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Reed v. Billybob Partners

January 14, 2010

FRANK REED AND ALICE REED, PLAINTIFFS-APPELLANTS,
v.
BILLYBOB PARTNERS, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Warren County, No. C-16020-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 30, 2009

Before Judges Wefing, Grall and Messano.

Plaintiffs appeal from a trial court order granting partial summary judgment to defendant and declaring that defendant has an easement across plaintiffs' property and permitting defendant to pave that easement for use as a driveway. After reviewing the record in light of the contentions advanced on appeal, we affirm in part and reverse in part.

Plaintiffs own a parcel of land in Pohatcong Township identified as Lot 20.01 in Block 113. It is slightly more than six acres in size and fronts on Warren Glen-Riegelsville Road. They purchased this property in 1975 from Harvey Shoner. Their deed noted that it was subject to a certain easement and provided a metes and bounds description of that easement, which provided access from Warren Glen-Riegelsville Road to Lot 20 in Block 113. Absent that easement, Lot 20 would be landlocked. Plaintiffs' deed contained no language defining the scope of the easement and made no provisions for the cost of maintaining the easement. In its present condition, the easement is an unimproved pathway that runs from Warren Glen-Riegelsville Road, passes approximately twenty-five feet from plaintiffs' home, and then back to Lot 20. It does not conform to the metes and bounds description in the various deeds of the parties. Lot 20 has historically been used for agricultural purposes, and plaintiffs allege that the only vehicles using the easement have been farm vehicles during planting and harvesting times.

Defendant purchased Lot 20 in 2001 from Donald Willard. At the same time, it also purchased Lot 20.03, which is to the east of plaintiffs' property, fronts on Warren Glen-Riegelsville Road and backs into Lot 20. For reasons that do not appear in the record before us, defendant did not record these deeds until June 2004. Defendant merged Lots 20 and 20.03 by deed in August 2007.

Defendant's predecessor, Willard, had purchased these two lots from Garis and Orpha Kormandy in 1974, a year prior to plaintiffs purchasing their property. The Kormandys' deed to Willard for Lot 20 included the following easement:

Together, with an easement in favor of the Grantee [Willard], their heirs, executors, administrators, successors, and assigns for access to the tract purchased above and the right of ingress and egress from from [sic] the Warren Glen-Riegelsville Road for the purpose of entry and exit from the above tract, said easement is to follow the course of an existing lane and shall be 30 feet in width, running 15 feet on either side from the centerline of said lane. This easement shall be subject, however, to a sharing of maintenance and repair costs for keeping the lane in its present condition so that its practical use for the above purpose may be effected.

This deed was recorded almost a year prior to plaintiffs' purchase of Lot 20.01 from Shoner.

When Willard conveyed Lot 20.03 to defendant, the deed included the following provision:

Together with an easement in favor of the Buyer, their heirs, executors, administrators, successors and assigns, for access to the tract purchased above and the right of ingress and egress from the Warren Glen-Riegelsville Road for the purpose of entry and exit from the above tract, said easement is to follow the course of an existing lane and shall be 30 feet in width, running 15 feet on either side from the centerline of said lane. This easement shall be subject, however, to a sharing of maintenance and repair costs for keeping the lane in its present condition so that its practical use for the above purpose may be effected.

In March 2004, several years after defendant purchased Lots 20 and 20.03, an agricultural easement was granted to the State of New Jersey under the Agriculture Retention and Development Program. The deed of easement was executed by Willard, who had conveyed the property to defendant in 2001. As we have noted, defendant's deed was not recorded until June 2004, some three months after grant of the conservation easement. For purposes of the question before us, the parties do not attribute any particular legal significance to Willard having granted the conservation easement, rather than defendant.

The terms of this easement prohibited any use of the property for nonagricultural purposes. The agricultural easement specifically carved out a one-acre exception at the rear of Lot 20 upon which a one-family residence could be constructed. It also prohibited the deposit of any sand, gravel, loam or rock not "required for the agricultural purpose for which the land is being used."

Defendant wishes to build a one-family home within the one-acre portion of Lot 20 that is excepted from the conservation easement. It must, however, bring the access easement into compliance with the Pohatcong code in order to obtain the requisite permits; doing so requires paving the easement and installing drainage facilities.

Plaintiffs objected to what they perceived as a change in the nature and use of this easement, contending it would intensify the use of the easement and, because of the proximity of the easement to their residence, affect their privacy and quiet. After defendant began certain preparatory work, including tree removal, plaintiffs filed a verified complaint and order to show cause. They noted that the land over which the easement ran was steep, that the easement contained a sharp hairpin turn, and that construction posed a significant risk of erosion. They also questioned future maintenance responsibilities and noted that because defendant had purchased Lot 20.03, which fronts on Warren Glen-Riegelsville Road, its property could no longer be considered landlocked.

After defendant filed its answer, the matter was presented to the chancery judge on cross-motions for summary judgment. The order entered by the chancery judge, after declaring that defendant had an access easement across plaintiffs' property, provided that it was to follow the course of the existing lane, and that it ...


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