PHILIP PFRANG v. EDWARD BUONOPANE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2022-09T3

PHILIP PFRANG and TERI MORESCO,

Plaintiffs-Appellants,

v.

EDWARD BUONOPANE and MARY JO

BUONOPANE,

Defendants-Respondents.

______________________________________________________

May 6, 2011

 

Submitted January 11, 2011 - Decided

 

Before Judges Parrillo and Skillman.

 

On appeal from Superior Court of New Jersey, Chancery Division, Monmouth County,

Docket No. C-196-07.

 

Cleary, Alfieri & Jones, attorneys for appellants (Linda Grasso Jones, of counsel and on the brief; Paul LaSalle, on the brief).

 

Edward Buonopane and Mary Jo Buonopane, respondents pro se.

 

PER CURIAM

This appeal involves the interpretation of the part of a deed creating an easement. On May 19, 1965, Margaret M. Simonson conveyed land in Rumson to Rumson Shore Estates, Inc. In the deed, Simonson, who continued to own adjacent land, reserved a twelve-foot-wide easement to herself and her successors-in-interest to provide access to a lagoon that Rumson Shore Estates proposed to construct on part of the land it acquired. Defendants Edward and Mary Jo Buonopane are successors-in-interest to the land retained by Simonson. Plaintiffs Philip Pfrang and Teri Moresco are successors-in-interest to the land acquired by Rumson Shore Estates.

Soon after the conveyance by Simonson and a similar conveyance by a neighboring family, whose land abutted the proposed lagoon and required no easement for lagoon access, Rumson Shore Estates constructed a lagoon of approximately seventy feet in width by dredging a channel from Little Silver Creek. The Borough of Rumson granted permission to dredge the lagoon contingent on an agreement by those who owned land adjoining the lagoon to "perpetually care for and maintain the bulkheading adjacent to such property."

On August 17, 1965, Rumson Shore Estates and the other owners of property in the area of the proposed lagoon entered into an agreement to cooperate in the dredging required for construction of the lagoon and to establish their respective rights in the lagoon after completion of the dredging. Those rights included use of the lagoon for "boating, fishing, skating, hunting and bathing purposes." In addition, any owner of property abutting the lagoon was authorized "to build a dock in said channel or lagoon adjacent to and abutting the respective piece of land owned by him." The agreement contained additional provisions to ensure that no shoreline construction would extend past fifteen feet into the lagoon and that the center thirty feet of the lagoon would remain unobstructed. Simonson, who did not retain ownership of any of the land on which the lagoon was proposed to be constructed, was not a party to this agreement.

Simonson subsequently subdivided her property, and in 1997 defendants acquired the part of the property bordering the access easement to the lagoon. The easement runs from a corner of defendants' land across plaintiffs' property along one of its boundaries to the lagoon. The bulkheading along the lagoon stops about fifteen feet before the point where the easement connects to the lagoon.

On or about March 7, 2007, defendants filed an application with the Department of Environmental Protection (DEP) for a coastal general permit and coastal wetlands permit to construct a "164' x 4' fixed pier" and "4' x 20' ramp" atop the easement running from defendants' property line across plaintiffs' property to the lagoon, and an "8' x 20' floating dock" extending into the lagoon. Plaintiffs filed objections to this application with DEP based primarily on the fact that the majority of defendant's proposed construction project would be built on land owned by the plaintiffs and that plaintiffs had not consented to that construction. Plaintiffs' objections stated that defendants' access easement over their property "does not authorize the construction of any structure or fixture nor does it permit personal property to be stored thereon."

Plaintiffs also filed this action in the Chancery Division for an injunction against defendants pursuing their permit application before the DEP, a declaratory judgment regarding defendants' rights under the easement, and compensatory damages.

On August 8, 2007, the DEP issued the permits required for the proposed construction on the easement and in the lagoon.

The Chancery Division action was brought before the court by cross-motions for summary judgment, supported by expert reports and exhibits. The trial court granted the parties' motions in part and denied them in part and entered an order on January 15, 2009 memorializing its rulings. Paragraph two of that order provided that "since there is no provision within the deed of easement which would allow construction within same, the Defendants' request to construct a pathway over the easement and a dock in the lagoon be and the same is hereby Denied." However, paragraph three of the order provided that "[p]ursuant to the powers inherent in the Court to effectuate a reasonable and equitable result, the 12 foot right of way (easement) is to be relocated on the Plaintiffs' property" and that "the re-location of the easement is to be accomplished in such a manner as to provide access to and use of the lagoon of Plaintiffs' property on that portion of Plaintiffs' property which abuts the lagoon, and where bulk heading is presently constructed."

