MICHAEL DEPALMA, SR and DONNA DEPALMA v. JAMES C. MCGLONE and MELANIE A. MCGLONE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5208-09T3

MICHAEL DEPALMA, SR. and

DONNA DEPALMA,

Plaintiffs-Respondents,

v.

JAMES C. MCGLONE and

MELANIE A. MCGLONE,

Defendants-Appellants.

_________________________________________________

June 18, 2012

 

Submitted January 31, 2012 - Decided

 

Before Judges Payne, Reisner and Hayden.

 

On appeal from Superior Court of New Jersey,

Law Division, Camden County, Docket No.

L-2575-07.

 

James C. and Melanie A. McGlone, appellants pro se.

 

Donna and Michael DePalma, Sr., respondents pro se.

PER CURIAM

Defendants, James and Melanie McGlone, appeal from an order, entered following a bench trial, that extinguished the easement that permitted them to gain access to their driveway from County Road 516 by way of a paved private roadway called DePalma Drive, granted them an ownership interest in a strip of property fronting on County Road 516,1 and required that they access their property by constructing a driveway opening onto that county road. At issue is whether the trial court properly characterized the easement as an easement by necessity that could be extinguished as the result of the removal of the condition leading to its grant.

I.

Until 1984, the property where the McGlones reside was a part of a larger parcel designated as Block 6901, Lot 9, located in Winslow Township and owned by Pasquale DePalma and his wife, Julia DePalma. Following a hearing on June 21, 1984, the local planning board authorized a minor subdivision of the lot to create lots 9B and C.2 Those two lots fronted on County Road 516. However, they were separated from the road by a strip of land, 12.25 feet in width and 75 feet in length (the "strip"), that DePalma was to deed to the County in anticipation of a future widening of the county road. As a condition of approval, a paved road of at least 100 feet with curbs, designated as DePalma Drive, was to be constructed perpendicular to the county road and between lots 9B and C to provide vehicular access to the two lots. The drive was to end at or around the rear lot line of lot 9C. A deed, dated June 23, 1984, confirmed an ownership interest by the DePalmas in lot 9C, the lot that is the focus of this case, as well as in lots 9 and 9B. The deed to lot 9C excluded the strip and DePalma Drive from the property that was conveyed.

An undeveloped twenty-two acre portion of lot 9, lying in back of the newly subdivided parcels, remained. It was Pasquale DePalma's intent to subdivide that land, as well. However, his application for major subdivision approval was denied. Conveyance of the strip to the County, which was delayed while the major subdivision application was pending, never took place. Additionally, DePalma never offered DePalma Drive to Winslow Township for dedication as a township street.

At some point around the time of the application for minor subdivision approval in 1984, a house was built on lot 9C. By deed dated December 22, 1987, the property was conveyed by the DePalmas to Thomas and Susan Garvey. At the time ownership of the property was transferred, access to the house was provided by DePalma Drive. However, in 1991, Pasquale DePalma sought to block access by the Garveys by piling up old appliances and junk at the entrance to the drive, and then by threatening to build a fence across it. DePalma took the position that the Garveys should chisel out a portion of the curb running along County Road 516 and construct a driveway accessing that road.

The Garveys were unwilling to do so, claiming that they did not purchase the house under those conditions, that the curb cut would be unsightly and that the value of their property would be reduced as a consequence. On September 17, 1991, the Garveys filed a verified complaint and order to show cause against the DePalmas asserting, alternatively, violation of an implied easement, violation of an easement by necessity, and estoppel, and seeking that access be restored.3 Although, at some point, Thomas Garvey recognized as the result of viewing a survey map that he did not own the strip of land fronting the road, the evidence suggests that he was not aware of that fact while litigation was ongoing. In fact, the Garveys' complaint made no reference to the strip or its ownership. Instead, it alleged that "[w]ithout the use of DePalma Drive, Lot 9C is effectively landlocked because ingress and egress directly to and from Lot 9C for and to [County Road 516] is difficult and dangerous." On July 10, 1992, a "judgment granting easement" was entered by Judge Davis that ordered

that an easement be created to the benefit of Block 6901, Lot 9C in the Township of Winslow, County of Camden and State of New Jersey which easement shall run with the land and shall give the owner of Block 6901, Lot 9C the right to the use of that land commonly referred to as DePalma Drive free and clear of any interference from any party.

 

The judgment did not indicate whether the easement that was granted arose by implication or as the result of necessity. At trial in the present matter, the attorney who handled the litigation as an associate testified that he did not recall that the court designated the type of easement that was granted.4

On March 27, 1992, the Garveys conveyed lot 9C to Gary Scola, and on February 29, 2000, Scola conveyed the property to James and Melanie McGlone. All deeds transferring ownership in lot 9C contained property descriptions that excluded the strip and DePalma Drive. Following the death of Pasquale DePalma, on June 22, 2001, the DePalma property was conveyed by his estate to his son, Michael DePalma, Sr. The property description set forth in the deed did not reference the strip, which appears on a 1987 tax map as a part of the county road. The DePalmas never paid taxes on the strip.

