On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. C-322-00.
The opinion of the court was delivered by: Lefelt, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lefelt, Parrillo and Sapp-Peterson.
Plaintiff Peter Stransky and defendants John and Lynnda Williams (Williams) are owners of adjoining properties in Howell Township. After Williams*fn1 granted a sewer easement to defendant Monmouth Council of Girl Scouts, Stransky sued his neighbors and the Girl Scouts, claiming that the easement had been unlawfully placed on his property and that the Girl Scouts were trespassers. The trial court conducted an evidentiary hearing to establish the location of a Spanish oak tree which, although no longer in existence, was a boundary monument utilized in Stransky's deed. Despite the court's location of the Spanish oak, Williams and Stransky still could not agree on the boundary between their properties. Consequently, the court directed Richard F. Smith, Jr., to prepare a survey based upon the court's location of the missing boundary monument. The boundary line established by Smith reflected that the easement had been placed upon Stransky's property and, therefore, the court entered judgment in his favor. Stransky, Williams, and the Girl Scouts all appealed.
On appeal, Stransky argues that the boundary should have been determined by a jury and that his neighbors lacked legal title to their property as a fraud had been perpetrated in a prior conveyance. Stransky also questioned the trial court's location of the Spanish oak, the appointment of the surveyor, and argued that the surveyor failed to comply with the trial court's direction.
Williams and the Girl Scouts also appealed, arguing that the trial court erred in the rationale it utilized to resolve this case. These parties contend that the conveyances to Williams and Stransky established the proper boundary between the two properties and reveal that the sewer easement is on Williams' property rather than Stransky's. We agree with this position and reverse and remand for entry of a judgment in Williams favor.
The lots directly at issue in this land dispute are located in Howell Township, Monmouth County, and are designated 26, 27, 28, and 29. Williams owns lots 26 and 27, and Stransky owns lots 28 and 29. Lot 28 is located to the west of lots 26 and 27. Lot 29 is located to the north of lot 28. The Yellow Brook runs in a roughly north-south direction to the west of lots 28 and 29, and intersects the Manasquan River at the southwesterly corner of lot 28. The river then flows in a south-easterly direction along the southern border of lot 28, and then turns in a southerly direction along lot 26.
In 1958, Adele A. Tomberg sold lots 28 and 29 to Williams Sr. and his wife,*fn2 who are the parents of plaintiff John Williams. The deed, which was recorded, described the conveyed tract by using a natural monument for one course, "a Spanish Oak tree standing on the edge of the river bank." Distances were described by using chains and links rather than feet and inches and reference was made to the owners of nearby lands almost two hundred years ago.
Also in 1958, Robert Greenberg performed a survey of the 10.0 acre tract of lots 28 and 29, conveyed by Tomberg, depicting a stake near a blazed Spanish oak tree at the bottom of the drawing next to the Manasquan River, and referring to lands formerly of James Johnson to the east of the boundary line drawn from that stake. This survey set the length of the disputed boundary line at 891 feet.
In 1974, Murray L. Rosenzweig sold and conveyed lots 26 and 27 to Williams Sr. and plaintiffs John and Lynnda Williams. This deed was recorded and recited that the property contained "7.73 acres according to a survey made by M. Eugene McDonald," and that the description contained in the deed had been drawn from that survey. Then, in 1975, a quiet title judgment in favor of Williams Sr. was entered. The parcel involved was a small semi-rectangle on the south-east portion of Lot 29, between lots 27 and 28, encompassing about three and one-half acres.
Thus, from 1974 through 1982, Williams Sr., together with Williams, owned lots 26 and 27 and, on his own, also owned lots 28 and 29. In 1982, by deed filed in 1984, Williams Sr. conveyed his interest in lots 26 and 27 to Williams. The deed recited that the lots contained 7.73 acres, and described the property by reference to the McDonald survey. This survey set the length of the disputed boundary line at 835 feet.
In 1986, two years after the deed for lots 26 and 27 had been recorded, Williams Sr. conveyed to Stransky, and his wife Ivanka, lots 28 and 29. This conveyance included the small parcel which had been the subject of the 1975 quiet title judgment. The deed was recorded in 1987, and specifically referenced that the land conveyed was bound "on the east by the premises conveyed to John F. Williams, Sr.  by Book 3867 of Deeds page 834, the Rosenzweig deed, in which the premises conveyed were based upon the McDonald survey and were subsequently conveyed by Williams Sr. to Williams as lots 26 and 27."
The contract of sale between Williams Sr. and Stransky recited that the property consisted of approximately fourteen, but not less than thirteen and one-half, acres. A survey affidavit executed by Williams Sr. recited that the Greenberg survey had been examined and there were no changes in the boundary ...