Both parties were dissatisfied with this order and filed motions addressed to its provisions. Plaintiffs filed a motion for amendment of the order, seeking to prevent defendants from docking or mooring a boat at the bulkhead on the lagoon abutting their easement. Plaintiffs also argued that the relocation of the easement was unnecessary for reasonable use of the easement and lagoon. Defendants filed a motion for reconsideration, seeking an order permitting defendants to (1) install a gate on the easement, (2) clear vegetation from the easement, (3) secure a ladder and a boat to the bulkhead, and (4) install a small floating dock to access their boat.

In response to these motions, the trial court entered another order on December 8, 2009, which substantially revised the terms of the January 15, 2009 order. This order contained the following provisions pertinent to this appeal:

[Defendants] shall have the right to moor a boat to the bulkhead using mooring devices such as whips or cleats that may be attached to the bulkhead, as well as the use of a ladder to be affixed to the face of the bulkhead, for access to the moored boat. The boat will be affixed to the bulkhead within the 12 [foot] wide easement area.

 

[Defendants'] will have the right to keep the area of the upland easement area cleared of brush, trees and vegetation to facilitate their access.

 

The boat moored to the bulkhead by [defendants] . . . may extend along the [plaintiffs'] property to accommodate a 22 foot boat.

 

The December 8, 2009 order also reaffirmed the part of the January 15, 2009 order providing for relocation of the easement and included a specific metes and bounds description of the easement's new location, which runs through the center of plaintiffs' property across the lagoon from their residence.

Plaintiffs appeal from the part of the December 9, 2009 order that authorizes defendants to moor a boat in the lagoon attached to the bulkhead adjoining plaintiffs' property; the parts of the January 15 and December 8, 2009 orders that relocate the easement; and the part of the December 8, 2009 order that authorizes defendants to keep the easement cleared of all brush, vegetation and trees. We reverse the challenged parts of these two orders and remand the case to the trial court.

I.

 

 

The part of the deed from Margaret Simonson to Rumson Shore Estates creating the access easement at issue in this appeal provided:

The Grantor herein reserves unto herself and to her heirs, administrators, executors and assigns a twelve-foot easement and right of way over the lands herein conveyed to and from a proposed lagoon to be made and constructed by the Grantee . . . .

The said easement shall be for the purpose of giving the right of access to and from said lagoon for the benefit of other lands now owned by the Grantor . . . and shall be for the benefit of the Grantor and her heirs, executors, administrators and assigns. The said easement shall . . .

include the right to the use of the said lagoon. This easement is subject to any common restrictions which may be imposed upon other owners hereafter given the right to the use of the said lagoon, provided such common restrictions shall have been approved by the Borough of Rumson and shall not impose any expense upon the Grantor or her heirs and assigns.

 

The primary issue presented by this appeal is whether defendants, as successors-in-interest to the easement reserved by Simonson, are authorized to moor a boat in the lagoon attached to the bulkhead adjacent to plaintiffs' property.

The scope of the rights conferred by an express easement "depends . . . on the intent of the parties as expressed in the language of the grant, viewed in the light of the nature and reasonably necessary incidents of the permitted use." Boss v. Rockland Electric Co., 95 N.J. 33, 38 (1983) (quoting Tide-Water Pipe Co. v. Blair Holding Co., 42 N.J. 591, 604 (1964)). In construing a document creating an easement, "the intent of the conveyor is normally determined by the language of the conveyance read as an entirety and in the light of the surrounding circumstances." Hammett v. Rosensohn, 26 N.J. 415, 423 (1958).

It is clear on the face of the Simonson deed to Rumson Shore Estates that the reserved easement was intended solely to provide access "to and from [the] proposed lagoon to be made and constructed by [Rumson Shore Estates] . . . for the purpose of giving the right of access to and from said lagoon for the benefit of other lands owned by [Simonson]." Thus, the only property right conveyed by the deed was to the twelve-foot access easement to the edge of the proposed lagoon. The deed did not reserve any property right to the land that was to be used for the proposed lagoon.1 It only reserved "the right to the use of the said lagoon" to Simonson and her successors-in-interest such as defendants.

The trial court correctly recognized that because defendants have no property right in the lagoon, they have no authority under the easement reserved by Simonson to construct a dock or other structure in the lagoon. However, in its December 8, 2009 order, the court conferred a right upon defendants to permanently moor a boat in the lagoon and, in addition, to use whips or cleats to attach the boat to the bulkhead on plaintiffs' property and to affix a ladder to the face of the bulkhead to provide access to the boat. Such use of plaintiffs' property by defendants would far exceed the right of access to the lagoon reserved by the Simonson deed. Indeed, this use would be similar to the construction of a dock or other structure, which the trial court correctly recognized was reserved to the owner of the property. See Dyball v. Lennox, 680 N.W.2d 522, 526-28 (Mich. Ct. App. 2003).

