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Anthony Digiovanni and Karen Digiovanni v. Edwin Rodriguez and Lydia Jackson A/K/A Lydia Rodriguez

December 10, 2010

ANTHONY DIGIOVANNI AND KAREN DIGIOVANNI, PLAINTIFFS-RESPONDENTS,
v.
EDWIN RODRIGUEZ AND LYDIA JACKSON A/K/A LYDIA RODRIGUEZ, DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Chancery Division, Union County, Docket No. C-121-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 13, 2010

Before Judges Rodriguez and Miniman.

Appellants Edwin and Lydia Rodriguez challenge that portion of a September 8, 2008 Chancery Division order which granted an easement interest over their property, and limited their right to install a fence. We reverse.

This appeal stems from a boundary dispute between adjoining property owners. In September 2007, the township's zoning officer approved appellants' application to build a chain-link fence along the boundary of their property (22 Forest Avenue) with that of respondents Anthony and Karen DiGiovanni (26 Forest Avenue). A portion of respondents' asphalt driveway encroaches on appellants' property. This proposed fence would reduce a thirty-foot length of respondents' driveway to a width of 8.6 feet. Therefore, respondents sued to enjoin the erection of the fence, claiming adverse possession or a prescriptive easement over the encroaching strip of land.

Following a bench trial, the judge found that respondents failed to prove adverse use and denied their claim. Respondents have not appealed this ruling. However, the judge also found that the resulting narrowing of the driveway by the erection of the fence constituted a hardship to respondents. Thus, the judge granted respondents an easement interest in the encroachment, and set $3500 as the fair market value of the easement.

Respondents acquired title to 26 Forest Avenue on August 15, 1997. They later discovered from a topographical survey dated August 29, 1997, that their existing driveway encroached on 22 Forest Avenue. Although a September 1984 survey shows a 2.2 foot encroachment, and a July 1997 survey, a 2-foot encroachment, respondents were not aware of these earlier surveys before purchasing the property.

Respondents continued using the driveway and did not inform the then-owner of 22 Forest Avenue, Stephanie Williams, of the encroachment. A year later, respondents repaved the driveway adding Belgian block curbstone. They instructed the contractor to "follow the line of the stone in the pavement." The repaved driveway was 11.2 feet wide at its narrowest point, increasing the encroachment to about three feet, plus the Belgian block curbstone.

Appellants acquired title to 22 Forest Avenue in September 2005. Their September 8, 2005 title survey shows the encroachment, but appellants did not discover it until June 2007. After attempting to resolve the dispute amicably, appellants removed the asphalt from the encroachment and marked the boundary with a white line. About one year later, respondents filed this lawsuit, asserting that they had acquired title to the encroachment by adverse possession or an easement by prescription. Appellants counterclaimed to quiet title; for a declaratory judgment; and for trespass. Pending trial, the judge enjoined the appellants from building the fence.

At a bench trial, respondents presented the following evidence of adverse use. Douglas and Milford York owned 26 Forest Avenue from 1973 to 1984. In 1975, the Yorks informed Albert Gleek, the then-owner of 22 Forest Avenue, that they intended to pave their gravel driveway. The properties were separated by azalea bushes, which Gleek treated as the boundary line. Gleek was unconcerned with where the Yorks paved, as long as the bushes were not harmed. Both Gleek and Judy Bell, the daughter of the Yorks, submitted certifications confirming that the width of the driveway, after respondents paved it, was about the same as it was at the time when the Yorks owned the property.

Gleek sold 26 Forest Avenue to Williams in 1979. She did not obtain a new title survey, relying instead on Gleek's title survey. Consequently, she did not know about the encroachment. Like Gleek, Williams treated the azalea bushes as the property line. She sold 22 Forest Avenue to a couple, who then sold it to appellants in 2005.

In addition to offering evidence of adverse use, respondents presented evidence that their driveway would be rendered unsafe if appellants were permitted to erect the fence.

Their expert, Michael Junghans, opined that the driveway would have to be at least 11.2 feet wide to be safe and functional. Junghans further explained that respondents' vehicle requires "a certain amount of room to be able to navigate without either hitting the house or hitting the fence," and an "8.6 feet driveway would not allow you enough room to get out of the car. . . . You'd be constricted on one side by the fence and on the other side by the building." Since ...


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