Opinion
DOCKET NO. A-3162-14T1
11-03-2016
CHRISTOPHER F. WILLIAMSON, Plaintiff-Respondent, v. CHRISTINA E. ERNST and WILLIAM F. ERNST, JR., Defendants-Appellants.
Clement F. Lisitski argued the cause for appellants (Mr. Lisitski and Robert J. Jones attorneys; Mr. Lisitski and Mr. Jones, on the briefs). Christopher C. Fallon, III argued the cause for respondent (Fox Rothschild LLP, attorneys; Mr. Fallon, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Lihotz, Nugent and Higbee. On appeal from Superior Court of New Jersey, Chancery Division, General Equity, Cape May County, Docket No. C-0028-13. Clement F. Lisitski argued the cause for appellants (Mr. Lisitski and Robert J. Jones attorneys; Mr. Lisitski and Mr. Jones, on the briefs). Christopher C. Fallon, III argued the cause for respondent (Fox Rothschild LLP, attorneys; Mr. Fallon, of counsel and on the brief). The opinion of the court was delivered by HIGBEE, J.A.D.
Defendants, Christina E. and William F. Ernst, Jr. (Ernsts), appeal from a February 2, 2015 trial court order holding that the Ernsts abandoned their prescriptive easement on plaintiff Christopher F. Williamson's property and thus they are responsible for removing the sidewalk from the easement area, which they recently replaced. The Ernsts argue:
POINT I: THE TRIAL COURT CONFUSED WHETHER THE ERNSTS NEEDED TO USE THE EASEMENT WITH WHETHER THEY INTENDED TO ABANDON IT.We affirm the decision of the trial court as to the termination of the easement, but reverse as to the order requiring defendants bear the cost of removing the sidewalk.
POINT II: THE TRIAL COURT LACKED EVIDENCE OF PERMANENCY.
POINT III: RELEASE, LACHES, WAIVER, AND ESTOPPEL FORECLOSED WILLIAMSON'S ABANDONMENT CLAIM.
POINT IV: LACK OF ABANDONMENT REQUIRES A REVERSAL OF THE TRIAL COURT'S DECISION TO REQUIRE THE ERNSTS TO REMOVE THE SIDEWALK.
We discern the following history from the record. The properties at 428 and 430 East Poplar Avenue in Wildwood were originally owned by a common grantor. The Ernsts inherited 426 East Poplar Avenue in 1964. They purchased 428 East Poplar Avenue in 1992. Williamson is the owner of 430 East Poplar Avenue, which is adjacent to the Ernsts' 428 East Poplar Avenue property. Williamson inherited this property from his father in 2008.
In 1993, the Ernsts and Williamson were involved in a legal dispute concerning the concrete sidewalk that runs between the houses located at 428 and 430 East Poplar Avenue. The sidewalk is located on Williamson's property. Pursuant to an October 13, 1994 order following trial, the Ernsts obtained an easement over the approximately two-foot-wide pathway located between the residential homes. The order, prepared by the Ernsts' counsel, provides:
That a non-exclusive prescriptive Easement over and across a concrete walkway located at 430 East Poplar Avenue, City of Wildwood, County of Cape May and State of New Jersey . . . said concrete walkway being approximately 2 feet wide and running between 430 East Poplar Avenue and 428 East Poplar Avenue. Said prescriptive Easement is for pedestrian ingress and egress to the rear of 428 East Poplar Avenue for maintenance of building and for access to utilities. . . . As a condition of said Easement, the owners of 428 East Poplar Avenue and 430 East Poplar Avenue shall be equally responsible for the maintenance of the Easement, including but not limited to, repair and replacement of the walkway.
In making his decision, the trial judge found that many similarly situated properties in the area have alleys between them that are used for ingress and egress to the backyards and access to utilities by both neighboring property owners. The subject easement was not assigned out of necessity, however. The Ernsts, in fact, owned a similar alley between their 426 and 428 East Poplar Avenue properties that provided equivalent access. The judge indicated that the easement was prescriptive in nature, as the properties were once held by a common owner and the parties had jointly used the sidewalk for many years. We affirmed the decision on appeal.
