ESTHER E. BEREZOFSKY v. RAYMOND J. HAESLER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5093-07T15093-07T1

ESTHER E. BEREZOFSKY and

GLOSTER B. AARON,

Plaintiffs-Appellants,

v.

RAYMOND J. HAESLER,

Defendant-Respondent.

________________________________________________

 

Argued March 10, 2009 - Decided

Before Judges Winkelstein, Fuentes and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-8410-04.

Kevin Haverty argued the cause for appellants (Williams Cuker Berezofsky, attorneys; Mr. Haverty, on the brief).

Richard B. Supnick argued the cause for respondent.

PER CURIAM

This case involves an easement dispute between two neighboring property owners. The property owned by defendant Raymond J. Haesler has access to a public road through an easement known as Hidden Lane. His deed expressly gives him the right to use that easement. Plaintiffs Esther E. Berezofsky and Gloster B. Aaron own property located directly across from defendant's property along Hidden Lane. However, plaintiffs' property has access to a public road through a different easement. Plaintiffs do not have a deed or other document giving them an easement or any other right to use Hidden Lane.

Plaintiffs brought this declaratory judgment action, and among other relief, they sought a finding that they had a right to use Hidden Lane. Defendant filed a counterclaim, and among other claims, sought to enjoin plaintiffs from using Hidden Lane. On cross-motions for partial summary judgment, the trial court determined that plaintiffs did not have the right to use Hidden Lane and enjoined them from doing so. The other claims between the parties having been voluntarily dismissed, plaintiffs now appeal the trial court's decision. We affirm in part, reverse in part, and remand.

I

To put this easement dispute in context, we must go back to 1949, when the properties owned by plaintiffs and defendant were part of a larger tract of land owned by Joseph Barton and Elizabeth M. Barton, husband and wife, and Lewis W. Barton and Sara P. Barton, husband and wife. In 1949, the Bartons conveyed a portion of their property to Robert and Dorothy S. Wright, husband and wife. The Wright tract fronted Browning Lane, a public road, and as a result, the conveyance did not give the Wright tract an easement on the Bartons' remaining property.

Subsequent owners of the Wright tract subdivided it in 1965 and provided easements through the Wright tract for those subdivided lots that would otherwise be landlocked. Plaintiffs' property, now known as 460 Browning Lane, is one of these subdivided lots from the Wright tract. It has an easement of ingress and egress that runs through the former Wright tract to Browning Lane and that easement is not in dispute in this case. Thus, plaintiffs have a separate easement to a public road as set forth in their deed, and nothing in their chain of title accords them an easement in Hidden Lane.

We now turn to the property that was retained by the Bartons after their conveyance in 1949 to the Wrights. In 1951, the Bartons conveyed a portion of their remaining property to Edward and Theda Henson Braddock. Defendant now owns this parcel, known as 470 Hidden Lane. In order to prevent the parcel from being landlocked, the Bartons gave the Braddocks an easement across their land to Kresson Road. This easement became known as Hidden Lane and is the easement in dispute in this case. We will refer to this easement as Hidden Lane.

The language creating Hidden Lane in the Barton-Braddock deed is as follows:

TOGETHER ALSO WITH the right, liberty, and privilege of free and common use, for ingress to and egress from the above described premises, at all times hereafter, in common with the owners and occupants of other lands abutting thereon, of the 33 feet wide right of way aforesaid . . . .

The easement language was changed by deed between the Braddocks and defendant's predecessors in title to provide:

TOGETHER with the free and common use, right, liberty and privilege of the above mentioned 33 feet wide right of way as and for a right of way for ingress and egress at all times hereafter forever in common with the owners, tenants and occupiers of other lands abutting thereof and entitled to the use thereof.

The remaining Barton property was subsequently subdivided into multiple lots that were also given easements to use Hidden Lane.

Defendant acquired his property in 1985. It is located at the end of Hidden Lane, which is his only means of ingress and egress. The portion of Hidden Lane from defendant's property to the next house is a one lane dirt road, and thereafter it becomes a two lane dirt road. Defendant personally maintains the last portion of Hidden Lane that goes up to his property and contributes to the maintenance of the remainder of Hidden Lane along with the other owners of the easement. Plaintiffs do not contribute to these maintenance costs.

