NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0555-08T20555-08T2

PAUL ROSEN, as beneficial interest

holder, and WENDY H. ROSEN and

STEVEN F. GADON, as trustees on

behalf of the ROSEN TRUST,

Plaintiffs-Appellants,

v.

PETER KEELER and EILEEN KEELER,

husband and wife,

Defendants-Respondents.

________________________________________________________________

Argued November 30, 2009 - Decided

Before Judges Lisa, Alvarez and Coburn.

On appeal from the Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. C-160-07.

Richard D. Gallucci, Jr., argued the cause for appellants (Spector Gadon & Rosen, P.C., attorneys; Mr. Gallucci, of counsel and on the brief).

Kevin J. Coakley argued the cause for respondents (Connell Foley, LLP, attorneys; Mr. Coakley, of counsel and on the brief; Agnes Antonian, on the brief).

The opinion of the court was delivered by

LISA, P.J.A.D.

This case involves a dispute regarding a beach access easement. The property is located in the Township of Long Beach, on a portion of Long Beach Island known as Loveladies. Plaintiffs, who we will generally refer to as the Rosens or the Rosen family, brought this action seeking enforcement of a claimed access easement over the beachfront property owned by defendants, Peter and Eileen Keeler. The parties filed cross-motions for summary judgment. Judge Buczynski granted the Keelers' motion and denied the Rosens' motion. He then denied the Rosens' reconsideration motion. Final judgment was entered, the result of which was to deny the Rosens the right of access to the ocean across the Keelers' property. The judge stayed the judgment pending appellate review.

The Rosens base their asserted right of easement on certain documents which they contend granted the right. They argue (1) the judge erred in his interpretation of those documents, (2) alternatively, material facts are in dispute regarding the circumstances surrounding the preparation and execution of the documents, (3) case law in other jurisdictions supports their position, and (4) allowing beach access to the Rosens will not overburden the Keelers' property, as a result of which the principles undergirding the trial court's decision are not furthered by precluding such access. The Rosens further argue that the judge erred in denying their reconsideration motion. We reject these arguments and affirm.

I

The properties involved in this dispute lie on a narrow strip of Long Beach Island situated between the Atlantic Ocean and the Barnegat Bay and are separated by Long Beach Boulevard, with oceanfront lots to the east and bayfront lots to the west. The Rosens own a bayfront lot. The Keelers own the property directly across the boulevard, which, as we will explain, was subdivided by its previous owner into two lots. One of those lots has frontage on the boulevard (boulevard lot). The other fronts the ocean (ocean lot), but is configured as a "flag" lot, with a twenty-five foot portion running along the southerly side of the boulevard lot to prevent the ocean lot from being landlocked and to provide it access to Long Beach Boulevard.

Prior to 1978, Robert and Ellen Seltzer owned all of the property now owned by the Keelers as a single lot. In 1978, the Seltzers subdivided the lot into its current status. They intended to sell the boulevard lot and retain the ocean lot. In order to make the boulevard lot marketable, the Seltzers executed and recorded a "DECLARATION OF EASEMENTS AND RESTRICTIONS," which created an easement appurtenant which burdened the ocean lot and benefited the boulevard lot by granting to the owners of the boulevard lot, their family, and their invited guests, the right to cross over a five-foot strip of land along the northerly edge of the ocean lot for the purpose of accessing the beach. More particularly, the Declaration provided in relevant part:

1. The owner of Tract A [the boulevard lot] shall have a perpetual, irrevocable right and easement over that certain strip of land five (5) feet in width (herein called "5 Foot Strip") along the entire northernmost side of Tract B [the ocean lot] for use by the owner of Tract A, members of his family and his invited guests, as a pedestrian walkway to permit ingress and egress to and from the Atlantic Ocean. The right granted herein to the owner of Tract A to use the 5 Foot Strip shall be in common with the owner of Tract B. The owner of Tract A shall be responsible for repairing all damage caused to the 5 Foot Strip by the wrongful acts or negligence of such party, or members of his family, or other invited guests.

. . . .

6. No structure, barriers, fences, obstructions or other improvement may be placed or erected upon any of the 5 Foot Strip [or other areas] . . . on which easements have been created hereunder, and there shall be no act or conduct which shall interfere with the free and uninterrupted use of the easements herein created . . . .

. . . .

8. The grants, easements, covenants and declarations herein made shall be deemed covenants running with the land and shall bind and inure to the benefit of the owner of Tract A and the owner of Tract B, and their heirs, personal representatives, assigns and successors in title.

[Emphasis added.]

In 1978, the Seltzers sold the boulevard lot to Edward and Barbara Edelstein, retaining ownership for themselves of the ocean lot. The Rosens purchased their bayfront lot in 1986. Because of their friendship with the Edelsteins and Seltzers, the Rosens utilized the footpath for beach access across both the boulevard and ocean lots ever since they purchased their bayfront lot.

