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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 appellants removed the asphalt on the encroachment in 2007, however, respondents have used the driveway at this reduced width.

Relying on Mannillo v. Gorski, 54 N.J. 378 (1969), the judge found that the encroachment was "minor," which as a matter of law required respondents to show that appellants had actual knowledge of the encroachment to satisfy open and notorious use. The judge found that respondents had not met this burden because neither appellants nor their predecessors in title had notice of the encroachment.

However, the judge found that respondents would suffer hardship if appellants built the proposed fence. Relying once again on Mannillo, the judge granted respondents the easement covering the encroachment. The judge ordered respondents to pay the fair market value of easement, $3500, to appellants. On reconsideration, the judge limited the scope of the easement to ingress and egress.

Appellants contend that the judge abused his discretion and erred as a matter of law by granting respondents this easement. We agree.

The Easement

We are mindful that, even in a court of equity, the process of establishing interests in land is governed by real property law rather than amorphous concepts or considerations. See Mandia v. Applegate, 310 N.J. Super. 435, 445 (App. Div. 1998) (reversing finding that an easement arose from waiver). To establish title by adverse possession, a possessor must prove by a preponderance of the evidence that her use of the true owner's property was exclusive, continuous, uninterrupted, open and notorious for the statutory period. Mannillo, supra, 54 N.J. at 386. If the adverse possessor meets this burden, a court may force the true owner "to convey the land so occupied upon payment of the fair market value thereof . . . ." Mannillo, supra, 54 N.J. at 389. This equitable remedy is limited to "appropriate circumstances" where the adverse possessor has encroached "under an innocent and mistaken belief of title"; removing the encroachment would be impractical or expensive; and the conveyance will not render the true owner's remaining land unusable. Ibid.

It is not clear whether Mannillo is adequate authority to grant an easement to a trespasser who failed to prove the elements of adverse possession. Although the burden of proving a prescriptive easement is the same as that for adverse possession, Leach v. Anderl, 218 N.J. Super. 18, 28 (App. Div. 1987), an easement is an "encumbrance" rather than an "encroachment." Bier v. Walbaum, 102 N.J.L. 368, 370 (E. & A. 1926) (defining a "encumbrance" as an interest in an estate in land and an "encroachment" as an invasion).

The Court in Mannillo explained that "hardship" results when an encroachment "cannot without great expense [be] remove[d] or eliminate[d]" or when removal is impractical. 54 N.J. at 389. Hardship depends upon a finding that the true owner would be unjustly enriched if he or she were to retain title to property on which the trespasser has erected improvements. Riggle v. Skill, 9 N.J. Super. 372, 380-81 (Ch. Div. 1950), aff'd, 7 N.J. 268 (1951); Magnolia Constr. Co. v. McQuillan, 94 N.J. Eq. 736, 738-39 (E. & A. 1923); McKelway v. Armour, 10 N.J. Eq. 115, 117-18 (Ch. 1854).

In Riggle, the plaintiffs partially erected a house on the defendant's property. 9 N.J. Super. at 377. The court found for the plaintiffs because removing the house from the defendants' property was too expensive and burdensome to accomplish. Id. at 381. Indeed, as the court reasoned, defendant would have been unjustly enriched by taking possession of part of the house if the court ejected plaintiff. Ibid.; McKelway, supra, 10 N.J. Eq. at 117 (finding hardship where plaintiff's encroaching house could not be removed without great expense); Magnolia, supra, 94 N.J. Eq. at 737 (ordering defendant to convey fee to plaintiff over portion of land on which plaintiff built four-story building).

By contrast, in Kirchner v. Miller, 39 N.J. Eq. 355, 360 (Ch. 1885), the judge enjoined the plaintiff from trespassing on the defendant's property because the cost to remove the encroaching section of the plaintiff's house from the defendant's property was minimal. The court explained that a trespasser does not suffer hardship when he or she has expended little money on the owner's property. Ibid. Accordingly, hardship results from the expense and difficulty of removing an encroachment, and not by the resultant condition of the trespasser's own property. This is a very significant distinction here.

Applying this rule to easements, it may be difficult to establish "hardship." An easement is a "non-possessory" and "incorporeal" interest, arising from a limited use or enjoyment of another's land. Leach, supra, 218 N.J. Super at 24. It is unlikely that a trespasser's limited use of property would be so entrenched as to render the trespass too expensive or impractical to eliminate. Nor is it likely that he or she would have erected substantial improvements such that the owner would be unjustly enriched if an easement was not imposed. We conclude, therefore, that a trespasser's ability to simply discontinue his or her use does not meet the Mannillo hardship standard. But see Billerman v. Basiak, 47 N.J. 226, 228-29 (1966) (granting plaintiffs an easement to use a permanent well because discontinuing use would have resulted in hardship to the plaintiffs).

