On appeal from Superior Court of New Jersey, Law Division, Essex County, L-10345-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...