BARBARA J. HERTZ v. MICHAEL NOWACKI, SR., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2305-04T22305-04T2

BARBARA J. HERTZ,

Plaintiff-Appellant,

v.

MICHAEL NOWACKI, SR. and

RUTH NOWACKI, H/W; JOHN L.

McLOUGHLIN and CAROLINE A.

McLOUGHLIN, H/W; and KENNETH

TRAVERS and LYNNE TRAVERS,

H/W; and THE BOROUGH OF

LINCOLN PARK,

Defendants-Respondents.

 
_____________________________________

Submitted October 11, 2006 - Decided October 30, 2006

Before Judges Skillman, Lisa and Grall.

On appeal from Superior Court of New Jersey, Chancery Division, Morris County, Docket No. C-55-99.

Mills & Mills, attorneys for appellant (John M. Mills, III, on the brief).

Graham, Curtin & Sheridan, attorneys for respondents Michael Nowacki, Sr., Ruth Nowacki, John L. McLoughlin and Caroline A. McLoughlin (James J. O'Hara, of counsel; Mr. O'Hara and Loren L. Speziale, on the brief).

Scangarella, Feeney & Dixon, attorneys for respondent Borough of Lincoln Park (David C. Dixon, of counsel and on the brief).

Rubin & Connelly, attorneys for respondents Kenneth Travers and Lynne Travers (A. Michael Rubin, on the letter relying on the brief filed on behalf of respondent Borough of Lincoln Park).

PER CURIAM

Plaintiff Barbara Hertz owns an approximately fifteen-and-a-half acre lot in Lincoln Park. This lot is located at the end of a meandering dirt path that crosses lots owned by defendants Michael and Ruth Nowacki, John and Caroline McLoughlin and Kenneth and Lynne Travers (hereinafter referred to as the individual defendants). The dirt path leading to plaintiff's lot is an extension of a roadway that defendant Borough of Lincoln Park paved around 1958 and has maintained since that time. Both the paved roadway and the dirt path are referred to as Orchard Drive.

Plaintiff brought this action seeking a declaration that the dirt path is a public road and an order compelling Lincoln Park to grade, gravel, upgrade, maintain and properly improve the portion of Orchard Drive leading up to her premises to "a condition equal to the existing improved portion of Orchard Drive." In the alternative, plaintiff sought a declaration that she has a private easement over the individual defendants' lots along the route of the dirt path.

After extensive discovery, Lincoln Park moved for summary judgment. The trial court concluded in a written opinion that plaintiff had not presented any evidence that the dirt path had ever been used as a public road or that Lincoln Park had accepted a dedication of the path as a public road. Accordingly, the court dismissed plaintiff's claim against Lincoln Park. The court subsequently denied plaintiff's motion for reconsideration.

More than a year later, the individual defendants moved for summary judgment dismissing plaintiff's claims against them and plaintiff filed a cross-motion for summary judgment determining her right to an easement across their lots. The trial court concluded in a written opinion that plaintiff's property would be inaccessible and useless without a right of way over the defendants' lots, and that "at the time of the complete severance of common ownership of the properties the only means of ingress and egress to [her property] was the right of way over the [individual defendants' lots]." Consequently, the court held that "[p]laintiff has established that an implied grant of a quasi-easement exists on the Defendants' land as well as an easement by necessity."

After the court entered summary judgment in plaintiff's favor, the individual defendants moved for reconsideration and clarification on the ground that the court's order provided no guidance regarding the dimensions and nature of plaintiff's easement. In response to this motion, the trial court entered another order on August 16, 2004, which provides in pertinent part:

3. The Court holds that Plaintiff may improve a 14-foot-driveway within the heretofore unpaved route respecting constraints of "mature" trees and property improvements and located with the centerline as close to the Defendants' common boundary lines.

4. In accordance with the Court's prior ruling and the modifications made herein, Plaintiff is entitled to improve the dirt path to the condition of a 14-foot-driveway capable of accommodating a modern motor vehicle including an emergency vehicle.

5. Plaintiff shall be allowed to apply for driveway construction permits and shall be responsible for any and all costs associated with any such permits or improvement of the area at issue.

