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Debenedette v. Delodzia

December 11, 2009

JOHN DEBENEDETTE AND URSULA GEORGE, PLAINTIFFS-RESPONDENTS,
v.
MARK DELODZIA, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Warren County, Docket No. C-16019-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 17, 2009

Before Judges Carchman and Parrillo.

Defendant Mark Delodzia appeals an order of the General Equity Part granting plaintiffs John DeBenedette and Ursula George summary judgment, and declaratory and permanent injunctive relief. We affirm.

The essential facts are not in dispute. Plaintiffs and defendant own adjacent rural properties in Blairstown. A dirt-and-gravel lane running through plaintiffs' lot, along which defendant has a right-of-way, is defendant's only means of vehicular access to public roads from his property.

The lane itself runs for approximately two hundred feet from defendant's driveway to plaintiffs' property and continues for another six hundred feet through plaintiffs' property in front of their house, barn, and garage on its way to Birch Road. The dirt and gravel roadbed ranges in width from ten to twelve feet, and grassy shoulders several feet wide flank the lane. Stone rows frame the outside of the grassy shoulders for much of the lane, and a sheep fence runs along one side for a short length. In areas where stone rows run along both sides of the lane, the distance between the rows typically totals between seventeen and twenty-two feet. Trees, bushes, and other vegetation grow along the lane both within and on either side of the stone rows.

The parties agree that vegetation must periodically be cut back or removed to allow unobstructed access to vehicles traveling along the lane. Conflict has arisen, however, because, in addition to trimming overgrowth, defendant has cut some bushes to the stump and killed vegetation with herbicide along portions of the lane, as well as removed rocks from the roadbed. According to defendant, limiting maintenance of the lane only to trimming the overgrowth of the vegetation would be "impractical and dangerous":

The brush grows very quickly during the summer and it would require constant attention to cut each offending new shoot along both sides of the lane . . . . Allowing brush to overgrow the edges of the lane will tend to scratch the paint of vehicles unless they stay in the middle. If you can't see the edge, it will impede the ability of one vehicle to move to the edge to allow another vehicle to pass . . . . Both edges of the lane must be not only free and clear of brush, but must be clearly visible to drivers.

He relies on the report of a forestry expert who indicated that defendant's chosen methods of maintenance are the most efficient and appropriate.

Plaintiffs, on the other hand, claiming that defendant is not entitled to use the entire fifty-foot width, complain that defendant's actions have caused the lane to lose its scenic, rural beauty, compromised their privacy, and subjected their property to increased runoff erosion. According to plaintiffs, defendant's methods of cutting bushes to the stump and killing vegetation by means of herbicide amount to a widening of the lane well beyond its original width, materially altering plaintiffs' property, and exceeding the bounds of what could be considered reasonable, necessary maintenance.

By way of background, the parties' neighboring properties constituted a single lot until 1971 when the owners at the time, Achille and Jennie Notaro, subdivided the tract into two lots. The Notaros sold the front lot with direct public road access, plaintiffs' since 2003, to Richard and Linda Green, and the rear lot, defendant's since 1998, to Richard's brother Hubert Green and his wife Barbara. The Greens then collectively entered into an easement agreement wherein the owners of the front lot provided the owners of the rear lot a right-of-way along the private rural lane that runs for most of its course through the front lot.

Specifically, the agreement provided for "a perpetual easement 50 foot [sic] in width," and specified that the "right of way is for the mutual benefit of the respective properties of the parties hereto and [that] the cost of maintaining said easement shall be born equally by the owners of the respective properties." Barbara Green stated in an affidavit that "[i]t was never contemplated or agreed that we would ever utilize any width footage greater than what was necessary for a car to travel down the lane to our lot." Moreover, during the nearly three decades she resided on the property, the owners of both lots performed "minimum maintenance" on the lane, only "trim[ming] back the growth as necessary, so as to afford car access to the rear of the property." The foliage along the lane "was always of great importance" both for its scenic beauty and the "privacy" it afforded.

Having reached no resolution of their property dispute, on July 15, 2007, plaintiffs filed a complaint in the General Equity Part seeking to enjoin defendant from performing any maintenance on the rural lane along defendant's right-of-way. Defendant answered, and pursuant to plaintiffs' interim order to show cause seeking preliminary injunctive relief, the judge issued an order on October 19, 2007, preserving the status ...


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