After over a decade of shared access to the sidewalk via the court ordered prescriptive easement, in 2008, the Ernsts bulldozed both their 426 and 428 East Poplar Avenue homes and paved the properties to put up a parking lot. They did this in spite of the protestations of Williamson. The Ernsts also capped or disconnected all the utilities to the properties.
Prior to the demolition of their homes, in an attempt to build an even bigger and presumably more profitable parking lot, the Ernsts attempted to purchase 430 East Poplar Avenue from Robert Williamson, Christopher's father. The Ernsts allege that Robert orally agreed to a proposed contract. After his father's death, however, Williamson refused to go through with the sale. The Ernsts claimed they were entitled to specific performance of the contract. The parties resolved the dispute via a settlement signed in 2009 after the construction of the parking lot. The settlement released the parties "from any and all claims, rights and causes of action of any kind or nature whatsoever . . . that could have been raised in the [contract] lawsuit." The settlement further states that the release "shall not affect the rights and obligations of the parties hereto that are set forth in the settlement documents as hereinabove defined, or rights set forth in the Superior Court of New Jersey Order dated October 13, 1994."
The contract also notes the parties' agreement that the Ernsts have a right of first refusal if Williamson ever decides to sell his property. Consequently, the settlement documents include an unsigned draft agreement for the sale of 430 East Poplar Avenue. This draft contains an acknowledgment of the existence of the easement. However, as it is a theoretical document never entered into by the parties, the draft and its contents are not legally binding.
Since the creation of the parking lot, the Ernsts have continued to maintain the easement. They repaved the damaged sidewalk and installed a fence and bollard chain line with no gate. The Ernsts also continued to maintain liability insurance on the sidewalk, swept and cleaned it when needed, objected to Williamson's use of the easement for parking his own vehicle, and used the easement for pedestrian access to the parking lot.
On May 29, 2014, Williamson filed an order to show cause and complaint with the Chancery Division requesting the court declare that the Ernsts had abandoned the prescriptive easement and quiet title. Additionally, Williamson sought removal of encroachments from the easement, including the new sidewalk. The trial judge held that the Ernsts abandoned the prescriptive easement and must remove any encroachments, including the newly paved sidewalk, from the easement area. The judge reasoned that when the Ernsts demolished and removed the utilities from the residential property at 428 East Poplar Avenue, they manifested a clear intent to abandon the easement.
On March 15, 2014, the Ernsts filed a notice of appeal. The Ernsts' main contention is that the trial court confused the question of whether the original purpose for the easement's creation still existed with the issue of whether the Ernsts abandoned the easement, which they contend they did not. The Ernsts offer two alternative arguments, as well. First, they aver that even if they did abandon the easement, they did not do so permanently, as they could at any time rebuild their houses and reconnect the utilities. Second, the Ernsts assert that Williamson is foreclosed from any claim against them either via the settlement signed by both parties or the doctrines of laches, waiver, and estoppel. Finally, the Ernsts claim that any finding in their favor necessitates a reversal of the trial court's decision requiring them to remove the sidewalk.
The alternative arguments can be disposed of easily. While in some theoretical world the Ernsts could have a change of heart and again build family residencies on their two properties, the demolition of two homes that have been in their family for over half a century, the application and attainment of all the necessary licenses and permits, and the subsequent construction of a parking lot for profit demonstrate the Ernsts' permanent intentions.
The argument that the settlement release forecloses Williamson from claiming the easement has been abandoned is similarly unpersuasive. The language of the settlement only prevents the parties from bringing a claim against the other that could have been brought during a suit over the alleged oral land sale contract. Moreover, the language of the settlement itself, while noting the existence of the easement, specifically states that the release does not affect the rights of the parties.
