NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5469-15T2
1701 E. MAIN, LLC,
Plaintiff-Appellant,
v.
WAWA, INC.,
Defendant-Respondent.
_______________________________________
Argued September 19, 2017 – Decided October 11, 2017
Before Judges Fisher and Moynihan.
On appeal from the Superior Court of New
Jersey, Law Division, Cumberland County,
Docket No. L-0895-14.
William F. Ziegler argued the cause for
appellant (Holston, MacDonald, Uzdavinis,
Ziegler & Myles, PA, attorneys; Mr. Ziegler,
on the briefs).
Erin P. Loucks argued the cause for respondent
(Shook, Hardy & Bacon, LLP, attorneys; Joseph
H. Blum and Ms. Loucks, on the brief).
PER CURIAM
Plaintiff 1701 E. Main, LLC, appeals a summary judgment that
declared an alleged cross-easement between its property and
defendant Wawa, Inc.'s adjoining property "terminated by
estoppel." Because the underlying circumstances were fact-
sensitive and clouded by the passage of time, and because Brill1
requires that 1701 be given the benefit of all reasonable
inferences, we reverse.
The circumstances are uncomplicated but also uncertain. 1701
is the owner of a nearly square lot at the corner of Wade Boulevard
and East Main Street2 in Millville. 1701's property is adjoined by
Wawa's much larger lot. If the reader pictures the entire area as
a window with four panes, 1701 owns the pane in the upper left-
hand corner, and Wawa the other three, as depicted in the map
taken from the record and appended at the end of this opinion.
In 1971, Miles Petroleum, Inc. purchased the lot now owned
by 1701. A year later, Miles Petroleum and Wawa reached an
agreement memorialized in a June 19, 1972 letter. They agreed that
Miles Petroleum would remove "an old dog pen" and some other "junk"
from its property, that it would cease parking a truck in a
particular area, and that the parties would equally share the cost
of black-topping their properties. Of greater importance here,
1
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
2
East Main Street is also known as County Highway #49; some maps,
such as that appended, and other materials in the record, also
refer to the same roadway as Cumberland Road. We will refer to it
as East Main Street.
2 A-5469-15T2
Miles Petroleum and Wawa "both agree[d] to keep the adjoining
perimeter of [their] premises free from obstructions in order to
permit each other's customers ingress and egress across said
property lines from the two business operations."
At the time, Wawa maintained a convenience store, and Miles
Petroleum operated a gas station. They apparently both benefited
from the 1972 letter-agreement because they agreed to freely allow
patrons in need of both a convenience store and a gas station
access to both businesses without having to reenter one of the
adjoining roadways. The 1972 letter-agreement was never recorded
nor were its terms ever included in any other recorded document.
In 2000, Wawa considered redeveloping its property to include
the operation of gas pumps. In 2001, after its attempts to purchase
another adjoining property failed, and after additional
frustrations caused by local resistance to the removal of an old
oak tree of historic interest, William Van Artsdalen, a Wawa
representative, met with Miles Lerman, the president of Miles
Petroleum, for the purpose of buying Miles Petroleum's lot. Lerman,
however, sought compensation far greater than what Wawa thought
reasonable. Their meeting terminated with Van Artsdalen advising
Lerman that Wawa remained interested in purchasing Miles
Petroleum's lot but would, if necessary, proceed with a plan to
redevelop the property to include gas pumps by running a driveway
3 A-5469-15T2
from East Main Street through the upper quadrant into the lower
two-thirds of its property (as depicted in the appended map).
Wawa and Miles Petroleum never again discussed the matter,
and Wawa proceeded with its plans to redevelop its property.
Construction occurred in 2006. As part of the property's
redevelopment, Wawa blocked any existing right Miles Petroleum may
have had to cross over from its lot onto Wawa's, and vice versa,
by erecting curbing along their common perimeter.
Miles Lerman died in 2008, and 1701 took title to the Miles
Petroleum lot from the Lerman estate. David Lerman, Miles Lerman's
son, is 1701's principal.
Sometime between 2010 and 2012, the Department of
Transportation reconstructed the intersection of Wade Boulevard
and East Main Street and pursued condemnation of 1701's property.
That circumstance prompted David Lerman's visit to the site,3 where
he discovered for the first time the curbing along the property's
perimeter that is the genesis for this suit.
Following discovery, Wawa moved for summary judgment, arguing
the material facts are not in dispute and entitle Wawa to a
judgment declaring that any easement rights were terminated by
3
David Lerman's deposition testimony is not entirely clear about
when this visit occurred. A fair reading of that testimony would
suggest he learned about the curbing no later than March 21, 2012,
the date the existing circumstances were confirmed in an email.
4 A-5469-15T2
estoppel. Wawa contends that either 1701 or its predecessor, Miles
Petroleum, were aware of the 2001 curb installation and uttered
no discouraging words until more than ten years later.
There is no doubt that an easement or servitude – assuming
1701 possessed any such rights4 – may be "lost . . . through
estoppel." Rossi v. Sierchio, 30 N.J. Super. 575, 578 (App. Div.
