May 17, 2011
ROBERT E. RODANO, PRISCILLA A. RODANO,
GERALD M. TROUTNER AND KAREN M. TROUTNER, PLAINTIFFS-RESPONDENTS,
FRANK CRAIG AND LORI CRAIG, DEFENDANTS-APPELLANTS.
On appeal from the Superior Court of New Jersey, Chancery Division, Cape May County, Docket No. C-90-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 7, 2011
Before Judges Lisa, Sabatino and Alvarez.
The dispute in this case revolves around an access easement to two residential properties on a narrow peninsula protruding into a portion of the back bay off of West Wildwood known as Grassy Sound. Plaintiffs Robert and Priscilla Rodano own a home on lot 1.12, located at the tip of the peninsula. Plaintiffs Gerald and Karen Troutner own a home on lot 1.11 in the middle of the peninsula. Defendants Frank and Lori Craig own a home at the base of the peninsula, where it attaches to the main body of land and has direct access to a public street.
The parties disputed the establishment of a passageway across the Craigs' land to provide a means for the Rodanos and Troutners to enter their properties pursuant to an earlier easement. After a bench trial, Judge Perskie ordered the Craigs to create the passageway to allow access. Because the construction of the passageway could only be accomplished by construction of a bulkhead, the judge also ordered that the bulkhead be constructed and that the costs be apportioned among the parties. The amount allocated to the Craigs was $84,247.97. Because the Craigs refused to pay that sum, the judge ultimately entered a money judgment against them in favor of the other parties for that amount.
The substantive orders resulting from the trial were entered on June 18 and June 26, 2009. Those orders, which were substantively identical, embodied the court's determinations resulting from the trial, namely, that the easement existed and had not been abandoned, the Craigs were contractually obligated to provide a useable passageway for the other parties to access their properties, the easement area was foreclosed due to "natural deterioration" caused by erosion, and the Craigs were required to create a fifteen-foot passageway to allow for pedestrian and vehicular access to the Rodanos' and Troutners' lots. The Craigs were ordered to obtain all necessary permits and, if required by the agencies with jurisdiction, to construct a bulkhead in accordance with plans to be approved by any such agency. Finally, each party would be responsible for their proportionate share of the cost of the bulkhead. Therefore, in addition to providing all of the necessary crushed stone and fill to construct the passageway, the Craigs were held responsible to pay only for their section of the bulkhead.
The Craigs did not appeal from the June 18 and 26 orders. Subsequent proceedings occurred, in the nature of applications to enforce litigant's rights. On August 14, 2009, the New Jersey Department of Environmental Protection (DEP) issued a permit approving a plan for construction of the bulkhead. The Rodanos and Troutners returned to court on two occasions seeking relief. In three resultant orders, the court stated that Frank Craig would not be permitted to personally construct the bulkhead, but that it must be built by a professional marine contractor pursuant to the plans approved by the DEP, that the Craigs would be responsible for their pro rata share of the costs, and that they were obligated to pay their share ($84,247.97) to plaintiffs' attorneys so the project could be commenced.
The Craigs filed their appeal on November 9, 2009, and, by its terms, the notice of appeal sought relief only from the October 2, 2009 order directing that a particular marine contractor be engaged to construct the bulkhead, that Frank Craig not be permitted to construct it himself, and that the Craigs would be responsible for their proportional share of the costs, based upon their frontage.
It was subsequent to the filing of the appeal that further proceedings resulted in the entry of a money judgment against the Craigs for their failure to pay their share of the costs.
