GERALD S. SMOTHERGILL v. BARRY HIRSCHBERG

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5119-08T35119-08T3

GERALD S. SMOTHERGILL

AND LYNN SMOTHERGILL,

H/W,

Plaintiffs-Respondents,

v.

BARRY HIRSCHBERG AND

ELIZABETH HIRSCHBERG,

Defendants-Appellants,

and

NICOLA A. LEPORE, Official

of the Borough of Northvale

and the Borough of Northvale,

Defendants.

________________________________

 

Argued March 22, 2010 - Decided

Before Judges Reisner, Yannotti and Chambers.

On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. C-345-07.

Michael R. Scully argued the cause for appellants (Michael R. Scully, L.L.C., attorneys; Mr. Scully, on the brief).

Kenneth A. Porro, argued the cause for respondents (Wells, Jaworski & Liebman, L.L.P., attorneys; Mr. Porro and Darrell M. Felsenstein, on the brief).

PER CURIAM

Defendants Barry and Elizabeth Hirschberg appeal from a May 5, 2009 judgment confirming a right of way in favor of plaintiffs Gerald S. and Lynn Smothergill, and defining the boundaries of the right of way. We affirm.

I

This case arises from a dispute between neighbors over an easement. The procedural history is recited in detail in Judge Contillo's comprehensive written opinion issued March 3, 2009 and need not be repeated here. These are the most pertinent facts.

Plaintiffs' property, at 409 Holly Place in Northvale, New Jersey, appears on municipal tax maps as lot nineteen block, 106. Plaintiffs acquired their property from Metropolitan Sheet Metal, L.L.C. on March 23, 2007. Plaintiffs' lot is improved with a single-family home, and fronts on Holly Place. Defendants, their next-door neighbors, own property known as 403 1/2 Argenti Place, or lot eighteen, block 106. Defendants purchased their property from Joseph and Michele Seboek on October 4, 1978.

Although defendants' property has an address on Argenti Place, the property is a "flag" lot with no direct access to any public road. Over the years, defendants and their predecessors have used an unpaved path which abuts their property to access Argenti Place. This path is depicted on municipal tax maps as a 33-foot wide right of way (ROW) stretching approximately 400 feet between Holly Place and Argenti Place. Holly Place runs perpendicular to Argenti Place, but terminates at the ROW; on the tax maps, the ROW thus appears to be a de facto extension of Holly Place, which allows access from Holly Place to Argenti Place.

The ROW abuts thirty-five feet of the southeast corner of plaintiffs' property, the full length of defendants' property and the full length of lot seventeen, owned by the Dolans (Dolan lot). On the other side of the ROW are lots three, four and five, owned by DelVecchio, and lot six, owned by the Cappabiancas. Like defendants' property, lots four and five would be landlocked without access to the ROW.

Shortly after plaintiffs acquired their property in 2007, the current dispute arose regarding plaintiffs' right to use the ROW. Defendants claimed exclusive ownership over the ROW, which they sought to protect by erecting "No Trespassing" signs and by installing a fence. This lawsuit followed.

The underlying documents regarding the historical background of the ROW are undisputed. On January 10, 1910, Della McIndoe conveyed to Julia Delo (Julia) a large tract (JD tract) in Northvale. The JD tract would have been landlocked, except that at the same time that Julia acquired the property, she also acquired an access easement from Horace and Cary German, who owed land to the east of the JD tract.

The German tract abutted East Avenue, a major roadway which still exists. On December 31, 1910, the Germans granted Julia and her successors the right to cross a path 16.5 feet wide, which ran along the southerly line of the German tract, to access East Avenue. The deed (German deed) provided that this ROW (ROW 1) would terminate when public access to and from Julia's property became available.

The parties' expert witnesses agreed that, in the following years, the JD tract was divided into smaller parcels, and a network of interconnecting rights-of-way was created between 1910 and 1927 to provide the landowners within the original JD tract with ways to connect to ROW 1, and thereby access East Avenue.

On May 26, 1923, Julia's heir, Henry F. Delo (Henry), made two conveyances simultaneously. He conveyed what is currently designated on tax maps as lot sixteen to a grantee who is identified in the record as "Rathburn." Then, to his wife, Emily Delo (Emily), Henry conveyed a rectangular plot measuring 400 by 73.25 feet (ED tract). The ED tract would currently consist of the southeast corner of plaintiffs' property, all of defendants' property, and the Dolan lot.

