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Smothergill v. Hirschberg

April 26, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. C-345-07.

Per curiam.


Argued March 22, 2010

Before Judges Reisner, Yannotti and Chambers.

Defendants Barry and Elizabeth Hirschberg appeal from a May 5, 2009 judgment confirming a right of way in favor of plaintiffs Gerald S. and Lynn Smothergill, and defining the boundaries of the right of way. We affirm.


This case arises from a dispute between neighbors over an easement. The procedural history is recited in detail in Judge Contillo's comprehensive written opinion issued March 3, 2009 and need not be repeated here. These are the most pertinent facts.

Plaintiffs' property, at 409 Holly Place in Northvale, New Jersey, appears on municipal tax maps as lot nineteen block, 106. Plaintiffs acquired their property from Metropolitan Sheet Metal, L.L.C. on March 23, 2007. Plaintiffs' lot is improved with a single-family home, and fronts on Holly Place. Defendants, their next-door neighbors, own property known as 403 1/2 Argenti Place, or lot eighteen, block 106. Defendants purchased their property from Joseph and Michele Seboek on October 4, 1978.

Although defendants' property has an address on Argenti Place, the property is a "flag" lot with no direct access to any public road. Over the years, defendants and their predecessors have used an unpaved path which abuts their property to access Argenti Place. This path is depicted on municipal tax maps as a 33-foot wide right of way (ROW) stretching approximately 400 feet between Holly Place and Argenti Place. Holly Place runs perpendicular to Argenti Place, but terminates at the ROW; on the tax maps, the ROW thus appears to be a de facto extension of Holly Place, which allows access from Holly Place to Argenti Place.

The ROW abuts thirty-five feet of the southeast corner of plaintiffs' property, the full length of defendants' property and the full length of lot seventeen, owned by the Dolans (Dolan lot). On the other side of the ROW are lots three, four and five, owned by DelVecchio, and lot six, owned by the Cappabiancas. Like defendants' property, lots four and five would be landlocked without access to the ROW.

Shortly after plaintiffs acquired their property in 2007, the current dispute arose regarding plaintiffs' right to use the ROW. Defendants claimed exclusive ownership over the ROW, which they sought to protect by erecting "No Trespassing" signs and by installing a fence. This lawsuit followed.

The underlying documents regarding the historical background of the ROW are undisputed. On January 10, 1910, Della McIndoe conveyed to Julia Delo (Julia) a large tract (JD tract) in Northvale. The JD tract would have been landlocked, except that at the same time that Julia acquired the property, she also acquired an access easement from Horace and Cary German, who owed land to the east of the JD tract.

The German tract abutted East Avenue, a major roadway which still exists. On December 31, 1910, the Germans granted Julia and her successors the right to cross a path 16.5 feet wide, which ran along the southerly line of the German tract, to access East Avenue. The deed (German deed) provided that this ROW (ROW 1) would terminate when public access to and from Julia's property became available.*fn1

The parties' expert witnesses agreed that, in the following years, the JD tract was divided into smaller parcels, and a network of interconnecting rights-of-way was created between 1910 and 1927 to provide the landowners within the original JD tract with ways to connect to ROW 1, and thereby access East Avenue.

On May 26, 1923, Julia's heir, Henry F. Delo (Henry), made two conveyances simultaneously. He conveyed what is currently designated on tax maps as lot sixteen to a grantee who is identified in the record as "Rathburn." Then, to his wife, Emily Delo (Emily), Henry conveyed a rectangular plot measuring 400 by 73.25 feet (ED tract). The ED tract would currently consist of the southeast corner of plaintiffs' property, all of defendants' property, and the Dolan lot.

Henry's deed to Emily (1923 deed) created a right-of-way (ROW 4) by [e]xcepting and reserving [from the grant] a right-of-way sixteen (16) feet in width along the southerly line of the above described premises running easterly and connecting with certain other rights-of-way described in deeds recorded in the Bergen County Clerk's office in book 776 of deeds page 258 [or ROW 1] book 896 of deeds page 148 [or ROW 3] and the deed to Rathburn and wife above referred to said rights-of-way to be for the lawful use and benefit of all owners of the premises herein described as well as owners of other lands of the grantor situate[d] west of said premises. [Emphasis added.]

On August 14, 1923, Emily and Henry divided the 400 by 73.25 foot ED tract, and conveyed the western portion (western half) measuring 200 by 73.25, to Richard and Laura Hansen.*fn2 The western half would currently cover the southeast corner of plaintiffs' property and all of defendants' property. This deed featured the same "excepting and reserving" language recited in the 1923 deed. On June 28, 1928, Emily conveyed the remaining eastern half of the ED tract, currently known as the Dolan lot, also measuring 200 by 73.25 to Harold Graham. There appears to be no dispute that this deed contained the same "excepting and reserving" language found in the 1923 deed, however the width of the ROW was described as measuring 16.5 feet instead of sixteen-feet as described in the 1923 deed.*fn3

On November 6, 1928, Emily re-acquired the western half of the initial ED tract from the Hansens. This deed (1928 deed) recited the same "excepting and reserving" language found in the initial 1923 deed with regard to the sixteen-foot ROW. On April 30, 1946, Emily and Henry conveyed this western half, again described to measure 200 by 73.25 feet, to Henry Alfred Delo and his wife, Helen S. Delo (the Delos). The "excepting and reserving language" in this deed (1946 deed) deviated from the prior deeds related to this specific parcel, in that the ROW was described as 16.5 ...

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