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Philip Pfrang and Teri Moresco v. Edward Buonopane and Mary Jo Buonopane

May 6, 2011

PHILIP PFRANG AND TERI MORESCO, PLAINTIFFS-APPELLANTS,
v.
EDWARD BUONOPANE AND MARY JO BUONOPANE, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. C-196-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 11, 2011

Before Judges Parrillo and Skillman.

This appeal involves the interpretation of the part of a deed creating an easement. On May 19, 1965, Margaret M. Simonson conveyed land in Rumson to Rumson Shore Estates, Inc.

In the deed, Simonson, who continued to own adjacent land, reserved a twelve-foot-wide easement to herself and her successors-in-interest to provide access to a lagoon that Rumson Shore Estates proposed to construct on part of the land it acquired. Defendants Edward and Mary Jo Buonopane are successors-in-interest to the land retained by Simonson. Plaintiffs Philip Pfrang and Teri Moresco are successors-in-interest to the land acquired by Rumson Shore Estates.

Soon after the conveyance by Simonson and a similar conveyance by a neighboring family, whose land abutted the proposed lagoon and required no easement for lagoon access, Rumson Shore Estates constructed a lagoon of approximately seventy feet in width by dredging a channel from Little Silver Creek. The Borough of Rumson granted permission to dredge the lagoon contingent on an agreement by those who owned land adjoining the lagoon to "perpetually care for and maintain the bulkheading adjacent to such property."

On August 17, 1965, Rumson Shore Estates and the other owners of property in the area of the proposed lagoon entered into an agreement to cooperate in the dredging required for construction of the lagoon and to establish their respective rights in the lagoon after completion of the dredging. Those rights included use of the lagoon for "boating, fishing, skating, hunting and bathing purposes." In addition, any owner of property abutting the lagoon was authorized "to build a dock in said channel or lagoon adjacent to and abutting the respective piece of land owned by him." The agreement contained additional provisions to ensure that no shoreline construction would extend past fifteen feet into the lagoon and that the center thirty feet of the lagoon would remain unobstructed. Simonson, who did not retain ownership of any of the land on which the lagoon was proposed to be constructed, was not a party to this agreement.

Simonson subsequently subdivided her property, and in 1997 defendants acquired the part of the property bordering the access easement to the lagoon. The easement runs from a corner of defendants' land across plaintiffs' property along one of its boundaries to the lagoon. The bulkheading along the lagoon stops about fifteen feet before the point where the easement connects to the lagoon.

On or about March 7, 2007, defendants filed an application with the Department of Environmental Protection (DEP) for a coastal general permit and coastal wetlands permit to construct a "164' x 4' fixed pier" and "4' x 20' ramp" atop the easement running from defendants' property line across plaintiffs' property to the lagoon, and an "8' x 20' floating dock" extending into the lagoon. Plaintiffs filed objections to this application with DEP based primarily on the fact that the majority of defendant's proposed construction project would be built on land owned by the plaintiffs and that plaintiffs had not consented to that construction. Plaintiffs' objections stated that defendants' access easement over their property "does not authorize the construction of any structure or fixture nor does it permit personal property to be stored thereon."

Plaintiffs also filed this action in the Chancery Division for an injunction against defendants pursuing their permit application before the DEP, a declaratory judgment regarding defendants' rights under the easement, and compensatory damages.

On August 8, 2007, the DEP issued the permits required for the proposed construction on the easement and in the lagoon.

The Chancery Division action was brought before the court by cross-motions for summary judgment, supported by expert reports and exhibits. The trial court granted the parties' motions in part and denied them in part and entered an order on January 15, 2009 memorializing its rulings. Paragraph two of that order provided that "since there is no provision within the deed of easement which would allow construction within same, the Defendants' request to construct a pathway over the easement and a dock in the lagoon be and the same is hereby Denied."

However, paragraph three of the order provided that "[p]ursuant to the powers inherent in the Court to effectuate a reasonable and equitable result, the 12 foot right of way (easement) is to be relocated on the Plaintiffs' property" and that "the relocation of the easement is to be accomplished in such a manner as to provide access to and use of the lagoon of Plaintiffs' property on that ...


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