Henry's deed to Emily (1923 deed) created a right-of-way (ROW 4) by

[e]xcepting and reserving [from the grant] a right-of-way sixteen (16) feet in width along the southerly line of the above described premises running easterly and connecting with certain other rights-of-way described in deeds recorded in the Bergen County Clerk's office in book 776 of deeds page 258 [or ROW 1] book 896 of deeds page 148 [or ROW 3] and the deed to Rathburn and wife above referred to said rights-of-way to be for the lawful use and benefit of all owners of the premises herein described as well as owners of other lands of the grantor situate[d] west of said premises.

[Emphasis added.]

On August 14, 1923, Emily and Henry divided the 400 by 73.25 foot ED tract, and conveyed the western portion (western half) measuring 200 by 73.25, to Richard and Laura Hansen. The western half would currently cover the southeast corner of plaintiffs' property and all of defendants' property. This deed featured the same "excepting and reserving" language recited in the 1923 deed. On June 28, 1928, Emily conveyed the remaining eastern half of the ED tract, currently known as the Dolan lot, also measuring 200 by 73.25 to Harold Graham. There appears to be no dispute that this deed contained the same "excepting and reserving" language found in the 1923 deed, however the width of the ROW was described as measuring 16.5 feet instead of sixteen-feet as described in the 1923 deed.

On November 6, 1928, Emily re-acquired the western half of the initial ED tract from the Hansens. This deed (1928 deed) recited the same "excepting and reserving" language found in the initial 1923 deed with regard to the sixteen-foot ROW. On April 30, 1946, Emily and Henry conveyed this western half, again described to measure 200 by 73.25 feet, to Henry Alfred Delo and his wife, Helen S. Delo (the Delos). The "excepting and reserving language" in this deed (1946 deed) deviated from the prior deeds related to this specific parcel, in that the ROW was described as 16.5 feet wide, rather than sixteen feet. Otherwise, the 1946 deed purported to transfer the "same premises which were [re]conveyed to" Emily in 1928.

In 1976, the Delos subdivided their parcel into two smaller lots. The map submitted in connection with the subdivision application indicated that the resulting parcels would be served by a ROW but did not indicate the dimensions of the ROW. On March 17, 1976, the Delos conveyed to Henry and Sonia Olson the western portion of the lot measuring 56.75 by thirty-five feet (Olson parcel). The Olsons' deed did not expressly mention a ROW, but described the grant as being a portion of the same property conveyed to the Delos in 1946.

On June 4, 1976, the Delos conveyed the eastern portion of the subdivision to defendants' predecessors, the Seboeks. The grant to the Seboeks measured 165 by 56.75 feet, and similar to the Olson conveyance, made no specific reference to any ROW. However, the Seboek deed also described the grant as being the same premises that had been conveyed to the grantors by Emily and Henry in 1946.

On October 4, 1978, the Seboeks conveyed their property to defendants, in a deed which described the premises as measuring 165 by 56.75 feet, and being the same premises which the Delos had conveyed to the Seboeks. The deed indicated that the property was subject to "easements and rights of way set forth in Deed Book 776 Page 258 [German Deed] and Book 2 632 Page 586."

Through a separate set of conveyances, the Olson parcel became part of the property which plaintiffs eventually acquired. Thus, when plaintiffs bought the property, they acquired a parcel the southeast thirty-five feet of which abuts the disputed ROW. The issue is whether, by virtue of this thirty-five feet of frontage on the ROW, plaintiffs have the right to use the ROW to go to and from their property east to Argenti Place and west to Holly Place.

On October 6, 2007, the day after plaintiffs filed their complaint in this action, defendants obtained a quit claim deed from Helen Delo purporting to convey whatever interest Helen had, if any, to "[t]he strip of approximately thirty-three (33) feet wide by approximately four hundred (400) feet long which runs between the eastern boundary of Holly Place and the western boundary of Argenti Place."

Plaintiffs presented expert testimony from Philip Cerruti, a real estate attorney and licensed title producer. Cerruti opined that plaintiffs' entitlement to use ROW 4 derived from the rights appurtenant to the Olson parcel. Cerruti testified that defendants' property and the Dolan lot also had the benefit of the ROW. Thus according to Cerruti, the defendant's property and its neighboring lots were not landlocked.

Initially, Cerruti stated that Henry F. Delo had retained fee ownership of ROW 4, and that the lands conveyed to Emily in 1923 represented the dominant estate. However, Cerruti later testified that Emily's land was servient, and that Emily had been granted fee ownership in the full 400-by-73.25 foot tract. Cerruti conceded that as of May 1923, Emily would not have needed ROW 4 to access any public roads, because the ED tract abutted what was then ROW 3, now Argenti Place. However, he asserted that whether or not the ED tract was established to be servient, once the ED tract was subdivided the resulting parcels would be landlocked without the ROW; the purpose of creating the ROW was to ensure that both Emily's and Henry's land would have access to public roads even after the properties were subdivided. Because easement rights were perpetual and ran with the land, Cerruti concluded that the 1923 deed gave both parties the right to utilize ROW 4.

