On appeal from the Superior Court of New Jersey, Chancery Division, General Equity, Middlesex County, C-244-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges S.L. Reisner, Gilroy and Baxter.
Plaintiff M.G. Group of Companies, L.L.C. appeals from a trial court order dated April 24, 2007, dismissing plaintiff's complaint against defendants Roland Johnkins, Genevieve Johnkins, Cynthia Johnkins and Justin Roland Johnkins. We affirm for the reasons stated in Judge Chambers' written opinion dated April 23, 2007.
The facts are set forth in detail in Judge Chambers' opinion and need not be repeated in full here. To summarize, plaintiff is the contract purchaser of land located along Old Georges Road in North Brunswick, Middlesex County. Plaintiff applied for and obtained the necessary land use approvals to subdivide the property for purposes of constructing a housing development. However, in this lawsuit, plaintiff sought to extinguish a fifty-foot-wide easement which runs the length of the property adjacent to the backyards of the planned houses. The easement does not prevent development of plaintiff's property, but if it is extinguished, the houses can be built with larger back yards.
In its Chancery Division complaint, plaintiff claimed that the easement had been abandoned or should be extinguished, or in the alternative that the easement should be (a) limited to a ten-foot roadway rather than the entire fifty-foot right-of-way and (b) limited to residential traffic rather than used to transport farm equipment. Defendants, on the other hand, contended that they regularly used the easement but even if they did not, the easement was created by deed and therefore could not be extinguished by any alleged failure to use it. They also contended that there was no basis to restrict the width of the easement or its use for farm equipment.
After a bench trial, which included a site visit to the easement, Judge Chambers issued a thirteen-page page written opinion, making detailed factual findings and legal conclusions. Based on her review of the deeds and her evaluation of witness testimony, she concluded that the entire fifty-foot wide easement was established by deed, that it could not be extinguished by non-use, and that there was no evidence that the beneficiaries of the easement had ever intended to abandon it. See Fairclough v. Baumgartner, 8 N.J. 187 (1951); Nuzzi v. Corcione, 139 N.J. Eq. 339, 345 (Ch. 1947). Nor did the judge find any evidence on which to base a claim of equitable estoppel. See Ibid.
Judge Chambers credited defendant Roland Johnkins' unrebutted testimony that Johnkins, his tenants, and the other named defendants were still using the easement for its intended purpose. She found that some, but not all, of the several properties along the easement had an alternate means of access to Old Georges Road, but she concluded that the availability of an alternate route did not affect the continued viability of the easement because it was created by deed not by necessity.
Moreover, she concluded that the existence of wetlands along part of the easement did not prevent the easement from being used for its intended purpose even if the wetlands might prevent the strip of land from being paved and used as a public roadway.*fn1 Judge Chambers found no basis in the deeds to warrant limiting the easement to residential traffic as opposed to farm equipment. See Krause v. Taylor, 135 N.J. Super. 481, 485 (App. Div. 1975); Leasehold Estates, Inc. v. Fulbro Holding Co., 47 N.J. Super. 534, 551 (App. Div. 1957).*fn2 Relying on Hyland v. Fonda, 44 N.J. Super. 180, 189 (App. Div. 1957), she also concluded that there was no basis to reduce the width of the easement from the fifty feet stated in the deeds to the ten feet currently in actual use as a roadway.
On this appeal, plaintiff presents the following points for our consideration:
POINT I: THE FINDING OF THE TRIAL COURT THAT THE "PROPOSED" 50 FOOT RIGHT OF WAY SHOULD NOT BE EXTINGUISHED WAS ERROR DUE TO THE IMPOSSIBILITY OF DEVELOPING WITHIN IT AS REFLECTED IN THE GRANT AND THE FAILURE OF THE COURT AT THE VERY LEAST TO MODIFY IT TO THE USE CONTEMPLATED IN THE ORIGINAL GRANT WAS AN ABUSE OF ITS EQUITABLE POWERS WHERE CHANGES HAVE OCCURRED THAT MAKE IT IMPOSSIBLE TO ...