On appeal from the Superior Court of New Jersey, Chancery Division, General Equity, Union County, Docket No. UNN-C-103-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 24, 2007
Before Judges Parker and C.S. Fisher.
In this appeal, we consider whether an easement, created by deed, was extinguished by the owner of the servient tenement or abandoned by the owner of the dominant tenement when both erected barriers that interfered with its use.*fn1 Since we conclude that the Chancery judge correctly determined that defendant, the current owner of the servient tenement, failed to sustain her burden of persuasion in either respect, we affirm the judgment that declared the continued viability of the easement.
The facts regarding the creation of the easement are not in dispute. In 1922, Adolph and Rose Wagner conveyed part of property they owned in the City of Elizabeth to Hattie L. Tucker. That part retained by the Wagners became known as 44 Sayre Street; the part conveyed to Tucker became known as 42 Sayre Street. The memorializing deed of November 7, 1922 reserved to the Wagners, and "the owners [of 44 Sayre] now and hereafter," and their "heirs and assigns," an easement over 42 Sayre so that all owners of 44 Sayre could access the back part of their property by vehicle.
Defendant purchased 42 Sayre in September 2002, and plaintiff purchased 44 Sayre in September 2004. Plaintiff commenced this suit, claiming a right to use the easement.
This case is interesting and unusual in that it presents circumstances with the potential to demonstrate either an abandonment of the easement by the dominant tenement or the extinguishing of the easement by the adverse actions of the servient tenement. That is, defendant has argued that (1) the owners of 42 Sayre extinguished the easement by erecting a twoand-one-half-foot high concrete barrier, and also that (2) prior owners of 44 Sayre abandoned the easement by erecting a wooden fence that prevented its use. Following a bench trial, the Chancery judge found there was insufficient evidence to support these contentions.
To establish that an easement has been extinguished, it must be shown that the servient tenement adversely and without interruption prevented the dominant tenement from using the easement for at least twenty years. Fairclough v. Baumgartner, 8 N.J. 187, 190 (1951). The burden of proving this rested upon defendant, the owner of the servient tenement.
Because defendant presented no direct evidence as to when the concrete barrier was erected, she attempted to prove that it was in place for more than twenty years by offering expert testimony that the concrete was more than twenty years old. She claims that the Chancery judge erroneously prohibited her expert, Orlando Carnet, a licensed home inspector, from testifying in this regard. We reject this contention because it was the witness himself who expressed an inability to provide anything but a personal opinion about the concrete's age, as his following testimony reveals:
[PLAINTIFF'S COUNSEL]: Can you give this estimate [of the concrete's age] within a certain reasonable degree of scientific concrete science methodology?
[DEFENDANT'S COUNSEL]: I object to the term.
THE COURT: I think that needs to be rephrased in fairness to the witness. I think if you may let me; what [c]counsel is asking is he wants to know if you can give an opinion as to the age of this wall within a reasonable degree of structural building science? In other words is it based on your opinion per ...