NOT FOR PUBLICATION WITHOUT THE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-2866-21
BENJI1 SWAN and
RUSSELL2 SWAN,
Plaintiffs-Appellants,
v.
STEPHEN LAMANNA and
LILA LAMANNA,
Defendants-Respondents.
___________________________
Argued November 27, 2023 – Decided January 2, 2024
Before Judges Sabatino, Mawla, and Chase.
On appeal from the Superior Court of New Jersey,
Chancery Division, Cape May County, Docket No.
C-000054-17.
Frank L. Corrado argued the cause for appellants
(Barry, Corrado & Grassi, PC, and Gillin Schwartz
Law, LLC, attorneys; Frank L. Corrado and Joseph
Christopher Gillin-Schwartz, on the brief).
1
Portions of the record spell this first name "Benjie."
2
Misstated as "Russel."
Lila Lamanna, respondent, argued the cause pro se
(Stephen Lamanna, respondent pro se, and Lila
Lamanna, on the brief).
PER CURIAM
The present appeal is the latest chapter in a series of long-running
easement disputes between the owners of neighboring properties in Middle
Township.
After a bench trial that consumed fifteen intermittent trial days, the Law
Division judge determined that plaintiffs, Benji and Russell Swan, had certain
easement rights with respect to one of two lots they own (Lot 21). The ruling
enables them to make use of most of an unpaved private roadway—known as
Gus's Beach Road—located on the property of defendants, Stephen and Lila
Lamanna. The judge rejected plaintiffs' demand to modify the deeded terms of
the prescriptive easement to allow them to use approximately the last 200 feet
of the roadway, which veers closer to defendants' farmhouse. Instead, the judge
ruled the terms of the easement did not encompass the disputed approximate 200
feet, and instead follows a straight line across a wooded, low-lying area to State
Highway 47 without a driveway or roadway.
On reconsideration, the court revised its final judgment to require
defendants to cooperate with plaintiffs in pursuing environmental permits to
A-2866-21
2
allow a roadway to extend across the low-lying area. The court specified,
however, that if plaintiffs did not obtain such permits, the entire easement would
be extinguished.
Plaintiffs now appeal the trial court's denial of the requested modification
and its limitation of their easement rights solely to Lot 21 and not Lot 24, another
nearby parcel they own. Plaintiffs further appeal the court's condition that they
must obtain permits as a condition of retaining their easement rights. Although
their responding brief expresses dissatisfaction with aspects of the amended
final judgment, defendants have not cross-appealed.
For reasons that follow, we affirm the trial court's rulings concerning the
location and terms of the easement and its denial of plaintiffs' requested
modification. We do so substantially for the sound legal and equitable reasons
expressed in the trial court's February 28, 2022 detailed written opinion. We
reverse and remand in part, solely for the trial court's reconsideration of aspects
of the permit condition.
I.
The extensive factual record and procedural history of this property
dispute are well known to the parties, and we need not detail it comprehensively
here. The following summary will suffice.
A-2866-21
3
Plaintiffs acquired two tracts lying mostly to the south and west of
defendants' property in Middle Township in 1992. Plaintiffs' Lot 24 3 is directly
south of defendants' Lot 20, and these two lots are similarly sized long but
narrow properties that run from the Delaware Bay in the west to State Route 47
to the east. Along their boundary runs an unimproved private road known as
Gus's Beach Road. Gus's Beach Road was impassable from at least 1984 until
approximately 2005. Gus's Beach Road is located on defendants' lot, Lot 20.
Plaintiffs' second lot is Lot 21, a small bayside lot that had been severed
from Lot 20 in 1950 and sold to East Point Oyster Company ("East Point"). The
1950 deed from the Lucianos to East Point for Lot 21 describes two easements,
a ten-foot-wide easement allowing Lot 21's owners access north to Bay Avenue,
and a thirty-three-foot-wide easement east to State Route 47.
That same year, the Lucianos and East Point signed a lease that provided
East Point with space to conduct an oyster shucking operation on the bay shore
and allowed it to use a "private road" on the property, Gus's Beach Road.
