ROBERT OCCHIFINTO v. STATE OF NEW JERSEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2933-11T3

ROBERT OCCHIFINTO,

Plaintiff-Appellant,

v.

STATE OF NEW JERSEY THROUGH THE

COMMISSIONER OF THE DEPARTMENT

OF TRANSPORTATION,

Defendant-Respondent.

_____________________________________

October 29, 2012

Argued October 16, 2012 - Decided

Before Judges Yannotti and Harris.

On appeal from the Superior Court of New Jersey, Chancery Division, Sussex County, Docket No. C-29-08.

Megan A. Ward argued the cause for appellant (Kelly & Ward, L.L.C., attorneys; Ms. Ward, on the brief).

Sharon Price-Cates argued the cause for respondent (Jeffrey S. Chiesa, Attorney General,attorney; MelissaH. Raksa, Assistant Attorney General, of counsel; Ms. Price-Cates, on the brief).

PER CURIAM

Plaintiff Robert Occhifinto appeals from the January 4, 2012 order granting defendant New Jersey Department of Transportation's (DOT) motion for summary judgment. Occhifinto sued to obtain a declaratory judgment that he has "an easement by way of necessity" over the DOT's land in Green Township. We affirm.

I.

Occhifinto is the owner of approximately eleven acres designated as Block 27 Lot 9 (Lot 9) on the Green Township tax assessment map. The DOT owns contiguous real property designated as Block 109. 5 Lot 6 (the right-of-way), which it acquired through the exercise of eminent domain and is held in trust for New Jersey Transit Corporation.

At one time, the two parcels were commonly owned by the Lackawanna Railroad Company (Lackawanna). The land was acquired by Lackawanna in 1908 for purposes of railroad construction. Between 1908 and 1911, Lackawanna transformed this land (together with many other tracts) into a twenty-six mile no-grade crossing railroad line called The Lackawanna Cutoff.

In 1976, incident to bankruptcy proceedings, Lackawanna's railroad property, including the right-of-way, was conveyed to Consolidated Rail Corporation (Conrail) with certain exceptions and reservations. Lot 9 was retained by Lackawanna and not transferred to Conrail.

The bankruptcy-approved deed to Conrail mutually burdens the right-of-way and Lot 9 with three express easements: (1) an easement to "use, operate, maintain, repair, and replace and remove" certain "Easement Item[s]"; (2) an easement of "reasonable access" to exercise rights to such "Easement Item[s]"; and (3) an easement for right of lateral support. This portion of the deed states:

The easements and rights to use, operate maintain, repair, renew, replace and remove on, under, over and across the real property hereinafter reserved and excepted ("Grantor's Burdened Property"[/"Grantee's Burdened Property"]), any and all lines, poles, pipes, appliances, equipment, structures, facilities and appurtenances (each an "Easement Item") existing on and used or useful as of the date of delivery of this Deed as a part of any railroad communication, signal or interlocker system or as part of any electric, telephone, telegraph, water, gas, steam, sanitary sewer, storm sewer or other utility system, together with the easement of reasonable access over the Grantor's Burdened Property[/Grantee's Burdened Property] to permit the exercise of the foregoing easements and rights, and the easement for lateral support of the real property conveyed by this Deed.

The deed further expressly excludes any other easements "even if such easements and rights would otherwise arise by reason of necessity, implication or other operation of law, statute, ordinance, rule or regulation of any governmental entity."

On May 28, 1985, Lackawanna conveyed by quitclaim deed approximately twenty-seven acres of land, including Lot 9, to EL Properties, Inc. for $4,986.80. Three months later, also by quitclaim deed, EL Properties, Inc. sold Lot 9 to Jack Muhlstein for $5,000.

In 1994, the DOT exercised its power of eminent domain and acquired what remained of the Lackawanna Cutoff, holding it in trust for New Jersey Transit for railroad purposes. The right-of-way was part of the condemned realty.

On October 25, 1996, Occhifinto purchased Lot 9 from Muhlstein. In that same conveyance, plaintiff purchased four other lots, including an approximate ten-acre parcel, Block 27 Lot 1 (Lot 1) located nearby. Lot 1 is adjacent to the right-of-way, but it does not share a common boundary with Occhifinto's Lot 9. Lot 9 is currently landlocked.

On November 17, 2008, Occhifinto filed a complaint against the DOT seeking a declaratory judgment that he is the owner of an easement by necessity appurtenant to Lot 9 and over a portion of the DOT's right-of-way.

On November 2, 2011, the DOT filed a motion for summary judgment. Two months later, after oral argument, the motion judge granted summary judgment and provided a ten-page written explanation for his decision. The judge found that there were no material disputes of fact and concluded that the express terms of the 1976 Lackawanna-to-Conrail deed precluded the creation of an easement by necessity. Because Occhifinto was in Conrail's chain of title, the judge found that Occhifinto had notice that the right-of-way could not be burdened by an easement of necessity. This appeal followed.