Although the notice of appeal is limited to the October 2, 2009 order, and no timely appeal was filed from the June 2009 orders embodying the substantive relief resulting from the trial, the Craigs have included in their case information statement and appellate brief arguments pertaining to those orders as well. In particular, the Craigs present the following argument:
THE COURT HAS ERRED BY ORDERING THE DEFENDANTS, THE SERVIENT ESTATE, TO PAY FOR THE CONSTRUCTION OF A BULKHEAD FOR THE PLAINTIFFS, THE DOMINATE [SIC] ESTATE, THE TRIAL COURT HAS CLEARLY ABUSED ITS DISCRETION BY BASING THE COURT'S ORDER SOLELY ON THE LANGUAGE "TO CREATE" THAT APPEARS IN THE PREAMBLE OF THE EASEMENT DOCUMENT AND CONSCIOUSLY IGNORING ESTABLISHED NEW JERSEY LAW WHICH HOLDS THAT ITS [SIC] THE DUTY OF THE DOMINATE [SIC] ESTATE TO CONSTRUCT THE IMPROVEMENTS, REPAIR AND MAINTAIN THEIR EASEMENT.
Although the substantive orders of June 2009 are not properly before us because no timely appeal from them was filed, we choose, for the sake of completeness, to address all of the issues presented, including those emanating from those orders. We find none of defendant's arguments persuasive, and we affirm.
For several years prior to the Craigs' purchase of lot 1.10, and prior to the creation of the easement, all of the properties involved in this appeal were owned by John Altoonian, who lived in a house on lot 1.12,*fn1 the lot at the tip of the peninsula, which he accessed by way of an original gravel driveway made of crushed stone, which extended to the nearest public street, Glenwood Avenue. In 2000, the Craigs wished to purchase from Altoonian what is now lot 1.10, at the base of the peninsula. Apparently subdivision and variance approvals were needed, and the West Wildwood Planning Board granted those approvals, conditioned upon the establishment of an easement to assure continued access to lots 1.12 and 1.11. A twenty-five foot easement across lots 1.10 and 1.11, to provide access to lot 1.12, was required. Altoonian commented at the Planning Board proceedings that he intended to build a steel bulkhead on the properties along the bay side and that the access roadway along the bulkhead would be about fifteen feet wide.
The Craigs acquired title from Altoonian in August 2000. Pursuant to the agreement of sale, the Craigs created a non-exclusive easement of ingress and egress across the lot they were acquiring, lot 1.10, to allow access to the other two lots. The preamble to the easement document stated in part:
WHEREAS, [the Craigs] desire to grant to [Altoonian] an ingress and egress easement over [the Craigs'] land, running along the Northerly fifteen feet (15') of [the Craigs'] property, providing access to Glenwood Avenue; and WHEREAS, it is the express intention of [the Craigs] to create an ingress and egress easement which shall inure to and bind both [the Craigs] and [Altoonian], their heirs, successors and assigns.
In addition, the body of the easement document stated in part:
1. [The Craigs] grant to [Altoonian] a non-exclusive easement of ingress and egress across the Northerly portion of Lot 1.10, Block 100.01, said easement to run across the entire frontage of said lot and afford [t]o [Altoonian] access to Glenwood Avenue, which easement is more particularly described in Schedule "A" attached hereto and made a part hereof.
2. The easement shall be limited to vehicular and pedestrian access.
3. [The Craigs] shall keep said easement area unobstructed at all times, and shall not erect any fence, gate or other type of barrier impeding [Altoonian's] use of the easement.
4. The easement shall run with the land and shall inure to the benefit of [Altoonian] and any subsequent owners of Lots 1.11 and 1.12, Block 100.01 on the tax map of the Borough of West Wildwood.
The metes and bounds description contained in Schedule A made reference to an attached survey. According to a notation on the survey, it was prepared for the Craigs.
It appears that the Planning Board envisioned the existing gravel driveway as the easement area. However, the survey and other documents between Altoonian and the Craigs reflect that the easement area ran parallel to the existing driveway, between the driveway and the water's edge, thus leaving the existing driveway outside the easement area. The record further reflects that there was purported access to the rear of the properties by way of an unimproved "paper" street, North Drive, that was not part of the easement area and was not legally sanctioned for use. Further, a utility easement in favor of Atlantic Electric Company ran through the proposed new easement area and contained utility wires.
An addendum to the agreement of sale stated in part:
2. The property is being purchased in strictly as is condition, with no representation on the part of the Seller as to the condition of the improvements or the systems servicing same.
