Kenneth and Lynne Travers (hereinafter referred to as the individual defendants). The dirt path leading to plaintiff's lot is an extension of a roadway that defendant Borough of Lincoln Park paved around 1958 and has maintained since that time. Both the paved roadway and the dirt path are referred to as Orchard Drive.

Plaintiff brought this action seeking a declaration that the dirt path is a public road and an order compelling Lincoln Park to grade, gravel, upgrade, maintain and properly improve the portion of Orchard Drive leading up to her premises to "a condition equal to the existing improved portion of Orchard Drive." In the alternative, plaintiff sought a declaration that she has a private easement over the individual defendants' lots along the route of the dirt path.

After extensive discovery, Lincoln Park moved for summary judgment. The trial court concluded in a written opinion that plaintiff had not presented any evidence that the dirt path had ever been used as a public road or that Lincoln Park had accepted a dedication of the path as a public road. Accordingly, the court dismissed plaintiff's claim against Lincoln Park. The court subsequently denied plaintiff's motion for reconsideration.

More than a year later, the individual defendants moved for summary judgment dismissing plaintiff's claims against them and plaintiff filed a cross-motion for summary judgment determining her right to an easement across their lots. The trial court concluded in a written opinion that plaintiff's property would be inaccessible and useless without a right of way over the defendants' lots, and that "at the time of the complete severance of common ownership of the properties the only means of ingress and egress to [her property] was the right of way over the [individual defendants' lots]." Consequently, the court held that "[p]laintiff has established that an implied grant of a quasi-easement exists on the Defendants' land as well as an easement by necessity."

After the court entered summary judgment in plaintiff's favor, the individual defendants moved for reconsideration and clarification on the ground that the court's order provided no guidance regarding the dimensions and nature of plaintiff's easement. In response to this motion, the trial court entered another order on August 16, 2004, which provides in pertinent part:

3. The Court holds that Plaintiff may improve a 14-foot-driveway within the heretofore unpaved route respecting constraints of "mature" trees and property improvements and located with the centerline as close to the Defendants' common boundary lines.

4. In accordance with the Court's prior ruling and the modifications made herein, Plaintiff is entitled to improve the dirt path to the condition of a 14-foot-driveway capable of accommodating a modern motor vehicle including an emergency vehicle.

5. Plaintiff shall be allowed to apply for driveway construction permits and shall be responsible for any and all costs associated with any such permits or improvement of the area at issue.

Plaintiff has appealed from the order dismissing her claims against Lincoln Park and the part of the August 16, 2004 order that limits the width of the driveway she may construct on the easement over the individual defendants' properties to fourteen feet. The individual defendants have not cross-appealed from the order determining that plaintiff has an easement over their ...


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