ERNEST R. CUFF, JR., et al. v. ARTHUR W.D. BOSS, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6883-03T16883-03T1

A-0107-04T1

ERNEST R. CUFF, JR., HOWARD and

ALBERTA LLOYD, h/w, and ERNEST R.

CUFF, SR., and CAROLINE CUFF, h/w,

Plaintiffs,

and

LEON H. CUFF,

Plaintiff-Appellant,

v.

ARTHUR W.D. BOSS and ANNE

BOSS, h/w,

Defendants/Third-Party

Plaintiffs-Respondents/

Appellants/Cross-Respondents,

v.

ERNEST R. CUFF, JR.,

Third-Party Defendant-Respondent,

and

LEON H. CUFF,

Third-Party Defendant-

Respondent/Cross-Appellant,

and

HOWARD and ALBERTA LLOYD,

h/w, and ERNEST R. CUFF, SR. and

CAROLINE CUFF, h/w,

Third-Party Defendants.

_____________________________________

 

Argued September 20, 2006 - Decided October 31, 2006

Before Judges Wefing, C.S. Fisher and Yannotti.

On appeal from Superior Court of New

Jersey, Chancery Division, Cumberland

County, No. C-3499-87.

Richard P. Coe, Jr. argued the cause for

Plaintiff-Appellant/Third-Party Defendant-
Respondent/Cross-Appellant Leon H. Cuff.

Kevin McCann argued the cause for Defendants/ Third-Party Plaintiffs-Respondents/Appellants/

Cross-Respondents (Chance & McCann, attorneys;

Shirley Naylor, on the brief).

No brief was submitted on behalf of Plaintiff- Respondent/Third-Party Defendant-Respondent

Ernest R. Cuff, Jr.

PER CURIAM

These two appeals were argued before us the same day. Because they involve the same parties and related issues, we consolidate them for purposes of this opinion. In A-6883-03, Leon Cuff appeals from trial court orders entered August 1, 2001, April 5, 2004, and July 23, 2004. In A-107-04, Arthur and Anne Boss appeal from the trial court's order of July 23, 2004, and Leon Cuff cross-appeals from paragraph 3 of the trial court's order of November 8, 2004. After reviewing the record in light of the contentions advanced on appeal, we affirm in part and reverse in part.

The parties own adjoining parcels of land in Hopewell Township. Leon Cuff owns Lots 27 and 27.01 in Block 71 while the Bosses own Lot 16 in Block 71. Lot 16, which is slightly more than fifty acres, fronts on Bowertown Road. Cuff's lots, which comprise approximately twenty-seven acres, do not have road frontage.

The property has been in Cuff's family for more than sixty years; it was originally owned and farmed by his great grandparents. They obtained access to the property for many years through an unpaved lane that ran between Lot 16 and Lot 21. The Bosses purchased Lot 16 and Lot 21 in 1964. They later transferred Lot 21 to their daughter, Susan Boss Corson. Cuff and his wife and children began residing on the property in approximately 1994.

At some point disputes developed between the Bosses and Cuff with regard to use of the lane between Lots 16 and 21, and in 1989 Cuff joined his parents, his grandparents and his brother in filing a three-count complaint in Chancery. In the first count, they sought a declaration that they held an easement by prescription; in the third count they sought a declaration that they held an easement by necessity, and in the second count, they sought damages. At the time this litigation was filed, Leon Cuff owned Lot 27, but he resided in Bridgeton, not in Hopewell.

On March 29, 1990, the court granted summary judgment to plaintiffs on the count seeking an easement by necessity. The order granting that summary judgment stated, "[t]he width of said easement is to be determined at a hearing on April 2, 1990. Following such width determination, Arthur W.D. Boss and Anne Boss, h/w, shall execute and deliver an easement." On April 16, 1990, the court entered a judgment which included the following provisions:

[T]he easement roadway granted by the Court to plaintiffs . . . on March 29, 1990 . . . shall be measured and described as it presently exists by a licensed surveyor agreed upon by the parties, and said description shall determine the size of the . . . easement . . . . The plaintiffs will bear the expense of the survey.

. . . [T]he easement cannot be expanded or improved by the plaintiffs without the consent of the defendants or the order of court. Either party may maintain the easement, but plaintiffs shall not substantially change the grade level of said easement. Maintenance includes but is not limited to the placement of gravel and sand where necessary to provide a level surface.