4
Although the trial judge's ruling presupposed not only the
existence of an easement but also that it was possessed by 1701
and not terminated when the original owner conveyed it either
directly or indirectly to 1701, the only proof of such an easement
is concededly contained in the 1972 letter-agreement. The 1972
agreement, however, does not include the word "easement" or, for
that matter, "servitude," and it expresses only the mutual granting
to the other a right to allow their customers to cross the property
line. If we assume this was intended to be an easement or servitude
– and the existence of such a right is always dependent upon the
parties' intentions, Tide-Water Pipe Co. v. Blair Holding Co., 42
N.J. 591, 604 (1964) – the 1972 letter-agreement gives no
expression of an intent to allow the conveyed rights to be assigned
or inherited. The letter does not state that the right devolves
to the recipient's "heirs and assigns," or any similar language,
so there is no reason to assume at this stage that Wawa conveyed
rights to any person or entity other than Miles Petroleum. The
language suggests that the parties conveyed rights only to "each
other[]" and not to others who may in the future obtain an interest
in the property; that is, the right granted was for the purpose
of "permit[ting] each other's customers ingress and egress across
said property lines from the two business operations." A literal
reading would therefore suggest that "each other's customers"
refers to Wawa's and Miles Petroleum's customers and not
necessarily 1701's, and that "the two business operations"
mentioned were the business operations of Wawa and Miles Petroleum,
not 1701. There may be other uncertainties about the relationship
between the owners or occupiers of the two lots due to the sparse
record of events between the 1972 agreement and the 2001 meeting
that may impact the ultimate disposition of this action.
5 A-5469-15T2
1954); see also Johnston v. Hyde, 33 N.J. Eq. 632, 643 (E. & A.
1881). The American Law Institute recognizes that a servitude will
be deemed modified or terminated when the party possessing the
servitude's benefit not only "communicates . . . by conduct, words,
or silence, an intention to modify or terminate the servitude,"
but also communicates "under circumstances in which it is
reasonable to foresee that the burdened party will substantially
change position on the basis of that communication, and the
burdened party does substantially and detrimentally change
position in reasonable reliance on that communication."
Restatement (Third) Property § 7.6 (2000).
In applying these principles,5 which closely align with New
Jersey common-law estoppel principles, see, e.g., Segal v. Lynch,
211 N.J. 230, 254 (2012); Carlsen v. Masters, Mates & Pilots
Pension Plan Tr., 80 N.J. 334, 339 (1979); Clark v. Judge, 84 N.J.
Super. 35, 54 (Ch. Div. 1964), aff’d, 44 N.J. 550 (1965), to the
circumstances available from the factual material provided by both
1701 and Wawa, there's no question that if a communication was
made by Miles Petroleum – the party then possessing the alleged
benefit – it was, at best, conveyed through silence. Van Artsdalen
5
In reviewing the summary judgment in question, we apply the same
Brill standard that governed the trial court's disposition of the
motion. See Townsend v. Pierre, 221 N.J. 36, 59 (2015); Gil v.
Clara Maass Med. Ctr., 450 N.J. Super. 368, 375 (App. Div. 2017).
6 A-5469-15T2
acknowledged in his deposition that when he met in 2001 with Miles
Lerman – the only interaction between the parties regarding Wawa's
redevelopment plans – neither Lerman nor Van Artsdalen mentioned
the 1972 letter-agreement and the latter never mentioned Wawa's
intent to preclude vehicles from crossing the perimeter. So, as
to the first element of the Third Restatement's estoppel test,
Wawa would have us assume that Miles Lerman's silence in response
to Van Artsdalen's silence about the installation of curbing or
any other obstacle conveyed an intention to modify or terminate
the alleged easement. Because this question was posed at the
summary judgment stage – a time at which 1701 was entitled to the
benefit of all reasonable inferences – we must conclude that this
fact-sensitive question about the significance of Miles Lerman's
silence as a response to Van Artsdalen's silence may be determined
only at trial. That issue alone compels reversal of the order
under review.
The same conclusion must also be reached with respect to the
other aspects of the Third Restatement's estoppel test. Even if
this factual record could be interpreted as demonstrating Miles
Lerman's silence – about either the 1972 letter-agreement or Wawa's
unspoken intent to install curbs around the perimeter – conveyed
an intention favorable to Wawa's position, the court must also be
satisfied this silence occurred, in the words of the Third
7 A-5469-15T2
Restatement, "under circumstances in which it [was] reasonable to
foresee that [Wawa would] substantially change position." A fair
reading of Van Artsdalen's deposition testimony, which provides
the only insight into the parties' discussions about Wawa's
redevelopment of its property, reveals that neither party had any
interest in changing any position or giving up any rights. When
asked to sell the property to Wawa, Miles Lerman made what Wawa
viewed as an exorbitant offer that ended the "negotiations." And,
while Wawa remained interested in buying, but not at Lerman's
price, Wawa neither expressed nor suggested any intention but to
proceed with its redevelopment in some other manner than it would
have if it owned all four window panes. In short, both parties
stuck to their guns and it is reasonable to infer that not an inch
was given by either party about their intentions prior to the
meeting. From this factual record and through the application of
the Brill standard, the trial judge could not conclude Miles Lerman
silently conveyed a willingness to allow Wawa to terminate an
alleged and unmentioned easement during their meeting. These
questions can only be resolved at trial.6
6
Similarly, there is no evidence in the summary-judgment record
to suggest Miles Lerman was otherwise aware of Wawa's actions in
curbing around Miles Petroleum's property. We are not presented
with a situation where the silent party resided across the street
from the construction site and waited until the work was done
8 A-5469-15T2
Reversed and remanded for trial. We do not retain
jurisdiction.
APPENDIX7
before complaining. Miles Lerman was retired and, by all accounts,
was spending his days either in Vineland, Philadelphia or Florida.
It has not been shown he ever observed Wawa's construction work
or was ever aware of the curbing before his death in 2008. In
fact, David Lerman testified at a deposition that his father never
visited or drove by the property at any time relevant to these
circumstances.
7
1701's lot is the 150-by-150-foot lot in the upper lefthand
corner; Wawa owns the other property depicted.
9 A-5469-15T2
1701 E. MAIN, LLC VS. WAWA, INC.(L-0895-14, CUMBERLAND COUNTY AND STATEWIDE)
Combined Opinion