C. FREDERICK PAULSON v. DAVID CURRIE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5762-06T35762-06T3

A-1642-07T3

C. FREDERICK PAULSON and

JEAN PAULSON,

Plaintiffs-Respondents,

v.

DAVID CURRIE and MARTHA CURRIE,

Defendants-Appellants.

___________________________________

C. FREDERICK PAULSON and

JEAN PAULSON,

Plaintiffs-Appellants/

Cross-Respondents,

v.

DAVID CURRIE and MARTHA CURRIE,

Defendants-Respondents/

Cross-Appellants.

_________________________________________________

 

Argued December 3, 2008 - Decided

Before Judges Payne and Lyons.

On appeal from Superior Court of New Jersey,

Chancery Division, Morris County, C-211-05.

Robert Boak argued the cause for

appellants in A-5762-06T3 and respondents/

cross-appellants in A-1642-07T3.

Thomas D. Flinn argued the cause for

respondents in A-5762-06T3 and appellants/

cross-respondents in A-1642-07T3 (Garrity, Graham, Murphy, Garofalo & Flinn, attorneys; Mr. Flinn, of counsel and on the brief; Wendy M. Crowther, on the brief).

PER CURIAM

These consolidated appeals arise from a dispute between plaintiffs C. Frederick and Jean Paulson and their neighbors, defendants David and Martha Currie, regarding the relocation by the Curries, without the consent of the Paulsons, of an easement providing a right of passage across the Curries' property. In an order of summary judgment dated April 25, 2007, the Curries were permanently enjoined from interfering, obstructing or impeding access to the easement.

However, the Curries did not immediately comply with that order, and a motion in aid of litigants' rights was filed on the Paulsons' behalf. Although an order requiring compliance was entered, it too was ignored. As a result, on September 5, 2007, the Paulsons filed a second motion to enforce litigants' rights. The motion was granted in part by an order dated October 5, 2007 and a corrected order upon reconsideration dated November 5, 2007. Pursuant to the latter order, the Curries were held in contempt and fined $50 per day for a period of ninety days, for a total of $4,500, as the result of their continued obstruction of access to the easement. However, the judge denied those portions of the Paulsons' motion seeking the removal of fencing installed by the Curries on both sides of the restored easement that the Paulsons claimed reduced the width of the easement from fifty feet to five feet, and the judge denied counsel fees.

In docket number A-5762-06T3, the Curries have appealed from the order of summary judgment against them and, in docket number A-1642-07T3, the Paulsons have appealed from those portions of the judge's October 5, 2007 and November 5, 2007 orders in which the judge denied the Paulsons' applications for removal of fencing constricting the easement and counsel fees. The Curries have cross-appealed in docket number A-1642-07T3 from the imposition upon them of the $4,500 sanction for their violation of the court's orders. The appeals have been consolidated.

The parties own adjacent property on Halsey Island, located in Lake Hopatcong. There is no vehicular access to the island, and passage around the island occurs on foot or by small tractor. The island property was initially subdivided by the Halsey Island Land Company in May 1891. At that time, lots were established in two concentric rings, with the outer ring abutting the water and the inner ring abutting a central area denominated "Park." The two rings were separated by a right-of-way of fifty feet in width, then known as Island Boulevard, but now known primarily as Halsey Oval. The Oval provides a route for residents to travel to other locations on the island and to gain access to fresh water wells. A revised map of the building sites on Halsey Island that indicates the location of the Halsey Oval was filed in the Morris County Clerk's Office on September 3, 1907. Dedication of the Oval as a street has been neither accepted nor rejected by the Township of Jefferson, where the island is situated.

A deed from Leo and Helen August to David and Martha Currie, recorded on December 20, 1979, conveyed property "known as lot 164 on a map entitled 'Revised Map of Building Sites on Halsey Island, Lake Hopatcong, N.J. the property of Halsey Island Land Company,' said map being dated July 13, 1907 and filed in the office of the Clerk of Morris County on Sept. 3, 1907 as map #309." The deed makes reference to the Halsey Oval, which is described as an "unimproved street." The deed further provides:

This conveyance is being made subject to easements and restrictions of record, if any, and further subject to the rights of public or private parties in and to any road or street, constructed or paper, adjoining the lot being sold.

The properties owned by the Paulsons and the Curries are situated in both the inner and outer rings of lots, and are bisected by the Halsey Oval. At some point, deer crossed the ice to the island in the winter, becoming a nuisance as the result of their foraging. Initially, the Curries, who have extensive gardens, protected their property from the deer by fencing it, installing a self-closing gate to give access to the Halsey Oval. However, after finding the gate propped open on several occasions, in August 2003, they locked and wired the gate closed and posted a note that stated:

The past 24 years the path around the Island has been in front of our cottage. . . . This year the path will be behind the cottage as we are expanding forward . . . .

The Gate in the back welcomes you anytime . . . The flowers would like to meet you . . . .

The Curries

8/24/03

(Ellipses in original.)