Plaintiffs purchased their property in 1997. While it abuts Hidden Lane and is located across from defendant's property, they have no right to use Hidden Lane through their chain of title. They initially used Hidden Lane for jogging and dog walking with no objections. In 2004, construction trucks involved in work on plaintiffs' property utilized Hidden Lane. Defendant protested, and the dispute arose concerning plaintiffs' right to use Hidden Lane. According to plaintiffs, defendant tried to prevent their use of Hidden Lane by installing a padlocked chain across their entry to Hidden Lane and, at another time, by blocking their access with parked vehicles.

Plaintiffs commenced this declaratory judgment action seeking a declaration of the rights of the parties to Hidden Lane. They also included counts for nuisance, trespass, and invasion of privacy against defendant arising from the dispute over the easement. Defendant filed a counterclaim seeking to enjoin plaintiffs from using Hidden Lane, claiming damages, and including counts for nuisance, trespass, and frivolous litigation.

Defendant moved for partial summary judgment, seeking a determination of his rights to Hidden Lane, a finding that plaintiffs had "no legal or equitable right to use Hidden Lane," and an order restraining and prohibiting plaintiffs from entering upon, using, or interfering with defendant's use of Hidden Lane. Plaintiffs made a cross-motion for partial summary judgment, seeking a declaration that they were entitled to use Hidden Lane.

The trial court granted defendant's motion for partial summary judgment and denied plaintiffs' motion. Its order of April 21, 2006, provided that defendant had a nonexclusive right to use Hidden Lane and that he could prevent others from trespassing there to the extent consistent with common law. The order further provided that "[p]laintiffs have no present legal or equitable right to use Hidden Lane"; that they had no express easement, no easement by necessity, and no easement by prescription to Hidden Lane; and they were "enjoined and restrained from entering upon, using or interfering with [d]efendant's use of the private road and right of way known as Hidden Lane." Plaintiffs' motion for reconsideration was denied on November 17, 2006. Thereafter, the parties voluntarily dismissed their remaining claims.

On appeal, plaintiffs contend that defendant, as the holder of an easement, has no right to prevent their use of Hidden Lane which does not interfere with defendant's easement rights. They maintain that the holder of an easement does not have the standing to bring a claim in trespass or ejectment to prevent a third-party from using the easement. Plaintiffs also argue that a material issue of fact is presented on whether the original common grantors, the Bartons, intended to create a neighborhood scheme that would allow all property owners abutting Hidden Lane, including plaintiffs, to use the easement. Finally, if the matter is remanded back for trial, plaintiffs maintain that a trial court order denying a request for additional discovery should also be overturned.

When reviewing the granting of a motion for summary judgment we apply the same standard used by the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment is granted if no genuine issue of material fact is present so that the movant is entitled to a judgment as a matter of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We do not defer to the trial court's interpretation of the law, or its determination of the legal consequences that flow from undisputed facts. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

II

An easement has been described as a "nonpossessory incorporeal interest in another's possessory estate in land, entitling the holder of the easement to make some use of the other's property." Mandia v. Applegate, 310 N.J. Super. 435, 442-43 (App. Div. 1998) (quoting Leach v. Anderl, 218 N.J. Super. 18, 24 (App. Div. 1987)). "An easement may be created by an express conveyance, by implication or by prescription." Id. at 443. Implied easements include easements by necessity that arise by operation of law when a conveyance results in property being landlocked by other property owned by the conveyor. Ibid.

As the trial court correctly found and plaintiffs' counsel acknowledged at oral argument, plaintiffs do not have an express easement to Hidden Lane. Neither the deeds to plaintiffs' property nor any other documents convey to plaintiffs or their predecessors in title an easement to Hidden Lane. Further, for the reasons set forth by the trial court, plaintiffs have not come forward with proofs to support a claim for an easement by necessity or by prescription. Indeed, plaintiffs have not appealed this portion of the trial court's ruling.

