NOT FOR PUBLICATION WITHOUT THE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-0484-20
YURI INVESTMENT &
DEVELOPMENT, INC.,
Plaintiff-Respondent,
v.
322 COMMERCIAL AVE., LLC,
Defendant-Appellant,
and
DREAM USA UNLIMITED
CORP., KWANG SOO
CONSTRUCTION & DESIGN,
INC., a/k/a KWANG SOO
CONSTRUCTION, INC., and
BLUELAND TITLE AGENCY,
INC.,
Defendants.
____________________________
Argued March 19, 2024 – Decided May 3, 2024
Before Judges Mayer, Paganelli and Whipple.
On appeal from the Superior Court of New Jersey,
Chancery Division, Bergen County, Docket No.
C-000212-19.
Alexander G. Benisatto argued the cause for appellant
(Shapiro, Croland, Reiser, Apfel and Di Iorio, LLP,
attorneys; Stuart Reiser, of counsel; Alexander G.
Benisatto, on the briefs).
John L. Van Horne, III, argued the cause for respondent
(Reeve and Van Horne, attorneys; John L. Van Horne,
III, on the brief).
PER CURIAM
Defendant 322 Commercial Ave., LLC appeals from a September 11, 2020
judgment awarded to plaintiff Yuri Investment and Development Inc. following
a bench trial. We affirm.
We glean the facts from the trial record. This matter involves a property
dispute between the owners of two adjacent parcels of land in the Borough of
Palisades Park, New Jersey (Borough). Defendant acquired 322 Commercial
Avenue in February 2013 and plaintiff acquired 342 Commercial Avenue in
December 2016.
In 1967, the prior owners of the parcels executed and recorded an express
easement. The easement memorialized that the building on defendant's property
encroached onto plaintiff's property. Plaintiff's property owner agreed "not to
institute suit to compel[] the removal of the encroachment." Further, the
A-0484-20
2
easement permitted defendant's property owner the right to use plaintiff's
property to make repairs to its building.
In July 2018, plaintiff sent a cease-and-desist letter to defendant, which
stated:
people employed by, working at, and/or utilizing 322
Commercial Avenue have been parking on [plaintiff's]
property without authorization or the permission of
[plaintiff]. They access [plaintiff's] property through a
door which opens into said property. Moreover, . . . a
dumpster of yours resides in the parking lot of
[plaintiff] without its authorization or consent.
Unless you can provide authentic and valid
authorization and/or recorded easements providing the
basis upon which to park on [plaintiff's] property . . .
demand is made upon you, your agents and employees,
to CEASE AND DESIST from accessing, utilizing and
parking on [the] property. That includes using the rear
door of your property for ingress and egress. Further,
demand is made that you forthwith remove the
dumpster . . . .
Finally, it appears that the part of your building that
encroaches onto [plaintiff's] property . . . was
constructed approximately [ten] years ago, along with
the rest of the building. Please confirm that said portion
of the building was built approximately [ten] years ago,
or if it was not, provide proof of same.
A-0484-20
3
After some dialogue between the parties, plaintiff filed an eight-count
complaint against various parties.1 As to defendant, plaintiff asserted defendant
did not have permission to: (1) store a dumpster; (2) allow its tenants,
employees, or patrons to park; or (3) construct a ramp leading to a door on
plaintiff's property. Plaintiff alleged trespass and unjust enrichment and sought:
(i) declaratory judgment; and (ii) to quiet title; as to defendant's use of plaintiff's
property.
Defendant filed an answer and counterclaim. In defendant's answer, it
admitted its pre-litigation position that "it had a right to use and park on
[plaintiff's] property by the grant[] of permission and/or an easement from prior
property owners." Moreover, in defendant's counterclaim it "demand[ed]
judgment against [p]laintiff declaring the parking spaces and other spaces . . .
[wa]s the property of the [d]efendants or in the alternative that there [wa]s a
valid easement for use of said disputed property."
The court conducted a three-day bench trial and heard testimony from six
witnesses. Plaintiff's principal testified, and retained an expert to testify as to
damages. Defendant's principal and architect testified, and defendant also
1
The complaint included causes of action against Dream USA Unlimited Corp.,
plaintiff's predecessor in title; Blueland Title Agency, plaintiff's title company;
and defendant's tenant. These parties are not part of this appeal.
A-0484-20
4
summoned the former clerk of Borough's Board of Adjustment and the former
Borough administrator.
The trial judge rendered an oral opinion. He determined the 1967 express
easement, regarding the building encroachment from defendant's property onto
plaintiff's property, did not allow or permit defendant's parking or storage of a
dumpster on plaintiff's property. Further, the judge found the 1967 express
easement did not permit defendant to access plaintiff's property from the rear of
defendant's building.
Moreover, the judge denied defendant's claim of a quasi-easement,
because defendant failed produce evidence the properties "were ever a single
lot. Rather, while the properties [we]re adjacent to each other, they were always
separate properties with separate lot and block numbers." In addition, the judge
concluded defendant failed to establish the other factors necessary for a quasi-
easement.
Further, as to plaintiff's notice of defendant's claimed easement, the judge
noted in reviewing the county land records that plaintiff could not have
discovered defendant claimed a right to use plaintiff's property.
Finding defendant did not have permission or a right to use plaintiff's
property, the judge determined defendant's use was an "unauthorized entry," a
A-0484-20
5
trespass. In assessing plaintiff's damages for the trespass, the judge found it was
"uncontroverted" that defendant used a total of ten parking spaces, attributing
one space for defendant's dumpster. Moreover, the judge accepted plaintiff's
expert's unrefuted valuation for each space. Finally, the judge calculated
plaintiff's damage claim from the date of filing the complaint through the date
of the entry of the judgment.
Judgment was entered in favor of plaintiff on its claims for declaratory
judgment and to quiet title. The judge determined "[d]efendants ha[d] no right
to park or otherwise use [plaintiff's p]roperty, except as specifically set forth in
the" 1967 express easement. Moreover, the judge awarded plaintiff damages.
The judge dismissed with prejudice defendant's counterclaim.
On appeal, defendant argues the trial judge erred by: (1) failing to find a
quasi-easement; (2) ignoring plaintiff's duty of further inquiry, with regard to
defendant's "open and notorious" and "apparent" uses of plaintiff's property; and
(3) awarding plaintiff damages for defendant's trespass.
We begin the discussion with a review of the principles governing our
analysis. "Our review of a judge's findings of fact in a bench trial is limited."
Mountain Hill, LLC v. Twp. of Middletown, 399 N.J. Super. 486, 498 (App.
Div. 2008). Factual findings made by the trial judge will not be disturbed unless
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6
"they are so manifestly unsupported by or inconsistent with the competent,
relevant and reasonably credible evidence as to offend the interests of justice[.]"
Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011) (alteration in
original) (internal quotation marks and citation omitted). In contrast, "[a] trial
court's interpretation of the law and the legal consequences that flow from
established facts are not entitled to any special deference." Manalapan Realty,
L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Under "common law an easement is defined as a nonpossessory
incorporeal interest in another's possessory estate in land, entitling the holder of
the easement to make some use of the other's property." Leach v. Anderl, 218
N.J. Super. 18, 24 (App. Div. 1987). Easements may be created by implication,
an express conveyance, or prescription. Ibid.
There are two types of implied easements: (1) easements by necessity;
and (2) quasi-easements. Id. at 25. Existence of a quasi-easement "rests upon
an owner's use preexisting the conveyance." Ibid.
Although one cannot in the true sense have an easement
over one's own land, yet where one during the unity of
ownership utilizes a part of his land for the benefit of
another part, it is for convenience of expression said
that a quasi-easement exists. Upon the conveyance by
the owner of one of such parts, an easement
corresponding to the preexistent quasi-easement may in
certain circumstances arise . . . .
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[Pochinski Realty Assoc. v. Puzio, 251 N.J. Super. 388,
392-93 (App. Div. 1991) (emphasis added) (quoting
A.J. & J.O. Pilar, Inc. v. Lister Corp., 38 N.J. Super.
488, 496 (App. Div. 1956)).]
A party asserting the existence of a quasi-easement must prove all of the
following elements by clear and convincing evidence:
[(1)] the apparent use of the quasi-servient portion of
the estate for the quasi-dominant portion, [(2)] the
continuous nature of the use, [(3)] the permanent
character of the quasi-easement, and [(4)] its reasonable
necessity to the beneficial enjoyment of the dominant
portion.
[Leach, 218 N.J. Super. at 26 (quoting Adams v. Cale,
48 N.J. Super. 119, 128 (App. Div. 1957)).]
"[C]onstructive notice arises from the obligation of a claimant of a
property interest to make reasonable and diligent inquiry as to existing claims
or rights in and to real estate." Friendship Manor, Inc. v. Greiman, 244 N.J.
Super. 104, 108 (App. Div. 1990) (citation omitted). Therefore, "the claimant
will be charged with knowledge of whatever such an inquiry would uncover
where facts are brought to his attention, sufficient to apprise him of the existence
of an outstanding title or claim, or the surrounding circumstances are suspicious
and the party purposefully or knowingly avoids further inquiry." Ibid. (internal
quotation marks and citation omitted).
A-0484-20
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"An action for trespass arises upon the unauthorized entry onto another's
property, real or personal." Pinkowski v. Twp. of Montclair, 299 N.J. Super.
557, 571 (App. Div. 1997) (citation omitted). "[A] trespass on property, whether
real or personal, is actionable, irrespective of any appreciable injury." Ibid.
(alteration in original) (quoting Nappe v. Anschelewitz, Barr, Ansell & Bonello,
97 N.J. 37, 45 (1984)). "Under a trespass theory, a plaintiff may 'assert a claim
for whatever damages the facts may lawfully warrant.'" Ibid. (quoting Marder
v. Realty Constr. Co., 43 N.J. 508, 511 (1964)).
"The Restatement (Second) of Torts §929 (1977) sets out . . . distinct
categories of compensation with respect to invasions of an interest in land: . . .
(b) the loss of use of the land, and (c) discomfort and annoyance to him as
occupant." Ayers v. Jackson Twp., 106 N.J. 557, 571 (1987); see Kornbleuth v.
Westover, 241 N.J. 289, 302 (2020).
We apply these well-established principles to the matter here. Defendant
correctly recognized easements may be created by implication and one type of
implied easement is a quasi-easement. Defendant contends "[t]he easement
urged to exist here is a quasi-easement." Defendant acknowledges "an easement
by implication is typically based on the severance of once-unified property,
A-0484-20
9
where a part of the land had, prior to severance, been used to benefit another
part," citing Cale v. Wanamaker, 121 N.J. Super. 142, 146 (Ch. Div. 1972).
Despite recognizing a quasi-easement's gateway requirement of a unified
property later severed, defendant admits there was "unrebutted evidence that
both the 322 Property and the 342 Property[ were] always two . . . separate lots."
Defendant's admission that the two properties were never one is inapposite to its
claim of a quasi-easement. Therefore, defendant's arguments regarding the
application of the quasi-easement elements are of no moment since the doctrine
itself is inapplicable.
Moreover, defendant's reliance on "unity of ownership"—not unity of a
property later severed—and condemnation law is misplaced. Defendant relies
on the New Jersey Supreme Court's holding in Housing Authority of Newark v.
Norfolk Realty Co., 71 N.J. 314 (1976), a condemnation matter. In the
condemnation setting, the Court held:
The fact that the condemned parcel and the remaining
property do not have a common boundary should not
prevent the landowner from offering evidence
concerning severance damages. If prior to the taking,
the two parcels were functionally united, then it is quite
possible that the landowner sustained a decrease in the
utility, and hence the value, of the remaining parcel
when the condemned property was taken. For this
reason, functional unity and not spatial unity is the
relevant consideration.
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[Id. at 322 (citation omitted).]
Defendant argues "the trial court should have evaluated whether the bifurcated
ownership equated to a functionally integrated enterprise such that unity of
ownership existed." Defendant asserts "had the trial court . . . look[ed] to
substance over form, it would have found unity of ownership in the" properties.
We conclude condemnation's "unity of ownership" theory is inapplicable
to defendant's quasi-easement claim. Even a finding there was a "functionally
integrated enterprise" that created a "unity of ownership," would not lead
inextricably to a conclusion that the parcels were once one. As stated, a unified
parcel later severed is essential to the finding of a quasi-easement. Defendant's
argument confuses the concept of the unity of ownership of separate parcels—
limited to condemnation actions—with the quasi-easement requirement that the
separate parcels must have been one.
Further, defendant's argument that the judge erred by ignoring the facts
adduced at trial regarding plaintiff's notice of the complained of infringements
is unavailing. Defendant asserts plaintiff "had ample information brought to its
attention pre-closing that would have led an ordinary and reasonable person of
average intelligence to make a direct inquiry of" defendant's use of the property.
Defendant avers "[n]on-record notice is equally effective to preclude a 'good
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faith purchaser' defense" and "[i]f a subsequent claimant has 'notice' of a prior
claim, it is valid as against him despite the lack of record[ing]."
However, defendant's notice argument fails because plaintiff's mere notice
of defendant's actions or uses did not transform those actions or uses into valid
claims. To be successful, defendant was required to establish plaintiff's notice
of valid claims for the use of plaintiff's property. Defendant failed to do so.
Lastly, we conclude there is no merit in defendant's argument the judge
erred in awarding plaintiff damages because plaintiff "failed to establish that it
suffered any harm as a result of the [defendant's] use of the parking spaces." In
fact, the judge found plaintiff was damaged by "the loss of the use of the land
or the discomfort and annoyance" caused by defendant's trespass. We are
satisfied the judge did not err in his award of damages.
To the extent we have not addressed any of defendant's remaining
arguments, we conclude they lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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