Defendants argue that because the Simonson deed conferred a right upon her and her successors-in-interest to use the lagoon, this included a right to moor a boat on the lagoon because boating was one of the uses that the deed contemplated easement holders would make of the lagoon. However, a person may engage in boating activity without permanently mooring a boat in the waterway. It is common for people to drag or carry canoes, kayaks, and other small boats to a waterway without use of a dock or other device for permanently maintaining the boat on the waterway.

If Simonson had desired to build a dock or other facility for mooring a boat of substantial size on the proposed lagoon, she could have included a provision creating such a right in the deed to Rumson Shore Estates similar to the provision in the August 17, 1965 agreement between Rumson Shore Estates and the other owners of property where the lagoon was to be created. However, Simonson evidently felt that the more limited rights provided by an access easement were sufficient for whatever uses she and the successor owners of her retained property would want to make of the lagoon.

Therefore, we reverse the part of the December 8, 2009 order that confers a right upon defendants to moor a boat on the lagoon attached to the bulkhead on plaintiffs' property.

II.

 

 

We next consider the part of the January 15 and December 8, 2009 orders that changed the location of the easement over plaintiffs' property created by the May 19, 1965 deed from Simonson to Rumson Shore Estates.

"Where the easement comes into being by way of an agreement," the general rule is that an easement "cannot be changed without the consent of both parties." Kline v. Bernardsville Ass'n, 267 N.J. Super. 473, 478 (App. Div. 1993) (quoting Sussex Rural Electric Coop. v. Twp. of Wantage, 217 N.J. Super. 481, 490 (App. Div. 1987)). Although "a court may compel relocation of an easement to advance the interest of justice where the modification is minor and the parties' essential rights are fully preserved . . . relocation of an easement without the mutual consent of the parties is an extraordinary remedy and should be grounded in a strong showing of necessity." Id. at 480.

The factual materials presented to the trial court in support of the parties' cross-motions for summary judgment did not make such a strong showing of the necessity for relocation of the easement. Although part of the easement is located on wetlands, there is no statutory prohibition against walking on wetlands. Furthermore, there is no evidence that the easement's present condition prevents defendants from walking across the easement to the lagoon. We also note the absence of evidence as to whether the area of the easement is in the same condition now as when the easement was reserved or whether it has become wetter or otherwise more difficult to traverse as a result of the digging out of the lagoon and construction of the bulkheads or other factors.

The order for the relocation of the easement seems to have been based at least in part on the court's conclusion that defendants have a right to moor a boat on the lagoon attached to the bulkhead on plaintiffs' property because the existing easement does not provide direct access to the bulkhead and the relocated easement would provide such access. However, we have rejected this conclusion for the reasons set forth in section I of this opinion.

For these reasons, we reverse the order for the relocation of the easement over plaintiffs' property. We do not preclude defendants from presenting additional evidence on remand that the current location of the easement does not provide them with reasonable access to the lagoon and that relocation of the easement is necessary to provide such access.

III.

 

 

Defendants' right to keep the area of the easement "cleared of brush, trees and vegetation to facilitate their access" was established by the same December 8, 2009 order that fixed the boundaries of the relocated easement. We have now reversed the part of the order that provided for relocation of the easement. Therefore, it is not clear that the part of the order providing for the clearing of brush, trees and vegetation also would apply to the original easement. However, assuming that that part of the order is still operative, it may be too broad.

"The owner of a dominant estate may do that which is reasonably necessary to enjoy the easement and, as an incident thereto, keep it in repair and fit for use." Hyland v. Fonda, 44 N.J. Super. 180, 189-90 (App. Div. 1957). Thus, the easement holder may clear the area of the easement of vegetation to the extent reasonably necessary for its intended use. See Boss, supra, 95 N.J. at 38-39. This would include the right to remove trees under some circumstances. Ibid.

This determination is highly factual in nature and cannot be made on the present record. Therefore, we reverse the part of the December 8, 2009 order that authorizes defendants to clear brush, trees, and vegetation from the easement area and remand this part of the case to the trial court for development of a more complete record and reconsideration in light of the principles set forth in this opinion.

Accordingly, we reverse the challenged parts of the January 15 and December 8, 2009 orders and remand for further proceedings in conformity with this opinion.

1 We note that even if the lagoon is tidal, the land over which it flows is still owned by the successors-in-interest of the property Simonson conveyed to Rumson Shore Estates, including plaintiffs, rather than the State, because the lagoon was created by a development project that caused a sudden inundation of what had been dry land. See O'Neill v. State Highway Dep't of N.J., 50 N.J. 307, 324 (1967); see also City of Long Branch v. Liu, 203 N.J. 464, 478-82 (2010).