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Dalrymple v. A&L

July 9, 2007

ANGELA D. DALRYMPLE, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
A&L, L.L.C., A NEW JERSEY LIMITED LIABILITY COMPANY, DEFENDANT-APPELLANT/ CROSS-RESPONDENT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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:

POINT I: THE DETERMINATION OF THE TRIAL COURT THAT PLAINTIFF WAS ENTITLED TO TITLE BY ADVERSE POSSESSION WAS MANIFESTLY UNSUPPORTED BY AND INCONSISTENT WITH THE COMPETENT, RELEVANT AND REASONABLY CREDIBLE EVIDENCE.

POINT II: THE TRIAL COURT COMMITTED AN ERROR OF LAW SUBJECT TO THIS COURT'S PLENARY REVIEW IN CONCLUDING THAT CALLS TO A MONUMENT IN THE LEGAL DESCRIPTION IN DEFENDANT'S PROPERTY (NAMELY, THE RAILROAD RIGHT OF WAY) SHOULD BE IGNORED IN FAVOR OF A STATED DISTANCE.

POINT III: THE TRIAL COURT'S DETERMINATION THAT DEFENDANT DID NOT POSSESS LEGAL TITLE TO THE "DISPUTED PARCEL" AND THAT PLAINTIFF WAS ENTITLED TO A JUDGMENT OF ADVERSE POSSESSION WAS INCONSISTENT AND ILLOGICAL.

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 ...


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