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Simmons v. Township of Maplewood


July 5, 2007


On appeal from Superior Court of New Jersey, Law Division, Essex County, L-10345-04.

Per curiam.


Submitted September 27, 2006

Before Judges Stern and Collester.

These are consolidated appeals from summary judgment granted in favor of the Township of Maplewood (Township) on complaints of plaintiffs Kenneth Simmons and Taran Singleton seeking declarations of adverse possession of portions of a lot designated 16 Taranto Court in the Township. Simmons also appeals from the denial of his motion for amendment of his complaint to assert an additional claim of implied easement. We affirm.

In addressing the arguments as to summary judgment, we must accept the plaintiffs' version of the facts and grant them the benefit of all favorable inferences. R. 4:46-2; Pierce v. Ortho Pharmaceutical, 84 N.J. 58, 61 (1980); Judson v. People's Bank & Trust, 17 N.J. 67, 73-77 (1954). The plaintiffs assert that in December 1922, the owner of property in the Township subdivided it into three separate parcels designated as lots 14, 16 and 18 Taranto Court. Houses were constructed on lots 14 and 18 and continuously occupied. No structure was built on lot 16, which remains a vacant lot. The Township obtained title to lot 16 through a tax sale foreclosure in 1944. For sixty consecutive years of its ownership the Township did not use, improve or dedicate the property for public use.

On September 1, 2004, the Township conducted a sealed-bid auction of lot 16. Simmons and Singleton maintain that they were not notified, although no action was taken to upset the sale. The only bidder was Crow Properties (Crow), whose principal is Maplewood's fire chief. Maplewood transferred title to Crow for the bid price of $82,500. On December 28, 2004, Simmons filed his complaint against Crow alleging adverse possession. He asserted that he purchased 14 Taranto Court on April 29, 2004, and continued the use of his predecessors in title to a paved portion of lot 16 for a driveway and parking area and a fenced portion that extended his backyard. He also filed a lis pendens on January 27, 2005. Singleton's suit, filed on January 11, 2005, sought a declaration of ownership by adverse possession of a different portion. He purchased lot 18 in August 2001 and continued the use by his predecessors of approximately 2000 square feet of a cultivated portion of lot 16 running along a hedgerow for a distance of twenty feet from the easterly sideline and the depth of the lot line between lots 16 and 18.

Simmons and Singleton both acknowledged that the surveys and title policies they received prior to their closings did not include any part of lot 16. They underscore that the municipal tax map showed dotted lines corresponding to those portions of lot 16 they claim by adverse possession, but they acknowledge they never paid taxes or any part of that lot.

On February 3, 2005, Crow sold 16 Taranto Court back to the Township for $82,500, the same price it paid at auction. A consent order was subsequently entered on May 18, 2005, consolidating the Simmons and Singleton actions, substituting the Township as defendant in each suit and releasing Crow as a defendant. Simmons filed a motion on September 27, 2005, to assert a claim of an easement for the portion of the property used as a driveway and parking area. Judge Donald M. Merkelbach denied the motion. The Township filed its summary judgment motion against both plaintiffs on December 8, 2005. Judge Merkelbach granted the motion on January 20, 2006. This appeal followed.

Adverse possession is a method of acquiring title through the expiration of statutes of limitation which bar an ejection action and pass title to the property from the record owner to the possessor. Patton v. North Jersey Dist. Water Supply Comm'n, 93 N.J. 180, 186 (1983); O'Keeffe v. Snyder, 83 N.J. 478, 494 (1980); Stump v. Whibco, 314 N.J. Super. 560, 576 (App. Div. 1998). The adverse possession must be "exclusive, continuous, uninterrupted, visible and notorious" for the statutory period. Mannillo v. Gorski, 54 N.J. 378, 386 (1969).

The statutes governing acquisition of ownership through adverse possession vary according to the nature of the subject land and whether the claim is based on color of title. N.J.S.A. 2A:14-6; N.J.S.A. 2A:14-7; N.J.S.A. 2A:14-30; N.J.S.A. 2A:14-31. In this case the statutory period for resting title is thirty years.*fn1

Plaintiffs assert, and the Township concedes, that by tacking the time of the previous possessors, viz, the Township and Crow, the thirty-year period necessary to vest a full and complete right and title by adverse possession has been met. See Patton, supra, 93 N.J. at 186; Stump v. Whibco, supra, 314 N.J. Super. at 561.

The Township's summary judgment motion was grounded on the historic principle that adverse possession does not run against the sovereign, in this case the Township, expressed in the Latin phrase nullum tempus occurrit regi ("time does not run against the King"). Devins v. Borough of Bogota, 124 N.J. 570, 574 (1991); 16 Powell on Real Property, §91.02 (Wolf rev. 2000). Our courts have applied this common law principle to hold that adverse possession statutes do not run against the State or a municipality when the land has been dedicated to or used for a public purpose. Devins, supra, 124 N.J. at 575. The rationale for banning adverse possession of public lands is obvious: adverse possession should not require deprivation of a property used for the common good; it would be injurious to the public if such land were lost due to the negligence of the State or municipal agents; and the statutes of limitation should not be read to divest State or municipal ownership of property held as a public trust. Id. at 576.

