Opinion
DOCKET NO. A-3963-10T3
03-08-2012
THE CHILDREN'S CENTER OF MONMOUTH COUNTY, INC., a New Jersey Corporation, Plaintiff-Appellant, v. FIRST ENERGY CORPORATION, Defendant, and JERSEY CENTRAL POWER & LIGHT COMPANY, Defendant-Respondent.
Barrett & Pavluk, LLC, attorneys for appellant (Judson B. Barrett, on the brief). McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys for respondent (John P. Michalski, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Skillman.
On appeal from Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. C-51-10.
Barrett & Pavluk, LLC, attorneys for appellant (Judson B. Barrett, on the brief).
McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys for respondent (John P. Michalski, on the brief). PER CURIAM
This litigation involves the removal of trees planted by the Children's Center of Monmouth County, Inc., in a right of way granted to Jersey Central Power and Light Company (JCP&L) by easement. On cross-motions for summary judgment, the trial court dismissed a complaint filed by the Children's Center alleging an agreement modifying JCP&L's right to remove the trees or, in the alternative, a course of conduct estopping JCP&L from exercising that right. Finding no evidence that would permit the Children's Center to prevail on either claim, we affirm.
JCP&L's easement is a one-hundred-foot wide right of way for power lines that crosses a property in Neptune Township, which the Children's Center has leased from its owner for about twenty years. Within the area of the right of way, JCP&L has the "right to construct, maintain and operate . . . one or more lines for the transmission and distribution of electric energy." JCP&L also has the right "to remove or clear and keep clear any or all trees, underbrush, structures and other obstructions upon said right of way, and such trees beyond the same as in the judgment of Grantee may interfere with or endanger said lines or appurtenances when erected." JCP&L also may "enter" the right of way "without notice" for "all of [those] purposes."
Under this court's decision in Khalil v. Motwani, the Children's Center has standing. 376 N.J. Super. 496, 500-01 (App. Div. 2005).
"Subject to" JCP&L's exercise of its rights, the grantors retained for themselves and their successors the right to "farm, cultivate, or use the ground within the limits of said right of way without substantial change of grade, provided that . . . such use shall not . . . interfere with, limit or obstruct any subsequent exercise of the rights hereby granted [to JCP&L] . . . ." The easement provides that JCP&L shall have the rights granted "so long as any such [power] line is maintained pursuant [to the grant], and [the grant] has not been released of record."
JCP&L installed power lines in the right of way before the Children's Center's tenancy, and there was a cherry tree in the right of way when the Children's Center first leased the property. Since taking possession, the Children's Center has planted twenty-two pear trees in the right of way.
This dispute arose in 2004, when JCP&L first indicated its intention to remove the trees in the right of way. The parties discussed the matter through their attorneys. The Children's Center's claimed agreement with JCP&L modifying the easement is based on two letters written by JCP&L's attorney.
The first letter, dated May 14, 2004, states:
I am writing to confirm the substance of our conversation yesterday afternoon regarding JCP&L's easement across your client's property. As I indicated, JCP&L has agreed not to remove the trees within its easement area while we are reviewing with you [its] right to do so. If we are unable to resolve amicably the question of JCP&L's right to remove the trees at issue, JCP&L will agree not to remove them until the matter is determined by a court of competent jurisdiction, or the issue is otherwise resolved through a mutually acceptable process.
While we are engaged in the process above, it is understood that JCP&L may trim the trees in the easement area in accordance with its tree-trimming policies and procedures and standard engineering guidelines applicable to rights of way for similar transmission or distribution facilities. In view of the fact that JCP&L anticipates completion of its trimming activities for the summer season by June 1st, the trimming on your client's property may be undertaken as early as next Monday, May 17th.
I am in the process of assembling copies of the relevant easement document(s) and related materials, and will contact you early next week to discuss them.
Thank you for your consideration. This letter and our clients' agreement to address the easement issues in this manner are without prejudice to or a waiver of any of our clients' rights.
[(Emphasis added).]
The second letter, dated May 20, 2004, states:
I understand from Richard Marsh of JCP&L that he met with your client at the
property yesterday. I also understand that the parties have agreed that the trees at issue are to be trimmed by JCP&L's crew to a height of not less than 18 feet, which trimming will be done under the observation of a representative of your client.