. . . [E]ither party shall be free to seek additional relief should circumstances change.

After completion of the survey, the Cuffs' attorney prepared an easement agreement under which the Bosses granted an easement. The easement agreement stated in pertinent part:

1. Grantor [the Bosses] hereby grants to Grantee [the Cuffs] his heirs, successors, and assigns (it being the intention of the parties that this document create an easement appurtenant to Grantee's properties) the right to use the private lane, more particularly described in Exhibit "B" which runs through the Boss property and which extends from the Bowentown Road to a point in the northwesterly line of Lot 27.01, Block 71, of the Township of Hopewell. The easement is more particularly described in a legal description attached hereto as Exhibt "B".

2. This easement shall run with the land and shall touch and concern both the Grantee's properties and the Grantor's properties.

3. Although neither party shall have the obligation to the other party to maintain the easement, both parties expressly agree and acknowledge that they, their heirs, successors or assigns have the right to effect such maintenance consistent with the present use and size of the easement road. Either party may maintain the easement, but [the Cuffs] shall not substantially change the grade level of said easement. Maintenance includes but is not limited to the placement of gravel and sand where necessary to provide a level surface. The road shall not be expanded or improved without the consent of the Grantor or an order of the court.

This agreement, dated May 28, 1991, was executed by all the parties, including Leon Cuff, and recorded with the Cumberland County Clerk at Book 1898, Page 103.

That agreement, however, did not conclude all the disputes between the parties. In June 2000, the attorney for the Bosses notified Cuff that he had significantly exceeded the scope of the easement conveyed in the 1991 agreement. According to the Bosses, the easement was only eight feet in width, while Cuff contended it was significantly wider. Cuff had put in landscaping and a sprinkler system on property that the Bosses did not consider part of the easement. The Bosses also took the position that Cuff no longer needed the easement at all in light of the fact that Cuff and his wife had in the interim purchased a seventeen-acre parcel that adjoined Lot 27 and that had frontage on Greenwich Road.

The Bosses retained the surveyor who had mapped the easement in 1991 and had stakes placed to mark that easement. Cuff maintained those stakes interfered with access to his property, and the parties returned to court. Cuff sought an order to show cause under the docket number of the 1989 litigation, directing the Bosses to remove those stakes.

Under that 1989 docket number, the parties sought various forms of relief. Cuff sought to amend the description of the easement. He also sought a declaration that he held an easement by prescription and that the lane in question was, in fact, a county road. The Bosses, in turn, sought to terminate the easement and to direct Cuff to remove the alleged encroachments. The court conducted a series of hearings that resulted in the orders which are challenged on appeal.

In its order of August 1, 2001, the trial court denied summary judgment to Cuff with regard to his contention that the lane was a county road. The court ruled that it was a township road that had been vacated by a township ordinance passed in 1931.

In its order of September 23, 2003, the court granted judgment to Cuff, declaring that he held a continuing easement by prescription. It further declared, however, that Cuff had encroached beyond that easement and directed a further hearing to determine the remedy for such encroachment.

In its order of April 5, 2004, the court set forth its determination that Cuff had encroached on the Boss property. It ordered him to remove all the encroachments, including shrubbery, sprinkler heads and railroad ties, within sixty days.

In its order of July 23, 2004, the court denied Cuff's application to modify the terms of the easement agreement so as to provide that the easement would not be less than nine feet at any point.

In its order of November 8, 2004, the final order on appeal, the trial court denied the Bosses' motion in aid of litigant's rights and relegated them to an action for damages.

Before us, the parties have challenged various aspects of these several orders on assorted grounds. In A-6883-03, Cuff contends the trial court erred when it declined to modify the easement and when it ruled that the roadway was not a county road but a township road. In A-107-04 the Bosses contend that the trial court erred when it concluded that Cuff had an easement by prescription, when it declined to consider whether the easement by necessity had expired and when it denied their application in aid of litigant's rights. Cuff cross-appeals from the trial court's determination that he was not entitled to maintain the easement through the use of material known as "wrap."