Plaintiffs argue that the facts support a finding of a neighborhood scheme whereby they would have an access easement to Hidden Lane. A neighborhood scheme results from restrictive covenants that are "universal, reciprocal and reasonably uniform." Murphy v. Trapani, 255 N.J. Super. 65, 73 (App. Div.), certif. denied, 130 N.J. 17 (1992). A neighborhood scheme arises:

where there is a general scheme or plan, adopted and made public by the owner of a tract, for the development and improvement of the property, by which it is divided into streets, avenues and lots, and contemplating a restriction as to the uses to which buildings or lots may be put, to be secured by a covenant embodying the restriction, to be inserted in each deed to a purchaser; and it appears, by writings or by the circumstances, that such covenants are intended for the benefit of all the lands, and that each purchaser is to be subject to and to have the benefit thereof; and the covenants are actually inserted in all deeds for lots sold in pursuance of the plan; one purchaser and his assigns may enforce the covenant against any other purchaser and his assigns, if he has bought with knowledge of the scheme, and the covenant has been part of the subject-matter of his purchase.

[Ibid. (quoting De Gray v. Monmouth Beach Club House Co., 50 N.J. Eq. 329, 340 (Ch. 1892), aff'd, 67 N.J. Eq. 731 (E. & A. 1904)).]

A neighborhood scheme is created one of three ways: (1) by a reciprocal covenant whereby the grantor promises to insert similar covenants into "all deeds of his remaining lots or lands for the common benefit of all of his grantees and their assigns"; (2) by representations by the grantor when the lots are offered for sale that the conveyances will be "subject to like covenants for the common benefit"; and (3) "where all the deeds from the common grantor for the lots making up any particular neighborhood group of common benefit therefrom, are made subject to the common covenant." Frisch v. Rutgers Village, 8 N.J. Super. 392, 399 (Ch. Div. 1950) (quoting Scull v. Eilenberg, 94 N.J. Eq. 759, 771 (E. & A. 1923)).

In order to be enforceable, the neighborhood scheme must meet the following criteria:

(a) universal, the restrictions applying to all lots of like character brought within the scheme; (b) reciprocal, the restrictions constituting a benefit to all lots involved which are subject to the burden imposed; (c) reasonably uniform as to the restrictions imposed; they need not be identical but any variations must be such as not to create an inequitable burden or benefit.

[Olson v. Jantausch, 44 N.J. Super. 380, 386 (App. Div. 1957).]

The fact that some of the properties conveyed by the common grantor are not subject to the restrictive covenants may be evidence that the grantor did not intend to create a neighborhood scheme, but it is not conclusive on that point. Weinstein v. Swartz, 3 N.J. 80, 85 (1949). Portions of the tract may be set aside for different uses. Id. at 86. However, for a neighborhood scheme to be found "the same restrictions are placed upon the lots of others similarly located." Ibid. "It suffices if all the deeds for the lots making up any particular neighborhood group are made subject to uniform covenants in order that the benefits and burdens of the lots encompassed by the general scheme are subject to mutual burdens and benefits." Ibid.

The intent to create the neighborhood scheme must be clear. See id. at 87. The burden of proof is on the party seeking to establish the neighborhood scheme. Amir v. D'Agostino, 328 N.J. Super. 141, 154 (Ch. Div. 1998), aff'd, 328 N.J. Super. 103 (App. Div. 2000).

Based on the record in this case, no rational fact finder could conclude that a neighborhood scheme was created here. No restrictive covenants with mutual burdens and benefits are set forth in the deeds regarding plaintiffs' property and all other properties abutting Hidden Lane. In this case, the common grantors, the Bartons, did not extend to the Wrights, plaintiffs' successors in title, the use of the easement. Indeed, at the time of the conveyance of land to the Wrights, the easement had not been created. Plaintiffs have no language in their deed or title history extending to them a reciprocal right to use the easement. The easement was created in order to provide defendant's successor in title access to a public road, and later use of the easement was extended to the lots thereafter created from the remaining portion of the Bartons' property. These circumstances do not give rise to a neighborhood scheme that includes plaintiffs' property.

Plaintiffs argue that the language in the Barton-Braddock deed originally creating defendant's easement evidences a neighborhood scheme. That language merely stating that the easement is "in common with the owners and occupants of other lands abutting thereon" makes clear that defendant holds a nonexclusive easement; it does not extend rights to the then existing Wright tract.

Accordingly, for all of these reasons, plaintiffs hold no easement in Hidden Lane, and they have no legal or equitable rights to use it. The trial court properly denied plaintiffs' motion for partial summary judgment.

III

We now turn to the provisions in the order enjoining plaintiffs' use of Hidden Lane and allowing defendant to treat unauthorized users of Hidden Lane as trespassers.

