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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...