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(NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version (NOTE: The status of this decision is Unpublished.) NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO.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-0059-08T20059-08T2 FRANK REED and ALICE REED, Plaintiffs-Appellants, v. BILLYBOB PARTNERS, Defendant-Respondent. ___________________________________

Argued September 30, 2009 - Decided Before Judges Wefing, Grall and Messano. On appeal from Superior Court of New Jersey, Chancery Division, Warren County, No. C-16020-07. William R. Edleston argued the cause for appellant. John R. Lanza argued the cause for respondent (Lanza & Lanza, attorneys; Kenneth W. Thomas, on the brief). PER CURIAM Plaintiffs appeal from a trial court order granting partial summary judgment to defendant and declaring that defendant has an easement across plaintiffs' property and permitting defendant to pave that easement for use as a driveway. After reviewing the record in light of the contentions advanced on appeal, we affirm in part and reverse in part.

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Plaintiffs own a parcel of land in Pohatcong Township identified as Lot 20.01 in Block 113. It is slightly more than six acres in size and fronts on Warren Glen-Riegelsville Road. They purchased this property in 1975 from Harvey Shoner. Their deed noted that it was subject to a certain easement and provided a metes and bounds description of that easement, which provided access from Warren Glen-Riegelsville Road to Lot 20 in Block 113. Absent that easement, Lot 20 would be landlocked. Plaintiffs' deed contained no language defining the scope of the easement and made no provisions for the cost of maintaining the easement. In its present condition, the easement is an unimproved pathway that runs from Warren Glen-Riegelsville Road, passes approximately twenty-five feet from plaintiffs' home, and then back to Lot 20. It does not conform to the metes and bounds description in the various deeds of the parties. Lot 20 has historically been used for agricultural purposes, and plaintiffs allege that the only vehicles using the easement have been farm vehicles during planting and harvesting times. Defendant purchased Lot 20 in 2001 from Donald Willard. At the same time, it also purchased Lot 20.03, which is to the east of plaintiffs' property, fronts on Warren Glen-Riegelsville Road and backs into Lot 20. For reasons that do not appear in the record before us, defendant did not record these deeds until June 2004. Defendant merged Lots 20 and 20.03 by deed in August 2007. Defendant's predecessor, Willard, had purchased these two lots from Garis and Orpha Kormandy in 1974, a year prior to plaintiffs purchasing their property. The Kormandys' deed to Willard for Lot 20 included the following easement: Together, with an easement in favor of the Grantee [Willard], their heirs, executors, administrators, successors, and assigns for access to the tract purchased above and the right of ingress and egress from from [sic] the Warren Glen-Riegelsville Road for the purpose of entry and exit from the above tract, said easement is to follow the course of an existing lane and shall be 30 feet in width, running 15 feet on either side from the centerline of said lane. This easement shall be subject, however, to a sharing of maintenance and repair costs for keeping the lane in its present condition so that its practical use for the above purpose may be effected. This deed was recorded almost a year prior to plaintiffs' purchase of Lot 20.01 from Shoner. When Willard conveyed Lot 20.03 to defendant, the deed included the following provision: Together with an easement in favor of the Buyer, their heirs, executors, administrators, successors and assigns, for access to the tract purchased above and the right of ingress and egress from the Warren Glen-Riegelsville Road for the purpose of entry and exit from the above tract, said easement is to follow the course of an existing lane and shall be 30 feet in width, running 15 feet on either side from the centerline of said lane. This easement shall be subject, however, to a sharing of maintenance and repair costs for keeping the lane in its present condition so that its practical use for the above purpose may be effected. In March 2004, several years after defendant purchased Lots 20 and 20.03, an agricultural easement was granted to