I

We turn first to the issues presented in A-6883-03. Before us, the parties have addressed at length the elements of an easement by prescription and an easement by necessity. We do not find it necessary to address the nature of these two interests and whether Cuff has satisfied the elements of either. In our view, those matters were concluded in 1991 when the Bosses conveyed to Cuff an express easement under a recorded agreement that specified that the easement was to run with the land. Because of the rights conveyed to Cuff under that document, his subsequent purchase, with his wife, of property having frontage on Greenwich Road, is immaterial.

An express easement is a matter of contract between the parties, and it is appropriate to employ contract principles in attempting to ascertain the rights conveyed. Princeton v. Mercer County, 333 N.J. Super. 310, 324-25 (App. Div. 2000), aff'd, 169 N.J. 135 (2001); Restatement (Third) of the Law of Property, 4.1, Introductory Note (2000). A determination of the rights conferred under a grant of easement depends "on the intent of the parties as expressed in the language of the grant, viewed in the light of the nature and reasonably necessary incidents of the permitted use." Tide-Water Pipe Co. v. Blair Holding Co., Inc., 42 N.J. 591, 604 (1964).

Here, the right of easement was specifically directed to run with the land. It was not a right that was personal to Cuff, and it was thus unaffected by subsequent developments, such as his acquisition of the adjoining parcel of land. Further, the grant of an express easement obviated the need for any consideration of the question of an easement by prescription.

Because the right of easement was expressly set forth in the parties' agreement, it follows that the trial court correctly refused to enlarge the scope of that easement, which was the subject of negotiations and agreement of the parties in 1991. The language of such a grant of easement is generally controlling. Leach v. Anderl, 218 N.J. Super. 18, 28 (App. Div. 1987). That Cuff may wish now that he had negotiated for a larger easement because it would be more convenient for him provides no basis for the court to award him a better bargain than he achieved for himself in 1991. Karl's Sales & Serv. v. Gimbel Bros., 249 N.J. Super. 487, 493 (App. Div.), certif. denied, 127 N.J. 548 (1991).

The remaining issue in A-6883-03 is whether the trial court correctly held that the lane in question was not a county road. The matter was the subject of extensive proof before the trial court, and the court made detailed findings of fact. These findings are supported by the record, and they are thus affirmed. State v. Locurto, 157 N.J. 463 (1999); Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974).

II

We turn now to A-0107-04, in which the parties again set forth their respective positions in terms of prescriptive easements and easements by necessity. In our judgment, for the reasons we have set forth above, the only issues which need to be addressed relate to the attempt by the Bosses to enforce the terms of the easement contained in the 1991 easement agreement and Cuff's assertion that his actions in maintaining the right-of-way were appropriate. The trial court conducted a hearing on July 23, 2004, in response to Cuff's efforts to modify the easement and the Bosses' efforts to have Cuff remove encroachments he had placed. Following that hearing, the court issued a letter opinion in which it concluded that while Cuff had, indeed, encroached on the Bosses' land, a further hearing was necessary to determine the appropriate remedy. The court reached this conclusion on the basis of the doctrine of relative hardship, citing Szymczak v. LaFerrara, 280 N.J. Super. 223 (App. Div. 1995).

That further hearing was held on October 13, 2004. At that hearing there was testimony about Cuff's actions. The trial court had earlier ordered him to remove the landscaping he had placed the length of the way. The Bosses complained that he had removed only some of the encroachments, and that in removing those, he had changed the grade of the way, interfering with the Bosses' use of it. Cuff had earlier covered the length of what he termed his driveway with a product known as "wrap."

During the course of this hearing, the Bosses presented the testimony of J. Michael Fralinger, a licensed civil engineer. Mr. Fralinger testified that he went to the scene to measure the driveway Cuff was using and to compare his measurements against the terms of the easement agreement. Mr. Fralinger testified that the easement agreement called for an eight-foot wide easement but that the driveway that Cuff was using varied in width from eleven feet to slightly over ten feet in width.

Fralinger also explained that "wrap" is a shorthand term for "reconditioned asphalt product." Specifications prepared by the Department of Transportation and used not only by the State, but by counties and municipalities throughout the State, permit this product to be used as road base material provided that it can pass through a two-inch sieve. According to Fralinger, wrap that complies with that specification compacts evenly with use while wrap that contains pieces that exceed this specification do not compact evenly, which can lead to further maintenance problems. Fralinger testified that in his site inspection he saw various pieces that exceeded this two-inch specification, some as large as twelve inches.