Between the tree trimming in 2004 and February 2010, any trimming was done by the Children's Center. There is no evidence, however, that the Children's Center planted additional trees after May 2004, and JCP&L did not reassert its right to remove the trees until February 2010.
On the foregoing evidence, the trial court concluded that the easement gave JCP&L a right to remove the trees from its right of way, which had not been modified by agreement or conduct on the part of JCP&L amounting to estoppel. On appeal, the Children's Center does not argue that the easement does not grant JCP&L the right to remove the trees. The Children's Center claims that JCP&L either relinquished that right by agreement or engaged in a course of conduct that estops it from exercising the right. The Children's Center frames the issues as follows:
The pertinent provisions of this recorded easement are free of the ambiguity found in easements granted to another power company that are discussed in Boss v. Rockland Elec. Co., 95 N.J. 33, 38-39 (1983).
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I. THE COURT BELOW ERRED BY REFUSING TO ENFORCE THE AGREEMENT REACHED BETWEEN THE PARTIES IN MAY OF 2004.
II. THE COURT BELOW ERRED IN FAILING TO APPLY THE DOCTRINE OF EQUITABLE ESTOPPEL TO PROHIBIT [THE] UTILITY FROM ABROGATING THE AGREEMENT THAT IT MADE IN MAY OF 2004.
In reviewing the trial court's grant of summary judgment in favor of JCP&L, we must determine whether JCP&L is entitled to judgment as a matter of law on the Children's Center's claims of modification and estoppel. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); Kramer v. Ciba-Geigy Corp., 371 N.J. Super. 580, 602 (App. Div. 2004). The question of JCP&L's entitlement to prevail on these claims involves an application of the law to undisputed facts; accordingly, we owe no deference to the trial court's determinations. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). In considering easements, restrictive deed covenants and other servitudes, our courts have frequently consulted the Restatement (Third) of Property: Servitudes (2000) and relied on its principles. See, e.g., Am. Dream at Marlboro, L.L.C. v. Planning Bd. of Twp. of Marlboro ___ N.J. ___, ___ (2012) (slip op. at 11); Citizens Voices Ass'n v. Collings Lakes Civic Ass'n, 396 N.J. Super. 432, 446 (App. Div. 2007); Perelman v. Casiello, 392 N.J. Super. 412, 418-20 (App. Div. 2007); Khalil v. Motwani, 376 N.J. Super. 496, 500-01 (App. Div. 2005). We do the same.
The letters upon which the Children's Center relies to establish a modification of JCP&L's right to remove the trees cannot be understood to have that effect. An easement holder's rights generally depend "on the intent of the parties as expressed in the language of the grant." Boss v. Rockland Elec. Co., 95 N.J. 33, 38 (1983). Where, as here, an easement has been created by grant, it may be modified by subsequent agreement. Restatement (Third), supra, § 7.1. Similarly, the question of whether a particular writing "operates to release a servitude is a matter of the parties' intent." Id. at § 7.3 reporter's note. In effect, such an agreement "is a conveyance from the servitude beneficiary to the servient owner that normally leaves no question as to the parties' intent and often is an element of a transaction that provides some benefit to the servitude beneficiary." Id. at § 7.4 cmt. b. To determine whether an agreement conveys an interest in land, "[w]here the meaning is plain, as derived from the language read as an entirety and in the light of the surrounding circumstances," it controls. Tide-Water Pipe Co. v. Blair Holding Co., 42 N.J. 591, 605 (1964).
When the letters of May 2004 are considered in their entirety and in light of the circumstances, they suggest a temporary deferral of the exercise of the right and no intent on the part of JCP&L to relinquish its right to remove trees at any time in the future. Each of the four paragraphs of the May 14 letter confirms the temporary nature of the arrangement. The first paragraph states that JCP&L will refrain from moving the trees while reviewing its right to do so and, in the absence of agreement, until a court decides the matter. The second paragraph begins by stressing the fact that the trees will be trimmed between May 17 and June 1 and "while" the process of resolving the issue is ongoing. The third paragraph notes the need for additional discussion, and the final sentence of the final paragraph stresses that JCP&L's decision to address the issue in this manner is "without prejudice to or a waiver of any" right. In short, the letter unambiguously describes a temporary accommodation.
