Opinion
DOCKET NO. A-4668-12T3
06-19-2014
RELAP, LLC, Plaintiff-Appellant, v. TOWNSHIP OF HANOVER, Defendant-Respondent
Meyner and Landis, L.L.P., attorneys for appellant (John M. Shari, on the brief). Dorsey & Semrau, L.L.C., attorneys for respondent (Fred Semrau and Tracy Wang, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and O'Connor.
On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-3104-11.
Meyner and Landis, L.L.P., attorneys for appellant (John M. Shari, on the brief).
Dorsey & Semrau, L.L.C., attorneys for respondent (Fred Semrau and Tracy Wang, on the brief). PER CURIAM
Plaintiff Relap, LLC, appeals the trial court's finding that defendant Hanover Township is not obligated to maintain a fence plaintiff placed within defendant's conservation easement. We affirm.
Plaintiff owns industrial property in Hanover Township. On November 18, 1974, plaintiff's predecessor in title entered into an easement agreement (agreement) with defendant in which it conveyed a conservation easement to defendant. The easement runs along the rear border of plaintiff's property, extending seventy-five feet from the border toward the center of the property at its widest point and thirty feet at its narrowest point.
It is undisputed that currently there is an approximately six-foot high stockade fence within the easement. When plaintiff purchased the property in 1993, there was a fence within the easement that had fallen into disrepair. As a condition of getting approval for an unrelated site plan application, plaintiff agreed to replace the fence. Plaintiff contends the fence it replaced existed at the time the easement was created and that the new fence was placed in the exact same location as the old one.
Plaintiff asserts defendant is responsible for maintaining the fence under the agreement because the fence is and always was within the easement. The trial court found defendant did not have to maintain the fence because the old fence was not within the confines of the easement when it was created, but was later placed inside of the easement by either plaintiff or its predecessor in title without defendant's consent.
The trial court's factual findings are borne out by the evidence. A site plan prepared by an architect dated November 27, 1974 depicts the location of various structures on the property. Having been recently created, the easement does not appear on the site plan, but the fence is featured. Sprawled across the plan are specific measurements that enable one to see, or easily deduce, where the various structures, including the fence, were located in 1974. While the easement is not pictured, its precise location is now known; thus, the location of the fence in 1974 vis-à-vis the easement can be readily ascertained from the 1974 site plan. The fence is not within the easement.
A site plan prepared in 2000 does depict, among other things, both the fence and the easement. This plan shows the fence in a location different from where it was in 1974; in fact, the site plan shows the fence being within the easement. A survey prepared in 2011 by plaintiff's expert surveyor also depicts the fence being within the easement. But at the time the easement was conveyed to defendant, the fence was outside of the easement.
Plaintiff raises the following points on appeal:
POINT I - THE LOWER COURT ERRED BY PERMITTING THE TOWNSHIP EMPLOYEE TO TESTIFY AS AN EXPERT IN SURVEYING WITHOUT PRIOR NOTICE.
POINT II - THE LOWER COURT ERRED BY PERMITTING THE TOWNSHIP EMPLOYEE TO OFFER EXPERT TESTIMONY THAT COULD ONLY BE OFFERED BY A LICENSED SURVEYOR.
POINT III - THE LOWER COURT ERRED IN REJECTING THE TESTIMONY OF RELAP'S EXPERT.
POINT IV - THE LOWER COURT ERRED IN NOT REQUIRING THE TOWNSHIP TO MAINTAIN THE FENCE.
POINT V - THE LOWER COURT ERRED BY NOT ENFORCING THE INDEMNIFICATION OF RELAP'S LEGAL FEES AS SPECIFIED IN THE EASEMENT AGREEMENT.
First, as the trial court's findings of fact are based on substantial credible evidence, they are entitled to our deference. Brunson v. Affinity Fed. Credit Union, 199 N.J. 381 397 (2009); Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). Second, while we review a trial court's interpretation of a contract de novo, Fastenberg v. Prudential Ins. Co. of America, 309 N.J. Super. 415, 420 (App. Div. 1998), we discern no error in the trial court's interpretation of the agreement. Nothing in the agreement obligates defendant to maintain a structure or fixture that plaintiff, or its predecessor in title, places inside of the easement after the easement was formed. We find plaintiff's arguments are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPEALATE DIVISION