On July 19, 1999, the Keelers contracted with the Seltzers to purchase the ocean lot. Settlement was scheduled for October 22, 1999. On August 12, 1999, Paul Rosen wrote to Robert Seltzer asking that he fulfill an earlier informal commitment that if the ocean lot was ever sold he would convey to Rosen an easement for beach access over it. On October 13, 1999, the Rosens, Edelsteins, and Seltzers executed a document entitled "ACCESS EASEMENT." This document created two easements, one burdening the Edelstein tract (the boulevard lot) and one burdening the Seltzer tract (the ocean lot). Both were for the benefit of the Rosen property to enable the Rosens to use the "5 Foot Strip" along the northerly edge of the ocean lot created by the 1978 Declaration. In relevant part, the 1999 Access Easement provided:

WHEREAS, the Edelstein Tract and the Seltzer Tract are benefitted [sic] and burdened by that certain Declaration of Easements and Restrictions dated October 9, 1978 and recorded [in deed book and page in the Ocean County Clerk's Office], the terms and provisions of which are incorporated herein by reference for all purposes; and

WHEREAS, pursuant to the [1978] Declaration of Easements and Restrictions, the owner of the Edelstein Tract has a perpetual, irrevocable right and easement over a certain strip of land five (5) feet in width (defined in the Declaration of Easements and Restrictions as [and hereinafter called] the "5 Foot Strip") along the entire northernmost side of the Seltzer Tract . . . to permit ingress and egress to and from the Atlantic Ocean; and

WHEREAS, Edelstein desires to grant to the owner of the Rosen Tract an easement over the Edelstein Tract for use by the owner of the Rosen Tract, Paul R. Rosen and/or Wendy H. Rosen, their family members, and invited guests, for pedestrian access to the 5 Foot Strip to permit ingress and egress to and from the Atlantic Ocean; and

WHEREAS, Seltzer desires to grant to the owner of the Rosen Tract an easement over the 5 Foot Strip for use by the owner of the Rosen Tract, Paul R. Rosen and/or Wendy H. Rosen, their family members, and invited guests, as a pedestrian walkway to permit ingress and egress to and from the Atlantic Ocean.

NOW, THEREFORE . . . the parties hereto agree as follows:

1. Edelstein hereby grants, bargains, sells, transfers and conveys unto the owner of the Rosen Tract a perpetual and irrevocable easement and right-of-way for pedestrian access over the Edelstein Tract, for use by the owner of the Rosen Tract, Paul R. Rosen and/or Wendy H. Rosen, their family members, and invited guests, to permit ingress and egress to and from the 5 Foot Strip.

2. Seltzer hereby grants, bargains, sells, transfers and conveys unto the owner of the Rosen Tract a perpetual and irrevocable easement and right-of-way over the 5 Foot Strip, for use by the owner of the Rosen Tract, Paul R. Rosen and/or Wendy H. Rosen, their family members, and invited guests, as a pedestrian walkway to permit ingress and egress to the Atlantic Ocean.

. . . .

7. This Easement Agreement, the easements herein granted and all of the terms, provisions and obligations hereof shall be covenants running with the land affected thereby, and shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrators, successors and assigns.

8. . . . . [T]his Easement Agreement and the easements herein granted shall be and remain in full force and effect as long as the Rosen Tract is directly or indirectly owned and/or occupied, in whole or in part, by the Rosen Trust or Paul R. Rosen and/or Wendy H. Rosen and/or their respective family members, or Trusts for same.

[Emphasis added.]

The 1999 Access Easement was recorded in the Ocean County Clerk's Office on October 21, 1999. The easement created by this recorded instrument was unacceptable to the Keelers, who refused to complete the purchase unless the new easement in favor of the Rosens across the ocean lot was removed. Paul Rosen proposed a solution by which the Access Easement over the ocean lot would be canceled, but the cancellation agreement would contain a provision (paragraph two below) stating that the cancellation did not affect the easement created over the boulevard lot, owned by the Edelsteins. On October 25, 1999, the Rosens executed a document entitled "CANCELLATION OF ACCESS EASEMENT ACROSS 'SELTZER TRACT,'" which provided in relevant part:

WHEREAS a certain Access Easement was conveyed to the ROSEN TRUST on October 13, 1999 by ELLEN SELTZER and BARBARA EDELSTEIN [sic] and recorded in the Ocean County Clerk's Office, [in deed book and page]; and

. . . .