The new path established by the Curries did not follow the location of the Halsey Oval, but instead, detoured approximately 200 feet from it and toward the center of the island. According to the Paulsons, who are elderly, the new path required them to walk up hill and was more difficult for them to traverse. Additionally, they claimed (although the Curries disagree) that the new path did not end at the Halsey Oval, but rather upon property owned by the Curries' neighbors on the far side, in an area where no easement had been granted.

On December 13, 2005, the Paulsons filed suit against the Curries in chancery court seeking to enjoin the Curries' obstruction of the Halsey Oval. Cross-motions for summary judgment were filed, and in an oral decision rendered on April 25, 2007, the chancery judge granted summary judgment in the Paulsons' favor, entering an order of the same date that "permanently enjoined [the Curries] from interfering, obstructing or impeding access to the right-of-way." In reaching her decision, the judge recognized that the Restatement (Third) of Property 4.8(3) (2000) permits "reasonable changes in the location or dimensions of an easement" if the changes do not significantly lessen the utility of the easement, increase the burdens on the owner, or frustrate the purpose of the easement. However, she held:

Frustration of the purpose of the easement is a very unique factor in this case. Halsey Island is a place like none other in our modern, heavily traveled, chaotic world. Access is solely by boat. There are no vehicles. Neighbors walk along paths or use small tractors to get around. The island is designed very uniquely with the oval circling the island and homes facing either the lake or the woods, with a central park. The oval belongs to all the homeowners and its protection goes beyond the consideration of these two litigants.

So the court can only expect that if this owner can divert access from the front of the cottage to around the back, then each owner could do the same. And the oval, although designed with a purpose of consistency and shape, then becomes a series of personal diversions, of hundreds of feet either back, behind or around every time a walker comes to a different residence.

Now it certainly may be that the deer have eaten a fair amount of vegetation planted by the Curries. However, a very simply planned oval should not then have to become a complex, amorphous, fractured form created at the whim of every landowner. This is an express easement. It is recognized for years and it has a purpose.

After distinguishing case law upon which the Curries relied and following the decision of the Court of Errors and Appeals in Lenning v. Ocean City Assoc., 41 N.J. Eq. 606 (1886), the judge granted summary judgment in the Paulsons' favor. Her order of April 25 provided that: "Defendants are permanently enjoined from interfering, obstructing or impeding access to the right-of-way." Reconsideration was denied by order of June 26, 2007.

When compliance by the Curries did not occur, the Paulsons filed an initial motion to enforce litigants' rights, which was granted by an order, dated July 6, 2007, that

ORDERED that the Defendants are permanently enjoined from interfering, obstructing or impeding access to the 50' right-of-way or easement known as Halsey Oval.

Instead of complying with the injunction, the Curries proceeded to install a stockade fence along the property line they shared with the Paulsons, painting the side facing the Paulsons and one side of a shed that also faced the Paulsons bubble-gum pink. The Curries then installed deer fencing on both sides of their portion of the Halsey Oval, restricting the passage to five feet in width. These actions, together with the Curries' noncompliance with the court's injunction, precipitated another motion by the Paulsons in aid of litigants' rights. At oral argument on the Paulsons' motion, the Curries agreed to repaint all previously pink surfaces a dark green.

As we have previously stated, the chancery judge sanctioned the Curries with a fine of $4,500 for contempt of court. However, the judge denied the Paulsons' request that the Curries be ordered to remove the fencing that constricted the passage along the Halsey Oval through the Curries' property, which the Paulsons claimed violated the judge's April 25 order. In that regard, the judge stated:

I'm not going to require [the Curries] to remove the internal fencing at this time . . . .

If you feel that that's something that you want to amend, the the appeal should be amended as a cross appeal for the purpose of determining whether or not the putting in of that . . . additional fencing is a violation of my order, then I think that that's where it has to go because I'm finding that it isn't an outright violation of my order.

In an order dated October 5, 2007, the judge mistakenly ordered a sanction of $450. She also required that the Curries "unlock the gate and allow access to/from Halsey Oval path." However, as we have stated, she denied the Paulsons' application for removal of the fencing that constricted the Oval and denied the Paulsons' request for counsel fees, which the judge stated was for the amount of $3,000, as "excessive for matter presented."

Upon reconsideration, in an order dated November 5, 2007, the judge increased the fine to $4500, but again denied the Paulsons' application for removal of the internal fencing. In a statement of reasons, set forth on the order, the judge stated:

The court only corrects the amount of sanction. Movant must address "scope" of court orders in the Appellate Division where matter is on appeal. At this time, the gate is open as before sufficient to comply without being contemptuous at this time! The Appellate Division has jurisdiction to provide substantive direction, if needed.

The Paulsons filed a timely appeal.