II.

In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governs the motion court. See Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012). We must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). If there are no materially disputed facts, we still must decide if the motion court correctly applied the applicable law. We accord no special deference to a trial judge's assessment of the documentary record, as the decision to grant or withhold summary judgment does not hinge upon a judge's determinations of the credibility of testimony rendered in court, but instead amounts to a ruling on a question of law. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (noting that no "special deference" applies to a trial court's legal determinations).

An easement by necessity "arises only when there has been unity of ownership and a subsequent severance of title resulting in the grantor or grantee owning a parcel which is landlocked." Ghen v. Piasecki, 172 N.J. Super. 35, 41 (App. Div. 1980). The necessity must be absolute, Adams v. Cale, 48 N.J. Super. 119, 130 (App. Div. 1957), meaning it arises "because without it the landlocked parcel has virtually no utility to its owner." Ghen, supra, 172 N.J. Super at 41 (citing Highbee Fishing Club v. Atlantic City Elec. Co., 78 N.J. Eq. 434, 435 (Ch. Div. 1911)). Necessity is determined as of the time the parcels were originally severed, "even though application for establishment of the easement is made by subsequent owners of the landlocked parcel." Id. at 43 (citing Adams, supra, 48 N.J. Super. at 133; Cale v. Wanamaker, 121 N.J. Super. 142, 147 (Ch. Div. 1972)). Moreover, an easement by necessity cannot be decreed over the land of a stranger. Adams, supra, 48 N.J. Super. at 133 (citing Poulos v. Dover Boiler & Plate Fabricators, 5 N.J. 580, 587 (1950)).

If the elements of an easement by necessity are proven by clear and convincing evidence, a means for ingress to and egress from the landlocked parcel is found, "'unless a contrary intent is inescapably manifested.'" Leach v. Anderl, 218 N.J. Super. 18, 26, 25 (App. Div. 1987) (quoting 3 Powell, Real Property 410, at 34-66 (1985 & Supp. 1987)).1 Contrary intent may be found in the deed itself. "'[T]he express grant of certain easements raises an inference that no other easements were intended to pass by the same deed.'" A.J. & J.O. Pilar, Inc. v. Lister Corp., 38 N.J. Super. 488, 499 (App. Div. 1956) (quoting Karason Co. v. Anglo-American Leather Co., 136 N.J. Eq. 344, 345 (Ch. Div. 1945)). Moreover, where the language of the deed is clear and unambiguous, its language controls. Tide-Water Pipe Co. v. Blair Holding Co., 42 N.J. 591, 605 (1964).

It is undisputed that that the 1976 Lackawanna-to-Conrail deed separated Lot 9 from the right-of-way, and resulted in the parcels' separate ownership. The deed specified three reciprocal easements and did not contain an easement for general access to Lot 9 across any portion of the right-of-way. Occhifinto claims that the three easement rights do not negate any implied easements, but the deed specifically refutes that argument.

Without any ambiguity, the deed conveyed the right-of-way "free and clear" of "any and all easements and rights of access to the real property reserved and excepted from this conveyance across the real property conveyed by this Deed (except as otherwise provided in this Deed), even if such easements and rights would otherwise arise by reason of necessity."

As successor to Lackawanna, Occhifinto is bound by this deed. Although his land may be landlocked, no easement by necessity arose at the time of the severance of title because contrary intent was inescapably manifested in the deed that created what was to become his eleven acres.

We are unpersuaded that Occhifinto's situation requires the deployment of equitable remedies to avoid inutility or forfeiture. "[I]f parties choose to contract for a forfeiture, a court of equity will not interfere with that contract term in the absence of fraud, accident, surprise, or improper practice." Dunkin' Donuts of Am., Inc. v. Middletown Donut Corp., 100 N.J. 166, 182 (1985). "In addition, equity will generally conform to established rules and precedents, and will not change or unsettle rights that are created and defined by existing legal principles." Id.at 183. Because, as the motion judge noted, "the [Lackawanna-to-Conrail] [d]eed falls within [Occhifinto's] chain of title, as it severed Lot 9 from unity of title with [the right-of-way], [and] [a]s [Occhifinto] had notice in the [Lackawanna-to-Conrail] [d]eed that Lot 6 could not be burdened by an easement of necessity," equitable relief was unwarranted.

Affirmed.

1 Occhifinto does not argue that he is entitled to a quasi-easement. We note that the role intention plays in making establishment of such an implied reservation more difficult than an implied grant. See A.J. & J.O. Pilar, Inc. v. Lister Corp., 38 N.J. Super. 488, 496 (App. Div. 1956).