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Boyer v. Miller

A-0902-04T3 (N.J. Super. App. Div. 2005) (Unpublished)

EASEMENTS; IMPLICATION; NECESSITY—One of the requirements for an implied easement where two properties were once a single lot is that the easement be necessary, but the test is one of reasonable necessity, not one of absolute necessity.

Two adjacent tracts of land were once owned by the same person. Each was “serviced by a water main that [ran] under a public street, from which a lateral line [ran] from the main through and under [one lot owner’s] property to a point near [that lot owner’s] home where it divide[d] into two lines, each monitored by separate water meters, located on [that lot owner’s] property.” Two water meters were located in a pit. One line ran to the lot owner’s home; the other ran to its neighbor’s home. In about 1996, the lot owner learned of the pipe and meter arrangement but took no action until six years later when a new neighbor purchased the adjacent property and the new neighbor needed to replace the line running under the lot owner’s land. The new neighbor initiated litigation seeking a declaration that it held an implied easement over the other lot owner’s land. Under the law, “a party seeking to enforce an implied easement must show by clear and convincing evidence that (1) the two properties were once in common ownership; (2) that at the time the common ownership was severed once parcel was used for the benefit if the other; and (3) that the use of the one property for the benefit of the other was continuous, (4) necessary and (5) apparent.” Here, common ownership was not in dispute. The only question was whether “the water supply situation pre-dated the severance of ownership. Although there was no direct evidence, there was evidence that the new neighbor’s “property was never supplied by above ground lines that commonly supply homes having no other access to city water.” The evidence also showed that one of the original purchasers from the common owner had suggested that the water supply configuration had not been modified from the date of severance. It was clear to the Court that installing a water line would have required extensive work and that had it been installed after severance, the original owner of the subdivided lot would have remembered such construction.

The Court also found that “installation of a new line would have required extensive work” and held that this met the requirement of necessity. Under case law, the standard is one of “reasonable” necessity and not of “absolute” necessity. Further, the lower court found that the “water meters were located so that any reasonable investigation would have revealed the water supply situation.” This satisfied the Court that the use was “apparent.” “Apparent” means that the “use must be ‘noticeable and discoverable by the due and reasonable attentiveness of a prudent and diligent purchaser.’”

The Appellate Division agreed with the lower court, but needed to analyze whether the necessary level of “clear and convincing” evidence had been satisfied. In this case, despite the objections of the lot owner over whose land the easement was sought, the Court held that “such proof need not be direct; circumstantial evidence may meet that standard.”

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