A judge's factual findings are binding on appeal where they are supported by adequate, substantial and credible evidence in the record. Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974). However, a judge's "interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). Because equitable remedies require the court to balance the equities and fashion a remedy, such decisions will be reversed only for an abuse of discretion. Sears Mortg. Corp. v. Rose, 134 N.J. 326, 354 (1993).

We conclude here that the easement and the injunction over appellants' right to build a fence must be reversed. Respondents' evidence of hardship was unrelated to the expense or difficulty of removing any substantial improvements from 22 Forest Avenue. The judge found that respondents would suffer hardship only because removing the encroachment would have resulted in a driveway that is impractical and unsafe. Respondents have not shown that they would suffer hardship tantamount to removing a house, or building from 22 Forest Avenue, or that appellants would be unjustly enriched by retaining title. Moreover, unlike Billerman, a driveway is unlike a well, which is not easily removed or relocated.

As in Kirchner, here the difficulty and expense of removing the trespass is minimal. 39 N.J. Eq. at 360. Neither respondents nor their expert testified that a narrow driveway alone would be unsafe and nonfunctional. Rather, the loss of functionality is dependent on appellants construction of a fence. Therefore, respondents' hardship does not flow from removing the encroachment, but from appellants' erection of a fence. This does not satisfy the Mannillo hardship standard.

A party acting under a mistake of law or fact may seek relief in equity under three theories: "(1) the equitable maxim that he who seeks equity must do equity; (2) unjust enrichment; and (3) estoppel." Twp. of Brick v. Vannell, 55 N.J. Super. 583, 593 (App. Div. 1959). In Brick, the judge denied relief to the defendant because he had not undertaken construction under a mistake of fact or law. Without such a mistake, the plaintiffs were not unjustly enriched by retaining the benefits of the defendant's labor. Ibid.; Twp. of Middletown v. Simon, 193 N.J. 228, 243-44 (2008) (approving the equitable principles in Brick). Here, the appellants' predecessors in title did not know that the Yorks and respondents made improvements to the driveway that resulted in an encroachment. Respondents did not investigate the title surveys made on their property in 1984 and 1997, which showed the encroachment. Thus, respondents' mistake at time of purchase resulted from their culpable negligence.

Even assuming it did not, respondents eventually became aware of the encroachment soon after their purchase in August 1997. Instead of negotiating with Williams for an easement or license to render their use legal, respondents continued using the driveway and eventually made improvements.

The facts here are simply not analogous to other boundary dispute cases, where the trespasser was operating under mistaken belief of title and made substantial improvements to the land. See Mannillo, supra, 54 N.J. at 382; Riggle, supra, 9 N.J. Super. at 379-80; Magnolia, supra, 94 N.J. Eq. at 737-38; McKelway, supra, 10 N.J. Eq. at 117. Nor is this similar to cases involving restitution for improvements constructed on property of another, where retaining title to the property would unjustly enrich the true owner. See Simon, supra, 193 N.J. at 246; Brick, supra, 55 N.J. Super. at 594. In short, respondents used a portion of 22 Forest Avenue at their own peril. They suffered no wrong that would justify granting relief to them in the form of an easement.

Doctrine Of Relative Hardship

Respondents contend that the court's decision should be affirmed based on the doctrine of relative hardship. This doctrine precludes an injunction for trespass, Szymczak v. LaFerrara, 280 N.J. Super. 223, 229-30 (App. Div. 1995), where the benefit to plaintiffs would be "grossly less than the expense which would thereby be put upon the defendant in carrying out the injunction." Gilpin v. Jacob Ellis Realties, Inc., 47 N.J. Super. 26, 31 (App. Div. 1957). If such a disproportion is "of considerable magnitude," then money damages are more appropriate than equitable relief. Id. at 34-35.

In Szymczak, we reversed an injunction ordering the removal of the plaintiffs' house from nineteen feet of the defendant's property. Szymczak, supra, 280 N.J. Super. at 224, 233. The plaintiffs had relied on an incorrect survey, but the defendant had no knowledge that they had built a house along the boundary. Id. at 227. In the absence of mutual mistake, the court applied the doctrine of relative hardship to grant relief to the plaintiffs, whose hardship was greatly disproportionate to the defendants' damages. Id. at 229-233.

Unlike Szymczak, respondents encroached only a few feet; were aware of the encroachment; did not rely on an incorrect survey; and did not make substantial improvements to the land. Simply, there is no evidence that respondents would suffer hardship if the court enjoined their trespass or that their damages would be considerably more than appellants'. The equitable concerns in Szymczak are, therefore, inapplicable.

We agree that the vacation of the "judgment granting the easement will perforce result in [their] property interest being restored and quiet title being awarded." Accordingly, that portion of the September 8, 2008 order for judgment granting an equitable easement and limiting appellants' right to build a fence on the true boundary line is reversed. The matter is remanded to the trial court for the entry of a judgment quieting title to 22 Forest Avenue.

Reversed and remanded.

20101210

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