WHEREAS it is the intent of this Cancellation Agreement to extinguish any and all rights, title and interest that the Rosen Trust, Wendy H. Rosen and Paul R. Rosen, their successors and assigns, may have to the property owned by Ellen Seltzer, known as the Seltzer Tract (See Exhibit "B");

NOW THEREFORE . . . intending to be legally bound, the parties hereto agree as follows:

1. That all rights, title, interests, access, use and enjoyment of the 'Seltzer Tract' given to the Rosen Trust, their successors and assigns, by the heretofore mentioned Access Easement dated October 12, 1999 and recorded [in deed book and page] are hereby permanently and forever extinguished.

2. That nothing in this Cancellation Agreement is intended to directly or indirectly limit and/or restrict the Access Easement granted to the Rosen Trust by Barbara Edelstein in the above mentioned Access Easement.

[Emphasis added.]

The title insurance company that would guarantee the Keelers' title was satisfied that the Cancellation Agreement was sufficient to extinguish the 1999 Access Easement and removed it as an exception to the title insurance policy. The Cancellation Agreement was recorded in the Ocean County Clerk's Office on October 28, 1999. Satisfied that the Rosens' easement rights over the ocean lot had been extinguished, the Keelers agreed to complete settlement, and on October 28, 1999, the Seltzers executed a deed conveying to them the ocean lot.

After these events, the Rosens continued using the footpath for beach access across both the boulevard and ocean lots. They retained the legal right to cross the boulevard lot by virtue of the second easement created in the 1999 Access Easement, burdening the Edelstein lot in favor of the Rosen property, which was expressly not extinguished by the Cancellation Agreement. Although the parties dispute that the Cancellation Agreement extinguished the Rosens' direct legal right to cross the ocean lot, there is no dispute that, following execution of the Cancellation Agreement and the sale of the ocean lot to the Keelers, the Rosens continued to enjoy the ability to cross the ocean lot as the invited guests of the Edelsteins under the 1978 Declaration.

This situation changed on October 13, 2003, when the Keelers purchased the boulevard lot from the Edelsteins. The dispute did not arise until 2006, however. As we previously explained, see n.2, supra, only a small portion of the footpath actually crossed the northwest corner of the ocean lot before veering off onto the neighbor's property. According to the Keelers, they were not aware during this intervening period that the Rosens continued to use that small portion of the ocean lot for beach access across the historical path.

Sometime in 2005, the Keelers decided to demolish the former Edelstein residence and construct a guest house and swimming pool. As part of this project, in spring 2006, a privacy fence and retaining wall were erected, blocking the footpath on the ocean lot. Members of the Rosen family were thus prevented from using the path.

Through an exchange of correspondence, the parties expressed their respective positions. Paul Rosen, an attorney, contended that in executing the cancellation agreement, he merely accommodated Keeler by extinguishing the "new Easement of record on his Deed and Mortgage," while at the same time, "condition[ing] the dismissal by reserving all my rights to access the beach across the Seltzer property by using the existing Edelstein Easement which had been in existence since 1978." Thus, the Rosens took the position that the preserved portion of the 1999 Access Easement creating an easement over the Edelstein lot provided them with access rights, by virtue of the 1978 Declaration which had been incorporated therein, to cross over the ocean lot as well. The Rosens contended that the three operative documents caused their family and their lot to step into the shoes of the Edelsteins and the boulevard lot as assignees of the 1978 easement. They contended that, because the 1999 Access Easement over the boulevard lot runs with the land, so did the assignment of the 1978 easement over the ocean lot, even after the Keelers acquired title to the boulevard lot.

The Keelers contended that, with their acquisition of the boulevard lot, the Rosens no longer had permission to cross over the ocean lot for beach access as invited guests of the owners of the boulevard lot. The Keelers acknowledged (and continue to acknowledge) that by virtue of the 1999 Access Easement, the Rosens retain the easement conveyed to them by the Edelsteins to cross the boulevard lot. However, that easement, by its terms, is only over the boulevard lot. That easement grants the Rosens "ingress and egress to and from the 5 Foot Strip," which, by definition, is the beginning point of the footpath on the ocean lot. Therefore, in effect, the Rosens access right reached a dead end at the boundary between the boulevard and ocean lots.

II

On June 14, 2007, the Rosens initiated this action in the Chancery Division seeking enforcement of their asserted easement across the ocean lot. After discovery was completed, the parties filed cross-motions for summary judgment, stipulating that no material facts were in dispute. On June 20, 2008, after hearing oral argument, Judge Buczynski issued a thorough and well-reasoned oral decision. He framed the issue as follows:

So the question really is whether or not as a matter of law what these agreements mean and what their intent was at that point in time.

Clearly, it was the intent of the Seltzers to provide access between the Boulevard lot from the Boulevard all the way through the ocean in their original Declaration of Easements and Restrictions. It was clearly the intent of the Edelsteins . . . to provide the ability of the Rosens to traverse their own particular lot with the direct easement and either by guest or by legal right provide access to the ocean for the Rosens over the lot which was burdened by the Edelstein easement . . . .