The Ernsts also claim that the mention of the easement in the draft of a possible land sale contract that was attached to the settlement agreement acts as an acknowledgment of the easement's existence and thus a waiver of Williamson's right to bring this action. The draft was never signed by either party and is merely an example of a land sale contract that could be used were the parties to enter into such an agreement in the future. The language contained in an unsigned draft of a theoretical future land sale contract cannot be used to establish the existence of a waiver of any otherwise existent legal rights.
Equitable estoppel requires good faith reliance on the intentional conduct of the other party that results in a change of position to the reliant party's detriment. Miller v. Miller, 97 N.J. 154, 163 (1984). None of those elements exist here. Laches requires prejudice resulting from an unexcused delay in action on the part of the party asserting the claim. L.V. v. R.S., 347 N.J. Super. 33, 39 (App. Div. 2002). Again, neither the element of prejudice nor undue delay exists here. These asserted defenses are without merit.
Therefore, the singular question this court must answer is whether the intentional termination of the prescribed purpose of the prescriptive easement constituted abandonment.
Our review of the factual findings of the court is limited to whether the findings made by the trial court could reasonably have been reached based on the credible evidence present in the record. Zaman v. Felton, 219 N.J. 199, 215 (2014). Deference is given to the trial court's findings of fact so long as they are supported by adequate, substantial, and credible evidence. Ibid. In contrast, the trial court's legal conclusions are reviewed de novo, as its "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. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).
Like all easements, a prescriptive easement "will be extinguished, undoubtedly, by any conduct on the part of the owner of the dominant tenement, which unequivocally exhibits an intention to abandon it." City Nat'l Bank v. Van Meter, 59 N.J. Eq. 32, 36-37 (1899). In order to establish abandonment, the asserting party must present clear and convincing evidence of the intent to abandon on the part of the dominant estate. Fairclough v. Baumgartner, 8 N.J. 187, 190 (1951). This evidence must show that "there is action by the dominant tenant respecting the use authorized which indicates an intention never to make the use again." Leasehold Estates, Inc. v. Fulbro Holding Co., 47 N.J. Super. 534, 563 (App. Div. 1957).
While abandonment is generally exhibited by intent and prolonged lack of use, the Restatement (Third) of Property: Servitudes §7.4 further states that a "servitude benefit is extinguished by abandonment when the beneficiary relinquishes the rights creates by a servitude." The Restatement goes on to explain the effect of changed conditions on a servitude:
When a change has taken place since the creation of a servitude that makes it impossible as a practical matter to accomplish the purpose for which the servitude was created, a court may modify the servitude to permit the purpose to be accomplished. If modification is not practicable, or would not be effective, a court may terminate the servitude.
[Restatement (Third) of Property: Servitudes §7.10(1).]
This is known as the frustration-of-purpose doctrine. "[R]elief is granted only if the purpose of the servitude can no longer be accomplished. When servitudes are terminated under this rule, it is ordinarily clear that the continuance of the servitude would serve no useful purpose and would create unnecessary harm to the owner of the servient estate." Id. at cmt. a. While similar to abandonment, the frustration-of-purpose doctrine "does not require a finding that the beneficiary intended to relinquish the rights created by the servitude. [This] rule is used where, even though a servitude no longer serves its intended purpose, the beneficiary does not intend to abandon it." Id. at cmt. b.
While we have not specifically adopted the frustration-of-purpose doctrine, this court has noted time and again that our law is in accord with the Restatement (Third) of Property: Servitudes. See Caribbean House, Inc. v. N. Hudson Yacht Club, 434 N.J. Super. 220, 226 (App. Div. 2013); Rosen v. Keeler, 411 N.J. Super. 439, 451-53 (App. Div. 2010); Krause v. Taylor, 135 N.J. Super. 481, 486 (App. Div. 1975). Moreover, we have recently asserted that "[t]he extent of the rights conveyed rests on the intent of the parties as expressed in the language creating the easement, 'read as a whole and in light of the surrounding circumstances.'" Caribbean House, supra, 434 N.J. Super. at 226 (quoting Rosen, supra, 411 N.J. Super. at 451)). Taken together, it is clear that the purpose behind the legal creation of an easement is determinative when later deciding whether that easement still exists.