In 2006, Michael DePalma's commencement of construction of a house on lot 9 precipitated a feud with the McGlones that eventually led to the present litigation. Disputes arose over the siting of utility poles within the easement on the side of DePalma Drive that abutted the McGlones' property; the right of the DePalmas to walk with their grandchildren along the easement from their property to the strip to await school bus pick-up; the removal of a shed utilized by the McGlones that the DePalmas claimed was located on their property; and the use of the easement by the McGlones in connection with their landscaping and daycare businesses, including parking of vehicles, the storage of landscaping materials and the dumping of grass and garden debris. In connection with those disputes, Michael DePalma had a partial survey of the property performed to delineate the area of the easement and the strip. After receipt of the survey, he obtained approvals to construct fences along the boundaries of the McGlones' property in the area of DePalma Drive and the strip. Disputes regarding the erection of the fences arose, as well.

On October 3, 2006, the DePalmas filed a verified complaint naming the McGlones as defendants and seeking a judgment recognizing their fee simple ownership of their land; restricting the McGlones' use of DePalma Drive to accessing County Road 516; barring the McGlones from obstructing DePalma Drive with cars, debris or other personal property; and enjoining the McGlones from interfering with the DePalmas' free access to and use of the entirety of their property. The DePalmas also sought damages for unauthorized trespass on their land arising from the use by the McGlones of the shed, their storage of landscaping equipment, and dumping of landscaping refuse on the DePalmas' property, and for emotional distress arising from incidents involving the DePalmas' grandchildren.

On June 12, 2007, the McGlones filed a counterclaim seeking, in Count I, an order prohibiting the DePalmas from interfering with the full use of the easement by the McGlones and requiring that the DePalmas remove "all objects erected within the easement including the fence, gated fence, shrubbery, and poison ivy, soil and rock piles, and wood poles." In Count II, they sought an order requiring that the DePalmas pay the McGlones for the full value of the disputed shed, which the DePalmas had torn down or removed and prohibiting them from "destroying defendants' personal property." In a later amendment, the McGlones included, as Count III, a plea that their title to the strip be quieted.

Following the entry of multiple restraining orders favoring, at times, the McGlones and, at other times, the DePalmas, the case was scheduled for trial on December 1, 2008. On that date, a tentative settlement of the litigation was reached. However, as the result of a dispute as to the settlement's terms, it was never consummated. Trial was relisted, and on December 7, 2009, trial commenced.

Following the conclusion of the trial, the court rendered an oral opinion, addressing first the issue of the ownership of the strip, which the court determined had not arisen or been addressed in the prior easement litigation before Judge Davis. Relying on Salterv. Jonas, 39 N.J.L. 469 (E. & A. 1877), a decision recognizing that in cases involving the conveyance of lots bounded by public streets, the prevailing view was that the conveyance included the street to its center line, the court concluded that when lot 9C was conveyed to the Garveys, it included the strip, and that subsequent conveyances likewise included that property.

Because, with the addition of the strip, the McGlones' property was no longer landlocked, the court found that the need for an easement no longer existed. In that regard, the court noted Michael DePalma's testimony at trial that he had already obtained a county access permit to create a cut-through for a driveway exiting from the McGlones' property onto County Road 516, thereby demonstrating that such a step was legally possible. The court then held that the easement created by Judge Davis was an easement by necessity, which it vacated. The court rejected the McGlones' position that they maintained the same rights to the easement as did the DePalmas, which included its use for activities other than ingress and egress.

Addressing the parties' claim for damages, the court held:

The court finds that the parties' demeanor and testimony at trial concerning their claimed damages to be for the most part self-serving and not credible. The court finds that neither party has established damages for [the claimed] actions other than those damages which have previously been ordered by the court.

 

Accordingly, the court dismissed all damage claims including those asserted by the McGlones arising from the destruction or removal of the shed.

The court ordered that counsel for the DePalmas prepare all necessary documents to transfer ownership of the strip to the McGlones and to quiet title. It gave the McGlones 120 days to construct their new driveway, and in the interim, permitted their restricted use of the easement for access, the parking of one landscaping truck without its trailer, and parking by others for a duration limited to fifteen minutes. An order embodying the court's rulings was entered on February 1, 2010. A subsequent "motion to define property lines where they start and end and access to property in question," which the court construed as a motion for reconsideration, was denied in its entirety. This appeal by the McGlones followed.

II.

