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Robert Occhifinto v. State of New Jersey Through the Commissioner of the Department of

October 29, 2012

ROBERT OCCHIFINTO, PLAINTIFF-APPELLANT,
v.
STATE OF NEW JERSEY THROUGH THE COMMISSIONER OF THE DEPARTMENT OF TRANSPORTATION, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Sussex County, Docket No. C-29-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 16, 2012

Before Judges Yannotti and Harris.

Plaintiff Robert Occhifinto appeals from the January 4, 2012 order granting defendant New Jersey Department of Transportation's (DOT) motion for summary judgment. Occhifinto sued to obtain a declaratory judgment that he has "an easement by way of necessity" over the DOT's land in Green Township. We affirm.

I.

Occhifinto is the owner of approximately eleven acres designated as Block 27 Lot 9 (Lot 9) on the Green Township tax assessment map. The DOT owns contiguous real property designated as Block 109.5 Lot 6 (the right-of-way), which it acquired through the exercise of eminent domain and is held in trust for New Jersey Transit Corporation.

At one time, the two parcels were commonly owned by the Lackawanna Railroad Company (Lackawanna). The land was acquired by Lackawanna in 1908 for purposes of railroad construction. Between 1908 and 1911, Lackawanna transformed this land (together with many other tracts) into a twenty-six mile no-grade crossing railroad line called The Lackawanna Cutoff.

In 1976, incident to bankruptcy proceedings, Lackawanna's railroad property, including the right-of-way, was conveyed to Consolidated Rail Corporation (Conrail) with certain exceptions and reservations. Lot 9 was retained by Lackawanna and not transferred to Conrail.

The bankruptcy-approved deed to Conrail mutually burdens the right-of-way and Lot 9 with three express easements: (1) an easement to "use, operate, maintain, repair, and replace and remove" certain "Easement Item[s]"; (2) an easement of "reasonable access" to exercise rights to such "Easement Item[s]"; and (3) an easement for right of lateral support. This portion of the deed states:

The easements and rights to use, operate maintain, repair, renew, replace and remove on, under, over and across the real property hereinafter reserved and excepted ("Grantor's Burdened Property"[/"Grantee's Burdened Property"]), any and all lines, poles, pipes, appliances, equipment, structures, facilities and appurtenances (each an "Easement Item") existing on and used or useful as of the date of delivery of this Deed as a part of any railroad communication, signal or interlocker system or as part of any electric, telephone, telegraph, water, gas, steam, sanitary sewer, storm sewer or other utility system, together with the easement of reasonable access over the Grantor's Burdened Property[/Grantee's Burdened Property] to permit the exercise of the foregoing easements and rights, and the easement for lateral support of the real property conveyed by this Deed.

The deed further expressly excludes any other easements "even if such easements and rights would otherwise arise by reason of necessity, implication or other operation of law, statute, ordinance, rule or regulation of any governmental entity."

On May 28, 1985, Lackawanna conveyed by quitclaim deed approximately twenty-seven acres of land, including Lot 9, to EL Properties, Inc. for $4,986.80. Three months later, also by quitclaim deed, EL Properties, Inc. sold Lot 9 to Jack Muhlstein for $5,000.

In 1994, the DOT exercised its power of eminent domain and acquired what remained of the Lackawanna Cutoff, holding it in trust for New Jersey Transit for railroad purposes. The ...


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