JOHN DEBENEDETTE and URSULA GEORGE v. MARK DELODZIA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2768-08T22768-08T2

JOHN DEBENEDETTE and URSULA GEORGE,

Plaintiffs-Respondents,

v.

MARK DELODZIA,

Defendant-Appellant.

 

 

Submitted November 17, 2009 - Decided

Before Judges Carchman and Parrillo.

On appeal from Superior Court of New Jersey,

Chancery Division, Warren County, Docket No.

C-16019-07.

Laddey, Clark & Ryan, attorneys for appellant (Lawrence J. Supp, on the brief).

Courter, Kobert & Cohen, attorneys for respondents (John A. Abromitis, on the brief).

PER CURIAM

Defendant Mark Delodzia appeals an order of the General Equity Part granting plaintiffs John DeBenedette and Ursula George summary judgment, and declaratory and permanent injunctive relief. We affirm.

The essential facts are not in dispute. Plaintiffs and defendant own adjacent rural properties in Blairstown. A dirt-and-gravel lane running through plaintiffs' lot, along which defendant has a right-of-way, is defendant's only means of vehicular access to public roads from his property.

The lane itself runs for approximately two hundred feet from defendant's driveway to plaintiffs' property and continues for another six hundred feet through plaintiffs' property in front of their house, barn, and garage on its way to Birch Road. The dirt and gravel roadbed ranges in width from ten to twelve feet, and grassy shoulders several feet wide flank the lane. Stone rows frame the outside of the grassy shoulders for much of the lane, and a sheep fence runs along one side for a short length. In areas where stone rows run along both sides of the lane, the distance between the rows typically totals between seventeen and twenty-two feet. Trees, bushes, and other vegetation grow along the lane both within and on either side of the stone rows.

The parties agree that vegetation must periodically be cut back or removed to allow unobstructed access to vehicles traveling along the lane. Conflict has arisen, however, because, in addition to trimming overgrowth, defendant has cut some bushes to the stump and killed vegetation with herbicide along portions of the lane, as well as removed rocks from the roadbed. According to defendant, limiting maintenance of the lane only to trimming the overgrowth of the vegetation would be "impractical and dangerous":

The brush grows very quickly during the summer and it would require constant attention to cut each offending new shoot along both sides of the lane . . . . Allowing brush to overgrow the edges of the lane will tend to scratch the paint of vehicles unless they stay in the middle. If you can't see the edge, it will impede the ability of one vehicle to move to the edge to allow another vehicle to pass . . . . Both edges of the lane must be not only free and clear of brush, but must be clearly visible to drivers.

He relies on the report of a forestry expert who indicated that defendant's chosen methods of maintenance are the most efficient and appropriate.

Plaintiffs, on the other hand, claiming that defendant is not entitled to use the entire fifty-foot width, complain that defendant's actions have caused the lane to lose its scenic, rural beauty, compromised their privacy, and subjected their property to increased runoff erosion. According to plaintiffs, defendant's methods of cutting bushes to the stump and killing vegetation by means of herbicide amount to a widening of the lane well beyond its original width, materially altering plaintiffs' property, and exceeding the bounds of what could be considered reasonable, necessary maintenance.

By way of background, the parties' neighboring properties constituted a single lot until 1971 when the owners at the time, Achille and Jennie Notaro, subdivided the tract into two lots. The Notaros sold the front lot with direct public road access, plaintiffs' since 2003, to Richard and Linda Green, and the rear lot, defendant's since 1998, to Richard's brother Hubert Green and his wife Barbara. The Greens then collectively entered into an easement agreement wherein the owners of the front lot provided the owners of the rear lot a right-of-way along the private rural lane that runs for most of its course through the front lot.

Specifically, the agreement provided for "a perpetual easement 50 foot [sic] in width," and specified that the "right of way is for the mutual benefit of the respective properties of the parties hereto and [that] the cost of maintaining said easement shall be born equally by the owners of the respective properties." Barbara Green stated in an affidavit that "[i]t was never contemplated or agreed that we would ever utilize any width footage greater than what was necessary for a car to travel down the lane to our lot." Moreover, during the nearly three decades she resided on the property, the owners of both lots performed "minimum maintenance" on the lane, only "trim[ming] back the growth as necessary, so as to afford car access to the rear of the property." The foliage along the lane "was always of great importance" both for its scenic beauty and the "privacy" it afforded.

