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Dalrymple v. A&L


July 9, 2007


On appeal from the Superior Court of New Jersey, Chancery Division, Cape May County, CPM-C-101-05.

Per curiam.


Argued June 6, 2007

Before Judges Winkelstein, Fuentes and Baxter.

Plaintiff and defendant claim title to a strip of property in Sea Isle City. Following a bench trial, Judge Perskie concluded that plaintiff was vested with title pursuant to N.J.S.A. 2A:14-31. On appeal, defendant raises the following three legal points:




Plaintiff has filed a cross-appeal, claiming title to the property under a different theory from that relied upon by the trial judge. Having reviewed the arguments of both parties in light of the record and applicable law, we conclude that defendant's arguments are without merit and affirm substantially for the reasons expressed by the trial court; accordingly, we dismiss plaintiff's cross-appeal as moot.

On September 1, 2005, plaintiff filed suit seeking to quiet title to a ten-foot-wide strip of property located in Sea Isle City. Plaintiff claimed both legal title and title by adverse possession. Defendant counterclaimed, also seeking title to the property. Following a two-day bench trial, Judge Perskie issued an oral opinion on May 19, 2006, finding that plaintiff was vested with title by virtue of N.J.S.A. 2A:14-31, providing for title by thirty years of adverse possession under color of title. The court denied all other claims of title brought by the parties, and memorialized its decision in a June 1, 2006 order.

We will not burden the record by repeating in detail the trial evidence. Suffice it to say that it consisted of evidence presented by both parties, bearing upon the conveyances of, and use of, the disputed parcel of land, dating back to 1881. The disputed strip of property is a curved parcel, with boundaries represented by the arcs of two concentric circles - one with a radius of 375 feet, and one with a radius of 385 feet. The arc of the circle with the 375-foot radius (375 line) is the western boundary of the strip; the arc of the circle with the 385-foot radius (385 line) is the eastern boundary of the strip. Plaintiff's property is located to the east of the strip, while defendant's property is located to the west.

In concluding that plaintiff had demonstrated color of title under N.J.S.A. 2A:14-31, the judge made the following findings:

. . .[P]laintiff's predecessor in title recorded a deed in 1950 purporting to vest legal title to the property in the plaintiff's predecessor in title. Thereafter for more than 50 years and continuously plaintiff and her predecessors in title have solely and exclusively occupied and used the disputed area. Their building built primarily east of the 385 line encroaches and has consistently encroached into the disputed area. In addition plaintiff and her predecessors, . . . had maintained shrubbery, installed first one fence and then another along the 375 line, placed sheds in the area, utilized the space in connection with the occupancy and operation of the apartment building and eventually constructed four parking spaces in the 10-feet area.

Conversely defendant and its predecessors in title made no claim on the subject area. The building addition to the original improvement on the defendant's property was constructed so that its eastern wall reached to but not across the 375 line. No effort was ever made to interfere with plaintiff's use of the property or that of her predecessors in title until 2003 when the defendant first challenged the plaintiff's possession of the disputed area.

Accordingly, in this instance and on these facts I am satisfied that the record establishes all of the necessary elements for acquisition by plaintiff of title by the equitable theory of color title. Plaintiff's [predecessor's] deed was duly recorded . . . in 1950 and was obtained by purchase from Charles Landis' estate which was then in possession of the property if not as I had previously concluded in legal title. Plaintiff and her predecessors in title maintained exclusive possession of the property after the recordation of the deed and in fact improved the property over the substantially in excess of the 30 years required by the statute.

Moreover, as I have previously concluded, plaintiff's claim of title is in fact not adverse to defendant's inasmuch as I have determined that the defendant was not in legal title to the area during this period; accordingly, Section 30 of the statute does not afford in my view any additional basis to support plaintiff's claim of acquisition of title by adverse possession inasmuch as the required element of adversity is not established on these facts.

Accordingly, I will enter a judgment determining that pursuant to Section 31 of the statute plaintiff has acquired title to the disputed area between the 375 and 385 lines along the border of her property with Lots 4.04 and 8 owned by defendant.

The judge found that plaintiff had proved her case not only by a preponderance of the evidence, but also by clear and convincing evidence.*fn1

Findings of fact by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence and an appellate court will reverse only where the trial judge's findings are so wholly insupportable as to result in a denial of justice. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). Here, the trial judge's determination was supported by adequate, substantial and credible evidence in the record.

The trial court grounded its decision, not on either party holding legal title to the property, but on plaintiff's right to possession of the property through adverse possession. N.J.S.A. 2A:14-31 is a "specific adverse possession statute[]," J & M Land Co. v. First Union Nat'l Bank, 166 N.J. 493, 505 (2001). It provides:

Thirty years' actual possession of any real estate, uninterruptedly continued by occupancy, descent, conveyance or otherwise, wherever such possession commenced or is founded upon a proprietary right duly laid thereon, and recorded in the office of the surveyor general of the division in which the location was made, or in the office of the secretary of state, pursuant to law, or wherever such possession was obtained by a fair bona fide purchase of such real estate from any person in possession thereof and supposed to have a legal right and title thereto, or from the agent of such person, shall be a good and sufficient bar to all prior locations, rights, titles, conveyances, or claims whatever, not followed by actual possession as aforesaid, and shall vest an absolute right and title in the actual possessor and occupier of all such real estate. [N.J.S.A. 2A:14-31.]

