On appeal from the Superior Court of New Jersey, Chancery Division, Hudson County, Docket No. C-111-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti, Espinosa and Kennedy.
Intermodal Properties, L.L.C. (Intermodal) appeals from an order entered by the Chancery Division on February 3, 2010, dismissing its complaint against defendant Norfolk Southern Railway Company (Norfolk) with prejudice. We affirm.
Intermodal is the owner of approximately 5.88 acres of property in Secaucus, New Jersey. Norfolk's rail terminal and yard surrounds Intermodal's property, thereby requiring Intermodal and its tenants to obtain access to the property by means of an easement across Norfolk's land. The easement was created under a deed dated May 29, 1969, in which Norfolk's predecessor in interest transferred title to the property to Intermodal's predecessor in interest. The parties agree that the deed provides for a twenty-foot wide easement.
In 1984, William Stefan (Stefan), Intermodal's owner, purchased the property, which at the time contained a warehouse and was being used as a distribution facility. Stefan claimed that the access road was more than forty-feet wide at its narrowest width and wider as it approached New County Road. Stefan understood that the access road was to be shared with Norfolk.
From 1984 to 2005, Stefan's former partner occupied the property. It appears that, during that time, no one raised any concerns regarding the road. The property was then leased to Meridian IQ Services, Inc. On October 31, 2005, Norfolk filed a petition with the New Jersey Department of Transportation (NJDOT), seeking authorization to commence formal proceedings to acquire Intermodal's property through the exercise of the power of eminent domain.*fn1
In 2006, the New Jersey Turnpike Authority (NJTA) redesigned New County Road as an overpass. Consequently, the access road across Norfolk's property had to be reconfigured to go under the overpass, with ingress and egress on Seaview Drive.
In October 2006, Malcolm Roop (Roop), the senior regional manager of Norfolk's real estate department, informed the NJTA that Norfolk would be amenable to negotiating a twenty-foot wide easement to enable Intermodal to continue to have access to its property. Roop informed the NJTA that it would need "to revise the plans" and widen the road.
In early 2007, Stefan initiated discussions with Roop because he was concerned about what he viewed as "a restricting situation relative to the safety of the access road." Stefan said that he was particularly bothered by the "width and configuration" of the road, which he thought was unsafe for trucks traveling in opposite directions.
In February 2007, John M. Keller (Keller) of the NJTA wrote to Stefan and stated that the NJTA initially intended for the access road to be thirty-feet wide. Keller stated, however, that after completing the initial design, the NJTA had reduced the width of the road to twenty feet.
Stefan claimed that he called Keller and confronted him regarding why the width of the road had been reduced. According to Stefan, Keller said that Norfolk had directed the NJTA to do so and threatened to sue the NJTA if the road was wider than twenty feet. However, in his deposition, Stefan admitted that he had no personal knowledge as to the role Norfolk played in the design or construction of the new road, or if it was involved at all in the process.
In March 2007, Stefan and his son met with Roop and another representative from Norfolk to discuss sale of the property. Stefan said that Roop was pressing them to sell the property to Norfolk. Stefan expressed concern about the safety of the access road. He requested that Norfolk "look into it and see whether it was safe[.]" Roop did not pass ...