Boss testified that pieces of wrap would end up in his adjoining hay field and interfere with his haying operations. He also complained of the condition in which Cuff had left the property after removing those encroachments that he did remove. Boss testified that Cuff left the area uneven so that his hay wagon could not traverse the lane.

The trial court thereafter issued a three-page letter opinion in which it concluded that Cuff's use of wrap was not permitted under the terms of the easement agreement. As to this issue, the trial court was clearly correct. Both the easement agreement and the preceding judgment entered by the court provided that Cuff could maintain the land with the use of gravel or sand. Wrap is clearly a product of a completely different nature.

While the court declined to order its complete removal, it did, however, direct Cuff to clear the area and remove any and all large pieces. The court also concluded that Cuff's expansion of the easement from eight to ten feet in certain sections was inconsequential and it declined to grant Boss affirmative relief, stating that Boss could file an action in the Law Division for damages.

We are satisfied that the trial court erred with regard to this latter aspect of its order. The case of Szymczak, supra, upon which the court relied for the doctrine of relative hardship, is, in our view, distinguishable. Defendant in that case purchased a vacant lot in Ocean Township in 1970. Id. at 225. He had no immediate plans for the land but intended to develop it at some unspecified point in the future. Ibid. Szymczak purchased the adjoining vacant lot in 1981 and proceeded to construct his home on the land. Ibid. Through a surveying error, nineteen feet of Szymczak's completed home was on LaFerrara's property. Id. at 224. The error was not discovered until more than five years after Szymczak and his family moved into their house. Id. at 226. The trial court ordered Szymczak to remove the encroaching house, but we reversed. Id. at 224.

We noted the testimony from one witness that it would cost $16,500 to demolish the house and $164,000 to rebuild it. Id. at 227. There was also testimony that it would cost nearly $90,000 to move the house. Ibid. Further, the evidence established that defendant had paid $3,500 for the lot in 1970 and taxes of $6,900 over the years. Id. at 225. In invoking the doctrine of relative hardship and ordering a hearing as to defendant's damages, we noted that "[t]he disproportion must be of considerable magnitude and not slight before the doctrine is considered." Id. at 231 (citations omitted).

We cannot consider the inconvenience Cuff might experience in abiding by the terms to which he agreed with respect to the size of this easement to be of such a magnitude as to justify permitting him to ignore those terms. We are unable to reconcile the court's statement that Cuff's apparent widening of the easement a few feet was inconsequential with its earlier statement that Cuff was bound by the specific easement agreement he had negotiated and signed. In our judgment, to permit Cuff to continue to use the wider easement is to give him the modification of the easement terms the court previously denied him.

We concur, however, with the trial court's judgment that ordering Cuff to remove the large pieces of wrap provides sufficient relief to plaintiffs at this juncture. Although Boss testified that the wrap posed a significant interference with his haying operations, it cannot escape notice that Cuff placed this material in 1997. While Boss complained privately to Cuff at the time, he was clearly able to conduct his haying operations for several years. He did not seek to enforce the provision that would bar such paving until Cuff sought to modify the terms of the recorded easement. In such a context, we cannot consider the result reached by the trial court either an abuse of its discretion or inequitable.

Finally, we deem it appropriate in closing to note that our reversal is not intended as a criticism of the trial court, which has been confronted for years with these warring neighbors. It has struggled valiantly to help them achieve a resolution of their disputes, to no avail. It has exhibited great patience in the face of their continuing disputes. To invite further litigation through a suit for damages will not bring an end to this contest; it will merely shift it to another forum. The parties, represented by counsel, negotiated a detailed agreement in 1991, specifying their respective rights in this easement. The Bosses were entitled to have that agreement enforced.

The orders under review are affirmed in part and reversed in part, and the matter is remanded to the trial court for entry of an appropriate form of judgment.

 

Cuff was joined in that action by several other named plaintiffs, his parents, his grandparents and his brother, who were originally defendants in the matters on appeal before us. Cuff is the only named plaintiff from the 1989 action who is participating in the present appeal. Cuff was a party to the 1989 action because he owned Lot 27. He did not take up residence there, however, until 1994, after the 1990 judgment and easement agreement.

(continued)

(continued)

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A-6883-03T1

October 31, 2006