4. As a condition of settlement, and in partial consideration for completion of this transaction, [the Craigs] shall deliver for recording an easement of ingress and egress in favor of Lot 1.11 and Lot 1.12, Block 100.03, tax map, Borough of West Wildwood across the property subject to this agreement, under the following terms and conditions:
a) The easement shall be for vehicular and pedestrian ingress and egress across the northerly 15' of the property, and provide access to Glenwood Avenue therefrom;
b) Consideration shall be $10.00 from [Altoonian] to [the Craigs], the principal consideration being completion of the transaction contemplated by the Contract of Sale;
c) [The Craigs] shall keep said easement unobstructed at all times, and shall not erect any fence, gate or other type of barrier impeding [Altoonian's] or the owner of Lot
1.12's use of the easement;
d) Upon delivery to [Altoonian] of a survey of the property, [Altoonian] shall, prior to settlement and at [Altoonian's] cost and expense, clear and level the easement area;
e) The easement shall be appurtenant and run to the benefit of the current owners of the aforementioned lots, their heirs, successors and assigns.
The document also contained a provision, which was crossed out, that contemplated the construction of a sea wall on lot 1.10. Pursuant to the deleted provision, if a sea wall was needed prior to closing, the purchase price of the property would be increased by $50,000 and Altoonian would erect the sea wall at his expense.
Although the addendum originally reflected a twenty-five foot wide easement, as required by the Planning Board, Altoonian and the Craigs further negotiated the issue and agreed upon a fifteen-foot wide easement. They also agreed upon the change in location and apparently intended to eliminate the gravel driveway. Accordingly, the survey that provided the basis for the actual location and dimensions of the easement reflected a fifteen-foot easement between the existing driveway and the water's edge.
In 2001, Frank Craig contacted the DEP regarding his intentions to build a bulkhead along the bay side of his property. When he was informed that he would need various permits and approvals, he apparently discontinued his efforts in that regard.
On August 29, 2002, the Rodanos purchased lot 1.12, at the tip of the peninsula, and lived in the existing home. On June 12, 2008, the Troutners purchased the middle lot on the peninsula, lot 1.11, and built a home there. The Rodanos and Troutners utilized the original gravel driveway for access. Meanwhile, the easement area was eroding. At some point, the Craigs objected to use of the gravel driveway by the Rodanos and Troutners and demanded that they use only the easement area. However, that area was impassable. Further, the Craigs parked vehicles or boats in or around the easement area to further obstruct access through it. The record also reflects that the original gravel driveway has since deteriorated as well.
In May 2007, the Craigs objected to any use of the easement area by the Rodanos and the family that owned lot 1.11 prior to the Troutners. The Craigs demanded that these parties utilize North Drive, which ran behind the properties as a means of access to their homes. The Rodanos and the other family did so for a time, but on November 14, 2008, Frank Craig wrote to them, denying access to "his driveway." He acknowledged in the letter that the area that was designated to function as an easement to access their lots had eroded and admitted that the area in question was never improved. He said in the letter that he had previously asked the parties to "terminate" the easement, but they had refused. He suggested that if they wished to continue accessing North Drive, they must purchase a portion of his property, which they had to cross in order to get to it.
As a result of these events, this litigation began in December 2008.
On March 10, 2009, Robert Rodano applied for permits needed to construct a bulkhead with a fifteen-foot-wide stone access driveway running along it. Approvals were ultimately granted for the project.
At the June 2009 trial, Judge Perskie made clear that he was deciding only the issue of the initial creation of the easement, and was not making any rulings regarding maintenance of the easement. He concluded that the easement had not been abandoned, and held that the Craigs were contractually obligated to provide a useable passageway for the other parties to access their properties. He noted that the easement area had suffered from "natural deterioration" and would require significant work to fill the area and stabilize the land with a DEP-approved device. He ordered that the Craigs create a fifteen-foot passageway to allow for pedestrian and vehicular access to the Rodano and Troutner properties. Thus, the Craigs were ordered to provide the fill and crushed stone necessary to create the passageway over lots 1.10 and 1.11.*fn2
The judge ordered the Craigs to take all necessary steps to construct a retention barrier to the bay and obtain proper permits or use those that had already been issued. The judge recognized that the barrier might have to be a bulkhead, and instructed the parties to contact the DEP or any other applicable agencies for the necessary determination.
