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Yellen v. Kassin

August 27, 2010

JEANNE YELLEN, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF DWIGHT YELLEN, PLAINTIFFS-APPELLANTS,
v.
ISAAC J. KASSIN AND MARGARETTE KASSIN, H/W, DEFENDANTS-RESPONDENTS, AND SALIM ASSA AND EZAK ASSA, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. C-41-08.

The opinion of the court was delivered by: Cuff, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued: April 28, 2010

Before Judges Cuff, Payne and Waugh.

Plaintiffs Jeanne Yellen and the Estate of Dwight Yellen appeal from an order recognizing reciprocal prescriptive easements over the driveway on their property to Ocean Avenue in Deal and over the driveway of defendants Issac J. Kassin and Margarette Kassin to Roosevelt Avenue in Deal. A prescriptive easement requires continuous adverse use over thirty years. We reverse because the facts as found fail to satisfy the legal requirements of mutual prescriptive easements over the parties' driveway.

Plaintiffs own real property designated as Lot 2.03, Block 13 on the municipal tax map, also known as 60 Ocean Avenue in Deal. Jeanne Yellen lived with her now-deceased husband Dwight in the house on the property since they bought it in November 1970. Defendants*fn1 own real property designated as Lot 2.02, Block 13 on the tax map, also known as 48 Roosevelt Avenue in Deal. The lots have a common boundary. Defendants have resided in the house on Lot 2.02 since July 1975.

The record reveals that the property owned by plaintiffs and defendants had been a single parcel of property owned by Molly Bess prior to November 1964. The record does not reflect the circumstances under which the property was subdivided into the two lots now owned by the parties. The trial record also does not reflect the history of the title to these properties or the structures that may have existed on them prior to the conveyance by Bess, the common owner, to defendants' immediate predecessors-in-title, Phillip and Lorraine Newman.

The March 23, 1977 survey (the 1977 survey) is based on a 1964 survey prepared contemporaneously with the transfer from Bess to the Newmans. A single driveway appears on both surveys that provided Bess with access to both Ocean Avenue and Roosevelt Avenue. Bess conveyed title to Lot 2.02, the lot currently owned by defendants, to the Newmans on November 19, 1964. The deed of conveyance did not reserve to the common owner an easement across the Newmans' property. This deed also did not convey to the Newmans an easement across the remainder retained by Bess, which is now the property owned by plaintiffs. Furthermore, the 1970 deed from the common owner to plaintiffs did not convey any easement rights across the Newmans/Kassins' property and did not except from the fee simple title an easement across Lot 2.03 to Ocean Avenue running in favor of the owners of that property.

Defendants' property fronts Roosevelt Avenue. Plaintiffs' property has 51.55 feet of frontage on Ocean Avenue. The driveway that traverses plaintiffs' lot provides direct access to Ocean Avenue. The driveway that traverses defendants' property provides direct access to Roosevelt Avenue. Each lot has frontage on a street; therefore, there is no need for the respective owners of these properties to travel across the other's property to gain access to a street. Nevertheless, the driveways of each property meet at the common boundary of each lot and form a continuous driveway that makes it physically feasible to access each property from either Roosevelt Avenue or Ocean Avenue.

The record reveals and the judge found that the Newmans, defendants' immediate predecessor in title, and plaintiffs used the interconnected driveways by agreement to access both streets. The record also reveals that they mutually agreed to use the access point provided by the other driveway as an exit. The record also reflects a history of mutual use of the driveways in both directions with plaintiffs periodically traversing defendants' property to access Roosevelt Avenue and defendants intermittently traversing plaintiffs' lot to access Ocean Avenue.

This mutual use was not without interruption. Jeanne Yellen and Margarette Kassin testified that they periodically parked cars along the common boundary to prevent access to their respective driveways. When snow fell, the person hired by plaintiffs to plow snow piled it along the boundary and blocked passage. There is also an ornamental wrought iron gate close to Roosevelt Avenue on defendants' property. Sometime after 1977, defendants installed a pool and realigned the driveway. In doing so, they did not consult with, or seek the permission of, plaintiffs to alter the location and course of the driveway. Margarette Kassin testified that she did not believe she needed permission to relocate the driveway or to place the gate on the property line because the work was done on her property. The record does not reflect the duration of this work and the length of time plaintiffs' use of the driveway was interrupted by this work.

Following completion of the pool, defendants also erected a second gate close to Roosevelt Avenue. The record supports a finding that the ornamental gate is almost always open, but defendants placed a lock on the gate along the lot line without providing a key to plaintiffs. Jeanne Yellen and Margarette Kassin provided contradictory testimony regarding the length of time the gate was locked, but it is clear that the gate was locked for at least a week. Each admitted that the existence of the gate, even when unlocked, required anyone using the other's driveway to stop to open and then close the gate before they could proceed over the property. Furthermore, Jeanne Yellen and Margarette Kassin agreed that since the mid-1980s each has used of the driveway almost exclusively as an exit. In other words, plaintiffs use the driveway on the Kassin property only as an alternative exit, and the defendants use the driveway on the Yellen property only as an alternative exit.

Plaintiffs filed a complaint seeking a declaratory judgment that no easement existed across their property or across defendants' property. As noted by the trial judge in his oral opinion, this action was initiated when plaintiffs signed a contract to sell their property, and the buyer sought assurance that defendants would not seek to use the driveway to access Ocean Avenue.*fn2 ...


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