Supporting this proposition, New Jersey courts have found that the removal of a building by the dominant tenement acts unequivocally to establish the abandonment of an easement right of access to light and air. Van Meter, supra, 59 N.J. Eq. at 37. And while a common alleyway easement is not considered abandoned where there is immediate and apparent intent to reestablish its use, such as in the case of the dominant property owner's house being accidently destroyed by fire, Chew v. Cook, 39 N.J. Eq. 396, 399-400 (Ch. Ct. 1885), our sister courts have held in a case strikingly similar to our own that the acquisition of another method of ingress combined with the erection of a gateless fence is sufficient to constitute abandonment. See Sieber v. White, 366 P. 2d 755, 759-60 (Okla. 1961).
The Ernsts argue that the scope of the easement is broad and not intended to be limited to accessing the backyard of the house or utility boxes. The 1994 order written by the Ernsts' own counsel, however, states clearly that the "prescriptive Easement is for pedestrian ingress and egress to the rear of 428 East Poplar Avenue for maintenance of building and for access to utilities." Any attempt to suggest otherwise disregards the clear purpose and intent of the original order granting a prescriptive easement. Acknowledging the scope to be limited, the question then is whether the Ernsts "abandoned" the easement when they demolished their residential property in favor of a parking lot or, alternatively, whether the easement should be terminated as it has no practical value due to the frustration of its original purpose.
The Ernsts have not abandoned the easement in the classic sense of the word. They continued to use and maintain the easement to their benefit. They hoped to do so for the foreseeable future. However, by their own actions, the Ernsts voluntarily created a situation in which the original purpose for the easement no longer exists. There is no backyard. There are no utilities to access. Simply, there is no longer a house requiring the existence of an easement. "[A]ny prospect of such use in the future, particularly in view of the present nature of the area and its surroundings, is so negligible as not reasonably to warrant its theoretical preservation by an adjudication of mere suspension." Leasehold Estates, Inc., supra, 47 N.J. Super. at 563.
While New Jersey courts have found that the unintentional destruction of one's home does not constitute abandonment of an adjoining easement so long as the dominant owner intends to rebuild, Chew, supra, 39 N.J. Eq. at 399-400, it has been held that the intentional demolition of a building necessary to the stated purpose of an easement, as is the case here, constitutes abandonment. Van Meter, supra, 59 N.J. Eq. at 37.
The Ernsts' voluntary actions led to the cessation of the easement's originally intended purpose. Our legal precedent equates such an action by the dominant party with abandonment of the easement itself. Alternatively, even if it were found that the Ernsts had not abandoned the easement, the destruction of their home "makes it impossible as a practical matter to accomplish the purpose for which the servitude was created." Restatement (Third) of Property: Servitudes §7.10(1). The frustration-of-purpose doctrine calls for the modification of "the servitude to permit the purpose to be accomplished. If modification is not practicable, or would not be effective, a court may terminate the servitude." Ibid. Under either legal analysis, there is no reason to overturn the decision of the trial court.
The Ernsts' final argument calls for a reversal of the trial court's decision to require them to remove the sidewalk. We agree that removal is not required and reverse on this limited issue. There is no legal justification for requiring the Ernsts to pay for the removal of the sidewalk. The Ernsts did nothing improper in maintaining and repairing the pre-existing sidewalk, and in fact they were obliged to keep it in good repair. At the time when the sidewalk was originally installed the easement was in place. There was no illegal encroachment on Williamson's property. Williamson can certainly remove and or replace the sidewalk that is located on his property, but there is no legal basis for requiring the Ernsts to pay for the cost of removal.
For the foregoing reasons, we uphold the ruling of the trial court that terminated the easement, but reverse the portion of the order requiring the Ernsts to pay for the cost of removing the sidewalk.
Affirmed in part and reversed in part. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Williamson v. Ernst, No. A-1459-94 (App. Div. Sep. 28, 1995).