Cerruti further testified that the half-foot discrepancy in the sixteen-foot wide ROW described in the 1923 deed and the 16.5-foot ROW described in the 1946 deed was insignificant. He explained that such deviations were common, and that such measurements could vary depending on the surveyor, changes in topography and differences in the beginning points.

Finally, Cerruti discounted the significance of the quit claim deed defendants obtained from Helen, which purportedly gave defendants exclusive ownership rights over the full thirty-three-foot-wide ROW. Cerruti testified that Helen could not convey those rights because not all of that land was in her chain of title. Further, he opined that even if Helen owned the thirty-three foot strip of land, it would be subject to the easement until and unless the easement was legally extinguished, an event that had not occurred.

Defendants presented testimony from Wendy Lathrop, a professional planner and licensed land surveyor. Lathrop testified to a complex theory supporting her opinion that plaintiffs had no right to use ROW 4. Lathrop first asserted that the 1923 deed conveyed only a servient estate to Emily which was subject to the dominant, non-exclusive rights of Henry. Emily herself did not need, and thus did not acquire, any rights to ROW 4, because the ED tract already abutted ROW 3.

Lathrop next explained that the thirty-three-foot-wide ROW that is depicted on recent municipal maps is an erroneous portrayal of what is actually three separate ROW's combined: 1) ROW 4, which is the subject of this dispute; 2) a 16.5-foot ROW (ROW 5) which runs parallel to ROW 4 and purportedly originates in the chain of title for lots three, four, five, and six; and 3) a shorter 16.5-foot ROW (ROW 6) which abuts the Dolan lot, and was allegedly created in 1928 for the sole benefit of the Hansens after Emily conveyed the eastern half of the ED tract to the Grahams.

Unlike Cerruti, Lathrop viewed the 16.5 foot wide ROW referenced in the Graham deed to be an entirely new ROW, rather than a clarification of ROW 4's dimensions as described in the 1923 deed. Thus, according to Lathrop, after Emily conveyed the eastern half of the ED tract to the Grahams in 1928 the Hansens were landlocked. But because only Henry had dominant rights to ROW 4, ROW 6 was created so that the Hansens could cross the Graham parcel and gain access to the public roads. Lathrop did not explain, however, how the Hansens could have legally crossed that property while it was in Emily's possession.

Third, Lathrop maintained that the Delos' two conveyances in 1976 created a half-foot gap between the parties' properties and ROW 4. One portion of the gap purportedly arose because when the Delos conveyed the 56.75-foot by 35-foot parcel to the Olsons in March 1976, they retained the land which comprised the one-half-foot-wide gap between the Olson parcel and ROW 4. The other portion of the half-foot gap allegedly arose when the Delos conveyed their remaining holdings, 165 feet by 56.75, to the Seboeks in June 1976, again retaining the one-half-foot-wide gap between the Seboeks parcel and ROW 4.

Accordingly, Lathrop opined that neither plaintiffs nor defendants, including their respective predecessors, could have legally accessed ROW 4 without trespassing upon the one-half-foot gap retained by the Delos. Lathrop conceded that such an arrangement would have landlocked the parties' lots. However, she claimed that this alleged gap was closed with respect to defendants' property with their acquisition of Helen's quit claim deed in 2007.

Finally, Lathrop claimed that any rights which may have existed in the Olson parcel were extinguished when plaintiffs' property that originated in Henry's dominant estate west of the ED tract merged with the Olson parcel, which Lathrop claimed was part of Emily's servient estate. Moreover, any dominant rights appurtenant to Henry's lands were extinguished when those lands were foreclosed, subdivided and developed, and when public roads were established to eliminate the need for the existing ROWs.

In addition to the experts, the trial court heard testimony from a number of fact witnesses concerning their use of the ROW. Three witnesses testified that they had lived in the neighborhood for years and were familiar with the ROW. All three had traversed the ROW to get from Holly Place to Argenti Place, and believed that the path was open for public use. One of the witnesses took his children sleigh-riding on the ROW in the 1980's.

