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Trunell v. Trust for Hazel Harrison

March 16, 2010

BRIAN C. TRUNELL, PLAINTIFF-APPELLANT,
v.
TRUST FOR HAZEL HARRISON, DEFENDANT-RESPONDENT, AND ANTHONY M. MALBA, JR. AND JOANNE MALBA, BOGDAN SLECZKA AND BOGUMILA SLECZKA, JAMES E. BAXTER AND JANE BAXTER,*FN1 DEFENDANTS.



On appeal from the Superior Court of New Jersey, Chancery Division, Hunterdon County, Docket No. C-014004-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 9, 2009

Before Judges Lisa, Baxter and Alvarez.

Plaintiff Brian Trunell appeals from the August 20, 2008 dismissal of his lawsuit against defendant Trust for Hazel Harrison (Harrison Trust) after a bench trial. Plaintiff's amended complaint*fn2 sought an easement by necessity over Harrison Trust's lands. After our review of the extensive trial record and consideration of the arguments on appeal, we affirm for the reasons stated in Judge Derman's seventy-seven-page opinion with the following brief comments.

On October 24, 2003, plaintiff purchased a twenty-acre wooded lot, Block 27, Lot 45, as shown on the tax map of East Amwell Township, Hunterdon County, for $170,000. Plaintiff, a loan officer at a mortgage bank, did not retain counsel to represent him in the purchase, did not obtain a survey of the lands, and did not order a title search. The transaction was financed by the seller.

When plaintiff learned that in order to subdivide the parcel into two lots, the municipality required a fifty-foot-wide access road, he ordered a title search and on January 20, 2005, filed this action. In addition to considering the testimony, exhibits and argument of counsel, Judge Derman walked the subject property.

Harrison Trust owns Block 27, Lot 46, located to the southeast of plaintiff's property. Plaintiff claims that in 1851, a portion of his lands were conveyed by a predecessor in title of the lands of Harrison Trust, and that he is therefore entitled to an easement of necessity over Lot 46 to a street known as Losey Road. Also to the east of plaintiff's tract are: Block 27, Lot 39, owned by Robert Totten et ux; and Block 27, Lot 43, owned by James and Jane Baxter.

A "driftway" or gravel road extends from Losey Road over the lands of Totten and Baxter, among others, to plaintiff's lands. Plaintiff presently accesses his lot using that driftway from Losey Road.

Judge Derman found that the driftway, as it crossed westwardly across plaintiff's property towards Route 31 in the opposite direction of Losey Road, was somewhat blocked by fallen trees and other debris. The owners of properties to the west of plaintiff's lands use the driftway as an access road extending out to Route 31. These land owners have entered into a mutual right-of-way agreement: they keep the driftway clear and otherwise maintain it.

Two utility companies use the driftway between Losey Road to the east of plaintiff's property for access; in fact, electrical lines extend from Losey Road to plaintiff's property along the driftway. Although neither the Tottens nor the Baxters have been directly approached about the possibility of selling rights of access to the driftway over their lands, they do not block plaintiff from its use. This is noteworthy because the Baxters were originally named as defendants and, according to plaintiff, do not appear to be "bitter" about the litigation.

Richard Leverton, who was Hazel Harrison's son-in-law and is Betty Harrison's husband, and who has been familiar with these lands for over sixty years, testified that Lot 46 will be the subject of a preservation trust agreement with the State once this litigation concludes. For that reason, the Harrison Trust cannot negotiate access over its lands with plaintiff.

Plaintiff's points on appeal are as follows:

POINT I. THE TRIAL JUDGE ERRED IN NOT FINDING THAT PLAINTIFF ESTABLISHED THE REQUIREMENTS FOR ...


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