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the State of New Jersey under the Agriculture Retention and Development Program. The deed of easement was executed by Willard, who had conveyed the property to defendant in 2001. As we have noted, defendant's deed was not recorded until June 2004, some three months after grant of the conservation easement. For purposes of the question before us, the parties do not attribute any particular legal significance to Willard having granted the conservation easement, rather than defendant. The terms of this easement prohibited any use of the property for nonagricultural purposes. The agricultural easement specifically carved out a one-acre exception at the rear of Lot 20 upon which a one-family residence could be constructed. It also prohibited the deposit of any sand, gravel, loam or rock not "required for the agricultural purpose for which the land is being used." Defendant wishes to build a one-family home within the one-acre portion of Lot 20 that is excepted from the conservation easement. It must, however, bring the access easement into compliance with the Pohatcong code in order to obtain the requisite permits; doing so requires paving the easement and installing drainage facilities. Plaintiffs objected to what they perceived as a change in the nature and use of this easement, contending it would intensify the use of the easement and, because of the proximity of the easement to their residence, affect their privacy and quiet. After defendant began certain preparatory work, including tree removal, plaintiffs filed a verified complaint and order to show cause. They noted that the land over which the easement ran was steep, that the easement contained a sharp hairpin turn, and that construction posed a significant risk of erosion. They also questioned future maintenance responsibilities and noted that because defendant had purchased Lot 20.03, which fronts on Warren Glen-Riegelsville Road, its property could no longer be considered landlocked. After defendant filed its answer, the matter was presented to the chancery judge on cross-motions for summary judgment. The order entered by the chancery judge, after declaring that defendant had an access easement across plaintiffs' property, provided that it was to follow the course of the existing lane, and that it was thirty feet in width. The order also contains the following pertinent provisions: a) The metes and bounds description of the easement shall comport with the existing lane and shall be as set forth in Exhibit "A" attached; b) The Defendant is permitted to create a paved driveway in the easement according to the specifications of Pohatcong Township in the least intrusive manner; c) The Defendant shall install any utilities servicing the single family residence, on the Defendant's property, outside the defined easement area, if feasible; d) The Defendant shall restore all areas following construction to the previous undisturbed state;

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e) The Defendant shall bear full financial responsibility for improving the easement for use as a residential driveway; f) Thereafter, the responsibility for maintaining and repairing the easement shall be shared between the Plaintiffs and the Defendant as follows: Plaintiffs shall be responsible for maintenance based on the ratio of the linear use (access to their home) to the entire linear easement. Plaintiffs are not responsible for any cost of maintenance for the Defendant's land. In the event any extraordinary repairs and/or maintenance is required on the portion of the easement not used by the Plaintiff, the Defendant shall be entirely responsible for the same. This appeal followed. Plaintiffs make two contentions on appeal: that the chancery judge should not have granted summary judgment because there were material questions of fact and that the relief granted by the chancery judge improperly expanded the easement. I Our review of a trial court's grant of summary judgment is governed by the same standard employed by the trial court when considering a motion for summary judgment. We first look to determine if a genuine issue of material fact exists; if not, we then consider whether the trial court correctly ruled on the applicable law. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.) certif. denied, 154 N.J. 608 (1998). A party seeking summary judgment must show that there is "no genuine issue as to any material fact challenged . . . ." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995) (quoting R. 4:46-2). An issue is genuine if the evidence submitted, combined with the inferences favoring the non-moving party, require the issue to be submitted to the fact finder. R. 4:46-2(c). However, "[a] non-moving party cannot defeat a motion for summary judgment merely by pointing to any fact in dispute." Brill, supra, 142 N.J. at 529. Plaintiffs contend that the chancery judge should not have decided the matter before taking testimony with respect to two issues--whether defendant could construct a driveway through Lot 20.03 and whether the easement could have been relocated further away from plaintiffs' residence. Plaintiffs argue that because defendant may have an alternate means of access to the proposed residence through Lot 20.03, it no longer needs access through plaintiffs' property. While the parties dispute whether defendant could build a driveway on Lot 20.03, we are satisfied that that dispute is not material in the context of this matter, which involves an easement created by express grant. Defendant's access across plaintiffs' property is not an easement by necessity; it is an easement by deed. An easement by necessity is an implied easement that arises for access to a landlocked parcel when a landowner subdivides his or her land. Leach v. Anderl, 218 N.J. Super. 18, 25 (App. Div. 1987). An implied easement arises so
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that the possessor of the landlocked parcel can access the street. Ibid. Such an implied easement will end when the necessity ends. Further, a review of the chain of title for these properties indicates that the easement granting access to Lot 20 over Lot 20.01 was never viewed as one of necessity. When it was created, Lots 20 and Lots 20.03 had the same owner and access to Lot 20 could have been achieved at that time through Lot 20.03 because it was not subject to the agricultural easement. Because this easement was not one of necessity, we do not consider it necessary to analyze in depth whether defendant could have built its driveway on Lot 20.03 in the face of the agricultural easement. It asserts it could not because of the language in the deed of easement prohibiting the deposit of gravel. Neither party has demonstrated whether it would be feasible to obtain permission from the Warren County Board of Freeholders, the holders of the agricultural easement, to place a driveway on this land. Nor do plaintiffs argue that because Willard had already conveyed his interest in this property at the time the agricultural easement was created, Lot 20.03 is not subject to its restrictions. Because this easement is one by deed, we also agree that the question of whether it could be relocated further from plaintiffs' residence was not a material question of fact that would require a plenary hearing. Moving an easement is an extraordinary remedy. Kline v. Bernardsville Ass'n, Inc., 267 N.J. Super. 473, 480 (App. Div. 1993). The court in Kline held that 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. We have no occasion here to survey the outermost limits of the court's equitable powers. Obviously, questions of this nature are fact-sensitive. We merely add 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.] The standard to relocate an express easement is high; such relocation generally calls for the consent of both parties. Sussex Rural Elec. Coop. V. Twp. of Wantage, 217 N.J. Super. 481, 490 (App. Div. 1987). "It is the exclusive right of the owner of the dominant tenement to say whether or not the servient owner shall be permitted to change the character and place of the servitude suffering the burden of an easement localized and defined." Ingling v. Pub. Serv. Elec. & Gas Co., 10 N.J. Super. 1, 8 (App. Div. 1950). Even if another location would be just as convenient, the holder of the dominant tenant must consent to the relocation. Id. at 9. Plaintiffs raise one final issue with respect to whether the matter was ripe for summary judgment. They note that

