March 14, 2007
DORALBA MOLINA GRISALES, PLAINTIFF-RESPONDENT,
MERCEDES TORRES, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 se, or is it based within a reasonable degree of a field of recognized science?
A. It's based on my personal opinion of what I see there.
As can be seen, Carnet was provided with an opportunity to render an expert opinion, but was correctly forbidden to express it unless it fell within a reasonable degree of certainty in the relevant field of expertise. Since the witness indicated that his only opinion was a "personal opinion," the Chancery judge correctly gave no weight and placed no reliance on Carnet's testimony.
The judge having found no other credible evidence to support defendant's claim that she and the prior owners of 42 Sayre, the servient tenement, had adversely and continuously prevented the owners of 44 Sayre from using the easement for twenty years or more, we conclude that defendant's contention that the easement was extinguished through adverse action was rightfully rejected.
The Chancery judge also found that a prior owner of 44 Sayre, the dominant tenement, erected a wooden fence that prevented use of the easement. Defendant argued that the presence of this fence evidenced both an act and an intent to abandon the easement. The judge disagreed, concluding that the mere erection of an easily removable wooden fence did not constitute sufficient evidence of an abandonment.
It is true, as defendant argues, that an easement may be extinguished through abandonment by the dominant tenement. Rossi v. Sierchio, 30 N.J. Super. 575, 578 (App. Div. 1954). But it is not mere non-use that generates such a result. Nonuse "for any length of time, no matter how long, will not destroy or extinguish an easement arising . . . out of [an] express grant." Freedman v. Lieberman, 2 N.J. Super. 537, 543 (Ch. Div. 1949) (quoting Dill v. Bd. of Educ. of Camden, 47 N.J.Eq. 421, 435-36 (Ch. 1890)). Abandonment must be established by "clear and unequivocal evidence of decisive and conclusive acts." Nuzzi v. Corcione, 139 N.J.Eq. 339, 346 (Ch. 1947). As described by our highest court at the time:
Abandonment is a question of intention. To constitute an abandonment, the facts or circumstances must clearly indicate such an intention. Non-user is a fact in determining it, but though continued for years, is not conclusive evidence, in itself, of an abandonment of a right of way created by deed. Its weight must always depend upon the intention to be drawn from its duration, character and accompanying circumstances. [Arlington Realty Co. v. Keller, 105 N.J.Eq. 196, 198 (E. & A. 1929) (citing Raritan Water Power Co. v. Veghte, 21 N.J.Eq. 463 (E. & A. 1869)).]
The burden of proving abandonment is on the party asserting it. Fairclough, supra, 8 N.J. at 189; Nuzzi, supra, 139 N.J.Eq. at 345-46.
Although the factual record is not entirely clear, both parties have assumed in their arguments to this court that a wooden fence was erected by a prior owner of 44 Sayre, the dominant tenement. Evidence suggests that this fence was constructed sometime in the late 1980's or early 1990's. Notwithstanding, the judge found that defendant failed to prove by clear and convincing evidence that the erection of this wooden fence revealed an intent to abandon the easement. In this regard, the judge correctly concluded that it is not just the placement of a fence -- arguably an act of abandonment -- that is relevant; he astutely recognized that defendant was also required to show that the owner of the dominant tenement possessed an intent to abandon.
In some circumstances, we suppose, it is conceivable that the dominant tenement's erection of a fence, which completely bars use of the easement, could alone support a claim of abandonment. A fence or barrier set in place for a considerable period of time, configured so as to be impenetrable or impassable, and constructed in a manner that reveals an intent that it remain permanently in place, could be found by a factfinder to evince an intent to abandon. The character of the wooden fence in question in this case, however, does not fit that description, but instead reveals that the fence could be easily removed. Accordingly, the wooden fence's presence alone was inadequate to prove that the owner of the dominant tenement intended to abandon the easement. Accord Arlington, supra, 105 N.J.Eq. at 198-99. Since there was no other relevant evidence presented in this regard, we find no reason to disturb the Chancery judge's determination that defendant failed to sustain her burden of proving that the easement was abandoned.