GEORGE F. LEUPOLD, JR. v. WILLIAM N. BROOKS and BRENDA N. BROOKS, husband and wife

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3516-04T23516-04T2

GEORGE F. LEUPOLD, JR.,

Plaintiff-Appellant,

v.

WILLIAM N. BROOKS and

BRENDA N. BROOKS, husband

and wife,

Defendants/Counterclaimants/

Third-Party Plaintiffs/

Respondents,

v.

DAVID B. RUTHERFORD and ANTOINETTE

RUTHERFORD, husband and wife,

FRANK LEVIN and BERGER REALTY, INC.,

a New Jersey Corporation,

Third-Party Defendants/

Respondents.

_________________________________________________________

 

Submitted March 28, 2006 - Decided April 12, 2006

Before Judges Coburn, Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey,

Chancery Division, Atlantic County, C-151-03.

C. Peter Burro, attorney for appellant (Tara M.

Garry, of counsel and on the brief; Mr. Burro,

on the brief).

Serber Konschak, attorneys for respondents

William N. Brooks and Brenda N. Brooks (Jon D.

Batastini, on the brief).

Michael A. Fusco, II, attorney for respondents

David B. Rutherford and Antoinette Rutherford.

Murphy & O'Connor, attorneys for respondents

Frank Levin and Berger Realty Group, Inc.

(Frank P. Menaquale, Jr., on the brief).

PER CURIAM

Plaintiff sued for judicial confirmation of his claim to a prescriptive easement over property owned by defendants William N. and Brenda N. Brooks. At the conclusion of a three-day bench trial, Judge Seltzer ruled in favor of defendants because plaintiff failed to establish the necessary elements for a prescriptive easement.

Plaintiff appeals, contending that the judge applied the wrong burden of proof, failed to adequately evaluate the underlying facts, and improperly concluded that there was no cause for action.

After carefully considering the record and briefs, we affirm the judgment substantially for the reasons expressed by Judge Seltzer in his thorough and well-reasoned oral opinion issued on January 18, 2005. We will, nonetheless, comment briefly on plaintiff's claim that the judge applied the wrong burden of proof. A party seeking an easement by prescription must prove the claim by a preponderance of the evidence. Patton v. N. Jersey Dist. Water Supply Comm'n, 93 N.J. 180, 187 (1983). Plaintiff contends that the judge "incorrectly applied a clear and convincing burden of proof." But his sole support for that contention is the following statement of the judge:

The plaintiff who has the burden of proof has not convinced me that lot 21 was used continuously or in such a way that the use of the property was widely known in the neighborhood so that the defendant here should have become aware of it.

No one had argued to the judge that a clear and convincing standard should apply. To the contrary, defense attorneys argued specifically that plaintiff failed to prove his case by a preponderance of the evidence. Considering the cases cited by the judge and his long experience on the bench, we have no reason to believe that he applied the wrong standard of proof in this case.

Affirmed.

 

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A-3516-04T2

April 12, 2006