WING LOFTS AND STUDIOS, L.L.C., Plaintiff-Appellant/ Cross-Respondent,
PINNACLE TOWERS, L.L.C., Defendant-Respondent/ Cross-Appellant, and PUBLIC SERVICE ELECTRIC & GAS COMPANY, a/k/a PSE&G, a subsidiary of PUBLIC SERVICE ENTERPRISE GROUP, and VERIZON, INC., Defendants-Respondents.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: October 30, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2627-10.
W. Scott Stoner argued the cause for appellant/cross-respondent (Schatzman Baker, attorneys; Mr. Stoner, on the briefs).
Gregory J. Czura argued the cause for respondent/cross-appellant.
Peter L. Agostini argued the cause for respondent Public Service Electric & Gas Company (Law Offices of William E. Frese, attorneys; Mr. Agostini, on the brief).
Sandra M. Iammatteo argued the cause for respondent Verizon, Inc. (DalCortivo Law Offices, LLC, attorneys; Ms. Iammatteo, of counsel and on the brief).
Before Judges Fuentes, Fasciale and Haas.
Plaintiff Ewing Lofts and Studios, L.L.C. appeals from three May 25, 2012 orders of the Law Division granting summary judgment to defendants Pinnacle Towers, LLC (Pinnacle), Public Service Electric and Gas Company (PSE&G), and Verizon New Jersey, Inc. (Verizon), and dismissing plaintiff's complaint. Pinnacle has filed a cross-appeal from the trial court's denial of its counterclaim for counsel fees. After reviewing the record in light of the contentions advanced on the appeal and cross-appeal, we reverse and remand.
Plaintiff's claims arise out of an easement granted by the Township of Ewing (the Township) to Nassau Broadcasting Partners, L.P. (Nassau) in December 1998. Nassau owned a parcel of land in the Township from which it broadcast radio programs. There was a 480-foot-high communications tower located on the property. Nassau also owned a three-story building (the Building) near the tower. The Building was used for the radio broadcasts and to store equipment.
Pursuant to a December 21, 1998 Agreement for Gift of Property (the Agreement), Nassau gifted the property to the Township. With regard to the tower and the property where it stood, however, the parties agreed that Nassau would retain "an easement for the space the tower occupie[d] and ingress and egress thereto[.]" The Agreement further provided that Nassau would "be permitted to continue to occupy such space on the third floor of the [B]uilding as is necessary for the placement, storage, operation, and maintenance of [its] communications and transmission equipment . . . ."
In accordance with the Agreement, the Township executed a Deed of Easement to Nassau. A metes and bounds description of the portion of the property subject to the easement was set forth in the deed. The deed also stated
that the Easement Area encompasses and includes all radio towers, wires, personalty, pipes, cables, wires, guywires, conduits, electrical and communication facilities and all other facilities currently on the premises and all necessary and required access to and from [the road adjacent to the property].
In a paragraph entitled "Purpose of Easement, " the deed stated:
This instrument conveys to [Nassau] the unrestricted right to utilize the Easement Area in connection with its operation of a radio station or radio stations and communications tower, including the right to enter upon the Easement Area with personnel, machinery and equipment to maintain, repair, renew, relocate (within the Easement Area), redesign, inspect, alter, remove and replace all towers, facilities, pipes, cables, wires, guywires, conduits, electrical and communication facilities and any and all other equipment, materials of whosoever type and nature within, used or useful in the conduct of radio wave transmission and reception under and over, across and through the Easement Area, all as [Nassau] deems necessary and proper in furtherance of its operations as a radio station with auxiliary facilities.
In a paragraph entitled "Rights of Entry, " the parties further
acknowledge[d] and agree[d] that [Nassau], and all of [Nassau's] lessees or [licensees, ] shall have, at all times, the right of temporary access and entry onto [the Township's] Lands for the purpose of repairing, installing, replacing or altering the facilities situated within the Easement Area. Such entry shall be limited to the purposes described herein, and all work or maintenance, repair or renewal shall be done by [Nassau] or its lessees or licensees at [Nassau's] or its lessees or licensees sole expense and shall be done with care. Any damage or disturbance to [the Township's] Lands shall be promptly repaired and restored at [Nassau's] sole cost and expense and shall not interfere with [the Township's] use of [the Township's] Lands.
In February 2000, Nassau conveyed its interest in the communications tower and the easement to Pinnacle. In December 2006, the Township conveyed the property, ...