3
Over the years, Middle Township has numerically redesignated the lots subject
to this appeal. Lot 20, which is owned by defendants, had been referred to as
Lot 6; Lot 7.02, owned by plaintiffs, is now Lot 24; Lot 9, owned by plaintiffs,
is now designated Lot 21. For the sake of clarity, we refer to all lots by their
current designations.
A-2866-21
4
Plaintiffs' two lots, Lots 21 and 24, are not strictly contiguous, and Lot 21 does
not afford Lot 24 access to Bay Avenue.
The deed from Luciano to East Point for Lot 21 contains the following
easement terms:
BEGINNING at a point set at the high[-]water mark of
the easterly shore of Delaware Bay, said point being
five feet from a concrete monument on a course north
thirty-seven degrees and nine minutes east, said
monument being the northwest corner of the above
described land; thence south fifty-two degrees and
fifty-one minutes east, one hundred forty-three and
fifty-three hundredths feet to a point in the center line
of a proposed avenue to be known as Bay Avenue;
thence along the center of said proposed Bay Avenue,
south twenty-four degrees and thirty-two minutes west,
one hundred fifty-five feet to the center of another
proposed avenue, and there to end. Said courses and
distances are the center line of said right-of-way, the
width of which shall be a total of ten feet measured five
feet at right angles from the above line in either
direction.
The deed goes on to recite:
TOGETHER with a further right-of-way from the end
of the immediately preceding right of way to State
Highway Route S-4[7] on a course south forty-eight
and thirty-nine minutes east, running to said State
Highway Route S-4[7] for a width of thirty-three feet,
the aforesaid course representing the center line
thereof.
A-2866-21
5
The first paragraph above, concerning the ten-foot easement, grants Lot
21's owners access to Bay Avenue. At trial, defendants' expert, Joseph Grabas,
explained that the thirty-three-foot easement running between the end of Lot
21's ten-foot easement to Bay Avenue and Route 47 describes a "straight line
that runs up along the property line." Grabas acknowledged that the easement
described in the deed and Gus's Beach Road were often "congruent." However,
for the purposes of selling a bay side portion of Lot 20 as Lot 21, as Luciano did
in this transaction, Grabas opined that an express easement was preferable
because "the purchaser of that lot wants to know that forever they'll be able to
access that lot."
Defendants acquired Lot 20 from the heirs of the Lucianos in 1984. In
1985 or 1986, defendants purchased two gates. The first gate was installed at
the time of purchase at the eastern end of the now-disputed 200-foot travel way
that defendants consider their driveway, controlling access from Route 47 onto
the travel way.
In 1989 defendants installed another gate blocking access to those
traversing Bay Avenue to points south. Defendants installed the gates at least
in part to prevent illegal dumping, which was common on the property. The
dumping problem was so pervasive, including large appliances and discarded
A-2866-21
6
construction materials, that portions of Gus's Beach Road were impassible until
approximately 2005 when defendants arranged with a tenant to clear the
roadway.
As noted above, in 1992, plaintiffs purchased their two tracts, Lots 21 and
24, in a single transaction from the Estate of Ernest Schleusener. When asked
at trial if "the Swans acquired the same package of rights that was transferred in
1963?" plaintiffs' expert, Lewis Conley, answered "Yes." Accordingly,
plaintiffs possess an express easement for access to Route 47 from Lot 21 .
Defendants blocked plaintiffs' access to the disputed 200 feet of travel
way between Gus's Beach Road and Route 47 in 2004, and plaintiffs removed
the obstruction in 2006. Plaintiffs continued to assert their rights to the
easement during this time, and defendants filed trespassing charges against
plaintiffs in 2009 and 2010.
Meanwhile, in November 2009, plaintiffs successfully sued defendants to
acquire a prescriptive easement across Lot 20 for the benefit of Lot 24. Lamanna
v. Swan, No. A-1280-10 (App. Div. July 20, 2012) (slip op. at 4, 57). We
affirmed that particular easement grant in our unpublished 2012 opinion. Id. at
57. That prescriptive easement for the benefit of Lot 24 allows plaintiffs to
traverse the far western end of defendants' property to access Bay Avenue,
A-2866-21
7
which, in turn, allows plaintiffs to access Route 47 via Highs Beach Road, a
public street that runs to the north of defendants' property. Id. at 36. Defendants'
petition for certification to the Supreme Court was denied. Lamanna v. Swan,
213 N.J. 568 (2013).
The central issue in the present case is that Gus's Beach Road deviates
from the path of the express thirty-three-foot-wide easement that runs from the
termination of the ten-foot-wide easement in the west to Route 47 in the east.
