NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE 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-4804-15T3
LARRY J. HOLLOWAY,
Plaintiff-Appellant,
v.
TODD MCMANUS and KELLY MCMANUS,
h/w, EDWARD TRUSKOWSKI, and
BRYAN and MICHELLE ECOHARDT,
Defendants,
and
TOWNSHIP OF JACKSON,
Defendant-Respondent.
_________________________________
Submitted July 5, 2017 – Decided September 11, 2017
Before Judges Simonelli and Carroll.
On appeal from the Superior Court of New
Jersey, Chancery Division, Ocean County,
Docket No. C-0112-14.
Clark L. Cornwell, III, attorney for
appellant.
Gilmore & Monahan, PA, attorneys for
respondent Township of Jackson (Robin La Bue,
on the brief).
PER CURIAM
Plaintiff Larry J. Holloway owns property located on Cerrina
Road in the Township of Jackson (Township). He accesses his
property via a twenty-five-foot-wide unimproved dirt and gravel
path known as Cerrina Road. He sought to have the road declared
a public road. He appeals from the Chancery court's determination
that Cerrina Road is not a dedicated public road, but rather an
unimproved access easement over which plaintiff maintained the
right of access and right to maintain. We affirm.
A 1974 survey depicts Cerrina Road as a ten-foot to twelve-
foot sand road, and the Township's tax maps depict it as a twenty-
five-foot utility access easement. A 2002 subdivision map, which
was created in connection with a developer's application for
preliminary and final major subdivision approval, depicts Cerrina
Road as a twenty-five-foot-wide dirt and gravel utility access
easement "to be dedicated to [the] Township."
The 2002 subdivision map required the grantee and all
subsequent property owners to maintain the twenty-five-foot-wide
dirt and gravel utility access easement. The map also provides
that the utility easement
is intended to run with the land binding
subsequent grantees in each individual lot of
the subdivision and . . . shall be inserted
in all subsequent deeds as it is intended to
benefit all lots of the subdivision making
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each subsequent owner of the individual lots
subsequent to its provisions, and granting to
each subsequent owner of the individual lots
benefits thereof.
The 2002 subdivision map shows that the utility easement is
wholly located on the property owned by defendants Todd and Kelly
McManus (collectively, McManus). The map is referenced in the
legal description of the McManus deed, and the deed states that
the property is subject to easements of record.
In an April 27, 2012 letter to plaintiff, McManus, and
neighboring property owners, defendants Edward Truskowski and
Bryan and Michelle Ecohardt, the municipal engineer notified them
that:
The unimproved private lane commonly known as
Cerrina Road has become a nuisance to
residents of a portion of Cobain Road. Upon
inspection we have noted considerable erosion
emanating from Cerrina [Road] and traveling
onto the extended portion of Cobain Road.
Cerrina Road is a private lane and thus
we are limited in our ability to address this
problem using public funds. It is therefore
incumbent on the several property owners to
work together to address this matter. I
suggest two things be done to arrest this
problem. The road surface should be
stabilized by applying coarse gravels, stone
or millings, and the accumulating stormwater
should be either dispersed, or collected and
slowed to allow for infiltration.
Upon reviewing the site with the Township
Administrator and Public Works Director there
is some consensus that we can offer some
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assistance. I would ask that you contact the
Administrator so that a meeting can be
scheduled to discuss this matter and move to
a suitable resolution.
In 2013, plaintiff applied for subdivision approval and use
variances to develop his property into thirteen residential lots.
He requested that the Township provide a permanent access on
Cerrina Road to his property as a condition of approval, and
proposed to widen Cerrina Road to thirty feet to provide access.
McManus, Truskowski, Ecohardt, and other neighboring property
owners objected to the application.
In a December 12, 2013 letter to plaintiff's engineer, the
municipal engineer confirmed that Cerrina Road is an unimproved
private road, and the 2002 subdivision map provided a twenty-five-
foot utility and access easement along the McManus property. The
municipal engineer described Cerrina Road as a substandard access
easement and concluded it would be against the Township's interest
to accept it and develop a road that would only benefit the
developer's interests.
On February 5, 2014, the Township's Zoning Board issued a
resolution approving plaintiff's application, but only for eight
lots. The resolution stated that "the property is benefitted by
an easement for vehicular access over [the McManus] lot[,]" and
plaintiff had to clarify the right to access to his property.
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Plaintiff then instituted this litigation, seeking to have
Cerrina Road declared a public road. He did not allege defendants'
predecessor in title made an express dedication of Cerrina Road
or that the Township accepted the offer of dedication by an
appropriate ordinance or resolution of the governing body. Rather,
he alleged that Cerrina Road was offered for dedication through
its use and inclusion in the 2002 subdivision map and legal
description in the McManus, Truskowski, and Ecohardt deeds, and
the Township impliedly accepted the offer by exercising dominion
and control over the road through its affirmative acts of grading
and removing snow, including the path on tax maps, and accepting
and filing the 2002 subdivision map.