The judge also held that the Troutners were responsible to pay for the cost of the actual barrier for the lot they owned, namely, lot 1.11.*fn3 At the time of the judge's ruling, the Rodanos had already constructed a bulkhead on their lot, lot 1.12, at the tip of the peninsula. Thus, the net result of the judge's ruling insofar as it pertained to the Craigs was that, in addition to the crushed stone and fill, the Craigs were only responsible to pay for the section of the retention barrier to be constructed on their property, lot 1.10.*fn4 When the plans for construction were nearly finalized, Frank Craig disclosed his intention to build the retention mechanism himself. The DEP permit, issued on August 14, 2009, provided that the approved plan was to [c]onstruct approximately 207 linear feet of vinyl or steel bulkhead in-place of a previously existing bulkhead, 39 linear feet of vinyl or steel bulkhead along an existing right of way, a 15 foot stone access easement along the bulkhead and a depressed concrete curb with a concrete apron as shown on the approved plan.
As we previously stated, the Rodanos and Troutners subsequently returned to court to enforce litigant's rights. On September 4, 2009, the court granted their motion, thus rejecting Frank Craig's proposal that he build the bulkhead himself. The court ordered that an experienced professional marine contractor must be utilized in order to build the structure in accordance with all plans approved by the DEP. The parties then filed subsequent motions, resulting in two orders issued on October 2, 2009. These orders denied the Craigs' motion for reconsideration and further required the Craigs to deposit with the attorney for the Troutners and Rodanos their portion of the expenses associated with the construction of the bulkhead, engineering, and permits. This sum was calculated at $84,247.97.
After the Craigs filed their notice of appeal on October 20, 2009, they returned to the trial court seeking a stay and reconsideration of the October 2, 2009 orders. That motion was denied. On November 9, 2009, the Craigs filed an amended notice of appeal with respect to that denial.
On November 30, 2009, the Rodanos and Troutners again returned to the trial court seeking to enforce litigant's rights because the Craigs had not complied with the order to deposit their share of the costs. The motion was unopposed. On January 15, 2010, the court granted the motion and entered a money judgment against the Craigs for $84,247.97.
The principal argument advanced by the Craigs is that the court erred in ordering them to create a passageway for the other parties because the easement document did not expressly compel such a requirement. They argue that the court improperly relied on the words "to create" in the preamble of the easement document, that the "clear and level" language appearing in the addendum to the agreement of sale for lot 1.10 meant that they did not have the burden of building the easement passageway, and that they should not be required to pay for the creation of a bulkhead and accompanying access passageway because they hold the servient estate.
Judge Perskie noted that the addendum to the agreement and the easement documents expressly stated that the Craigs were required to grant a non-exclusive ingress and egress easement. He found that "the ability to utilize what would have been the easement area [was] foreclosed because of its natural deterioration." Thus, "significant work would need to be done in terms of fill and the creation" of a passageway along with a retention barrier to the bay by a DEP-approved device. Those findings supported the judge's order at the conclusion of trial.
The rulings of a trial court sitting without a jury will not be disturbed by a reviewing court unless there is a denial of justice. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). A trial court ruling should be reversed only where it is inconsistent with the relevant and credible evidence presented to the trial judge. Id. at 484. As long as the court's findings are based on sufficient credible evidence, we will not interfere. Ibid.
"[T]he right to benefit from an easement includes the right to sue to enforce that right." Khalil v. Motwani, 376 N.J. Super. 496, 500 (App. Div. 2005). An easement is a non- possessory right in another's property that entitles the easement holder to use the land. Leach v. Anderl, 218 N.J. Super. 18, 24 (App. Div. 1987). An easement appurtenant runs with the parcel. Vill. of Ridgewood v. Bolger Found., 104 N.J. 337, 340 (1986). An easement can be implied by necessity when property is made inaccessible because it is surrounded by lands owned by the conveyor of the easement, or can be created by an express conveyance. Leach, supra, 218 N.J. Super. at 24-25. When the existence of an easement is derived from a deed, the court looks to the language of the conveyance under the particular circumstances. Hammett v. Rosensohn, 26 N.J. 415, 423 (1958).
