VIRGINIA B. SMITH et al. v. CLIFFORD K. OBERLY and MARGARET M. OBERLY, his wife

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4236-04T24236-04T2

VIRGINIA B. SMITH and NORMAN

J. SMITH,

Plaintiffs-Respondents,

v.

CLIFFORD K. OBERLY and MARGARET M.

OBERLY, his wife,

Defendants-Appellants,

JEFFREY G. HAGERTY and KAREN M.

HAGERTY, husband and wife,

Defendants.

_____________________________________

 

Submitted May 22, 2006 - Decided June 12, 2006

Before Judges Miniman and Newman.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, L-114-03.

William R. Edleston, attorney for appellant.

Bruce A. Jones, attorney for respondent.

PER CURIAM

Defendants, Clifford K. Oberly and his wife Margaret M. Oberly appeal from a judgment declaring that plaintiffs, Virginia B. Smith and Norman J. Smith, are the exclusive owners of certain premises in the township of Greenwich, Warren County with a street address of 651 South Main Street, Stewartsville, and that defendants have no easement by prescription and no right to pass over plaintiffs' property or any lane on it to access their own property. Defendants do have another means of access to their farm and farmhouse, but the lane used on plaintiffs' property was a short cut. Defendants appeal. We affirm.

After a non-jury trial, Judge Coyle found that the use of the lane was not exclusive because plaintiffs used the lane as well as defendants. He further found that there was no prescriptive easement because plaintiffs had granted defendants consent to use the lane over the years. However, when defendants sold off a piece of their property to Jeffrey G. Hagerty and Karen M. Hagerty, plaintiffs did not want them to use the lane and ultimately revoked defendants' right to use the lane.

On appeal, defendants contend that the trial court erred in its finding of permissive rights as opposed to prescriptive rights.

We have carefully reviewed the trial record and are satisfied that Judge Coyle's findings are supported by substantial evidence in the record as a whole. R. 2:11-3(e)(1)(A). Defendants suggest that denying them the ability to use and enjoy their property for agricultural purposes is in violation of the Right to Farm Act, N.J.S.A. 4:1C-1 to -55. This is not an independent argument and is unsupported in the record. Plaintiffs can continue to farm and have ingress and egress to and from their land, although not from the more convenient lane, which they used prior to the revocation of their license to travel on plaintiffs' property.

We affirm substantially for the reasons Judge Coyle expressed in his well-reasoned opinion of February 10, 2005.

Affirmed.

 

(continued)

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A-4236-04T2

June 12, 2006