Although the easement and Gus's Beach Road are largely contiguous, and run in
a straight line along the border of Lots 20 and 24, the 200 feet of Gus's Beach
Road approaching Route 47 veer off the path described in the easement and cross
Lot 20 to intersect with Route 47 thirty-five feet further north. On cross-
examination at trial, defendants' expert Grabas, agreed that the "vast majority"
of the easement is contiguous with Gus's Beach Road.
Plaintiffs assert their easement rights can only be protected if the court
uses its equity powers to modify the easement by relocating the easement to
coincide with the disputed 200-foot portion of Gus's Beach Road, thus allowing
plaintiffs to access Route 47 in that more direct manner without using the
easement access to Highs Beach Road. Defendants insist that the disputed 200
A-2866-21
8
feet of Gus's Beach Road is their private driveway to Route 47, and that plaintiffs
have no right to access it.
In October 2017, plaintiffs filed this lawsuit in the Law Division, seeking
to enforce an alleged express easement that would allow them direct access from
both of their lots to Route 47 via Gus's Beach Road. Defendants asserted
counterclaims related to a culvert that plaintiffs allegedly blocked, harassment,
and other poor conduct by plaintiffs, which are not the subject of a cross-appeal
and are not before us.
When the initial easement for Lot 21 was granted, no permitting was
required to traverse wetlands with a roadway or driveway that would connect it
to Route 47. That situation has changed due to the enactment of environmental
laws and regulations.
Plaintiffs have inquired with the New Jersey Department of
Environmental Protection ("DEP") about acquiring permits. They were
informed that, although the issuance of permits was possible, plaintiffs' existing
alternative access to Route 47 via Bay Avenue would hamper their application.
The DEP's response, read into the transcript at trial, is as follows:
Dear Ms. Swan,
I am writing in response to your letter inquiring
about what sort of permits would be required for
construction of a new road to your existing home. It
A-2866-21
9
would appear the primary permit necessary would be an
individual permit under the Fresh Water Wetlands
Protection Act. Individual permits are often difficult to
receive since for nonwater dependent activities such as
a road applicants are required to demonstrate there is
no alternative location for the activity that would not
impact on a fresh water wetland. Since the activity in
this case is a new road to access your existing home
there already exists a nonwetland alternative, the
existing road, it would be very difficult for you to
demonstrate a new road is necessary. In addition to
satisfying the alternative test non water dependent
activities that impact on threatened and endangered
species habitat also have to demonstrate the activity as
a compelling public need greater than the need to
protect the wetland. Again, since you already have use
of a viable access road to your property it will be
difficult to satisfy the compelling public need
argument. I trust the above addresses your immediate
concerns. But should you have any further questions
please do not hesitate to contact me.
[(Emphasis added).]
Following the lengthy bench trial, on February 28, 2022, the court issued
an order and accompanying opinion. It found that the express easement did not
include access to an existing travel way that extended from within the bounds
of the easement across defendants' property to Route 47.
Plaintiffs moved for reconsideration. On April 25, 2022, the court granted
that motion in part, issuing an amended final judgment ordering plaintiffs to
engage in a "good faith" effort to obtain "all applicable permitting to repair or
A-2866-21
10
improve the wooded, low-lying area contained in the right of way at the
intersection of Route 47." The amended final judgment also ordered defendants
to cooperate with any "professional work or inspection necessary for the
same[,]" and detailed procedures by which the parties could petition the court to
resolve any future disputes.
This appeal by plaintiffs ensued. As clarified at oral argument, they raise
three points: (1) the trial court erred in denying their request to modify the
easement so as to include the approximate 200 feet of roadway; (2) the court
should have extended their easement rights for Lot 21 to their other parcel, Lot
24; and (3) the permit condition imposed by the trial court is inequitable and
should be excised.
II.
Our standard of review is well known. "Final determinations made by the
trial court sitting in a non-jury case are subject to a limited and well-established
scope of review . . . ." Seidman v. Clifton Sav. Bank, 205 N.J. 150, 169 (2011).
