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Berezofsky v. Haesler

2009 WL 2579462 (N.J. Super. App. Div. 2009) (Unpublished)

EASEMENTS; TRESPASS – Since an easement is a non-possessory interest in land and trespass is a possessory action, an easement holder may not maintain an action in trespass, but may bring an action in nuisance against one obstructing, interfering with, or encroaching on the easement.

By virtue of his deed, a property owner had access to a public road through an easement. His property was located at the end of the easement. This was his only means of ingress and egress. He personally maintained the portion of easement leading up to his property and, along with other easement owners, contributed to the maintenance of the remainder of the easement. The owners of property located on the other side of the easement had not need to use the easement to gain access to a public road. Although all of the property in question was owned by a single owner at one time, the property owner’s neighbor did not have a deed or other document granting it any rights to the easement even though its property abutted the easement. It did not need such access rights because it had a different access to another public road. Initially the neighbor used the easement in question for jogging and dog walking without objection from the property owner. However, when construction trucks involved in work on the neighboring property began using the easement, the property owner attempted to block his neighbor’s use of the easement. The neighbor sued, claiming it had a right to use the easement. The first property owner filed a counterclaim, seeking to enjoin his neighbor from using the easement.

The lower court ruled that the neighbor had no legal or equitable right to use the easement. It enjoined and restrained the neighbor from entering upon, using or interfering with the property owner’s use of the easement. It also held that although the property owner had a non-exclusive right to use the easement, he could prevent others from trespassing there to the extent consistent with common law. The neighbor appealed.

The Appellate Division affirmed in part and reversed in part. It agreed that the neighbor had no rights with respect to the easement. For one, the neighbor did not have an “express easement” or any other document conveying to the neighbor or his predecessors in title any rights to use the easement. Further, the neighbor did not have a valid claim for an easement by “necessity” or by “prescription.” The neighbor asserted rights to use the easement based on an alleged “neighborhood scheme.” The Court rejected the neighbor’s contention, giving five reasons for its rejection. First, it noted that there were no restrictive covenants with mutual burdens and benefits set forth in the deeds regarding the neighbor’s property and all the other properties abutting the easement. Second, it declared that the original owners of the initial, larger tract did not grant the neighbor’s predecessor in title use of the easement – the easement had not even been created at the time of the deed. Third, the neighbor had no language in his deed or title history extending to him a reciprocal right to use the easement. Fourth, it found the easement had been created to provide the other property owner’s predecessor in title access to a public road, and later use of the easement was extended to the landlocked lots thereafter created. Fifth, the Court rejected the notion that the language in the deed from the original owner to the property owner’s predecessor in title, which stated the easement was “in common with the owners and occupants of other lands abutting thereon,” made clear that the property owner held a non-exclusive easement in favor of the complaining neighbor. It held that it did not extend rights to the neighbor or evidence a neighborhood scheme.

Thus, the Court reversed the lower court’s ruling that permitted the property owner to treat the neighbor as trespassers if it used the easement. Since an easement is a non-possessory interest in land and trespass is a possessory action, it held that an easement holder may not maintain an action in trespass but may bring an action in nuisance against one obstructing, interfering with, or encroaching on the easement. It also held that an easement holder also can obtain injunctive relief against “interference, encroachment, or obstruction.” In the instant case, it held that the lower court erred in issuing an injunction without identifying the specific infringement of the property owner’s easement rights or explaining why an injunction was necessary to protect those interests. For that reason, it remanded the matter to the lower court to address those issues.


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