Plaintiff has appealed from the order dismissing her claims against Lincoln Park and the part of the August 16, 2004 order that limits the width of the driveway she may construct on the easement over the individual defendants' properties to fourteen feet. The individual defendants have not cross-appealed from the order determining that plaintiff has an easement over their lots or from the August 16, 2004 order establishing the dimensions and nature of that easement.

Plaintiff presents the following arguments in support of her appeal:

I. THE EARLY HISTORY OF A SHARED ROADWAY NECESSITATED THAT THE COURT BELOW ALLOCATE SUITABLE, CONVENTIONAL ACCESS TO THE DOMINANT ESTATE.

II. THE DOMINANT ESTATE HAS RIGHTS TO USE ORCHARD DRIVE AS A PUBLIC BY-ROAD.

III. THE EVIDENCE SUPPORTS EXISTENCE OF A TRAVELED ROADWAY OVER ORCHARD DRIVE TO THE PLAINTIFF'S PROPERTY.

IV. MUNICIPAL ACTIONS CONFIRM PUBLIC DEDICATION AND ACCEPTANCE OF ORCHARD DRIVE.

V. PRIVATE ROADS - ADOPTION BY PUBLIC VS. VACATION PROCEDURES.

VI. THE MUNICIPALITY BEARS RESPONSIBILITY ACCORDING TO THE GREEN ACRES REGISTRATION AND MLUL TO CREATE ZONING TO CONFORM TO THE MASTER PLAN REQUIRING A PUBLIC ROAD TO ACCESS PUBLIC LAND.

VII. THE BOROUGH'S DISCRIMINATORY PRACTICES ARE IMPROPER.

VIII.THE COURT'S FINDINGS OF ESTABLISHED APPURTENANT RIGHTS REQUIRED THAT ADEQUATE ROAD-ACCESS BE AWARDED TO THE DOMINANT ESTATE, BY BOTH NECESSITY AND IMPLICATION.

IX. THE COURT BELOW ERRED AS A MATTER OF LAW IN FOUR SUBSTANTIVE AREAS.

X. DISPUTED GROUNDS SHOULD HAVE PRECLUDED SUMMARY JUDGMENT TO THE DEFENDANT LINCOLN PARK.

We reject these arguments and affirm the orders under appeal substantially for the reasons set forth in Judge MacKenzie's September 18, 2002, November 8, 2002 and April 30, 2004 written opinions. We add the following supplemental comments.

For land to become a public street, there must be both a dedication of the land for this use and acceptance of the dedication by the public entity. Highway Holding Co. v. Yara Engineering Corp., 22 N.J. 119, 127 (1956). Even if plaintiff's proofs could support a finding of a dedication of the dirt path for public use, plaintiff did not present any evidence that Lincoln Park ever accepted that dedication.

Municipalities may "make, amend, repeal and enforce ordinances to . . . accept any street, highway, lane, alley, square, beach, park or other place, or any part thereof, dedicated to public use, and thereafter, improve and maintain the same." N.J.S.A. 40:67-1(b). "[D]edication may also be accomplished by other 'official conduct which manifests an intent to treat the land in question as dedicated to the public use.'" Englander v. Township of W. Orange, 224 N.J. Super. 182, 188 (App. Div. 1988) (quoting State v. Birch, 115 N.J. Super. 457, 464 (App. Div. 1971)).

It is undisputed that Lincoln Park never passed an ordinance to accept a dedication of the dirt path. Although Lincoln Park paved a portion of Orchard Drive sometime around 1958, it never paved or made any other kind of improvement to the dirt path and therefore cannot be found to have accepted a dedication of that path. See Birch, supra, 115 N.J. Super. at 464-65. Moreover, the mere fact that the path was identified as part of Orchard Drive on the Lincoln Park tax map and tax records does not constitute an acceptance of a dedication or impose a duty on the municipality to maintain the path. See N.J.S.A. 46:23-9.13. Plaintiff also failed to present any evidence that the dirt road is or was used by the public, and therefore, she did not establish the existence of a public road by prescription. See Slowinski v. County of Monmouth, 272 N.J. Super. 264, 274 (App. Div. 1994).

Affirmed.

 

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A-2305-04T2

October 30, 2006