On appeal, the McGlones appear to claim an ownership interest in DePalma Drive to the center of that paved private roadway, citing, among others, the Salter decision upon which the trial court relied in conveying an ownership interest in the strip to them. We reject the McGlones' legal position, determining on the basis of the testimony and evidence produced at the trial of this matter that, when lots 9B and C were subdivided from lot 9, neither of the new lots included DePalma Drive, a private roadway that was never dedicated to or accepted for public use. Nor is there any evidence that the DePalmas intended such a dedication, particularly after their application for major subdivision approval was denied. The McGlones' and their predecessors' property rights in DePalma Drive were at all times limited to an access easement. We are thus in accord with the interim restrictions placed by the trial court on the use of that roadway and with the court's determination to preclude the use of the adjoining property by the McGlones.

Nonetheless, we perceive a significant issue to exist as to whether, upon the court's granting to the McGlones of a property interest in the strip, it could legally vacate the access easement that the McGlones had previously enjoyed. Following trial, the court determined that, in the prior proceeding, Judge Davis had granted an easement by necessity. Our review of the evidence satisfies us that such a ruling would not have been legally and factually sustainable, and thus that the easement granted by Judge Davis more appropriately should have been deemed an easement by implication.

We reach that conclusion as the result of concessions at the trial of the present matter that the ownership of the strip and Pasquale DePalma's undertaking to deed the strip to the county were not raised as a basis for finding lot 9C to be landlocked. Rather, the argument was made in the Garvey's complaint that entering onto and exiting from County Road 516 directly would be "difficult and dangerous," and thus the property was "effectively" landlocked. In their complaint, the Garveys noted that, at some time between 1984, when the minor subdivision was approved, and 1987, when the property was conveyed by the DePalmas, DePalma Drive, consisting of a macadam road flanked by curbs, had been constructed by the DePalmas, and that the purpose of the road, insofar as lot 9C was concerned, was to connect the driveway on lot 9C to County Road 516 for purposes of access. They further noted that DePalma Drive was clearly shown on the minor subdivision map, as well as on a land survey attached to their complaint, and that its existence as a means for access constituted an inducement to the Garveys to purchase the house, which they would not have undertaken in its absence.

The conditions giving rise to an implied easement were discussed at length by this court in a decision by Judge Jayne in A.J.and J.O. Pilar, Inc.v. Lister Corp., 38 N.J.Super. 488 (App. Div.), aff'd, 22 N.J. 75 (1956), a case, unlike the present one, in which the conditions giving rise the recognition of a grant of an implied easement were found not to exist. However, it is the legal principles set forth in that case upon which we rely.

In Pilar, the court recognized that in circumstances in which a landowner, during a period in which ownership was unified, utilized a part of the land for the benefit of another part, a quasi-easement was created. Id. at 496. Upon conveyance of the benefited part, the grant of an implied easement would be found (1) if title were separated; (2) before separation took place the use that gave rise to the easement had been "so long continued and so obvious or manifest as to show that it was meant to be permanent;" and (3) that the easement was "necessary to the beneficial enjoyment of the land granted[.]" Id. at 497 (quoting Kellyv. Dunning 43 N.J. Eq. 62, 69 (Ch. 1887), aff'd, 46 N.J. Eq. 605 (E. & A. 1890)).

Significantly, the court held:

the necessity need not be absolute in the sense that there can be no enjoyment of the land whatsoever without the easement. Here, again, necessity or the reasonable necessity is not the basic factor that creates the implied easement, but it is one of the elements of consideration in ascertaining the real intention of the parties. In other words, the extreme desirability of the easement is a material consideration of gradational weight in support of the inference that the conveyance of the land was intended not only to embrace the land alone but of the land with the easement appurtenant thereto.

 

[Id. at 498.]

 

See also Restatement (First) ofProperty 474, comment a, illustration 1 (1944); Lenningv. Ocean City Ass'n. 41 N.J. Eq. 606, 608-09 (E. & A. 1886).

In contrast to an easement by implication, which arises as the result of the use to which property is put prior to conveyance,

an implied easement by necessity arises by operation of law where "an owner of land conveys to another an inner portion thereof, which is entirely surrounded by lands owned by the conveyor. . . ." 3 Powell, Real Property 410 at 34-62 to 34-63 [(1985 & Supp. 1987)]. Such an easement is found only in relation to the boundary conditions existing at the time of the original subdivision severing common ownership. . . . An easement implied by necessity "is predicated upon the strong public policy that no land may be made inaccessible and useless."

 

[Leachv. Anderl, 218 N.J. Super. 18, 25 (App. Div. 1987) (quoting Old Falls,Inc. v. Johnson, 88 N.J.Super. 441, 451 (App. Div. 1965).]