The elements of adverse possession are well settled. Generally, to acquire title by adverse possession, the possession must be actual and exclusive; adverse; visible or notorious such that the actual owner of the property is put on constructive, if not actual, notice that the land is in the actual possession of another; and continued and uninterrupted. Patton, supra, 93 N.J. at 186.

Here, there was evidence that plaintiff's chain of title to the disputed property dated back to a September 28, 1950 conveyance from the Estate of Charles K. Landis to Louis Braca, Sr. While the court found that the deed was insufficient to create clear legal title, it was sufficient for a claim of color of title, as it dated back beyond the thirty years required by the statute. See O'Keeffe v. Snyder, 83 N.J. 478, 502-03 (1980) (Court discusses principle of "tacking," the accumulation, for the purposes of the statutory period, of consecutive periods of adverse possession by parties in privity with each other). Plaintiff and her predecessors, from the 1960's onward, maintained some sort of barrier on the 375 line, forming a boundary between defendant's property and the entire disputed strip. Though a series of fences maintained since the 1960's were recently removed, hedges planted by plaintiff and her predecessors grew to form a substantial boundary along the 375 line.

Although minor plantings may not demonstrate encroachments significant enough to establish a claim of adverse possession, see Maggio v. Pruzansky, 222 N.J. Super. 567, 581 (App. Div. 1988), the erection of a substantial enclosure is one of the most significant activities a party may undertake to demonstrate adverse possession. Stump v. Whibco, 314 N.J. Super. 560, 569 (App. Div. 1998). Occupancy or possession to a visible and ascertainable boundary is the controlling factor in adverse possession cases. Maggio, supra, 222 N.J. Super. at 580. Plaintiff and her predecessors, in a manner "clearly and self-evidently apparent to the naked eye," Mannillo v. Gorski, 54 N.J. 378, 389 (1969), demonstrated their claim to title of the strip by placing on the 375 line, the "precise location of the dividing line," objects capable of "visual observation," ibid., to wit, a series of fences, and then, a substantial hedgerow.

Plaintiff testified that, dating back to 1953, her family made unchallenged use of the entire property in dispute, while defendant's predecessors made no use of it. She recalled that her family maintained the grounds and "had a few plantings," and that she played there as a child. Additional trial evidence generally supported her claim. The record thus provided adequate credible evidence for the trial court to determine that she established a claim for adverse possession by color of title.

Defendant also claims that the court erred by concluding that the calls to a monument in the legal descriptions of defendant's property contained in the various deeds in defendant's chain of title "should be ignored in favor of a stated distance." That argument is without merit.

Whenever the boundaries of real property are doubtful based on inconsistent or conflicting terms in a deed, the proper location of the premises is a question of fact to be determined on all of the evidence. Hofer v. Carino, 4 N.J. 244, 250 (1950); Stransky v. Monmouth Council of Girl Scouts, Inc., ___ N.J. Super. ___, ___ (App. Div. 2007) (slip op. at 11) ("When an ambiguity is present [in a deed], . . . a factual issue is presented and extrinsic evidence can be considered to aid the construction effort."). The evidence here consisted of the various deeds in defendant's chain of title, which contained inconsistent calls.

A "call" is a "reference to . . . an object, course, distance, or other matter of description, in a survey or grant, requiring or calling for a corresponding object, etc., on the land." 13 New Jersey Practice, Real Estate Law and Practice § 12.20, at 384 (John A. Celentano). It is "a landmark chosen by a surveyor or utilized in a deed to designate real property boundaries." Stransky, supra, ___ N.J. Super. at ___ (slip op. at 12).

In the interpretation of real estate descriptions, "[r]ules of construction have developed which are not ironclad but which are generally followed when conflicts arise." 13 New Jersey Practice, supra, § 12.20, at 384. See Stransky, supra, __ N.J. at ___ (slip op. at 12) (describing the "hierarchy of calls [that] has been utilized over the years"). A fundamental principle is that a call to a monument will prevail over the stated distance in the course leading to that line. Walker Rogge, Inc. v. Chelsea Title & Guar. Co., 116 N.J. 517, 529 (1989). This principle is frequently described by the phrase "calls prevail over distances." Ibid.; 13 New Jersey Practice, supra, § 12.22, at 385-86 ("Monuments prevail over calls for courses and distances."). The general rule will not be applied, however, where the result would be absurd or clearly unintended, or where all the facts and circumstances show that the call for course and distance is more reliable than the call for monuments. 13 New Jersey Practice, supra, § 12.22, at 386; S.R.H. Corp. v. Rogers Trailer Park, Inc., 54 N.J. 12, 19-20 (1969). "The purpose of call priorities, such as the general preference for natural monuments, is subordinate 'to the manifest intent of the grantor if this can be ascertained.'" Stransky, supra, ___ N.J. Super. at ___ (slip op. at 14) (quoting S.R.H. Corp., supra, 54 N.J. at 20).

