On appeal from Superior Court of New Jersey, Chancery Division, Morris County, C-211-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Lyons.
These consolidated appeals arise from a dispute between plaintiffs C. Frederick and Jean Paulson and their neighbors, defendants David and Martha Currie, regarding the relocation by the Curries, without the consent of the Paulsons, of an easement providing a right of passage across the Curries' property. In an order of summary judgment dated April 25, 2007, the Curries were permanently enjoined from interfering, obstructing or impeding access to the easement.
However, the Curries did not immediately comply with that order, and a motion in aid of litigants' rights was filed on the Paulsons' behalf. Although an order requiring compliance was entered, it too was ignored. As a result, on September 5, 2007, the Paulsons filed a second motion to enforce litigants' rights. The motion was granted in part by an order dated October 5, 2007 and a corrected order upon reconsideration dated November 5, 2007. Pursuant to the latter order, the Curries were held in contempt and fined $50 per day for a period of ninety days, for a total of $4,500, as the result of their continued obstruction of access to the easement. However, the judge denied those portions of the Paulsons' motion seeking the removal of fencing installed by the Curries on both sides of the restored easement that the Paulsons claimed reduced the width of the easement from fifty feet to five feet, and the judge denied counsel fees.
In docket number A-5762-06T3, the Curries have appealed from the order of summary judgment against them and, in docket number A-1642-07T3, the Paulsons have appealed from those portions of the judge's October 5, 2007 and November 5, 2007 orders in which the judge denied the Paulsons' applications for removal of fencing constricting the easement and counsel fees. The Curries have cross-appealed in docket number A-1642-07T3 from the imposition upon them of the $4,500 sanction for their violation of the court's orders. The appeals have been consolidated.
The parties own adjacent property on Halsey Island, located in Lake Hopatcong. There is no vehicular access to the island, and passage around the island occurs on foot or by small tractor. The island property was initially subdivided by the Halsey Island Land Company in May 1891. At that time, lots were established in two concentric rings, with the outer ring abutting the water and the inner ring abutting a central area denominated "Park." The two rings were separated by a right-of- way of fifty feet in width, then known as Island Boulevard, but now known primarily as Halsey Oval. The Oval provides a route for residents to travel to other locations on the island and to gain access to fresh water wells. A revised map of the building sites on Halsey Island that indicates the location of the Halsey Oval was filed in the Morris County Clerk's Office on September 3, 1907. Dedication of the Oval as a street has been neither accepted nor rejected by the Township of Jefferson, where the island is situated.
A deed from Leo and Helen August to David and Martha Currie, recorded on December 20, 1979, conveyed property "known as lot 164 on a map entitled 'Revised Map of Building Sites on Halsey Island, Lake Hopatcong, N.J. the property of Halsey Island Land Company,' said map being dated July 13, 1907 and filed in the office of the Clerk of Morris County on Sept. 3, 1907 as map #309." The deed makes reference to the Halsey Oval, which is described as an "unimproved street." The deed further provides:
This conveyance is being made subject to easements and restrictions of record, if any, and further subject to the rights of public or private parties in and to any road or street, constructed or paper, adjoining the lot being sold.*fn1
The properties owned by the Paulsons and the Curries are situated in both the inner and outer rings of lots, and are bisected by the Halsey Oval. At some point, deer crossed the ice to the island in the winter, becoming a nuisance as the result of their foraging. Initially, the Curries, who have extensive gardens, protected their property from the deer by fencing it, installing a self-closing gate to give access to the Halsey Oval. However, after finding the gate propped open on several occasions, in August 2003, they locked and wired the gate closed and posted a note that stated:
The past 24 years the path around the Island has been in front of our cottage. . . . This year the path will be behind the cottage as we are expanding forward . . . .
The Gate in the back welcomes you anytime . . . The flowers would like ...