Since an easement is a nonpossessory interest in land and trespass is a possessory action, the easement holder may not maintain an action in trespass. Powell on Real Property 34.17 (Wolf ed. 2009); see also Catania v. Vanacore, 70 A.2d 136, 137 (Conn. 1949); but cf. P & A Constr., Inc. v. Hackensack Water Co., 115 N.J. Super. 550, 552-53 (Law Div. 1971) (recognizing that "trespass is a possessory action" and stating that an easement in gross is a nonpossessory interest without determining whether "other types of easements carry with them a sufficient possessory interest to support an action sounding in trespass").

Even though an easement holder has no possessory interest in the easement, however, the holder of an easement may bring an action for infringement of the easement against a third party. Powell on Real Property, supra, 34.17.

The holder of the easement is entitled to maintain this action for the infringement of his or her right whether or not actual pecuniary loss has been suffered or proved. The action is to permit the owner of the easement to vindicate his or her right and prevent the wrongdoer from acquiring a prescriptive right, and thus the owner of the easement may receive only nominal damages.

[Ibid.]

The easement holder may maintain an action in nuisance against one obstructing, interfering with, or encroaching on his easement. Ibid.; see also Am. Metal Co. v. Fluid Chem. Co., 121 N.J. Super. 177, 181 (Law Div. 1972) (stating that an action lies in nuisance for interference with an easement).

The holder of an easement may obtain injunctive relief "against interference, encroachment, or obstruction." 25 Am. Jur. 2d Easements and Licenses 110 (2004); see also Leach v. Anderl, supra, 218 N.J. Super. at 24 (stating that the holder of an easement may obtain protection from interference by a third-party); Powell on Real Property, supra, 34.17 (providing that the holder of an easement may bring an action for damages or injunctive relief against one infringing on his rights in the easement). Easement holders also may obtain injunctive relief in order to prevent others from acquiring prescriptive rights over the roadway. Powell on Real Property, supra, 34.17. In addition, an easement holder may obtain injunctive relief against unlawful infringement "where the damages for each day are insignificant, and successive actions for damages would be costly, time-consuming, and hence impracticable." Ibid.

Here, the court issued an injunction without identifying the specific infringement of defendant's easement rights or explaining why an injunction is necessary to protect those interests. Accordingly, we reverse the order for an injunction and remand to the trial court to address those issues. We do not retain jurisdiction.

IV

Plaintiffs also contend that the trial court erred in denying their motion to extend discovery in order to take the deposition of defendant. The complaint was filed on December 3, 2004, and defendant filed his answer on January 12, 2005. The order disposing of the summary judgment motions at issue in this appeal was signed on April 21, 2006. Since other issues remained in the case, the trial court extended the discovery end date to July 31, 2006, and fixed a trial date. New counsel for plaintiff substituted into the case shortly before the discovery end date. After the expiration of the discovery end date, plaintiffs' counsel moved to compel defendant's deposition. On October 6, 2006, the trial court denied the motion, noting that a trial date was scheduled for October 23, 2006, and that no exceptional circumstances were presented. Thereafter, the parties voluntarily dismissed the remaining issues in the case. Since the claims that were subject to the discovery request have been voluntarily dismissed, the issue regarding discovery on those issues are now moot. Further, even if we were to reach the merits, we find no abuse of discretion here. Since the discovery end date had passed, plaintiffs should have moved to extend the discovery end date in order to take defendant's deposition. Such a motion is governed by Rule 4:24-1(c).

Plaintiff failed to come forward with "exceptional circumstances" as required by Rule 4:24-1(c) to justify an extension of discovery after the discovery end date has passed and after the trial date has been fixed. See Bender v. Adelson, 187 N.J. 411, 427 (2006) (recognizing that under this rule "[o]nce an arbitration or trial date is fixed, however, 'no extension of the discovery period may be permitted' unless exceptional circumstances are shown" (quoting R. 4:24-1(c))).

Affirmed in part, reversed in part, and remanded.

 

Defendant's name is listed as Rayfield J. Haesler on the deed.

By this time the Barton tract was owned by Lewis W. Barton, Sarah P. Barton, and the Estate of Joseph Barton.

The order reads that this provision is "subject to disposition of the Silver letter," but the record does not indicate any further proceedings with respect to the Silver letter.

(continued)

(continued)

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A-5093-07T1

August 24, 2009