First, the Craigs argue that the creation of the passageway was not expressly set forth in the easement document. Thus, they argue that the court improperly relied on the words "to create" in the preamble of the easement document to hold that they were obligated to provide the access passageway to other parties' lots, and that the phrase "to create" was only legal rhetoric.
As a basic premise of contract interpretation, a writing is controlled by the apparent or expressed intent of the parties. Garfinkel v. Morristown Obstetrics & Gynecology Assocs., 168 N.J. 124, 135 (2001). For easements, "'the primary rule of construction is that the intent of the conveyor is normally determined by the language of the conveyance read as an entirety and in the light of the surrounding circumstances.'" Poblette v. Towne of Historic Smithville Cmty. Ass'n, Inc., 355 N.J. Super. 55, 63 (App. Div. 2002) (quoting Hammett, supra, 26 N.J. at 423). Furthermore, an easement cannot unreasonably interfere with the use of the land, or increase the burden on the land "beyond that expressly dictated by the instrument." Tide-Water Pipe Co. v. Blair Holding Co., 42 N.J. 591, 605-06 (1964).
In ascertaining the parties' intent, "'when there is any ambiguity or uncertainty about an easement grant, the surrounding circumstances, including the physical conditions and character of the servient tenement, and the requirements of the grantee, play a significant role in the determination of the controlling intent.'" Khalil, supra, 376 N.J. Super. at 503 (quoting Hyland v. Fonda, 44 N.J. Super. 180, 187 (App. Div. 1957)). Preambles can be used to determine intent if there is an ambiguity. Bass v. Allen Home Improvement Co., 8 N.J. 219, 225-27 (1951).
In this case, the court performed its analysis with an examination of the plain language of the easement documents and the agreement of sale. Highland Lakes Country Club & Cmty. Ass'n v. Franzio, 186 N.J. 99, 115 (2006). Although it is true that the easement did not express, in so many words, that it was the Craigs' duty to actually create the easement passageway, the language of the preamble clarified the initial construction of the passageway and the intention of the parties. More specifically, a clause in the preamble noted that the Craigs would "grant" the easement to Altoonian, but a second clause in the preamble, immediately following the former, directed the Craigs to "create [the] . . . easement." Thus, even though the easement itself did not state that the Craigs must physically create the passageway, the use of the two distinct clauses in the preamble suggests that the parties intended the Craigs both to grant the easement rights and also to "create" a physical manifestation of that easement. Otherwise, the second reference would be redundant. Well-established canons of construction require that "every word of a writing should be accorded significance if reasonably susceptible thereof." Schultz v. Kneidl, 59 N.J. Super. 382, 384 (App. Div. 1960).
Further, while the Craigs assert that the easement document merely "created" legal rights pertinent to the easement and did not address the obligation to construct a physical passageway, the facts demonstrate that no useable passageway existed to provide access to the Rodano and Troutner lots, inasmuch as the parties utilized North Drive, or the now inaccessible original gravel driveway, for access. As a result, based on the lack of another access passageway to lot 1.12 and the "to create" language, the word "create" implies "construction." Judge Perskie did not err in finding that the Craigs were responsible to build a means across the properties to allow access to lots 1.11 and 1.12.
It is also noteworthy that the completion of the land sale transaction constituted partial consideration for the grant of the easement. The use of the grant as consideration combined with the parties' intent as expressed in the preamble of the easement document indicated that the creation of the "easement" was a literal, physical reference obligating the Craigs to create a passageway that provided pedestrian and vehicular access, as opposed to a mere formality or an expression of a limited intent to create the right to cross the Craigs' property without the means of doing so. As Judge Perskie stated, an easement means "more than the right to access, and the language that explicitly said that grantors -- the expressed intention of the grantors to create an ingress and egress easement, and then subsequently, the grant of a non-exclusive easement of ingress and egress means more than permission." We are satisfied that the judge's decision was not irrational, but was based on a review of the documents indicating that it was the intent of the parties for the Craigs to both grant the easement rights and construct a usable passageway.
