EMIL A. BEYER v. CUTLER BROTHERS BOX & LUMBER COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3382-08T13382-08T1

EMIL A. BEYER,

Plaintiff-Respondent/

Cross-Appellant,

and

PEDIGREE HOLDING GROUP, LLC,

Plaintiff,

v.

CUTLER BROTHERS BOX & LUMBER

COMPANY,

Defendant-Appellant/

Cross-Respondent,

and

THE BOROUGH OF CLIFFSIDE PARK

and THE BOROUGH OF FAIRVIEW,

Defendants.

____________________________________

 

Submitted April 21, 2010 - Decided

 
Motion for reconsideration granted.

Resubmitted June 9, 2010 -- Decided

Before Judges Miniman and Waugh.

On appeal from Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. C-237-07.

Law Offices of Peter W. Till, attorneys for appellant/cross-respondent (Mr. Till and Yale Han, on the briefs).

Schenck, Price, Smith & King, LLP, attorneys for respondent/cross-appellant (Kurt G. Senesky and Edward J. Trawinski, on the brief).

PER CURIAM

This appeal concerns rights to a private roadway, known as West Prospect Avenue, on property located in the Borough of Fairview. Plaintiff Emil Beyer holds title to the roadway. Beyer, plaintiff Pedigree Holding Group, L.L.C., and defendant Cutler Brothers Box and Lumbar Company own adjacent property. Pedigree and Cutler Brothers each have an easement to access their property by means of the roadway.

In 2007, a dispute arose among the parties with respect to Cutler Brothers' alleged blocking of Pedigree's use of the roadway. Beyer and Pedigree filed suit against Cutler Brothers, seeking injunctive relief, and Cutler Brothers counterclaimed alleging that it owned the disputed portion of the roadway through adverse possession. Plaintiffs' application for preliminary injunctive relief was denied following an evidentiary hearing. Pedigree withdrew as a plaintiff following that denial.

After a bench trial on December 9, 2008, the Chancery Division held that Cutler Brothers had obtained title to some portions of the disputed area through adverse possession, but that it had not obtained title to the entire roadway adjacent to its property. Cutler Brothers appealed, arguing that the trial judge erred in determining that it had acquired title only to limited portions of the roadway. Beyer cross-appealed, arguing that the judge erred in finding that Cutler Brothers had acquired title to any portion of the roadway.

On May 13, 2010, we vacated the order on appeal and remanded to the trial judge for reconsideration. We did so because we concluded that the judge had applied the wrong standard of proof. We relied upon Meyers v. Pavalkis, 73 N.J. Super. 208, 214 (App. Div. 1962), in which we held that "one who claims title by adverse possession has the burden of proving, by clear and convincing evidence, possession which is actual and exclusive, open and notorious, continued and uninterrupted, and adverse . . . for the statutory period." See also Mulford v. Abott, 42 N.J. Super. 509, 512-13 (App. Div. 1956); DeBow v. Hatfield, 35 N.J. Super. 291, 297 (App. Div.), certif. denied, 19 N.J. 327 (1955); Vagnoni v. Gibbons, 251 N.J. Super. 402, 409 (Ch. Div. 1991).

Beyer moved for reconsideration, drawing our attention to the contrary holding of Patton v. North Jersey District Water Supply Commission, 93 N.J. 180, 187 (1983). In Patton, the Supreme Court held that "[t]he burden of proof always remains on the party claiming title by adverse possession to establish the aforementioned elements by a preponderance of the evidence." Ibid. We granted the motion for reconsideration and temporarily withdrew our opinion pending that reconsideration. We are, of course, bound by the Supreme Court's holding in Patton that the appropriate standard of proof is "a preponderance of the evidence." Consequently, we permanently withdraw our prior opinion and proceed to decide the appeal based upon the Patton standard.

I.

We briefly outline the facts discerned from the record.