The call afforded the most dignity is that of a natural monument, such as a large rock or the shoreline of a body of water. 13 New Jersey Practice, supra, § 12.20, at 384. Following natural monuments in the "order of dignity" are artificial marks, stakes, fences, streets, and other man-made objects. Ibid.; Walker Rogge, supra, 116 N.J. at 529 (natural boundaries and property lines, like iron stakes, and stone pillars, are monuments). After natural boundaries and "artificial marks," "adjacent boundaries" are third in the order of preference. S.R.H. Corp., supra, 54 N.J. at 20. The land of an adjoining proprietor is, when definitely located, a monument. Hofer, supra, 4 N.J. at 251; 13 New Jersey Practice, supra, § 12.21, at 385.

Where no monuments are named in a grant and none are intended to be afterwards designated as evidence of the extent of it, the distance stated in the description must govern the location; "[i]f a grant be made which describes the land granted by a course and distance only, . . . course and distance, though not safe guides, are the only guides given [the court], and must be used." Negbauer v. Smith, 44 N.J.L. 672, 674 (E. & A. 1882); Schroeder v. Engroff, 57 N.J. Super. 452, 464 (App. Div. 1959), rev'd on other grounds, 33 N.J. 204 (1960).

Here, defendant claims the court erred by ignoring the call to a railroad right of way included in an early deed in defendant's chain of title. The strip of property owned by the railroad was thirty feet wide; the western boundary of the railroad's property was the 385 line, which also formed the eastern boundary of the strip of property in dispute here. The eastern boundary of the railroad's property was represented by the arc of a curve with a 415 foot radius, while the center line of the railroad was the arc of a curve with a 400 foot radius.

The first deed in defendant's chain of title, from 1888, describes the eastern boundary of defendant's tract as being "twenty five feet from the centre line of the . . . [r]ailroad," proceeding along a "curve with a radius of three hundred and seventy five feet." These terms are wholly consistent with one another - the center line of the railroad was the 400 line; twenty-five feet from that would be the 375 line. The next deed in defendant's chain of title, which was drafted five years after the first deed, contained similar language, conveying land with an eastern boundary at "a point twenty-five feet from the centre line of the . . . [r]ailroad," running along a "curve with a radius of three hundred and seventy five feet." However, that deed included a description not contained in the first, stating that the curve with radius 375 feet ran "along [the] railroad right of way." The second deed did, however, incorporate the initial deed by reference. All subsequent deeds in defendant's chain of title represented the 375 line as being coterminous with the railroad "right of way." Defendant asserts that the call to monuments rule dictates that the trial court should have ignored the call to the stated distance of the 375 line and instead, given effect to the call to the railroad right of way.

Addressing this issue, Judge Perskie stated:

I cannot explain . . . why the drafter of the 1893 deed to Delaney included a gratuitous reference to the railroad right-of-way as the eastern boundary of the grant, a reference that . . . was not in the 1888 deed . . . and was specifically at variance with all of the otherwise consistent measurements in all of the calls in the legal description; however, inasmuch as this reference is the only basis for defendant's claim of legal title, I must conclude that under these circumstances defendant's claim to legal title to the disputed 10 feet must also fail.

While as defendant urges I am permitted to afford the measurement distances in the several deeds less significance than the references to the railroad right-of-way as a monument, I should do so only if that technique is of assistance in determining the intent of the parties and the result reached from doing so is not irrational.

In this instance I conclude that extending the eastern boundary of defendant's grant would be specifically inconsistent with . . . the intent of the parties; moreover, the exactitude and multiplicity of the various measurements, while again theoretically less compelling than the reference to the railroad right-ofway, are, . . . a clear manifestation of the intent of the parties . . . [as] gleaned from the evidence presented.

Substantially for the reasons expressed by the trial court, we also conclude that defendant's claim that the call to monuments rule applies in this situation must fail. The call to monuments rule, as noted, is "not ironclad," 13 New Jersey Practice, supra, § 12.20, at 384, especially where the initial deed does not contain reference to any monuments. See Negbauer, supra, 44 N.J.L. at 674; Schroeder, supra, 57 N.J. Super. at 464. That is the case here. The initial deed made no reference to the railroad right of way as a monument. While subsequent deeds did contain a "gratuitous" reference to the railroad right of way, they also used the same legal description as the initial deed, with the second deed incorporating the first deed by reference. Thus, the court's conclusion that any reference to the railroad right of way as forming the boundary of defendant's tract was not a proper manifestation of the original intent of the parties was fully supported by the record.


Plaintiff's cross-appeal is dismissed as moot.

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