Nevertheless, the Craigs argue that because the addendum to the agreement of sale stated that the seller, Altoonian, was going to "clear and level the easement area," it was the obligation of Altoonian's successors, i.e., the Rodanos and Troutners, to pay for all of the costs attributable to the construction of the passageway and bulkhead. The Craigs do not explain exactly what Altoonian needed to do to "clear and level" the easement area. But the easement document designated the Craigs as the parties who must create the passage, as well as "grant" the easement.
This rationale is supported by the phrasing of the "clear and level" clause in the addendum, which noted that Altoonian would be clearing and leveling the "easement area." The use of the word "area" suggests that Altoonian only intended to clean the location where the easement would be located, and does not necessarily imply that Altoonian was undertaking the obligation to construct the passageway itself. In further support of this conclusion, when asked at his deposition who was going to perform the construction of the easement area, Frank Craig answered, "not Altoonian . . . ."
Nevertheless, at least arguably, the language that it was Altoonian's duty to "clear and level" the easement area could be interpreted as the Craigs suggest. For several reasons, however, we reject such an interpretation.
First, the "clear and level" clause stated that the work would occur after the survey was delivered to Altoonian, but before the land transaction was finalized. The survey did not indicate the presence of trees or obstructions that needed to be cleared in the easement area. The survey did indicate that the area contained utility wires, presumably due to the utility easement. Thus, based on the survey, it would seem that there was little for Altoonian to clear and level.
Second, the "clear and level" language is not part of the easement document, but is located only in the addendum to the agreement of sale between the Craigs and Altoonian. The Rodanos and Troutners were not parties to that contract. This language was a condition to be satisfied prior to closing on the sale of the land. Consequently, the "clear and level" language in the contract addendum did not survive the closing. See Deerhurst Estates v. Meadow Homes, Inc., 64 N.J. Super. 134, 142-43 (App. Div. 1960) (stating that the acceptance of a deed evidences the full performance of an agreement to convey property), certif. denied, 34 N.J. 66 (1961). The addendum did not contain a provision stating that the "clear and level" language survived closing. Thus, at closing there was a merger of the terms of the addendum and the deed, and the deed controls. Id. at 143.
Third, the land transaction was finalized in August of 2000. The doctrine of laches should bar the Craigs' pursuit of the obligation of Altoonian to "clear and level the easement area." See Clark v. Judge, 84 N.J. Super. 35, 53-54 (Ch. Div. 1964) (prejudice results when a party inexcusably delays in enforcing a known right), aff'd o.b., 44 N.J. 550 (1965).
Moreover, while the record reflects that Frank Craig stated that rocks were present in the easement area, he further testified that he altered the characteristics of the land after the sale was finalized. He said he hired "Lenny's trash removal" to push rip-rap into the easement area. Therefore, he contributed to the inaccessibility of the land by pushing broken concrete blocks into the area where the easement passageway was supposed to exist.
Thus, while the Craigs assert that the Rodanos and Troutners failed to show that "clear and level" does not mean "construct," the relevant facts lead to the conclusion that the Craigs bore the burden of "creating" the easement passageway.
Finally, the Craigs argue that they should not have to pay for the construction of the bulkhead to provide access to the other lots because they hold "the servient estate." They contend that easements should be reasonable and should not burden the servient estate, that they should not have to pay for the consequences of nature's deteriorating the easement area, and that they derive no benefit from the construction of a bulkhead.
In our view, Judge Perskie properly directed the Craigs to pay for the fill for the passageway, and justifiably ordered each party to pay for their pro-rata share of the bulkhead to provide the necessary access to the lots. The Craigs were only ordered to pay for the cost of the bulkhead proportional to the frontage on their property. The court fashioned an appropriate equitable remedy. It did not extend the scope of the easement beyond what was delineated in the documents. The decision was not irrational or impermissible.
