On appeal from Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. C-51-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 6, 2012
Before Judges Grall and Skillman.
This litigation involves the removal of trees planted by the Children's Center of Monmouth County, Inc., in a right of way granted to Jersey Central Power and Light Company (JCP&L) by easement. On cross-motions for summary judgment, the trial court dismissed a complaint filed by the Children's Center alleging an agreement modifying JCP&L's right to remove the trees or, in the alternative, a course of conduct estopping JCP&L from exercising that right. Finding no evidence that would permit the Children's Center to prevail on either claim, we affirm.
JCP&L's easement is a one-hundred-foot wide right of way for power lines that crosses a property in Neptune Township, which the Children's Center has leased from its owner for about twenty years.*fn1 Within the area of the right of way, JCP&L has the "right to construct, maintain and operate . . . one or more lines for the transmission and distribution of electric energy." JCP&L also has the right "to remove or clear and keep clear any or all trees, underbrush, structures and other obstructions upon said right of way, and such trees beyond the same as in the judgment of Grantee may interfere with or endanger said lines or appurtenances when erected." JCP&L also may "enter" the right of way "without notice" for "all of [those] purposes."
"Subject to" JCP&L's exercise of its rights, the grantors retained for themselves and their successors the right to "farm, cultivate, or use the ground within the limits of said right of way without substantial change of grade, provided that . . . such use shall not . . . interfere with, limit or obstruct any subsequent exercise of the rights hereby granted [to JCP&L] . . . ." The easement provides that JCP&L shall have the rights granted "so long as any such [power] line is maintained pursuant [to the grant], and [the grant] has not been released of record."
JCP&L installed power lines in the right of way before the Children's Center's tenancy, and there was a cherry tree in the right of way when the Children's Center first leased the property. Since taking possession, the Children's Center has planted twenty-two pear trees in the right of way.
This dispute arose in 2004, when JCP&L first indicated its intention to remove the trees in the right of way. The parties discussed the matter through their attorneys. The Children's Center's claimed agreement with JCP&L modifying the easement is based on two letters written by JCP&L's attorney.
The first letter, dated May 14, 2004, states:
I am writing to confirm the substance of our conversation yesterday afternoon regarding JCP&L's easement across your client's property. As I indicated, JCP&L has agreed not to remove the trees within its easement area while we are reviewing with you [its] right to do so. If we are unable to resolve amicably the question of JCP&L's right to remove the trees at issue, JCP&L will agree not to remove them until the matter is determined by a court of competent jurisdiction, or the issue is otherwise resolved through a mutually acceptable process.
While we are engaged in the process above, it is understood that JCP&L may trim the trees in the easement area in accordance with its tree-trimming policies and procedures and standard engineering guidelines applicable to rights of way for similar transmission or distribution facilities. In view of the fact that JCP&L anticipates completion of its trimming activities for the summer season by June 1st, the trimming on your client's property may be undertaken as early as next Monday, May 17th.
I am in the process of assembling copies of the relevant easement document(s) and related materials, and will contact you early next week to discuss them.
Thank you for your consideration. This letter and our clients' agreement to address the easement issues in this manner are without prejudice to or a waiver of any ...