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Beyer v. Cutler Brothers Box & Lumber Co.

August 19, 2010

EMIL A. BEYER, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT, AND PEDIGREE HOLDING GROUP, LLC, PLAINTIFF,
v.
CUTLER BROTHERS BOX & LUMBER COMPANY, DEFENDANT-APPELLANT/CROSS-RESPONDENT, AND THE BOROUGH OF CLIFFSIDE PARK AND THE BOROUGH OF FAIRVIEW, DEFENDANTS.



On appeal from Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. C-237-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Decided May 13, 2010

Submitted April 21, 2010

Motion for reconsideration granted.

Resubmitted June 9, 2010

Before Judges Miniman and Waugh.

This appeal concerns rights to a private roadway, known as West Prospect Avenue, on property located in the Borough of Fairview. Plaintiff Emil Beyer holds title to the roadway. Beyer, plaintiff Pedigree Holding Group, L.L.C., and defendant Cutler Brothers Box and Lumbar Company own adjacent property. Pedigree and Cutler Brothers each have an easement to access their property by means of the roadway.

In 2007, a dispute arose among the parties with respect to Cutler Brothers' alleged blocking of Pedigree's use of the roadway. Beyer and Pedigree filed suit against Cutler Brothers, seeking injunctive relief, and Cutler Brothers counterclaimed alleging that it owned the disputed portion of the roadway through adverse possession. Plaintiffs' application for preliminary injunctive relief was denied following an evidentiary hearing. Pedigree withdrew as a plaintiff following that denial.

After a bench trial on December 9, 2008, the Chancery Division held that Cutler Brothers had obtained title to some portions of the disputed area through adverse possession, but that it had not obtained title to the entire roadway adjacent to its property. Cutler Brothers appealed, arguing that the trial judge erred in determining that it had acquired title only to limited portions of the roadway. Beyer cross-appealed, arguing that the judge erred in finding that Cutler Brothers had acquired title to any portion of the roadway.

On May 13, 2010, we vacated the order on appeal and remanded to the trial judge for reconsideration. We did so because we concluded that the judge had applied the wrong standard of proof. We relied upon Meyers v. Pavalkis, 73 N.J. Super. 208, 214 (App. Div. 1962), in which 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 Mulford v. Abott, 42 N.J. Super. 509, 512-13 (App. Div. 1956); DeBow v. Hatfield, 35 N.J. Super. 291, 297 (App. Div.), certif. denied, 19 N.J. 327 (1955); Vagnoni v. Gibbons, 251 N.J. Super. 402, 409 (Ch. Div. 1991).

Beyer moved for reconsideration, drawing our attention to the contrary holding of Patton v. North Jersey District Water Supply Commission, 93 N.J. 180, 187 (1983).*fn1 In Patton, the Supreme Court held that "[t]he burden of proof always remains on the party claiming title by adverse possession to establish the aforementioned elements by a preponderance of the evidence." Ibid. We granted the motion for reconsideration and temporarily withdrew our opinion pending that reconsideration. We are, of course, bound by the Supreme Court's holding in Patton that the appropriate standard of proof is "a preponderance of the evidence." Consequently, we permanently withdraw our prior opinion and proceed to decide the appeal based upon the Patton standard.

I.

We briefly outline the facts discerned from the record. Beyer testified at the trial that he is a principal of Beyer Brothers, a dealership involved in the sale and repair of trucks. Beyer purchased title to the roadway along with an adjacent parcel of land on May 9, 1990. The deed described the roadway as an "undedicated private roadway which is not ...


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