March 16, 2010
BRIAN C. TRUNELL, PLAINTIFF-APPELLANT,
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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 AN EASEMENT BY NECESSITY.
A. PLAINTIFF PROVED HIS PROPERTY IS LANDLOCKED.
B. PLAINTIFF PROVED UNITY OF OWNERSHIP AND SEVERANCE OF HIS PROPERTY AND DEFENDANT TRUST FOR HAZEL HARRISON PROPERTY.
C. PLAINTIFF PROVED THE EASEMENT IS NECESSARY AND WAS NECESSARY AT THE TIME OF SEVERANCE.
POINT II. JUDGE DERMAN FAILED TO APPLY A CLEAR AND CONVINCING STANDARD AS PLAINTIFF'S BURDEN OF PROOF.
POINT III. WHEN THE TRIAL JUDGE FAILS TO MAKE FACT FINDINGS THAT ARE SUFFICIENTLY CLEAR AND COMPLETE TO PERMIT REVIEW THE CASE SHOULD BE REMANDED TO THE TRIAL COURT FOR COMPLETION OF FACT FINDING.
Great deference is extended to a trial court when it sits as the fact finder. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). "'[W]e do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported... as to offend the interests of justice.'" Id. at 484 (quoting Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)).
Plaintiff's claim that the judge did not make adequate findings of fact is not borne out by our review of her thorough and cogent opinion. The judge summarized the testimony of plaintiff's key witnesses, detailed the history of the chain of title information established by plaintiff, and clearly explained the proofs she considered necessary in order for plaintiff to bear his burden. These proofs, she determined, were simply missing from plaintiff's presentation.
An easement by necessity must be proven by clear and convincing evidence. Leach v. Anderl, 218 N.J. Super. 18, 26 (App. Div. 1987). Clear and convincing evidence must be "'so clear, direct and weighty and convincing as to enable [the factfinder] to come to a clear conviction, without hesitancy, of the precise facts in issue.'" In re Seaman, 133 N.J. 67, 74 (1993) (quoting In re Boardwalk Regency Casino Application, 180 N.J. Super. 324, 339 (App. Div. 1981)). See also, In re Williams, 169 N.J. 264, 271 (2001). The proofs should produce a firm belief in the correctness of the claims sought to be established. See In re Purrazella, 134 N.J. 228, 239-40 (1993). Furthermore, the judicial authority to burden servient estates with such easements should be exercised sparingly. Leach, supra, 218 N.J. Super. at 27. Far less than clear and convincing proofs were submitted by plaintiff.
As an initial matter, plaintiff did not prove his property was inaccessible in the most literal meaning of the term. The existence of the driftway, essentially a roadway available for his use, and over which electrical wires extend to his site, belies the claim. Plaintiff did not proffer any testimony as to efforts to outright purchase easement rights or rights of way either to Route 31 or Losey Road over his neighbors' lands. Although it can be inferred that the Baxters and the Tottens are uninterested in formally granting plaintiff an easement in the driftway, the record was devoid of any negotiation efforts initiated by plaintiff. The Baxters, whom plaintiff actually initially named in the suit, have not barred plaintiff from access.
Most importantly, however, as the judge noted, plaintiff failed to prove unity of ownership in the chain of title such as would warrant the finding of an easement by necessity. Plaintiff presented two experts in support of his claim, Ronald L. Haffling, a surveyor, and Justin Hay, a title examiner. As we have previously stated:
Implied easements are generally of two types: easements by necessity and quasi-easements. An implied easement by necessity arises by operation of law where "an owner of land conveys to another an inner portion thereof, which is entirely surrounded by lands owned by the conveyor...." Such an easement is found only in relation to the boundary conditions existing at the time of the original subdivision severing common ownership. An easement implied by necessity "is predicated upon the strong public policy that no land may be made inaccessible and useless." [Id. at 25 (citations omitted).]
In other words, unity of ownership and subsequent severance of title resulting in the landlocked parcel of land must be proven. Ghen v. Piasecki, 172 N.J. Super. 35, 41 (App. Div. 1980) (citing Cale v. Wanamaker, 121 N.J. Super 142 (Ch. Div. 1972)). The need for an easement by necessity arises at the time the parcels are subdivided. Id. at 43 (citations omitted).
Subsequent landowners are thereby entitled to pursue the creation of such easements in order to avoid being landlocked. Ibid. Easements by necessity terminate when the necessity is no longer present. Ibid. They are not revived, however, should the necessity recur.
Neither Haffling nor Hay knew if plaintiff's lot was landlocked in 1851, when the lot sharing common ownership with Harrison's deed was created. In other words, there were no proofs that Losey Road, Route 31, or some other roadway did or did not exist, and that the crucial 1851 conveyance of plaintiff's land created a landlocked parcel. There were significant issues created by plaintiff's own witnesses as to whether, even if that conveyance created a landlocked parcel, subsequent unified ownership of the parcel and contiguous lands terminated the necessity. As the trial court stated:
It is axiomatic that Plaintiff was able to prove common ownership in the chains of title of both Plaintiff and Defendant, going back to 1836.... If that were the end of the argument, Plaintiff would prevail.... Defendant successfully eliminated the possibility of a firm conviction in the court's mind by noting that both early and later landowners in Plaintiff's chain of title may have owned contiguous land, thereby obviating the necessity. Plaintiff did little to counter the specter of whether Williamson, Stout, or Wills, as more fully described hereafter, owned such land. Plaintiff's title witness did not undertake to fully search the records of such owners or if he did, his undertaking was belated and not well articulated. Portions of the transcript cited above from February 14, 2008 read like Abbott and Costello's famous "Who's on First" skit.*fn3... The proofs were complicated and the title witness was not definitive. Even if Plaintiff's witness adequately searched the records so as to eliminate the defense that Plaintiff's predecessors in title owned contiguous land, the court gives little weight to his tentative testimony, especially in view of the clear and convincing evidence standard.
It is not the court's responsibility to decipher the evidence when it is presented by Plaintiff in a confusing and tentative fashion. In pursuing this case, the court had importuned Plaintiff's counsel to make this case more easily comprehensible to the court in view of the handwritten, sometimes illegible, deeds dating back to "the year of our lord one thousand and eight hundred and thirty six." The court received a chart as to all the deeds only when it demanded it. Even then, two important deeds in the chain of title were not available when Plaintiff's witness testified; they were inexplicably provided out of order....
We concur wholeheartedly. Plaintiff did not prove that any grantor conveyed landlocked parcels, or that the need for an easement by necessity was not extinguished because of the ownership of contiguous lands. As Judge Derman noted, plaintiff failed to prove that the conditions which existed in 1851 or thereafter, at the time of severance of common ownership between a portion of Lot 45 and Lot 46, required access to Losey Road across Lot 46. Without such proof, plaintiff is not entitled to any relief.
In her decision, Judge Derman quoted from the Restatement of the Law, (Third) Property: Servitudes § 2.15: "If the property did not enjoy the rights prior to the conveyance, there is no basis for implying a servitude to continue the enjoyment of the rights after the severance." Given the failure to prove that the parcel remained landlocked after its creation, even assuming it was landlocked at the time of creation, plaintiff failed to prove his case by clear and convincing evidence.
We therefore affirm.