The facts of Devins, supra, 124 N.J. at 590, are similar to the case at bar. As in this case, the Borough acquired title in 1962 to a vacant lot through in rem foreclosure. The Borough did not use it, improve it, or dedicate it to public use. Plaintiffs purchased a neighboring property in 1965, and one of the predecessor owners of his property erected a chain link fence which included the lot owned by the Borough. A barbeque pit was also constructed on the Borough property. Plaintiffs used the vacant lot for parking, cookouts and other recreational activities. He maintained it, paved a portion, installed a basketball backboard and erected a shed on it. After the Borough denied plaintiffs' claim that he acquired it by adverse possession, plaintiffs filed suit. The Supreme Court modified the nullum tempus doctrine, drawing a distinction between public use of land and land held for non-governmental purposes. The Court concluded that land held by local government for a nonpublic purpose may be adversely possessed.

Ultimately, the issue is one of public policy. We believe the better rule concerning municipally-owned real property not dedicated to or used for a public purpose is to treat it like property owned by private owners. Underlying our belief is the perception that we are not imposing an undue burden on municipalities by expecting them to discover within the relevant period of limitations what property they own and who possesses it. That expectation will encourage municipalities to make efficient use of their property and return it to the tax rolls. Conversely, we are reluctant to adopt a policy that would encourage municipalities not to use, dedicate or even identify their property.

We conclude that for municipally-owned real estate not dedicated to or used for a public purpose, nullum tempus is an anachronism. [Id. at 578-79.]

Although the subject property sub judice was not used by the Township or dedicated for a public purpose, Devins is of little comfort to plaintiffs. Recognizing the possibility of "untold problems for municipalities in the ownership of parks, right-of-way for streets, and other real property," and in order to give the Legislature an opportunity to review the statutes in light of the decision,*fn2 the Devins Court directed that the decision was to apply only prospectively. As a result, the date of the Devins opinion, July 10, 1991, is the earliest date for an adverse possession claim to ripen against government property held for a non-public purpose. See N.J. Mfrs. Ins. Co. v. Breen, 153 N.J. 424, 432 (1998); N.J. Educ. Facilities Auth. v. Gruzen P'ship, 125 N.J. 66, 76 (1991).

Plaintiffs nevertheless argue that since their actions were commenced against the private owner, nullum tempus is inapplicable. They cite in support our decision in Stump v. Whibco, supra, 314 N.J. Super. at 560 in which we state: "[A]pplication of the nullum tempus doctrine does not interrupt continuity of occupancy for the purposes of an adverse possession claim in respect of land owned privately at the time of the claim on the ground that title was once briefly held by a federal agency." Id. at 575. However, the facts of Stump are distinguishable from the case at bar. There, the disputed property was privately owned at the statutory reckoning time and remained in private ownership throughout the applicable thirty-year period save for a time that the Small Business Administration "briefly" held title. In the instant case, the Township held title for over sixty years including the reckoning period for adverse possession, and the property was titled in Crow for only four months before it was re-conveyed to the Township. Moreover, the time-honored view is that when land is owned by a government and transferred to private ownership, the period of adverse possession by the government is not counted in determining the validity of a claim of adverse possession or prescriptive easement because of nullum tempus. Armstrong v. Morrill, 14 Wall 120, 145, 20 L.Ed. 2d 765, 772 (1872); Strong v. Whibco, supra, 314 N.J. Super. at 572-73; Camp Clearwater v. Plock, 52 N.J. Super. 583, 604-05 (Ch. Div. 1958), aff'd, 59 N.J. Super. 1 (App. Div. 1959), certif. denied, 32 N.J. 348 (1960); Powell on Real Property, supra, §91-11(2); Annotation: Racking-Prescriptive Easements, 57 ALR 3d 648, 681; Annotation: Adverse Possession-Public Property, 55 ALR 2d 549, 583-95. As a result, plaintiffs cannot tack on the period of ownership by the Township to satisfy the requirement that the adverse possession be continuous for the thirty-year statutory period.

The lis pendens filed by Simmons during Crow's ownership does not create a right to adverse possession. A lis pendens gives constructive notice of a lawsuit regarding rights to the property and preserves the status of the property pending judicial resolution. Manzo v. Shawmut Bank, N.A., 291 N.J. Super. 194, 200 (App. Div. 1996). It cannot create a right that does not exist. Trus Joist Corp. v. Treetop Assoc., 97 N.J. 22, 26 (1984).

Finally, Simmons argues that the trial judge misapplied discretion in denying leave to amend his complaint to add a claim for an easement for the portion of lot 16 that he uses as a driveway and parking lot. R. 4:9-1 provides that motions for leave to amend should be granted liberally without consideration of the ultimate merits of the amendment. See Maxim Sewerage v. Monmouth Ridings, 273 N.J. Super. 84, 90 (Law Div. 1993). However, a motion judge had discretion to deny the amendment when it is clear that the amendment is so meritless that a motion to dismiss under R. 4:6-2(e) would have to be granted. Notte v. Interstate Mut. Ins. Co., 185 N.J. 490, 501 (2006); Howard v. University of Medicine, 172 N.J. 537, 559-60 (2002); Kernan v. One Washington Park, 154 N.J. 437, 457 (1998).

The legal requirements for a prescriptive easement are the same as those for obtaining title by adverse possession. Baker v. Normanoch Ass'n, Inc., 25 N.J. 407, 419 (1957). See also J&M Land Co. v. First Union Nat. Bank, 166 N.J. 493 (2001); Randolph Tower Ctr. V. County of Morris, 374 N.J. Super. 448, 454 (App. Div. 2005), aff'd in part, vacated in part (2006). Since Simmons was unable to satisfy the prerequisites of adverse possession, the proposed amendment was properly dismissed pursuant to R. 4:6-2(e).


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