Beyer testified at the trial that he is a principal of Beyer Brothers, a dealership involved in the sale and repair of trucks. Beyer purchased title to the roadway along with an adjacent parcel of land on May 9, 1990. The deed described the roadway as an "undedicated private roadway which is not assigned a lot and block number." Beyer's parcel was adjacent to Cutler Brothers' property.

Before purchasing the land, Beyer walked down the middle of the roadway, inspected it, and observed no obstructions. Any pallets he observed at that time were on Cutler Brothers' property and not on the roadway. Beyer acknowledged that his inspection of the roadway was not a thorough examination, and that it lasted no more than a minute or so.

Beyer knew at the time he purchased the property that all owners of property abutting the roadway had ingress and egress easements. A few years prior to filing suit, Beyer began receiving complaints about the condition of the roadway from other landowners. They asserted that the roadway was often partially blocked, and sometimes completely blocked, by trucks that were going to and coming from Cutler Brothers' property.

Beyer observed that the blockage caused by the trucks had increased over time. He also observed, on many occasions, that "[t]he volume of pallets expanded in all directions to the point where they were butted up against our property at the southwest corner, and collapsed and knocked our fence down on a couple of occasions," while "[o]n the north corner [the pallets were being moved] toward the street, and actually moved into the street."

Bridget Tapkas, Beyer's daughter and the in-house counsel for Beyer Brothers, testified that she received a complaint from one of the neighboring landowners around 2003, and observed that tractor trailers were obstructing the roadway. Upon her inspection of the roadway, she did not see any other obstructions at that time. In 2004, she had a letter written to Cutler Brothers after it was discovered that their dust bin and concrete pad were encroaching on the roadway. Tapkas testified that she first became aware of pallets in the roadway in 2006. She stated that the pallets were at the "very end of the roadway, probably two pallets deep, which would be about maybe six feet wide and maybe two to three pallets in width."

During the trial, Beyer introduced a number of aerial photographs, from 1954, 1966, 1979, 1987 and 1995. Tapkas testified that she did not see any pallets on the three oldest photographs, that it was unclear as to whether there were any on the 1987 photograph, and that it looked as though there was an obstruction in the roadway on the 1995 photograph, although she could not identify the obstructing object.

Beyer relied on a survey by Arthur James Schappell, Jr., a licensed land surveyor, showing several items that intruded upon the roadway from Cutler Brothers' property. Schappell testified that he had been requested to prepare a survey of the roadway in June 2007. Beyer introduced this survey and another survey that had been prepared for him on May 4, 1990, a few days before he purchased the property. Schappell testified that while preparing the survey he recorded the location of a dust bin, a building, a number of concrete pads, a dumpster set against one of the buildings, and piles of stacked pallets, all of which had been encroaching on the roadway. Schappell noted that the encroaching objects were not included on the 1990 survey, but acknowledged that their absence from the survey did not mean those items were not on the property at that time.

At the end of his case, Beyer voluntarily withdrew some of his claims. His counsel clarified that the obstructions from which Beyer sought relief were the "pallets, the pad upon which the kiln rests, and the dust bin."

At the time of the application for preliminary injunctive relief, Greg Cutler (Greg), an owner of Cutler Brothers, certified that it obtained title to its property adjacent to the roadway on August 1, 1951. Greg's father helped establish the business, which consists of manufacturing wooden pallets and boxes. According to Greg, Cutler Brothers has consistently used the roadway for ingress and egress in accordance with the express easement in its deed, and has had its trucks load and unload on the roadway. Greg certified that Cutler Brothers had continuously stored pallets and had a dust bin at the end of the road since 1951.

At trial, Greg identified the location of Cutler Brothers' buildings, the kiln, and dust bin. He acknowledged that the dust bin was partially on the roadway. Greg, who was fifty-nine years old at the time of the trial, testified that the dust bin and its asphalt base, placed across a section of the roadway, had been there since he was five years old.