 

See also Cale v. Wannamaker, 121 N.J. Super. 142, 147-48 (Ch. Div. 1972).

In the present case, evidence demonstrates that the DePalmas, at the direction of the Township Planning Board, constructed DePalma Drive as a means to provide access to lot 9C, upon which they had erected a house, during the time that they retained possession both of lot 9 and lot 9C. At the time of the sale of the property to the Garveys, they held the house out as possessing a driveway that connected to DePalma Drive, which offered the only means of accessing the house from County Road 516. When easement litigation commenced, the DePalmas could not have sought to assert an ownership interest in the strip, because if they had done so, the Garveys would have been unable to create the new driveway that the DePalmas wanted them to construct unless the DePalmas granted an easement a step that does not appear to have been contemplated. Further, despite the fact that at some point the Garveys became aware of the questionable status of the strip, they did not utilize that evidence in litigation by claiming that their property was landlocked. Rather, in their pleadings and in their communications with their attorney, Jeffrey Craig, they asserted only that it was "effectively" landlocked as the result of difficulties that they perceived to exist in directly entering onto and exiting from County Road 516.

As a consequence, we find that an easement by necessity was not demonstrated by the proofs considered by Judge Davis, because there was no proof presented in that proceeding that the Garveys' property was in fact landlocked. Rather, the proofs disclosed a basis for finding the grant by the DePalmas of an easement by implication based upon their construction of a house, appurtenant driveway, and connection to County Road 516 by way of DePalma Drive, prior to the time that they sold the property to the Garveys. This view is supported by the terms of the prior land use approval, approving the minor subdivision conditioned on the construction of DePalma Drive as a private access road.

We regard the distinction between the two types of easements to be significant, because an easement by necessity can be extinguished as soon as the underlying necessity is obviated. Ghen v.Piasecki, 172 N.J. Super. 35, 43 (App. Div. 1980). In contrast, an easement by implication is extinguishable only under the following circumstances:

1. By release: (Dahlberg v. Haeberle, 71 N.J.L. 514 (Sup. Ct. 1904).)

 

2. By merger of the dominant and servient estates: (Fettersv. Humphreys, 19 N.J. Eq. 471 (E. & A. 1868).)

 

3. By abandonment by the dominant tenant: (LeaseholdEstates, Inc. v. FulbroHolding Co., 47 N.J. Super. 534 (App. Div. 1957)[, certif. granted, 25 N.J. 538 (1958).)]

 

4. By estoppel: (Picconi v. Carlin, 40 N.J. Super. 393 (Law Div. 1956).)

 

4. By expiration of a stated term of easement.

 

[Arthur S. Horn, Residential Real EstateLaw and Practice inNew Jersey, 6.1(d)(iv) (1979).]

 

The Restatement adds prescription and condemnation to this list. See Restatement, supra, 506-08. However, none of the events we have enumerated occurred here.

Accordingly, we conclude that the trial court mistakenly vacated the easement recognized by Judge Davis in this case and required that the McGlones construct a new driveway that would connect directly to County Road 516. We suspect that an additional factor that the court may have considered in vacating the easement was the perception that such a step might serve to lessen tension between the warring neighbors who were parties to this litigation. We understand that, since the court's decision was issued, the DePalmas have conveyed their property to a new owner and have moved. We trust that the animosity that had developed prior to that move has not carried over to affect the use and enjoyment by the new property owners of their land. In furtherance of that object, we emphasize that the restrictions on the use of DePalma Drive by the McGlones to access, the parking of one truck without a trailer, and to fifteen-minute parking by others remain in effect. We also direct that the DePalmas serve a copy of this opinion on the purchasers of their property so that they will have notice of their rights.

We note that the DePalmas did not file a cross-appeal in this matter to challenge the court's recognition of an ownership interest by the McGlones in the strip. Thus, as between the parties to this litigation and their successors in title, the issue appears settled. However, if an issue remains as to the County's right to the strip, we urge the McGlones to take steps to resolve that issue, either by legal action or binding agreement with the County.

We affirm the court's determination not to award monetary damages in this matter. The court found that the parties did not credibly support their damage claims. We decline to disturb that ruling. Rova Farms Resort, Inc.v. Investors Ins. Co., 65 N.J. 474, 484 (1974).

A

ffirmed in part and reversed in part.

1 The road is also known as South Egg Harbor Road and as Cedarbrook Road.

2

It is unclear whether lots 9B and C were carved from lot 9 or whether lot 9C was a preexisting lot that was subdivided. Evidence in the record supports both scenarios.

3 In an amended complaint, Winslow Township was added as a defendant, and a count was added seeking, as alternative relief, that the Township be compelled to accept the dedication of DePalma Drive as a public street.

4 It does not appear that any party has ordered the transcripts from the easement proceeding.