Following our review of the facts of this matter in light of applicable law, we affirm the judge's summary judgment order of April 25, 2007, granting injunctive relief to the Paulsons, substantially for the reasons set forth in the judge's thoughtful oral opinion. We find no misuse of discretion in this case. Bubis v. Kassin, 353 N.J. Super. 415, 425 (App. Div. 2002), rev'd on other grounds, 184 N.J. 612 (2005). While we recognize that the Halsey Oval may not have remained entirely intact, we have been offered no principled reason why any further diversion from it should be permitted over the objection of the owners of the dominant estate. We are satisfied that the Curries did not offer the "strong showing of necessity" required to obtain the "extraordinary remedy" of relocation of the easement without the Paulson's consent. Kline v. Bernardsville Ass'n, Inc., 267 N.J. Super. 473, 480 (App. Div. 1993).

In reaching this conclusion, we distinguish Bubis, upon which the Curries primarily rely. In Bubis, supra, 353 N.J. Super. at 425, we found that the chancery judge's determination to permit relocation of an easement permitting beach access was not an abuse of the judge's discretion because the easement bisected the property, and enforcement of the easement would have a severe adverse effect on the beneficial enjoyment of the property by the owners of the servient estate. However, in Bubis, the judge found that access to the easement had not been permitted for many years. Id. at 420. Moreover, we noted that the original easement was not extinguished, and would be revived if the property were ever subdivided. Id. at 425-26. In contrast, in the present case, the Curries admitted that access to the easement had existed for twenty-four years before their unilateral determination to change its location. The order of April 25, 2007 is thus affirmed.

We also affirm the $4,500 penalty imposed by the chancery judge on the Curries as the result of their failure to comply with her April 25, 2007 and July 5, 2007 orders as neither excessive nor improperly punitive in nature. Rule 1:10-3 provides for monetary sanctions in circumstances in which a party has been held in contempt of a court's order or judgment. Such sanctions are intended to be coercive, not punitive. Pressler, Current N.J. Court Rules, cmt. 4.4.1 to R. 1:10-3 (2009). While the sanction need not be limited to the amount of the aggrieved party's actual damage, it must nevertheless be rationally related to the goal of imposing a "sting" on the offending party within its reasonable economic means, without being overwhelmingly punitive. Ridley v. Dennison, 298 N.J. Super. 373, 381 (App. Div. 1997). In that regard, we are satisfied from our review of the record that, in light of the Curries' expenditures on plantings, extensive fencing, and paint, the sanction was well within their economic means. Moreover, we note that the sanction was imposed only after the Curries had ignored a prior July 6, 2007 order that the gate to the Oval be opened, and that the Curries at no time sought a court order relaxing the time for compliance until they had completed their various fencing projects. In these circumstances, we find no abuse of discretion in the judge's award.

As we have previously stated, the Paulsons have appealed from portions of the judge's orders of October 5, 2007 and November 5, 2007. In that connection, the Paulsons argue that the Curries were required to restore the easement to its prior condition, and thus were required to remove the internal fencing that substantially constricted the width of the easement. They argue further that, when the judge entered her order of July 5, 2007, stating that the "gate must be opened and access [allowed] as before," (emphasis supplied), the judge implicitly confirmed that she required access to be provided to the entire width of the easement.

We regard the issue of the scope of the easement to have been properly raised before the motion judge, but not decided by her, and we remand for further consideration of that issue. R. 1:7-4; Shulas v. Estabrook, 385 N.J. Super. 91, 96 (App. Div. 2005) (requiring an adequate explanation of basis for court's action); In re Commitment of M.M., 384 N.J. Super. 313, 332 (App. Div. 2006) ("the narrow scope of appellate review is not the equivalent of a grant of unbridled discretion or a license to avoid meticulous fact-finding in light of the controlling legal standards."); State v. Roper, 362 N.J. Super. 248, 252-53 (App. Div. 2003) ("it is the trial court's responsibility in the first instance to address and render a reasoned opinion upon any question brought before it, not to avoid the issue and defer it entirely to this court.").

Upon remand, the judge should also reconsider the issue of an allowance of counsel fees to the Paulsons pursuant to Rule 1:10-3. In that regard, the judge held that the fees incurred by the Paulsons were "excessive." She did not consider whether an award of a lesser amount would be appropriate in the circumstances or otherwise explain her rationale in denying fees. S.N. Golden Estates, Inc. v. Continental Cas. Co., 317 N.J. Super. 82, 91 (App. Div. 1998) (requiring trial court to make specific findings regarding the reasonableness of legal services and fees).

Affirmed in part and remanded in part.

In 2003, the Curries applied to the Township of Jefferson Planning Board for minor subdivision approval to redistribute property among four existing properties. The application was granted "subject to and conditioned upon the applicant providing an easement to the public for use of and access around the subject property to the nearby well." The easement was to be shown on plans submitted for the Board Engineer's review.

For a period of time, the passage remained obstructed at its far edge by a fence constructed by the Curries' neighbors on that side. However, it appears that the obstruction has been removed.

(continued)

(continued)

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A-5762-06T3

March 17, 2009