An appellate court shall "not disturb the factual findings and legal conclusions
of the trial judge unless [it is] 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[.]" Id. at 169 (second alteration in original)
A-2866-21
11
(quoting In re Trust Created by Agreement Dated December 20, 1961, 194 N.J.
276, 284 (2008)).
The trial court's findings of fact are "binding on appeal when supported
by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394,
411-12 (1998); see also Rova Farms Resort, Inc. v. Investors Ins. Co. of Am.,
65 N.J. 474, 483-84 (1974). However, we owe no comparable deference to the
trial court's interpretation of the law or its application of the law to the facts,
which we review de novo. Manalapan Realty, LP v. Twp. Comm. of Manalapan,
140 N.J. 366, 378 (1995).
Viewed through this appellate prism, we proceed to consider in turn each
of plaintiffs' arguments.
A.
Plaintiffs first contend the trial court erred by failing to modify the
easement so that the disputed 200 feet of travel way is considered part of Lot
21's express easement. They argue the easement must include an implied right
to make minor deviations necessary to engender full enjoyment of the easement.
They assert the court erred by declining to modify the easement, comparing this
case to Kline v. Bernardsville Ass'n, 267 N.J. Super. 473, 480 (App. Div. 1993),
A-2866-21
12
in which we allowed modification where it was "minor and the parties' essential
rights are fully preserved."
The trial court explicitly found that plaintiffs have an easement
appurtenant over the ten-foot-wide and thirty-three-foot-wide easements and the
associated travel ways in order to access Lot 21 from Route 47. However, the
court also made clear that plaintiffs' easement "specifically exclude[s]" the
approximately 200 feet where the travel way deviates from the easement by
crossing a corner of defendants' property and connecting to Route 47.
In making that finding, the court largely relied on the testimony of Grabas,
who the court found "more persuasive" than plaintiffs' expert because of his
background in title work and his clear descriptions of the competing "deeds,
leases, easements, and other documents in evidence." As the trier of fact, the
court had the prerogative to find an expert witness's testimony more credible
than that of an opposing expert. Angel v. Rand Express Lines, Inc., 66 N.J.
Super. 77, 85-86 (App. Div. 1961) (citations omitted). This principle flows out
of the well-known proposition that jurors, or a judge in a bench trial, have the
best "opportunity to hear and see the witnesses and to get a 'feel' for the case
that the reviewing court [cannot] enjoy." Twp. of W. Windsor v. Nierenberg,
A-2866-21
13
150 N.J. 111, 132 (1997) (quoting State v. Whitaker, 79 N.J. 503, 515-16
(1979)).
The trial court found there is no "latent ambiguity" in the deeded
easement. The court agreed with defendants' contentions that the 200-foot
deviation between Gus's Beach Road and the path of the express easement is
supported by historical documentation, namely the 1950 lease from Luciano
giving express permission to an oyster cultivation business (i.e., East Point) to
use the "private roadway" (i.e., Gus's Beach Road) that connected Route 47 to
the oyster shelling lots that East Point used.
The court also found that the disputed 200-foot portion of the travel way
is significantly closer to defendants' residence than the deeded easement, and
that allowing plaintiffs to use the driveway would "affect the peace and quiet
enjoyment of [defendants'] property."
These findings are well supported by the record. They are also consistent
with the applicable legal principles concerning easement rights.
"An easement is defined as 'a nonpossessory incorporeal interest in
another's possessory estate in land, entitling the holder . . . to make some use of
the other's property.'" Kline, 267 N.J. Super. at 478 (quoting Leach v. Anderl,
A-2866-21
14
218 N.J. Super. 18, 24 (App. Div. 1987) (omission in original)). There are "[s]ix
factors . . . integral" to an easement:
(1) the fact that it is an interest in land which is in the
possession of another; (2) the content of the interest as
a "limited" use or enjoyment of the land in which the
interest exists; (3) the availability of protection of the
interest as against interference by third persons; (4) the
absence of terminability at the will of the possessor of
the land; (5) the fact that it is not a normal incident of
a possessory land interest, and (6) the fact that it is
capable of creation by conveyance.
