May 22, 2008
COUNTY OF BERGEN, PLAINTIFF-RESPONDENT,
IRIS COOPER-SHEPARD AND ROD SHEPARD, DEFENDANTS-APPELLANTS.
On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, C-233-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 13, 2008
Before Judges Coburn, Fuentes and Chambers.
This lawsuit arose as a result of defendants, Iris Anne Cooper Shepard and Rod Shepard insisting that they were entitled to land owned by plaintiff, County of Bergen, by adverse possession. On cross-motions for summary judgment, Judge Contillo entered a final order on June 19, 2007, rejecting defendants' adverse possession claim and ordering them to remove their encroaching structures within six months. Defendants appealed.
After carefully considering the record and briefs, we are satisfied that all of defendants' arguments are without sufficient merit in the context of this litigation to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons expressed by Judge Contillo in his thorough and well-reasoned written opinion filed on June 19, 2007. Nevertheless, we add the following brief comments.
Plaintiff purchased substantial land in 1953 for use as a public park. Defendants' abutting lot encroached on plaintiff's land to the extent of some 1220 square feet. The parties stipulated that in the encroaching area since 1959 have been a cabana, a shed, a fence, and paving. Defendants inherited their property in 2000 from Iris's parents, who had purchased it in 1972 from Walter and Helen Bahr. The Bahr's had owned the property since 1955. Plaintiff filed this action in June 2006.
Before Devins v. Borough of Bogota, 124 N.J. 570 (1991), was decided, lands owned by a public entity were not subject to adverse possession claims. Devins modified that rule, allowing adverse possession claims if the land was not used for a public purpose. Id. at 578-79. But the Court also ruled that the decision would have no retroactive effect. Id. at 80-81. Thus, for property owned by a governmental entity but not dedicated to public use, the statute of limitations would begin running from the date Devins was decided, which was July 10, 1991.
Assuming that the encroaching land was not part of a public park, a claim properly rejected by Judge Contillo, plaintiff was obliged to bring this action within twenty years from the date of accrual. J & M Land v. First Union Bank, 166 N.J. 493, 517-18 (2001). Since under Devins the date of accrual could not be earlier than July 10, 1991, when that case was decided, it is perfectly obvious that this action was filed timely. Defendants received no rights by way of adverse possession, and consequently, we are constrained to affirm. However, the judgment must be modified to include a metes and bounds description as set forth in the two surveys submitted to the trial court. Plaintiff shall submit a proposed remanded judgment within 30 days of the filing of this opinion on notice to defendants. If defendants object, they shall so advise the trial court within 10 days of receiving the proposed amended judgment, and the trial court shall determine the issue as soon as practicable.
Affirmed and remanded.
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