Having reached no resolution of their property dispute, on July 15, 2007, plaintiffs filed a complaint in the General Equity Part seeking to enjoin defendant from performing any maintenance on the rural lane along defendant's right-of-way. Defendant answered, and pursuant to plaintiffs' interim order to show cause seeking preliminary injunctive relief, the judge issued an order on October 19, 2007, preserving the status quo as to the physical characteristics of the lane. Thereafter, the parties cross-moved for summary judgment.

Following oral argument, the judge issued a written decision on December 19, 2008, and order of December 23, 2008, granting plaintiffs declaratory and injunctive relief, enjoining defendant from performing any "maintenance work which would widen or materially alter the lane, or otherwise damage, reconfigure or materially alter the Plaintiffs' property within the right of way," except as specifically provided in the order.

In her ruling, the judge concluded that the grant language in the easement agreement between the parties' predecessors was ambiguous, but that, read in light of the surrounding circumstances, it permits defendant a right-of-way sufficient for ingress and egress of one vehicle at a time along the existing lane. In this regard, the court considered the affidavit of Barbara Green, "the only human source of evidence at bar who was present at the time of the grant," to discern the intent of the parties; the very width of the gravel portion of the lane, which has been maintained since the grant of the easement and was sufficient to accommodate no more than one vehicle; and the existence of trees and a telephone pole within the grassy shoulder as well as the absence of a stone row along portions of the lane, all of which suggested that the parties never intended that the drivable width of the lane be expanded to the entire space between the stone rows. The court further found the undisputed facts demonstrated that defendant's maintenance activities materially altered the lane in a manner not reasonably necessary to ensure his enjoyment of the easement.

On appeal, defendant raises the following issues:

I. THE MOTION JUDGE ERRED BY IMPOSING LIMITS THAT EFFECTIVELY STRIP MR. DELODZIA OF HIS CONSTITUTIONALITY PROTECTED RIGHT TO MAINTAIN THE EASEMENT.

II. THE MOTION JUDGE ERRED IN CONSIDERING BARBARA GREEN'S CERTIFICATION BECAUSE IT IS IRRELEVANT PAROL EVIDENCE.

III. THE MOTION JUDGE ERRED BECAUSE THE DEFENDANT'S PAST MAINTENANCE ACTIVITIES HAVE BEEN REASONABLE.

IV. SUMMARY JUDGMENT IS APPROPRIATE BECAUSE GERMANE FACTS ARE NOT IN DISPUTE.

After considering these arguments in light of the record and applicable law, we affirm substantially for the reasons stated by Judge Derman in her written opinion of December 19, 2008. We add only the following comments.

Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). The same standard applies on review. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

When interpreting an agreement granting an easement, a court must discern and enforce the intent of the parties. Hyland v. Fonda, 44 N.J. Super. 180, 187 (App. Div. 1957). Insofar as that intent is evident from the plain language of the agreement, the court need not consider extrinsic evidence. Chance v. McCann, 405 N.J. Super. 547, 564 (App. Div. 2009). On the other hand, where that language is ambiguous, the court must interpret the agreement in light of "the surrounding circumstances, including the physical conditions and character of the servient tenement, and the requirements of the grantee." Hyland, supra, 44 N.J. Super. at 187. The court may likewise consider the behavior of the parties in following the terms of the agreement as a further indicium of intent. Savarese v. Corcoran, 311 N.J. Super. 240, 248 (Ch. Div. 1997), aff'd, 311 N.J. Super. 182 (App. Div. 1998).

In Hyland, supra, we examined an instrument granting "'the right of ingress and egress for roadway purposes along a strip 25 feet in width along the entire northerly boundary [of the property] for roadway purposes. . . .'" 44 N.J. Super. at 183. We found this language ambiguous, noting the settled rule that:

"Where a way is granted over a piece of land of a certain stated width, it will depend upon the circumstances of the case whether the reference is to the width of the way, or is merely descriptive of the property over which the grantee may have such a way as may be reasonably necessary."

[Id. at 188 (quoting 28 C.J.S. Easements 77(a)(3), at 756-57 (1941)).]

As in Hyland, the grant language here may be considered ambiguous. The fifty-foot width specified therein may reasonably describe the space intended to be occupied by an intended roadway or simply the space through which a right-of-way is permitted as reasonably necessary--here, along an existing lane substantially narrower than the easement itself. Barbara Green's affidavit clarifies that the parties intended by the easement agreement to allow ingress and egress along that lane as it then existed, sufficient to accommodate a single vehicle and with abundant foliage to provide aesthetic appeal and some measure of privacy. Her description of the parties' subsequent limited maintenance practices over the decades that she resided on the property is consistent with that intent, as is the grant language indicating that the easement was for the "mutual benefit" of the owners of both properties.