Lynn Smothergill testified that she used the ROW to walk her daughter to school, and had seen other individuals use it. She indicated that because of the topography of her lot, lack of access to the ROW interfered with her ability to access the southeast corner of her property. Defendants presented testimony from a neighbor who had owned the Dolan lot from 1964 to 2002, and had personally known the Delos. She never knew for certain who owned the ROW, but believed that the ROW was part of the Delos "yard." In her testimony, Elizabeth Hirschberg denied seeing other people use the ROW and alleged that the topography of the area rendered portions of the ROW impassable.

Called as plaintiffs' witness, Barry Hirschberg admitted that when he applied for Veteran's Administration (VA) financing to buy the property, he sent the VA a letter acknowledging that "the premises which I have contracted to buy is located on a private right-of-way and that the only access to the house and grounds is across said right-of-way." He testified, however, that he believed the ROW was intended to permit defendants to reach Argenti Place from their property, not to permit anyone else to have access to Holly Place. He later contended that he believed defendants had "owned" the entire 400-foot ROW since 1978.

Following the bench trial, Judge Contillo issued a lengthy written opinion. The judge construed the deeds in the chain of title, and accepted the testimony of plaintiffs' expert concerning those deeds. He rejected the opinions offered by defendants' expert as inconsistent with the deeds or with common sense.

The court found it was undisputed that ROW 4 derived from the "excepting and reserving" language in the 1923 deed. The court concluded that the intent of ROW 4 was to provide access to East Avenue via a network of interconnecting ROWs. However, the court rejected Lathrop's theory that Henry had intended only his own lands west of the ED tract to benefit from ROW 4. The court reasoned that acceptance of defendants' reading would mean that Henry and Emily had intended to landlock the ED tract:

The purpose of the right of way was to access other rights of way leading to the then closest existing public roadway, East Avenue. It is clear . . . that this right of way is non-exclusive: it is ". . . for the lawful use and benefit of all owners of the premises herein described as well as owners of other lands of the grantor situated west of said premises". Contrary to the suggestion raised by [defendants], it was not a one-way right of way, i.e., allowing rights over it only in an "easterly" direction. The ". . . running easterly . . ." language is descriptive of where the right of way exists in situ. There is no evidence in the case that there are such things as one way easements, and logic dictates otherwise: could it be that rights were created in order to assure that persons would have rights to get out to East

Avenue, but not to return? It seems highly unlikely.

The court found additional support for its interpretation of the 1923 deed in Henry and Emily's conveyance to the Hansens three months later:

It is fair to infer and I so find that the right of way reflected in the May, 1923 conveyance to Emily was done knowing that her piece would then be divided in half, as it was in August, 1923, and that the divided off portion would retain rights to the right of way, just as Emily's retained half also retained her rights to the right of way.

On November 6, 1928, the Hansens convey back to Emily what she had conveyed to them in 1923. . . . The "[e]xcepting and reserving []" language is preserved, thereby giving to Emily all that she had conveyed in

1923, right of way rights included.

The court also found that the deeds which followed the 1923 deed recited the same language, with the exception of the 1946 deed which described ROW 4 as measuring 16.5 feet rather than sixteen in width. However, the court characterized this change as a "modification or correction [that] may [have] owe[d] to the more exact measurements employed by the surveyor." The judge interpreted the 1946 deed as preserving right of way entitlements rather than extinguishing them, because the 1946 deed described the grant as being "same premises" which were reconveyed, thereby "strengthening the likelihood that the 16.5' is a correction and not a modification . . ."

II

On this appeal, defendant's raise the following points for our consideration:

POINT I: THE 1923 DEED DID NOT VEST ANY EASEMENT RIGHTS IN GRANTEE.

POINT II: THE SUBDIVIDED PARCEL WAS A PORTION OF THE SERVIENT TENEMENT FOR THE RIGHT-OF-WAY RESERVED TO THE GRANTOR FOR THE BENEFIT OF THE GRANTOR'S WESTERN PROPERTIES, NOT A DOMINANT TENEMENT, THEREFORE NO BENEFICIAL RIGHTS WERE ATTACHED TO THE SUBDIVIDED PARCEL UPON ITS SUBDIVISION AND SUBSEQUENT SALE.

POINT III: THE TRIAL COURT HAD NO AUTHORITY TO EXPAND THE WIDTH OF THE RIGHT-OF-WAY SPECIFIED IN THE 1923 INSTRUMENT BEYOND THE SPECIFIED DIMENSIONS.

POINT IV: ONCE THE PURPOSE OF THE EASEMENT NO LONG EXISTED, IT WAS IMPROPER FOR THE TRIAL COURT TO EFFECTUATE WHAT AMOUNTS TO BE A NEW, EXPANDED EASEMENT.