The question is, does that run with the land? Is it an easement appurtenant? Is it a hybrid of some way that it's not only easement appurtenant but also in some way look as if it's an easement in gross, . . . and whether or not the Edelsteins can actually assign their right to traverse the ocean from [their] lot to some third party that has no interest in this particular Boulevard lot, but rather across the Boulevard on the other side to provide access over that particular easement? . . .

. . . The question is whether or not the Edelsteins had a right as a matter of law, regardless of what they thought they could or could not do to transfer an interest in their easement, . . . over the oceanfront lot to a third party who was not directly impacted by this lot whatsoever.

[Emphasis added.]

Interpreting the documents with any eye toward whether the Edelsteins could have possessed the power to grant the Rosens an easement over the ocean lot by assigning their rights under the 1978 Declaration, the judge concluded:

The Court's reading of that language is a far more traditional view. . . . It's been tried and tested in our Courts and it is traditionally interpreted not to mean an assignment other than [that] which affects the dominant piece of property. Therefore, when one talks about one's successors and assigns, we talk about the successor and assign to that particular property, not an assignment to some third party. To be an assignment to some third party would really take it out of an interpretation that it was an easement appurtenant but rather almost an easement in gross where it could be transferred to some third party.

. . . .

I am satisfied that . . . as a matter of law in New Jersey on easement appurtenant they are not assignable to third parties other than those who would take an interest in the actual dominant estate. That's not the law. Otherwise, it would really change the complexion of New Jersey law where you could actually assign your easements to any third party, and it really defies the normal and traditional interpretation of these agreements.

. . . .

But I'm satisfied that based on the totality of the circumstances the law in New Jersey does not permit the Edelsteins to convey an easement appurtenant to a third party by way of assignment based on the language contained in the easement that they received. That is an easement that benefits the Boulevard lot. It is appurtenan[t] to the Boulevard lot. It is not transfer[]able as a matter of law unless clearly and specifically provided for in the agreement itself. That's traditional language and there is nothing other than traditional language there. Unfortunately for the Rosens, there is no language, there is no legal right in the Edelsteins to provide the legal right to traverse the oceanfront property on that five-foot strip because of the way this language was ultimately contained in the agreement.

[Emphasis added.]

Accordingly, the judge granted the Keelers' motion for summary judgment. As we earlier stated, the judge stayed his order pending this appeal. In denying the Rosens' reconsideration motion, the judge reaffirmed the reasoning of his initial decision, and also refused to consider the mutual mistake of law argument presented by the Rosens, which was raised for the first time in the reconsideration motion.

III

As relevant to this case, the law recognizes two types of easements, easements appurtenant and easements in gross. The distinction is "'that an easement appurtenant requires a dominant tenement to which it is appurtenant, whereas an easement in gross belongs to its owner independently of his ownership or possession of any specific land.'" Vill. of Ridgewood v. Bolger Found., 104 N.J. 337, 340 (1986) (quoting Weber v. Dockray, 2 N.J. Super. 492, 495 (Ch. Div. 1949)). An easement appurtenant is created when the owner of one parcel of property (the servient estate) grants rights regarding that property to the owner of an adjacent property (the dominant estate). Ibid. The easement appurtenant "enhances the value of the dominant estate and cannot exist separate from the land itself." Ibid. (citing Am. Rieter Co. v. Dinallo, 53 N.J. Super. 388, 392 (App. Div. 1959)). By contrast, an easement in gross benefits no specific parcel of land and remains independent of and unconnected to the ownership or possession of any particular tract. Ibid. When a grant appears to create rights connected to the grantee's ownership of a certain piece of property, there is a presumption favoring construction as an easement appurtenant. Weber, supra, 2 N.J. Super. at 495.

Questions concerning the extent of the rights conveyed by an easement require a determination of the intent of the parties as expressed through the instrument creating the easement, read as a whole and in light of the surrounding circumstances. Poblette v. Towne of Historic Smithville Cmty. Ass'n, Inc., 355 N.J. Super. 55, 63 (App. Div. 2002); Hyland v. Fonda, 44 N.J. Super. 180, 187 (App. Div. 1957). "[W]hen the intent of the parties is evident from an examination of the instrument, and the language is unambiguous, the terms of the instrument govern." Hyland, supra, 44 N.J. Super. at 187.

When the language of the grant is ambiguous, the surrounding circumstances, including the physical conditions of the servient tenement and the requirements of the grantee, play a significant role in the determination of the controlling intent. Khalil v. Motwani, 376 N.J. Super. 496, 503 (App. Div. 2005). In determining what the parties intended, "there are no limits on the kinds or combinations of servitude benefits that can be created," and "the full range of possibilities should be kept in mind" while interpreting the language of the instrument creating the easement in light of the circumstances of its creation. Id. at 501 (quoting Restatement (Third) of Property: Servitudes