The tone and content of the second letter includes no terms suggesting an agreement on JCP&L's part to relinquish the reserved right in the future. That letter is informational, stating only the height to which the trees will be trimmed and that a representative of the Children's Center may observe. Read in conjunction with the prior letter, its sole and apparent purpose is to avoid any potential misunderstanding or confusion on the day the tree-trimmers appear during that year's tree-trimming. There is nothing suggesting any intention on the part of JCP&L to re-convey its rights to the grantor's successors. See Restatement (Third), supra, § 7.3 cmt. b.
JCP&L's course of conduct at the time of or following the negotiations in May 2004 is not sufficiently inconsistent with JCP&L's reservation of its rights to warrant any inference that it intended to abandon its rights under the easement. Pursuant to Section 7.4 of the Restatement, an easement "is extinguished by abandonment when the beneficiary relinquishes the rights created by a servitude." As Comment c to Section 7.4 explains:
Evidence of intentional relinquishment of rights is required. Failure to take advantage of a servitude benefit, even for a lengthy period, is seldom sufficient to persuade a court that abandonment has occurred. Some additional action on the part of the beneficiary inconsistent with continued existence of the servitude is normally required, although the amount of additional evidence required tends to diminish as the period of nonuse grows longer.This statement of the law is consistent with the law of this State. See Fairclough v. Baumgartner, 8 N.J. 187, 189-90 (1951) (quoting and affirming opinion of Judge Grimshaw (holding that "[m]ere non-user of an easement will not suffice to destroy the right," and that "the party asserting such abandonment must present clear and convincing evidence of an intention on the part of the owner to abandon the easement or must prove conduct on the part of the owner of the servient tenement adverse to and defiant of the easement and which conduct acquiesced in by the owner of the easement was the cause of the non-user.")).
JCP&L's conduct in this case is more consistent with a temporary forbearance than with an intentional relinquishment. First, JCP&L's right to remove trees is unlike many other easement benefits in that its exercise necessarily entails planning and expense. In the absence of government compulsion or imminent threat to the power lines, JCP&L's deferral of the work has many likely explanations that are wholly unrelated to an intent to relinquish the right to do it. Thus, a deferral does not tend to prove an intent to relinquish the right. See Abbott v. Burke, 206 N.J. 332, 399 (2011) (inference permissible when a fact-finder could conclude that it is more probable than not).
Second, during the period of deferral between May 2004 and February 2010, pertinent circumstances were evolving. As the parties note, JCP&L was involved in litigation with another property owner concerning its removal of trees pursuant to a nearly identically worded grant of authority. In addition, between 2006 and 2009, the responsible regulatory agency was promulgating and amending regulations defining the scope of a utility's responsibility for vegetation management. See 37 N.J.R. 4385(a) (November 21, 2005); 39 N.J.R. 3716(a) (September 4, 2007); 40 N.J.R. 1684(a) (March 17, 2008); 41 N.J.R. 2084(a) (May 18, 2009); 42 N.J.R. 508(a) (January 19, 2010).
For all of the foregoing reasons, we conclude that the Children's Center has failed to show it could establish an agreement modifying JCP&L's right to remove the trees. Thus, an award of summary judgment in JCP&L's favor on this claim is proper.
We turn to consider whether the JCP&L was also entitled to judgment on the Children's Center's claim of equitable estoppel. Section 7.6 of the Restatement, "Modification or Extinguishment by Estoppel" provides:
A servitude is modified or terminated when the person holding the benefit of the servitude communicates to the party burdened by the servitude, by conduct, words, or silence, an intention to modify or terminate the servitude, under circumstances in which it is reasonable to foresee that the burdened party will substantially change position on the basis of that communication, and the burdened party does substantially and detrimentally change position in reasonable reliance on that communication.
Setting aside the fact that the evidence does not establish communication or conduct by JCP&L that would lead the Children's Center to believe that JCP&L intended to modify its rights under the easement, the essential detrimental reliance is absent here. There is no evidence that the Children's Center "substantially and detrimentally changed" its position in any way. The Children's Center did nothing more than maintain trees it had planted in the right of way. Thus, JCP&L was also entitled to summary judgment on this claim.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION