Preview:

a4529-04.opn.html

Original Wordprocessor Version This case can also be found at *CITE_PENDING*. (NOTE: The status of this decision is unpublished.)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4529-04T34529-04T3 BARBARA BRISGEL, Plaintiff-Appellant, v. CURTIS R. ARTIS and KIM ARTIS, Defendants/Third-Party Plaintiffs-Respondents, v. ANDREA BRISGEL and GREGG LISTER, Third-Party Defendants. ___________________________________________________________

Argued September 19, 2006 - Decided October 19, 2006 Before Judges Coburn, Axelrad and Gilroy. On appeal from the Superior Court of New Jersey, Law Division, Somerset County, L-2013-02. Gary C. Algeier argued the cause for appellant (Algeier Woodruff, attorneys; Mr. Algeier, on the brief). Kenneth M. Van Deventer argued the cause for respondents (Riker Danzig Scherer Hyland & Perretti, attorneys; Mr. Van Deventer, of counsel and Scott E. Reynolds, on the brief).

file:///C|/Users/Peter/Desktop/Opinions/a4529-04.opn.html[4/20/2013 5:13:53 PM]

a4529-04.opn.html

PER CURIAM Plaintiff appeals from Chancery Division orders in favor of defendants entered on summary judgment motions. The orders concerned the extent and meaning of defendants' easement for passage over plaintiff's property. More specifically, they addressed plaintiff's claim that the defendants had no right to maintain the untravelled portion of the easement running along the driveway in front of their house and land, and the defendants' claim that plaintiff had no right to widen a portion of the driveway. Based on defendants' conduct, plaintiff also had a trespass claim for money damages, but that was withdrawn during argument before us. The relevant facts are uncomplicated and undisputed. The parties reside in single-family homes on Rattlesnake Bridge Road in Bedminster Township. They share a driveway easement created on plaintiff's land in 1982. It is seventy-five feet wide and about 700 feet long, and it provides access to Rattlesnake Bridge Road for the parties, for plaintiff's daughter, and for another homeowner, Dr. Joseph Bello. The traveled portion of the common easement is about ten to fifteen feet wide. The defendants and Dr. Bello live on the north side of the easement and plaintiff and her daughter live on the south side of the easement. Dr. Bello's land is mostly to the east of the defendants' property but a fifty-foot portion runs west along the length of their property to Rattlesnake Bridge Road. The defendants' driveway crosses the narrow strip of Dr. Bello's land and an unimproved portion of the easement. Most of the land between the common easement driveway and the defendants' property has always been kept in its natural state, but the portion between their own driveway and Rattlesnake Bridge Road to the west was mostly grass and is mostly grass today. Before the litigation, the defendants removed some trees or bushes, added some bushes, and installed a sprinkler head in the grassy area. They have since restored that area to its previous state. During the litigation, plaintiff widened a portion of the common driveway in front of the defendants' property into the grassy area so that she could more conveniently turn from it into her daughter's driveway. A preliminary injunction required plaintiff to return this area to its natural state, which she did. The easement granted to the defendants provides as follows: The conveyance of Lots 11.01 [defendants] and 11.03 [Dr. Bello] is made together with a driveway easement over and across that portion of Lot 11.02 [owned by plaintiff] as more particularly described as follows: [Schedule "A" describes 'a tract' of land to be used as an access easement that is essentially 75 feet wide and over 700 feet long.] The purpose of this easement is to provide common ingress and egress to Lots 11.01 and 11.03 . . . which lots are immediately adjacent to the said easement . . . [T]he Grantee agrees to keep the driveway and right-of-way created by this easement open and unobstructed at all times. The Grantee futher agrees that the entire driveway shall be maintained in good condition and the cost of maintenance shall be shared equally by the then property owners [of all the lots].