[Leach, 218 N.J. Super. at 24 (quoting Town of Kearny
v. Mun. Sanitary Landfill Auth., 143 N.J. Super. 449,
459 (Law Div. 1976)).]
There are three kinds of easements: easements "by implication; by an
express conveyance; or by prescription." Ibid. (citing Mahoney v. Danis, 95
N.J. 50, 58 (1983) (Schreiber, J., dissenting) (citing John E. Cribbet, Principles
of the L. of Prop. 336 (2d ed. 1975))); accord Mandia v. Applegate, 310 N.J.
Super. 435, 443 (App. Div. 1998). The second category pertains here.
To expressly convey an easement, a precise description of the easement
must be recorded in a deed or other written instrument. Tide-Water Pipe Co. v.
Blair Holding Co., 42 N.J. 591, 604 (1964). "What the easement holder's rights
are . . . depends first of all on the intent of the parties as expressed in the
language of the grant . . . ." Ibid. "Where the meaning is plain, as derived from
A-2866-21
15
the language read as an entirety and in the light of the surrounding
circumstances, it will control without resort to artificial rules of construction."
Id. at 605 (citing Hammett v. Rosensohn, 26 N.J. 415, 423 (1958)).
Conversely, where the language of the instrument is not plain, "the
question becomes a mixed one of law and fact to be determined within the
framework of the universally accepted principle of easement law that the
landowner may not . . . unreasonably interfere with the [easement holder's] rights
or . . . make the use thereof significantly more difficult or burdensome." Id. at
604. In such a case, the written instrument "must be read as a whole, without
artificial emphasis on one section, with a consequent disregard for others.
Literalism must give way to context." Borough of Princeton v. Bd. of Chosen
Freeholders of Cnty. of Mercer, 333 N.J. Super. 310, 325 (App. Div. 2000),
aff'd, 169 N.J. 135 (2001).
"[A]rising out of every easement [is] an implied right to do what is
reasonably necessary for its complete enjoyment . . . ." Tide-Water Pipe, 42
N.J. at 604. However, that implied right can only be exercised in a "reasonable
manner as to avoid unnecessary increases in the burden upon the landowner."
Ibid. (citing Lidgerwood Ests., Inc. v. Pub. Serv. Elec. & Gas Co., 113 N.J. Eq.
403 (Ch. 1933)).
A-2866-21
16
On rare occasions "a court may compel relocation of an easement to
advance the interests of justice where the modification is minor and the parties'
essential rights are fully preserved." Kline, 267 N.J. Super. at 480. Where a
court considers such a remedy, it should be mindful that "relocation of an
easement without the mutual consent of the parties is an extraordinary remedy
and should be grounded in a strong showing of necessity." Ibid. (emphasis
added). A relocation meeting these stringent criteria would be an exercise of
the court's "equitable power." Id. at 481.
In the illustrative case of Tide-Water Pipe, the plaintiff pipeline company
acquired an easement in 1914 to run pipelines under a property and "with free
ingress and egress, to construct, operate, repair, replace, maintain, and from time
to time alter and remove the same in such manner as it may desire." 42 N.J. at
594. The grant also specified that the pipelines "shall be so laid as not to
interfere with the usual cultivation of the premises nor with any buildings
thereon." Ibid. By 1937, a factory and two commercial or industrial buildings
were constructed on the property. Id. at 596-97.
The defendants in Tide-Water Pipe "acquired the property in 1957 with
actual notice of the easement and the location of the lines." Id. at 596. In 1961
the defendants proposed expanding a building over the lines and encasing the
A-2866-21
17
pipelines. Id. at 597. The plaintiff objected to the encasing, but the defendants
decided to proceed, and the plaintiff sued to enjoin construction. Ibid. The
plaintiff objected to encasement because it interfered with its ability to repair
the pipelines in a timely and cost-efficient manner. Id. at 598-99. The most
timely and cost-efficient manner for repairing leaks is known as "straight-down
digging" and that method cannot be used where a pipeline is encased. Id. at 599.