Greg also testified that pallets were stored on part of the roadway, and identified that area on one of the surveys. When asked how long the pallets had been there, Greg stated, "I can't speak for 1951 because I was two years old, and then I wasn't working there, but as long as I recollect ... this space, this area has been used for storage, whether it be pallets, boxes, parking a car, I mean, it's always been filled."

Greg testified that Cutler Brothers had placed concrete on the road to repair the asphalt. The concrete is at the same level as the roadway. According to Greg, his father had also repaired the roadway, and stoned and tarred the roadway for maintenance purposes. Greg never spoke with Beyer about those repairs because he was not aware that Beyer owned the roadway. He testified that Cutler Brothers had the roadway plowed when it snowed, and that the plowing was done past Beyer's property and out to Broad Avenue. Greg stated that, as long as he has been there, Cutler Brothers never placed any structure in the street, "unless it's way in the back," i.e., close to the dead end of the roadway.

On December 16, 2008, Judge Peter E. Doyne issued a written opinion. He concluded that Cutler Brothers had put forth a successful counterclaim for adverse possession and explained his reasoning:

Here, the focal point of the dispute is whether the storage of the pallets at the west end of [the roadway] by the defendant has been "continuous" . . . .

. . . .

Plaintiff's counsel conceded, as he must, the defendant was not required to show the exact same pallets were at the same location, but rather, defendant was obligated to demonstrate a "continuous" use of the westerly end of [the roadway]. Clearly, there is a divergence of testimony in this regard.

The court is satisfied the defendant's position is the favored one, at least by the standard of a preponderance of the evidence. The same is not to suggest either Beyer or Tapkas testified untruthfully. Rather, it is simply a reflection that the plaintiff, his daughter, and Beyer Brothers had little regard or concern to the westerly end of [the roadway]. The evidence established the defendant maintained the roadway, plowed the roadway and took any and all actions necessary to make it useable for the defendant. The plaintiff's acknowledgment he is attempting to gift the street to Fairview demonstrates the roadway was of no use to the plaintiff and, rather, simply represented a "headache" when other adjoining landowners complained about the presence of tractor trailers on the roadway obstructing their use of the same.4 Although mindful Beyer testified prior to purchasing the property he did a cursory review of the roadway, at that time, and for that matter at any time thereafter, the presence of pallets at the end of the roadway would have been of no moment to the plaintiff. Conversely, though, the use of the end of the roadway has formed an essential part of the defendant's business, which is the manufacture and selling of pallets. That Cutler would have thought that he . . . owned [the roadway], at least to the extent of the easterly boundary of its property, is understandable. There is no suggestion in the record anyone used this section of [the roadway] other then the defendant and/or the trucks that came and went from the defendant's premises and then had to proceed in an easterly direction to enter upon Broad Avenue. It simply is not comprehensible that the defendant paid strict obeisance to the ownership of [the roadway] from 1951 to date when Cutler, and presumably his father and uncle, had always thought they owned the street as they maintained it and were the only users at least to the extent of its property. The aerial photographs, separate and apart from being totally obscure, do not prove to the contrary as no pallets are shown on any of the photographs, at least to the court's view. There is no suggestion [that Cutler] has not stored pallets, at least upon his property, since 1951 and no explanation is afforded as to why the aerial photographs do not reflect the presence of any pallets. Rather, it would appear, the aerial photographs were not of a sufficient technological ability to discern the presence of stacked pallets.

________

4 Parenthetically, it is noted, although this was a major area in dispute during the pendency of the matter, the plaintiff abandoned any and all claims concerning the same.

The judge found that the dust bin extended onto the roadway by 2.84 feet, but that there was no evidence that any changes had been made to that structure since 1951. While acknowledging that there was an encroachment, the judge found that it "in no way interferes unreasonably with the plaintiff's use of [the roadway]." He further found that the kiln does not rest on the portion of concrete that extends into the roadway and that the concrete pad is "merely a replacement for the asphalt surface and in no way constitutes an encroachment."

