On appeal from Superior Court of New Jersey, Chancery Division, Union County, C-189-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Payne.
Despite the existence of a deed-recorded easement for a circular roadway, designed to provide full access to properties within a development for residents and emergency equipment, defendants, Jeffrey Jennings and Debra Montick, removed the portion of the road that traversed their property and planted trees and bushes where the road previously had been located. When suit was filed against them by other residents, plaintiffs Steven Burke and Barbara Ball, defendants claimed that the prior roadway created an unspecified dangerous condition that would be reestablished by any requirement that the roadway be restored. Plaintiffs moved for summary judgment. In response, defendants conceded that the easement must be restored, but sought its modification to permit installation of turfstone pavers,*fn1 in place of the former macadam road surface. Plaintiffs did not consent to this modification, and as a consequence, when granting summary judgment to plaintiffs, the court ordered the restoration, within forty-five days,*fn2 of the macadam road that had been in place for the prior sixty years. Defendants' motions for a stay were denied by the motion judge and by us.
On appeal, defendants again concede the validity of the easement and their wrongful interference with it, but argue that the judge failed to recognize that he had the discretion to order that the replacement of the roadway be accomplished by use of the pavers that defendants prefer. We disagree. In Kline v. Bernardsville Ass'n, Inc., 267 N.J. Super. 473, we stated:
An easement is defined as "a non-possessory incorporeal interest in another's possessory estate in land, entitling the holder . . . to make some use of the other's property. Easements are created (1) by express acts of the parties, (2) by implication, or (3) by prescription. Where the easement comes into being by way of an agreement, as is apparently the case here, the "universally accepted principle" is that "the landowner may not, without the consent of the easement holder, unreasonably interfere with the latter's rights or change the character of the easement so as to make the use thereof significantly more difficult or burdensome." Tide-Water Pipe Co. v. Blair Holding Co., 42 N.J. 591, 604 (1964). "Once the way is fixed, it cannot be changed without the consent of both parties." Sussex Rural Elec. Coop. v. Township of Wantage, 217 N.J. Super. 481, 490 (App. Div. 1987). It has thus been said that "[i]t is the exclusive right of the owner of the dominant tenement to say whether or not the servient owner shall be permitted to change the character and place of the [easement,] . . . regardless of any consideration of convenience of the owner of the servient tenement."
[Id. at 478; other citations omitted.]
Plaintiffs, the owners of the dominant tenement, have not consented to the change in roadway surface that defendants have proposed.
In our decision in Kline, we found that, despite the "unequivocal language" of the opinions that we cited in the prior extract, "on rare occasions" deviations had been recognized "where justice and equity plainly mandated that course." Id. at 479. In the present case, we do not find any such conditions to exist. Defendants' concern, arising after they had taken possession of the property with the prior macadam roadway in place, is aesthetic only. As such, it is insufficient to overcome the valid objections, premised upon safety and maintainability, raised by plaintiffs.