ADELE M. WIGGINS v. ANTHONY DORSEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6446-08T16446-08T1

ADELE M. WIGGINS, JOHN D.

WIGGINS, Individually and

Trading as WIGGINS PARK,

Plaintiffs-Appellants,

v.

ANTHONY DORSEY,

Defendant-Respondent.

________________________________

Argued June 15, 2010 - Decided July 19, 2010

Before Judges Carchman and Parrillo.

On appeal from the Superior Court of New Jersey,

Chancery Division, General Equity Part, Burlington County, Docket No. C-18-08.

Mark J. Molz argued the cause for appellants (Law Office of Mark J. Molz, attorneys; Justin Van Dyke, on the brief).

Anthony Dorsey, respondent pro se, has not filed

a brief.

PER CURIAM

Plaintiffs Adele and John Wiggins appeal from the General Equity Part's summary judgment dismissal of their complaint against defendant Anthony Dorsey, seeking an easement allowing them to continue to use a driveway on defendant's property to access their land. We affirm.

The material facts are not in dispute. On December 5, 1975, plaintiff purchased Lots 14 and 15 of 401 Jacobstown-Cookstown Road in Wrightstown, and operated a mobile home trailer park thereon. This property adjoins Lot 16, also known as 401 Jacobstown-Cookstown Road, which defendant subsequently purchased sometime in 2005. There is a driveway on defendant's property leading to Meany Road, which abuts both Lots 15 and 16 along their eastern boundaries. According to plaintiffs, they have been using that driveway for ingress and egress since their 1975 purchase and defendant knew of plaintiffs' use of the driveway ever since his second visit to the property in October 2005, prior to his purchase of Lot 16. On April 14, 2008, defendant informed plaintiffs by letter that he would be moving an existing fence line to reflect the property line, which would then enclose the portion of the driveway that lies upon his property and effectively close it off to plaintiffs.

Consequently, plaintiffs filed the instant complaint in the Chancery Division, General Equity Part, seeking to: (1) restrain defendant from blocking the driveway; (2) permit plaintiffs to continue using the driveway; and (3) granting plaintiffs an easement therein. Defendant answered, alleging that plaintiffs have other means of access to Meany Road and have another entrance from Jacobstown-Cookstown Road, which abuts both properties along their western boundaries. Defendant also alleged that plaintiffs have been using the driveway located on his property without permission.

At the close of discovery, defendant pro se filed a motion to dismiss plaintiffs' complaint pursuant to Rule 4:6-2(e), in which he argued that plaintiffs have failed to produce any evidence demonstrating the driveway has been in existence and continually used since the 1960s; that mobile home residents have been accessing plaintiffs' property from another existing driveway not located upon defendant's property; that plaintiffs have failed to establish the elements of adverse possession; and that plaintiffs have failed to produce any evidence that they had been maintaining the driveway. Plaintiffs countered in a cross-motion for summary judgment, contending that defendant was aware of their use of the driveway and that they have acquired title to the driveway by "continuous, hostile, notorious, and hostile use . . . for more than 25 years[.]" Plaintiffs also referred to prior claims of easement, although offered no proof of such or any documentation evidencing a grant, easement, or right-of-way regarding the driveway.

Although defendant crafted his motion as one to dismiss, because discovery was complete and the parties relied on materials beyond the pleadings, the court treated defendant's motion as one for summary judgment and disposed of it as provided by Rule 4:46. R. 4:6-2(e). Having found the "materially relevant facts [] not in dispute," the General Equity judge determined that plaintiffs were not entitled to the relief sought in their complaint as a matter of law and accordingly, dismissed plaintiffs' complaint with prejudice. Concluding that the evidence failed to establish the requisite elements of adverse possession, easement by prescription, or easement by necessity, the judge reasoned:

The courts of this state have also clarified that, "any adverse possession must be open, notorious, continuous, uninterrupted and exclusive for the prescriptive period with the acquiescence of the owner[,]" and that the party claiming title by adverse possession has the burden of proof to establish these elements. Stump v. Whibco, 314 N.J. Super. 560, 566 (App. Div. 1998). Generally, this requires that "[t]he adverse claimant must prove that he or she 'has acted towards the land in question as would an average owner, taking properly into account the geophysical nature of the land.[']" Id. at 569 [(quoting 7 Powell on Real Property, 1014[2], at 91-44)]. In other words, the use of the subject property by the party claiming title by adverse possession

must be [so] open and notorious

that an ordinarily prudent

person would be put on notice

that the land is in actual

possession of another. A

possession is adverse if the

claimant's use is 'under a

claim of right, pursued with an

intent to claim as against the

true owner in such circumstances

of notoriety that the owner will

be aware of the fact and thus

alerted to resist the acquisition

of the right by the claimant

before the period of adverse

possession has elapsed.'