One of Cutler Brothers' buildings was found to extend 4.53 feet into the roadway, but the judge noted that the building was not included when Beyer's counsel listed the trespassing obstructions at issue during the trial. The judge further concluded that, even if Beyer considered it an encroachment, it was de minimis and any claims related to the building were barred by laches. The pallets were found to be a de minimis trespass, and neither the pallets nor the building were found to interfere with Beyer's use of the roadway. Beyer's request for ejectment or injunction was denied. However, the judge awarded plaintiff one dollar in nominal damages for trespass resulting from the storage of pallets on the roadway, and entered an appropriate judgment on December 30, 2008.

Cutler Brothers' claim of adverse possession was partially granted. On January 30, 2009, the judge entered a supplemental order specifying a portion of the road which he determined belonged to Cutler Brothers through adverse possession. The area is a diagonal section of the roadway, consisting of 513 square feet at the dead-end portion of the roadway.

This appeal and cross-appeal followed.

II.

In this appeal, we review a decision reached by the trial judge following a bench trial. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). We do not disturb the factual findings and legal conclusions of the trial court unless we are convinced that "'they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Id. at 412 (quoting Rova Farms, supra, 65 N.J. at 484); see also Beck v. Beck, 86 N.J. 480, 496 (1981). "Whether the facts found by the trial court are sufficient to satisfy the applicable legal standard is a question of law subject to plenary review on appeal." State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).

Having carefully reviewed the record on appeal, the applicable law, and the trial judge's decision, we affirm for the reasons stated by Judge Doyne in his comprehensive and thoughtful opinion. We conclude that his factual findings were fully supported by the record. We add only the following.

Cutler Brothers argues that the trial judge should have determined that it owned the entire section of the roadway adjacent to its property, pointing in particular to its regular use of that section, the repairs effectuated at its expense, and the fact that it plowed the roadway when it snowed. However, those actions are not beyond the rights of the holder of an easement because they are necessary for its enjoyment. Tide-Water Pipe Co. v. Blair Holding Co., 42 N.J. 591, 604 (1964) ("Equally well recognized is the corollary principle that there is, arising out of every easement, an implied right to do what is reasonably necessary for its complete enjoyment, that right to be exercised, however, in such reasonable manner as to avoid unnecessary increases in the burden upon the landowner."); Hyland v. Fonda, 44 N.J. Super. 180, 189-90 (App. Div. 1957). Consequently, they cannot be considered actions adverse to the rights of the title owner of the roadway. We take the same view with respect to the occasional use of the sides of the roadway to park vehicles or for loading and unloading.

The fact that the Cutlers may have thought they actually owned the roadway is irrelevant to a claim of adverse possession. The failure of the owner to commence a timely action to reassert title "is relevant only if the owner has had notice, actual or constructive, that another considers himself to be, or is using the property as, the owner." Patton, supra, 93 N.J. at 186. Here, Cutler had an easement to use the roadway, so its use, which was generally consistent with its easement rights, and the Cutlers' unarticulated belief that they were the owners are insufficient to warrant a finding of ownership of the entire roadway by adverse possession.

With respect to the cross-appeal, we are satisfied that Judge Doyne's factual conclusions with respect to the continuous use of the far end portion of the roadway for storage of pallets for an extended period of time, thereby resulting in a transfer of title by adverse possession, was supported by the evidence and consistent with applicable law. The protracted storage aspect of Cutler Brothers' activity was not within the normal usage of an access easement.

Affirmed.

 

We note that, although the parties and the trial judge all cited Patton, none of them cited it for the issue of the burden of proof. In addition, Cutler Brothers' brief opposing the cross-appeal, which did not cite Patton, did not respond to Beyer and Pedigree's argument that the clear and convincing evidence standard was applicable.

The dust bin, sometimes referred to in the record as a "dust hopper," was identified by Cutler Brothers as a structure "that must be thirty or forty feet in the air, ... a vacuum system with pipes all over the building, and it sucks the sawdust away from the machines that cut the lumber ...."

(continued)

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A-3382-08T1

May 13, 2010

August 19, 2010