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Berezofsky v. Haesler

August 24, 2009

ESTHER E. BEREZOFSKY AND GLOSTER B. AARON, PLAINTIFFS-APPELLANTS,
v.
RAYMOND J. HAESLER, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-8410-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 10, 2009

Before Judges Winkelstein, Fuentes and Chambers.

This case involves an easement dispute between two neighboring property owners. The property owned by defendant Raymond J. Haesler*fn1 has access to a public road through an easement known as Hidden Lane. His deed expressly gives him the right to use that easement. Plaintiffs Esther E. Berezofsky and Gloster B. Aaron own property located directly across from defendant's property along Hidden Lane. However, plaintiffs' property has access to a public road through a different easement. Plaintiffs do not have a deed or other document giving them an easement or any other right to use Hidden Lane.

Plaintiffs brought this declaratory judgment action, and among other relief, they sought a finding that they had a right to use Hidden Lane. Defendant filed a counterclaim, and among other claims, sought to enjoin plaintiffs from using Hidden Lane. On cross-motions for partial summary judgment, the trial court determined that plaintiffs did not have the right to use Hidden Lane and enjoined them from doing so. The other claims between the parties having been voluntarily dismissed, plaintiffs now appeal the trial court's decision. We affirm in part, reverse in part, and remand.

I.

To put this easement dispute in context, we must go back to 1949, when the properties owned by plaintiffs and defendant were part of a larger tract of land owned by Joseph Barton and Elizabeth M. Barton, husband and wife, and Lewis W. Barton and Sara P. Barton, husband and wife. In 1949, the Bartons conveyed a portion of their property to Robert and Dorothy S. Wright, husband and wife. The Wright tract fronted Browning Lane, a public road, and as a result, the conveyance did not give the Wright tract an easement on the Bartons' remaining property.

Subsequent owners of the Wright tract subdivided it in 1965 and provided easements through the Wright tract for those subdivided lots that would otherwise be landlocked. Plaintiffs' property, now known as 460 Browning Lane, is one of these subdivided lots from the Wright tract. It has an easement of ingress and egress that runs through the former Wright tract to Browning Lane and that easement is not in dispute in this case. Thus, plaintiffs have a separate easement to a public road as set forth in their deed, and nothing in their chain of title accords them an easement in Hidden Lane.

We now turn to the property that was retained by the Bartons after their conveyance in 1949 to the Wrights. In 1951, the Bartons*fn2 conveyed a portion of their remaining property to Edward and TheDA Henson Braddock. Defendant now owns this parcel, known as 470 Hidden Lane. In order to prevent the parcel from being landlocked, the Bartons gave the Braddocks an easement across their land to Kresson Road. This easement became known as Hidden Lane and is the easement in dispute in this case. We will refer to this easement as Hidden Lane.

The language creating Hidden Lane in the Barton-Braddock deed is as follows:

TOGETHER ALSO WITH the right, liberty, and privilege of free and common use, for ingress to and egress from the above described premises, at all times hereafter, in common with the owners and occupants of other lands abutting thereon, of the 33 feet wide right of way aforesaid . . . .

The easement language was changed by deed between the Braddocks and defendant's predecessors in title to provide:

TOGETHER with the free and common use, right, liberty and privilege of the above mentioned 33 feet wide right of way as and for a right of way for ingress and egress at all times hereafter forever in common with the owners, tenants and occupiers ...


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