Contrary to defendant's argument, the judge's consideration of this affidavit was not inappropriate, given the ambiguity of the grant agreement and the affiant's status as a party to that agreement, albeit not as grantor. Moreover, we discern no basis for the application of the equitable doctrine of estoppel by deed to bar consideration of this extrinsic evidence. That doctrine, on which defendant relies, precludes one who purports to convey property to another from later claiming title. See Palamarg Realty Co. v. Rehac, 80 N.J. 446, 458-59 (1979). Clearly, the doctrine is inapposite here. In any event, the Green affidavit does not seek to diminish defendant's rights, but simply indicates the proper scope of the easement conveyed.

To be sure, the interpretation of an ambiguous agreement requiring examination of extrinsic evidence is normally inappropriate on summary judgment, even though contractual interpretation is ordinarily a matter of law. Celanese Ltd. v. Essex County Improvement Auth., 404 N.J. Super. 514, 528 (App. Div. 2009). Even where, as here, both parties move for summary judgment, such relief should not be granted if a trial remains necessary to resolve disputed issues of material fact, O'Keeffe v. Snyder, 83 N.J. 478, 487 (1980), or credibility, see D'Amato v. D'Amato, 305 N.J. Super. 109, 114-15 (App. Div. 1997) (concluding that, even though only moving party submitted affidavits, non-moving party could still avoid summary judgment where credibility of affiants remained at issue).

Here, however, there are no issues of disputed material fact. The only direct evidence in the record bearing on the issue of intent is Barbara Green's affidavit, and defendant does not challenge Green's credibility. The affidavit was therefore appropriately considered and the matter was ripe for summary judgment disposition, as both parties acknowledged by filing for such relief.

Even if maintenance must be limited to preserving the existing character of the lane, defendant argues that his maintenance efforts have nonetheless been reasonable, as his forestry expert claims, and the injunction was therefore unjustified, since plaintiffs have produced no contrary evidence. We disagree.

The maintenance performed by the owner of an easement must not extend beyond that which is "reasonably necessary" to enjoy the easement and must be done "in such reasonable manner as to avoid unnecessary increases in the burden upon the landowner." Tide-Water Pipe Co. v. Blair Holding Co., 42 N.J. 591, 604 (1964). Indeed, the dominant tenant's "use of the easement must not unreasonably interfere with the use and enjoyment of the servient estate." Hyland, supra, 44 N.J. Super. at 189. Courts may enjoin use of an easement that is inconsistent with the grant thereof. Lidgerwood Estates v. Public Serv. Elec. & Gas Co., 113 N.J. Eq. 403, 406 (Ch. 1933).

Although defendant's expert report may well demonstrate that defendant's chosen methods of maintenance were reasonable and even the most efficient and convenient, nothing in the record indicates that defendant's methods were reasonably necessary to his use and enjoyment of the lane. Indeed, the permanent injunction issued allows for substantial maintenance, even for stumping new growth under certain circumstances, to both ensure unimpeded vehicular access along the lane and protect the condition of the lane as it exists and as intended by the parties to the easement agreement.

 
Affirmed.

The order explicitly allows for reasonably necessary maintenance, including the trimming and even stumping of trees or shrubs to impede new growth along the grassy shoulders, as well as the removal of rocks from the road surface under certain circumstances.

Defendant also surmises that the precise width of the fifty-foot easement was likely selected to reflect the maximum width for a right-of-way that a municipal planning board could impose on a developer pursuant to then N.J.S.A. 40:55-1.20, since repealed by L. 1975, c. 291, 80, and that the court's order may therefore adversely affect his easement rights in the future. However, as noted earlier, the court's order does not narrow the width of defendant's right-of-way, but merely addresses which maintenance practices are reasonably necessary to his use and enjoyment of that right-of-way under existing circumstances. Thus, the genesis of the fifty-foot figure in the easement agreement is irrelevant to that inquiry.

In this regard, defendant's expert opined that the vegetation growing along the lane, depending on species, could grow by one to three feet per year and required substantial maintenance. The expert concluded that "if left unmaintained, vegetation will continue to colonize and extend toward the drive and utility lines, which will ultimately create a situation where the drive may become impassible without damage to vehicles, and in the case of tree establishment, could ultimately interfere with the utility lines."

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A-2768-08T2

December 11, 2009