On appeal from Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. C-237-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Miniman and Waugh.
This matter involves a private roadway, known as West Prospect Avenue, on property located in the Borough of Fairview.
The road itself is owned by plaintiff Emil Beyer. Beyer and plaintiff Pedigree Holding Group, L.L.C. (Pedigree), own land adjacent to the roadway. Another adjacent property, at the far end of the roadway, is owned by defendant Cutler Brothers Box and Lumbar Company (Cutler). Pedigree and Cutler have access easements to their property over the roadway. A dispute arose with respect to Cutler's alleged blocking of Pedigree's use of the roadway.
Beyer and Pedigree filed suit seeking injunctive relief, and Cutler counterclaimed alleging that it owned the disputed portion of the roadway through adverse possession. Following a bench trial, the Chancery Division held that Cutler had obtained title to some, but not all, of the disputed portions of the roadway through adverse possession. Both sides have appealed.
Our review of the trial judge's opinion reveals that, in making his determination with respect to the issue of adverse possession, he applied the wrong standard of proof. The judge wrote that he was "satisfied the defendant's position is the favored one, at least by the standard of a preponderance of the evidence." In Meyers v. Pavalkis, 73 N.J. Super. 208, 214 (App. Div. 1962) (citing DeBow v. Hatfield, 35 N.J. Super. 291, 297 (App. Div.), certif. denied, 19 N.J. 327 (1955); Mulford v. Abott, 42 N.J. Super. 509, 512-13 (App. Div. 1956)), we held that "one who claims title by adverse possession has the burden of proving, by clear and convincing evidence, possession which is actual and exclusive, open and notorious, continued and uninterrupted, and adverse . . . for the statutory period." See also Vagnoni v. Gibbons, 251 N.J. Super. 402, 409 (Ch. Div. 1991).
Consequently, we vacate the judgment under review and remand the matter to the Chancery Division for reconsideration using the clear and convincing evidence standard. We do not retain jurisdiction.
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