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the terms of the agricultural easement do permit the construction of housing for agricultural workers. They contend that if that were to occur, the traffic on the easement would be significantly increased, creating a greater burden on the easement. They argue the trial court should have taken testimony on that question before deciding the matter. We disagree. There is no indication in this record that there is any present plan to erect such housing. The argument plaintiffs make is purely hypothetical. II We turn now to plaintiffs' contention that the chancery judge erred in her interpretation of the easement. Plaintiffs point to the following language in defendant's deed: This easement shall be subject, however, to a sharing of maintenance and repair costs for keeping the lane in its present condition, so that its practical use for the above purpose may be effected. This language, plaintiffs contend, should be interpreted to mean that the parties intended the easement to remain in the condition in which it existed at the time the easement was created. Defendant contends that the language indicates nothing more than an intention that the parties to the easement share the costs of maintaining it. Where the language granting an easement is alleged to be ambiguous or is in dispute, "[t]he primary rule of construction is that the intent of the conveyor is normally determined by the language of the conveyance read as an entirety and in the light of the surrounding circumstances." Hammett v. Rosensohn, 26 N.J. 415, 423 (1958). A document "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 Mercer County Improvement Auth., 333 N.J. Super. 310, 325 (App. Div. 2000), aff'd, 169 N.J. 135 (2001). The New Jersey Supreme Court held that it is an accepted principle of easement law that the landowner may not, without the consent of the easement holder unreasonably interfere with the latter's rights or change the character of the easement so as to make the use thereof significantly more difficult or burdensome. Equally well recognized is the corollary principle that there is, arising out of every easement, an implied right to do what is reasonably necessary for its complete enjoyment, that right to be exercised, however, in such reasonable manner as to avoid unnecessary increases in the burden upon the landowner. [Tide-Water Pipe Co. v. Blair Holding Co., 42 N.J. 591, 604 (1964) (citations omitted).] A court should first look to the language of the grant itself. Id. at 605. If the meaning of the grant is plain, there is no need to use rules of construction to interpret the deed. Ibid.
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Here, we consider the language plain. The easement is an access easement for ingress and egress; the language cited by plaintiffs deals with maintenance of the easement. Nothing within it would justify the meaning plaintiffs attribute to it. Plaintiffs argue that paving of the easement was not within its intended scope when it was granted and that, accordingly, the easement must remain unpaved. The commentary to the Restatement (Third) of Property addresses the issue of whether an access easement can be paved by the easement holder.

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