Also, the record reflects that Altoonian and the Craigs negotiated the terms of the land sale transaction. The end result of the negotiations implies that Altoonian intended that the easement was to encompass his idea for the 15'-wide access road along the bulkhead. However, Altoonian did not undertake the responsibility for providing either the access passageway or the bulkhead.
The addendum to the agreement of sale provided that the property was being sold "as is." A deleted paragraph addressed whether a sea wall would be needed prior to closing by stating that Altoonian would build a sea wall prior to closing if it was required by the Borough of West Wildwood and at a $50,000 increase of the purchase price to the Craigs. The implication created by deleting this paragraph was that Altoonian undertook no obligation to construct the access passageway or bulkhead. Rather, the Craigs were on notice that a bulkhead might be needed in that area to provide the necessary access to the otherwise inaccessible properties.
We also find unpersuasive the Craigs' argument that they should not have to pay for the consequences of the natural erosion of the easement area. They had the contractual obligation to initially provide the passageway. Under the circumstances, the expense of countering the effects of nature cannot be fairly separated from their failure to provide the passageway to begin with. Further, as we have noted, Frank Craig added to the debris in or around the easement area by pushing rip-rap into it. Thus, equity suggests that he bear the burden of removing that debris to provide a legitimate, usable pathway so the other parties can access their properties.
We also reject the Craigs' argument that they derive no benefit from the construction of the bulkhead. The bulkhead is a retention mechanism which protects and fortifies the land from storms and bad weather. As a result, they reap a benefit from its creation on their property. The record further demonstrates that Frank Craig desired to build a bulkhead on lot 1.10 in 2001, but presumably abandoned the project when the DEP detailed the need for specific permits.
Judge Perskie's factual findings are amply supported by the trial record. His interpretation of the various documents is rational, reasonable, and in compliance with the controlling principles of law and canons of construction. The remedy he ordered was an equitable one and well within the bounds of his discretion. None of the arguments presented by the Craigs provide a basis for us to set aside the result.
The Craigs have made several additional arguments, which we summarily reject.
They argue that the October 2, 2009 orders contradict "New Jersey law and controlling legal authority." We distill the contentions made in support of this argument into three components.
First, they contend that the judge failed to cite case law when deciding the motions of the Rodanos and Troutners to enforce litigant's rights. The record belies this contention. The judge did cite applicable authority in rendering his various decisions.
Second, the Craigs argue that the court erred in ordering them to pay for the Rodanos' and Troutners' share of the bulkhead. This is not what the judge ordered. The parties were each ordered to pay their proportionate share of the costs.
Third, the Craigs argue that it was improper for the court to force them to pay approximately $85,000 for the creation of the fifteen-foot wide passageway and barrier to the bay because they received only $10 in consideration, as evidenced by the easement documents and addendum to their agreement of sale with Altoonian. They argue that they could not be required to pay more than $10.
This argument reflects a fundamental misunderstanding of the concept of adequate consideration. It also ignores that the land sale to the Craigs was contingent upon their agreement to grant the easement and to keep it unobstructed. Indeed, the addendum to the agreement of sale provided that "in partial consideration for the completion of this transaction, [the Craigs] shall deliver for recording an easement of ingress and egress in favor of [l]ot 1.11 and [l]ot 1.12 . . . ." And, the addendum also stated that "the principle consideration . . . [was] completion of the transaction contemplated by the Contract of Sale." Therefore, it is clear that the consideration supporting the grant of the easement was much more than $10.
Finally, the Craigs repeatedly alleged that the court improperly required them to pay for the repair and maintenance of the easement passageway. However, the record makes clear that Judge Perskie expressly declined to address any issues with respect to maintenance. He limited the issues before him to the creation of the easement, and he limited his findings and orders to that issue.
None of these arguments contain sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E). Any other arguments raised in the appeal that we have not specifically addressed lack sufficient merit to warrant any discussion. Ibid.