Following a hearing, in a May 31, 2016 written opinion, the
trial court found that the 2002 subdivision map constituted an
offer of dedication for the twenty-five-foot access easement, but
the Township did not impliedly accept the offer. The court noted
that in order for implied acceptance of a dedication to be found,
the nature of the Township's actions must be consistent with
ownership. The court determined that the mere occasional grading
and plowing of Cerrina Road was insufficient to establish the
Township impliedly accepted the dedication. The court emphasized
that under N.J.S.A. 40:67-23.1, a municipality is permitted
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to repair and maintain and provide for the
removal of snow, ice and other obstructions
from, and provide for the lighting of, any
roads or streets upon which the travel is
sufficient, in the opinion of said governing
body, to warrant such expenditures, even
though such roads or streets shall not have
been taken over by said municipal governing
body or dedicated and accepted as public
highways.
The court was unpersuaded that a municipality taking action, which
is permitted by statute, constitutes acceptance.
Citing N.J.S.A. 54:1-15(1), Acts Saved from Repeal, the court
also found that the inclusion of Cerrina Road on the tax maps and
the Township's acceptance and filing of the 2002 subdivision map
were not actions consistent with ownership, but rather, were merely
administrative duties the Township was required to undertake as
part of its governance.
The court also determined there was a lack of motivation
underlying any claimed intent to accept the dedication on the
Township's part, and little basis to believe the Township would
want Cerrina Road to be a public street given the costs and change
of character. The court emphasized that if the Township had wanted
to create a dedicated public road, it would likely have required
the developer to incur the costs and complete the necessary
improvements of widening, paving, and lighting, and not leave
these tasks for completion by the Township at a later date. The
6 A-4804-15T3
court found this lack of motivation was also supported by the
municipal engineer's letters indicating that the parties viewed
Cerrina Road as unimproved private land, and it would be against
the Township's interest to accept the substandard access.
Lastly, the court determined there is a twenty-five-foot
access easement across the McManus property that is a gravel path
known as Cerrina Road that has been used by plaintiff for twenty-
four years to access his property. The court concluded that
plaintiff will continue to have a right of access to his property
over the access easement known as Cerrina Road, and the right to
maintain the right of way as it currently exists as a twenty-five-
foot gravel path. The court memorialized its decision in a May
31, 2016 final order. This appeal followed.
On appeal, plaintiff contends the court's finding that
Cerrina Road is not a dedicated public road or at least a road
that was offered for dedication constitutes reversible error.
Plaintiff also contends the court's establishment of a twenty-
five-foot access easement has no basis in law.
Our review of a trial court's fact-finding in a non-jury case
is limited. Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150,
169 (2011). "The general rule is that findings by the trial court
are binding on appeal when supported by adequate, substantial,
credible evidence. Deference is especially appropriate when the
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evidence is largely testimonial and involves questions of
credibility." Ibid. (quoting Cesare v. Cesare, 154 N.J. 394, 411-
12 (1998)). We "should not disturb the factual findings and legal
conclusions of the trial judge unless [we are] convinced that they
are so manifestly unsupported by or inconsistent with the
competent, relevant and reasonably credible evidence as to offend
the interests of justice." Ibid. (internal quotation omitted).
However, we owe no deference to a trial court's interpretation of
the law, and review issues of law de novo. Sipko v. Koger, Inc.,
214 N.J. 364, 376 (2013) (citing Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995)). Applying these
standards, we discern no reason to disturb the judge's ruling.
The actions of a landowner manifesting an intent to dedicate
land to a public use is sometimes referred to as an "offer of
dedication" and such an offer is generally irrevocable by the
dedicator. Velasco v. Goldman Builders, Inc., 93 N.J. Super. 123,
137 (App. Div. 1966). However, actual dedication is not
consummated until there has been an acceptance. Ibid.
"[N]o particular formal acceptance of a dedication is
required." Ibid. Municipalities by appropriate ordinance or
resolution may formally accept an offer of dedication. Ibid. A
municipality may also accept an offer of dedication by other
official conduct that manifests an intent to treat the land in
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question as dedicated to public use. Ibid. Implied acceptance
of an offer of dedication of an easement for a road may be found
through improvement and maintenance by the municipality, such as
installing stop signs, lighting, road signs, and water and sewer
lines, and resurfacing and routine road upkeep. See State v.
Birch, 115 N.J. Super. 457, 464 (App. Div. 1971).
We have considered plaintiff's contentions in light of the
record and applicable legal principles and conclude they are
without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the
reasons the court expressed in its written opinion. However, we
make the following brief comments.
The Township was not responsible for the repair and
maintenance of the access easement. Rather, the 2002 subdivision
map vested those responsibilities in the property owners. The
Township's assistance with grading and removing snow was
insufficient to establish an implied acceptance of the offer of
dedication of the access easement.
The record is devoid of evidence that Cerrina Road was
dedicated in a manner other than as an access easement. The 2002
subdivision map specifically identifies Cerrina Road as a twenty-
five-foot-wide utility and access easement to be dedicated to the
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Township. Plaintiff's argument that the court created the easement
without support in the record is blatantly incorrect.
Affirmed.
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