The Court in Tide-Water Pipe ruled that the language of the grant of the
easement was "plain enough" and "broad" and did not require the application of
"artificial rules of construction." Id. at 605. Nonetheless, the Court analyzed
whether accessing the pipes by digging straight down was "reasonably necessary
for the full enjoyment of the easement or only for the mere convenience of its
holder." Id. at 607. The Court agreed with the trial court's finding of reasonable
necessity "because of the substantially additional burden in time and money"
that the plaintiff would incur to repair the pipelines if they were encased. Ibid.
Accordingly, the Court upheld the ruling that the defendants were not entitled
to modify the plaintiff's easement by building over it. Id. at 608.
Here, plaintiffs have a recorded appurtenant easement that stretches from
the Delaware Bay to Route 47. The existence of this easement is not in dispute.
What is in dispute is whether that easement tracks the path of an existing travel
A-2866-21
18
way. The court, relying on the expert testimony of Grabas, reasonably
determined that the easement and the travel way, (Gus's Beach Road) are not
identical.
The court declined to prescribe the "extraordinary remedy" of relocating
that easement. Kline, 267 N.J. Super at 480. That decision is well supported by
our case law. While there is an "implied right to do what is reasonably necessary
for [the] complete enjoyment" of an easement, that implied right can only be
exercised in a "reasonable manner as to avoid unnecessary increases in the
burden upon the landowner." Tide-Water Pipe, 42 N.J. at 604. The trial court's
finding that the disputed travel way is closer to defendants' residence than the
express easement, and the associated conclusion that modification of the
easement would diminish defendants' "quiet enjoyment" of the property, is well -
supported by the record.
Plaintiffs minimize the proximity of defendants' residence to a modified
easement roadway that plaintiffs and their visitors would use. They stress the
roadway would only be about 165 feet from the residence, and that such a
distance would not significantly diminish defendants' quiet use and enjoyment
of their dwelling. The trial court reasonably found to the contrary. By numerical
comparison, we note that the Municipal Land Use Law ("MLUL") generally
A-2866-21
19
requires notices of land use applications to be served on all nearby owners whose
properties are within 200 feet of the applicant's property. N.J.S.A. 40:55D-
12(b). Although the MLUL's 200-foot notice requirement does not govern the
present parties' easement rights, the statute reflects a concern that living within
at least 200 feet of a neighbor's property can affect one's quality of life if the
neighbor obtains permission to use the property a certain way. In any event, the
trial court had ample reason to conclude that the roadway's proximity would
detract from defendants' quiet enjoyment of their home.
We also concur with the trial court that plaintiffs have not demonstrated
"necessity" to modify the easement. As the previous litigation established,
plaintiffs can gain access to Route 47 through their separate easement
connecting to Highs Beach Road. To be sure, that route is indirect and less
convenient. But it is not manifestly vital to plaintiffs to access Route 47 by
driving past defendants' residence.
In sum, the trial court had sound reasons—grounded in the factual record
and consistent with the law—to reject plaintiffs' request for the "extraordinary
remedy" of modification. Kline, 267 N.J. Super. at 480.
A-2866-21
20
B.
Plaintiffs further seek this court to alter the trial court's judgment and
specify that their easement rights attach not only to their Lot 21, but also to Lot
24. We decline to do so.
This argument rests upon the fact that although the Lucianos conveyed
easement rights to East Point to be used by Lot 21, East Point bought Lot 2 4
from Lucianos' neighbor directly to the south in 1950. Thereafter, in 1963, East
Point conveyed Lots 21 and 24 to a buyer in a single transaction. Ownership of
those two lots was subsequently conveyed to other successors in title until
plaintiffs acquired them in 1992.
Plaintiff argues that the easement rights originally conveyed solely to Lot
21 in 1950 are now also rights attached to Lot 24, because the lots have had
common ownership and plaintiffs bought the lots in a single transaction. This
argument proves too much. The easement originated in the 1950 deed to Lot 21
only. The grantor did not specify that the easement be attached to other parcels.
The plain language of the conveyance controls. Tide-Water Pipe, 42 N.J. at 605.
Basic principles of property law undermine plaintiffs' argument. For
instance, suppose a deed granted the Owner of Blackacre an easement to travel
on the Grantor's property. If the Owner separately acquired Greenacre and
A-2866-21
21
Brownacre, which are also nearby parcels, that does not mean that the easement
is now expanded to those additional parcels and thereby potentially increasing
the usage of the easement. Such an expansion would deviate from the Grantor's
original intent. Id. at 604.
