On appeal from the Superior Court of New Jersey, Chancery Division, General Equity Part, Burlington County, Docket No. C-18-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Parrillo.
Plaintiffs Adele and John Wiggins appeal from the General Equity Part's summary judgment dismissal of their complaint against defendant Anthony Dorsey, seeking an easement allowing them to continue to use a driveway on defendant's property to access their land. We affirm.
The material facts are not in dispute. On December 5, 1975, plaintiff purchased Lots 14 and 15 of 401 Jacobstown- Cookstown Road in Wrightstown, and operated a mobile home trailer park thereon. This property adjoins Lot 16, also known as 401 Jacobstown-Cookstown Road, which defendant subsequently purchased sometime in 2005. There is a driveway on defendant's property leading to Meany Road, which abuts both Lots 15 and 16 along their eastern boundaries. According to plaintiffs, they have been using that driveway for ingress and egress since their 1975 purchase and defendant knew of plaintiffs' use of the driveway ever since his second visit to the property in October 2005, prior to his purchase of Lot 16. On April 14, 2008, defendant informed plaintiffs by letter that he would be moving an existing fence line to reflect the property line, which would then enclose the portion of the driveway that lies upon his property and effectively close it off to plaintiffs.
Consequently, plaintiffs filed the instant complaint in the Chancery Division, General Equity Part, seeking to: (1) restrain defendant from blocking the driveway; (2) permit plaintiffs to continue using the driveway; and (3) granting plaintiffs an easement therein. Defendant answered, alleging that plaintiffs have other means of access to Meany Road and have another entrance from Jacobstown-Cookstown Road, which abuts both properties along their western boundaries. Defendant also alleged that plaintiffs have been using the driveway located on his property without permission.
At the close of discovery, defendant pro se filed a motion to dismiss plaintiffs' complaint pursuant to Rule 4:6-2(e), in which he argued that plaintiffs have failed to produce any evidence demonstrating the driveway has been in existence and continually used since the 1960s; that mobile home residents have been accessing plaintiffs' property from another existing driveway not located upon defendant's property; that plaintiffs have failed to establish the elements of adverse possession; and that plaintiffs have failed to produce any evidence that they had been maintaining the driveway. Plaintiffs countered in a cross-motion for summary judgment, contending that defendant was aware of their use of the driveway and that they have acquired title to the driveway by "continuous, hostile, notorious, and hostile use... for more than 25 years[.]" Plaintiffs also referred to prior claims of easement, although offered no proof of such or any documentation evidencing a grant, easement, or right-of-way regarding the driveway.
Although defendant crafted his motion as one to dismiss, because discovery was complete and the parties relied on materials beyond the pleadings, the court treated defendant's motion as one for summary judgment and disposed of it as provided by Rule 4:46. R. 4:6-2(e). Having found the "materially relevant facts  not in dispute," the General Equity judge determined that plaintiffs were not entitled to the relief sought in their complaint as a matter of law and accordingly, dismissed plaintiffs' complaint with prejudice.
Concluding that the evidence failed to establish the requisite elements of adverse possession, easement by prescription, or easement by necessity, the judge reasoned:
The courts of this state have also clarified that, "any adverse possession must be open, notorious, continuous, uninterrupted and exclusive for the prescriptive period with the acquiescence of the owner[,]" and that the party claiming title by adverse possession has the burden of proof to establish these elements. Stump v. Whibco, 314 N.J. Super. 560, 566 (App. Div. 1998). Generally, this requires that "[t]he adverse claimant must prove that he or she 'has acted towards the land in question as would an average owner, taking properly into account the geophysical nature of the land.[']" Id. at 569 [(quoting 7 Powell on Real Property, § 1014, at 91-44)]. In other words, the use of the subject property by the party claiming title by adverse possession must be [so] open and notorious that an ordinarily prudent person would be put on notice that the land is in actual possession of another. A possession is adverse if the claimant's use is 'under a claim of right, pursued with an intent to claim as against the true owner in such circumstances of notoriety that the owner will be aware of the fact and thus alerted to resist the acquisition of the right by the claimant before the period of adverse possession has elapsed.'
Patton v. North Jersey Dist. Water Supply Comm'n, 93 N.J. 180, 187 (1983) [(quoting] Predham v. Holfester, 32 N.J. Super. 419, 424 (App. Div. 1954)[)].
Though [p]laintiffs have claimed their continuous use of the driveway over several decades, allegedly initiating in the 1960s, that use has admittedly been known to [d]efendant; moreover, [p]laintiffs have not alleged that they have at any time prior to the present lawsuit made a claim of right to the subject driveway. Rather, [p]laintiffs acknowledge that the driveway is part of [d]efendant's property and that they have merely used that driveway with ...