POINT V: THE STATUTE OF LIMITATIONS OUGHT TO HAVE BEEN APPLIED TO BAR THE PLAINTIFFS FROM ENFORCING THE 1923 EASEMENT RIGHTS.

POINT VI: THE TRIAL COURT ERRONEOUSLY FAILED TO ESTABLISH THE OWNERSHIP RIGHTS OF THE DEFENDANTS IN THE PROPERTY IN QUESTION.

POINT VII: THE TRIAL COURT ERRONEOUSLY PERMITTED THE PLAINTIFFS TO, IN EFFECT, AMEND THE COMPLAINT ON THE EVE OF TRIAL.

POINT VIII: MISCELLANEOUS ERRORS.

POINT IX: THE NATURE OF THE TRIAL COURT'S ERRORS ALLOWS FOR REVERSAL WITH DIRECTIONS THAT A CORRECTIVE JUDGMENT BE ENTERED WITHOUT THE NEED FOR FURTHER TRIAL PROCEEDINGS.

Having reviewed the record, we conclude that these arguments are all without merit and, except as discussed below, they do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons stated in Judge Contillo's thorough written opinion, which is supported by substantial credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974); R. 2:11-3(e)(1)(A).

We find no abuse of discretion in the judge's decision to permit plaintiffs to rely at trial on a 1923 deed instead of the 1910 deed originally cited in their complaint. Defendants had ample notice of this change in plaintiffs' theory of the case, and the judge gave defendants an opportunity to engage in additional discovery prior to trial. Defendants declined this opportunity and chose to proceed with the scheduled trial.

Addressing the right of way, as the judge observed, it "derives from recorded instruments, not from claims of adverse possession, easement of necessity or prescriptive easement." Therefore, it is irrelevant whether the Smothergills currently need to use the right of way in order to avoid having their property landlocked, or whether they use the ROW frequently or infrequently. They are entitled to use the right of way by virtue of their deed. See Freedman v. Lieberman, 2 N.J. Super 537, 544 (Ch. Div. 1949); Gera v. Szenzenstein, 130 N.J. Eq. 164, 165 (Ch. 1941).

It is also irrelevant whether the deeds to the Smothergills or to their predecessors in title, the Olsons, specifically reference the easement. As Judge Contillo correctly noted, the easement, once created in the 1923 deed, ran with the land regardless of whether it was mentioned in subsequent deeds. See Mitchell v. D'Olier, 68 N.J.L. 375, 383-84 (E&A 1902). We find no merit in defendants' contentions that plaintiffs are overburdening the easement or extending its use to a parcel not benefited by the easement. Diocese of Trenton v. Toman, 74 N.J. Eq. 702, 709-10 (Ch. 1908), on which defendants rely, is not on point. Plaintiff's property is one lot. Unlike Toman, they are not seeking to use the right of way for the benefit of an additional adjoining property that does not abut the right of way.

We find no error in Judge Contillo's decision to credit plaintiff's expert witness instead of defendant's expert. We agree with Judge Contillo that the Hirschbergs' litigation position, as articulated through their expert, was fundamentally irrational, because it would result in their own property being landlocked. Their argument requires one to ignore language in their deed making their title "subject to easements and right-of-way;" to conclude that their predecessors in title created defendants' lot as a landlocked parcel; and to conclude that their predecessors in title created several other lots along the right of way as landlocked properties. None of the cases defendants cite require such an absurd interpretation of the chain of title. Further, while a landowner "cannot have an easement in his own land," an owner can create an easement intended to arise and benefit his land at such time as the land is subdivided and transferred. Niestat v. Equitable Sec. Co., 6 N.J. Super. 148, 152-53 (App. Div. 1950).

Defendants' litigation position was contrary to the deeds in the chain of title, as Judge Contillo reasonably construed them, and contrary to the understanding of neighborhood residents who had used the right of way for many years. We find

no basis to disturb the trial judge's well-reasoned decision.

 
Affirmed.

Although ROW 1 no longer exists, its creation provides a context for understanding the ROW that is currently in dispute.

It is not clear why Henry's name was on the deed when he had already conveyed this parcel to Emily.

This deed was not provided by the parties, but it is described in defendant's expert report.

The parties and the court agreed that any details regarding ROW 5 were irrelevant, because plaintiffs' claims were limited to ROW 4.

In particular, according to defendants' expert, the property descriptions in the deeds to defendants' predecessors in title, the Seboeks, and plaintiffs' predecessors in title, the Olsons, left an eight-inch gap between their property lines and the sixteen foot right of way. According to plaintiffs' expert, the right of way was 16.5 feet wide, leaving no gap.

(continued)

(continued)

2

A-5119-08T3

April 26, 2010