Patton v. North Jersey Dist. Water Supply Comm'n, 93 N.J. 180, 187 (1983) [(quoting] Predham v. Holfester, 32 N.J. Super. 419, 424 (App. Div. 1954)[)].

. . . .

Though [p]laintiffs have claimed their continuous use of the driveway over several decades, allegedly initiating in the 1960s, that use has admittedly been known to [d]efendant; moreover, [p]laintiffs have not alleged that they have at any time prior to the present lawsuit made a claim of right to the subject driveway. Rather, [p]laintiffs acknowledge that the driveway is part of [d]efendant's property and that they have merely used that driveway with [d]efendant's knowledge. This clearly does not support a claim for adverse possession and more closely resembles a license for use.

Plaintiffs have failed to set forth any statutory or case law authority regarding the creation of an easement by prescription.

"Easements by prescription arise when elements similar to those of adverse possession are shown to have existed for a 20-year period." Mahony v. Danis, 95 N.J. 50, 58 (1983) (citing Baker v. Normanock Ass'n, Inc., 25 N.J. 407, 419 (1957); A.J. and O.J. Pilar, Inc. v. Lister Corp., 22 N.J. 75 (1956); Felici v. Pennsylvania-Reading Seashore Lines, 83 N.J. Super. 373, 377 (App. Div. 1964)). "[I]t is necessary that the plaintiffs prove that their use was adverse or hostile. A user is adverse if done 'under a claim of right, pursued with an intent to claim against the true owner in such circumstances of notoriety that the owner will be aware of the fact and thus alerted to resist the acquisition of the right by claimant before the period of adverse possession has elapsed.'" Baker, supra, 25 N.J. at 419 [(quoting] Predham [] supra, 32 N.J. Super. at 424[)].

As discussed above, the record indicates that [p]laintiffs have not satisfied the necessary prerequisites of open, notorious, continuous, and hostile use of the subject driveway at all, let alone for the prescriptive amount of time.

Plaintiffs have failed to set forth any statutory or case law authority regarding the creation of an easement by necessity.

Easements by necessity can only arise where both the parcel alleging the need for an easement across an adjacent parcel is both landlocked and both parcels were previously created from one (1) common parcel.

. . . .

"The duration and extent of [easements by necessity] are influenced by the fact that 'necessity' is basic to their creation

. . . . The necessity for the easement is determined as of the time the parcels are originally separated even though application for establishment of the easement is made by subsequent owners of the landlocked parcel." Ghen v. Piasecki, 172 N.J. Super. 35, 43 (App. Div. 1980) (citing Adams v. Cale, 48 N.J. Super. 119, 132 (App. Div. 1957); Cale v. Wanamaker, 121 N.J. Super. 142 (Ch. Div. 1972)).

Plaintiffs have not alleged any of these considerations apply to the present case, nor have they produced any evidence that could reasonably be construed to confirm such facts. Even if Plaintiffs could prove their property and the [d]efendant's property originated from a single owner, the record indicates that [p]laintiffs' property is accessible from other entrances. Because [p]laintiffs' property is not landlocked, the equitable considerations that justify the creation of an implied easement by necessity are not present in this case.

On appeal, plaintiffs raise the following issues:

I. DEFENDANT'S MOTION FAILED TO CONFRM TO R. 4:46-1.

II. PLAINTIFFS' LATE OPPOSITION AND CROSS-MOTION SHOULD HAVE BEEN FILED BY THE COURT AND CONSIDERED.

III. PLAINTIFF WAS ENTITLED TO ORAL ARGUMENT.

IV. PLAINTIFF HAS AN IMPLIED QUASI-EASEMENT; THEREFORE, DEFENDANT'S MOTION SHOULD HAVE BEEN DENIED.

V. PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED.

We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Accordingly, we affirm substantially for the reasons stated by Judge Hogan in his written opinion of July 17, 2009. Contrary to plaintiffs' claims, the General Equity judge considered plaintiffs' cross-motion, opposition and supporting exhibits and documentation, albeit untimely filed, in rendering his ultimate determination. Because the material facts, as acknowledged by plaintiffs themselves, were not genuinely in dispute, and the parties relied on evidence outside the pleadings, the court properly treated defendant's motion to dismiss in accordance with the summary judgment standard. Measured by that standard, we find that the court correctly determined that the undisputed facts did not give rise to the creation of any property rights in defendant's driveway by way of either adverse possession, easement by prescription, or easement by necessity.

 
Affirmed.

(continued)

(continued)

8

A-6446-08T1