We therefore decline to alter the judgment to encompass Lot 24 in addition
to Lot 21.
C.
Plaintiffs argue the trial court erred in imposing permit requirements as a
condition of retaining the easement. In its first final judgment, issued February
28, 2022, the court ruled:
Barring [plaintiffs] obtaining a permit or other
approvals to construct a roadway and constructing said
roadway over the wooded, low-lying area contained in
the deeded right of way at the intersection of Route 47,
plaintiffs are barred from utilizing the right of way
eastward of its intersection with the eastern boundary
of the prescriptive easement over Lot 20 granted by
previous judgment of this court up to its intersection
with Route 47.
[(Emphasis added).]
In its written opinion supporting the first final judgment, the court
elaborated that "the purpose of the 1950 deeded easement/ right of way is
extinguished for the long portion of the right of way starting at Route 47 and
A-2866-21
22
ending at the northern boundary of the prescriptive easement previously granted
by judgment." (emphasis added).
The trial court partially granted plaintiffs' ensuing motion for
reconsideration. In its written opinion the court explained reconsideration was
warranted "as to its decision concerning the process of plaintiff seeking
appropriate permits/approvals in relation to the roadway plaintiffs may seek
application to build over the low-lying area at the easement's intersection with
R[oute] 47." The court reaffirmed that plaintiffs, with proper notice to
defendants, would be able to utilize portions of defendants' property in order to
construct a new travel way in line with the easement, but otherwise left intact
its earlier holdings related to the easement.
The court partially granted plaintiffs' reconsideration motion, upon further
reflection, because:
[T]he language utilized in its judgment was
unreasonable and ineffective as [it] failed to adequately
set forth a fully detailed process concerning any future
permit applications made by plaintiffs for the low-lying
area contained in the easement/ right of way including
clearly setting forth the responsibilities of the parties as
to such process.
[(Emphasis added).]
A-2866-21
23
However, the court maintained that "this term in the judgment" confirming
plaintiffs' right to clear the last 200 feet of the easement served to "extinguish"
their inability to use the easement and therefore the "purpose" of the
modification that plaintiffs were requesting. The court further noted that due to
the previously granted prescriptive easement, plaintiffs "have 'street' access to
Lot 21 and have ingress and egress to Lot 21 over the prescriptive easement to
Bay Ave to Highs Beach Road to R[oute] 47[.]" In the court's assessment, the
amended final judgment "remedied the entire situation which has caused
disputes[,]" and "[p]laintiffs have no less access to Lot 21 and the property
where their home is located on Lot 24 due to the court's judgment herein."
Litigants may seek reconsideration if the disposition of a relevant issue
was not properly explained by the court. Calcaterra v. Calcaterra, 206 N.J.
Super. 398, 403 (App. Div. 1986) (citing R. 4:50-1). As the trial court
recognized, the language in its initial final order was insufficient to guide
plaintiffs' actions with respect to permitting. This is an appropriate basis for
reconsideration. Ibid. So was the trial court's pragmatic determination that
defendants must reasonably cooperate with plaintiffs in the permit application
process.
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Even so, the portion of the amended judgment requiring plaintiffs to
pursue a permit is problematic. As the DEP's letter reflects, it appears it will be
difficult and perhaps impossible for plaintiffs to obtain a permit that would
authorize construction of 200 feet of roadway over swampy terrain that may well
be protected wetlands. Given that difficulty, it appears the trial court's condition
of plaintiffs obtaining a permit in order to maintain their easement rights may
be too onerous and inequitable. Plaintiffs assert that they may still want to make
non-vehicular use of the easement through the 200-foot area. The trial court's
decisions did not address such a possibility. The court also did not consider
explicitly whether plaintiffs would make some use of the roadway in traveling
back and forth along the boundary, without exiting onto Route 47.
Accordingly, we remand this matter to the trial court, for the limited
purpose of reconsidering whether the permit condition of the amended judgment
should be revised in a manner that considers these equitable considerations. We
intimate no views on the appropriate outcome.
Affirmed in part, and remanded in part. We do not retain jurisdiction.
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Benji Swan and Russell Swan v. Stephen Lamanna
Combined Opinion