file:///C|/Users/Peter/Desktop/Opinions/a4529-04.opn.html[4/20/2013 5:13:53 PM]

a4529-04.opn.html

The relevant portions of the March 5, 2004, order permanently enjoin plaintiff from (i) interfering with the [defendants'] maintenance of the grassy portion of the Easement . . . running from Rattlesnake Bridge Road to the corner of the [defendants'] driveway, and from the fence on the North side of the Easement to the gravel driveway; [and from] (ii) fundamentally altering and/or changing the size, shape, configuration or aesthetic of the Easement without the prior permission of all parties to the Easement . . . . The provisions of the February 10, 2005, order are no longer relevant, except for the portions denying plaintiff injunctive relief, and the April 14, 2005, order only had the effect of reiterating the injunctive relief quoted above. After carefully considering the record and briefs, we affirm substantially for the reasons expressed by Judge Derman in the oral decisions rendered with respect to the noted orders. However, we add the following comments. The parties' legal rights are governed by the terms of the easement, which "must be read as a whole and construed to carry out the[ir] evident intent . . . ." Hyland v. Fonda, 44 N.J. Super. 180, 187 (App. Div. 1957). When an easement is ambiguous, "it should be construed most strongly against the grantor," taking into account "the surrounding circumstances, including the physical conditions and character of the servient tenement, and the requirements of the grantee . . . ." Ibid. The owner of the dominant estate, the estate that benefits from the easement, which in this case is the defendants' estate, "may do that which is reasonably necessary to enjoy the easement and, as an incident thereto, keep it in repair and fit for use." Id. at 189-90. On the other hand, "the easement may not substantially be altered physically without the consent of the owner of the fee." Id. at 190. Generally speaking, where a way is granted over a piece of land of a certain stated width, it will depend upon the circumstances of the case whether the reference is to the width of the way, or is merely descriptive of the property over which the grantee may have such a way as may be reasonably necessary. [Id. at 188 (citation and quotation marks omitted).] Application of those governing principles fully warrants the injunctive relief granted in this case. Although the primary purpose of the easement is to grant access to the defendants over the existing ten to fifteen foot wide driveway, with the maintenance costs thereof to be shared equally by all the property owners involved, the easement expresses a distinction between the "driveway" and the far wider "right-of-way," and places an obligation on the "grantee," the defendants, to keep both "the driveway and right-of-way" "open and unobstructed at all times." The language is clear, and even if it has some slight ambiguity, that ambiguity must be construed against the grantor, plaintiff. Therefore, the judge was unquestionably correct in enjoining plaintiff from interfering with the defendants' maintenance of the grassy area located next to the common driveway and essentially in front of their property. We understand this injunctive relief to limit the defendants to maintenance of the existing conditions,
file:///C|/Users/Peter/Desktop/Opinions/a4529-04.opn.html[4/20/2013 5:13:53 PM]

a4529-04.opn.html

which does not include any right to add plantings (other than grass), bushes, or trees. The judge was also unquestionably correct in enjoining plaintiff from fundamentally altering the easement without agreement of the other interested parties. Although the alteration, plaintiff's violation of the easement by widening the road into the grassy area in front of the defendants' house, has been corrected, defendants were entitled to assurance that no such action, or similar action, would occur again. Arguably, the judge erred in failing to grant plaintiff affirmative injunctive relief against the defendants' modifying the grassy area, as they had done before; but, we believe that relief is implicit in the restricted relief given to the defendants: all they can do is maintain the grassy area by mowing, et cetera; not improve it. A remand for the purpose of having this put in affirmative terms would add nothing to securing plaintiff's rights and would increase unnecessarily the parties' costs for this litigation. Affirmed.

The mediator's certification supporting defendant's position on plaintiff's expansion of the driveway should not have been sent, received, or considered. R. 1:40-4(c); Isaacson v. Isaacson, 348 N.J. Super. 560, 575 (App. Div. 2002). But there was no prejudice as plaintiff was wrong on this issue as a matter of law. (continued) (continued) 7 A-4529-04T3 0x01 graphic

October 19, 2006

This archive is a service of Rutgers School of Law - Camden.

file:///C|/Users/Peter/Desktop/Opinions/a4529-04.opn.html[4/20/2013 5:13:53 PM]



Download a4529-04.opn.pdf

New Jersey Law