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Bubis v. Kassin

323 N.J. Super. 601, 733 A.2d 1232 (App. Div. 1999)

EASEMENTS; EXTINGUISHMENT—When land is sold with reference to a map on which lots and streets are delineated, the buyer acquires an implied private right of way over the streets and that right of way is not affected by a municipality’s acceptance or vacation of the streets.

At one time, an entire municipality was owned by a developer who prepared a map subdividing the tract into lots, blocks, and streets. The most easterly street was unnamed but was described on the map as “Bluff.” It immediately adjoined an area of the map described as “Beach.” Subsequent deeds conveyed not only the designated lot but also an easement over “a Part of Beach and Bluff,” which was described as follows: “a right of way, to be used in common with all other owners and occupants of lots as shown on [the map], for the [lot owners] ... to pass and repass on foot, on, over and across a certain strip of land, being part of Beach and Bluff as shown on [the map] ... .” A time came when a party purchased eight oceanfront lots bordered on one side by “Bluff” from an owner that had been operating a private beach club. Shortly after buying the club, the new owner allegedly used a bulldozer to create a twelve to fourteen foot high sand berm along the boundary of the property to separate it from the balance of the development. This created a “barrier” that interfered with another property owner’s right to pass over the Beach and Bluff. Other property owners alleged that the berm and a nearby fence prevented them from using the streets shown on the original map for free access to the beach and ocean. The owner of the eight lots asserted that the other property owners no longer had any right to use the Beach and Bluff because the land now fell below the mean high water line. It further claimed that the other property owners no longer had a right to use part of a particular named street because the municipality had vacated that portion of the street years earlier. The lower court conducted a two day trial at which the proofs were primarily addressed to the question of whether any part of the area described on the map as Beach and Bluff was still above the mean high water line. It concluded that all of Beach and Bluff was now below that line. Consequently, it determined that any private easements that the property owners may have enjoyed over the named streets “ceased to exist with the submerging of” Beach and Bluff. The complaining property owner appealed the finding that the Beach and Bluff were now below the mean high water line and further argued that even if they were, the easement to the beach and ocean over the public streets remained in place. The Appellate Division concluded there was substantial credible evidence to support the lower court’s finding that the entire area described as Beach and Bluff was now below the mean high water line. However, it appeared that the deeds to the complaining property owner’s predecessors in title conveyed implied private easements over the private streets so as to afford private access to the beach and ocean, and it held that the erosion of the Beach and Bluff did not extinguish those easements. According to the Court, “it is firmly established that when land is sold with reference to a map on which lots and streets are delineated, the purchaser acquires an implied private right of way over the streets.” Even though streets are dedicated to a municipality, a lot owner’s private right of way is not affected by the municipality’s acceptance or vacation of such a dedication. A private right of way “is one of intention . , the intention spelled out at the time and by the filing of the map.” In most circumstances, the only use of the streets shown on a map that is “necessary or useful for the beneficial enjoyment of the lot conveyed” is “a right of way or access from or to some public highway.” However, if the location of the lots or the circumstances surrounding the conveyance indicate that a more expansive right of way is necessary for the buyer to obtain the full beneficial enjoyment of the lot, the courts will recognize whatever implied right of access is required to carry out the intent of the conveyance. In this case, the property owner’s predecessors in title purchased lots under such circumstances that any purchaser could reasonably assume that one of the benefits of property ownership was convenient access to the beach and ocean through the network of streets. To quell any doubt, each purchaser acquired both a lot and an express easement over the Beach and adjoining Bluff. To allow the owner of the eight lots to interfere with access to the beach and ocean would cause the complaining property owners to lose much of the advantage which the developer “impliedly promised ... as inducements to the purchase of [their] lots.”

Erosion of the Beach and Bluff did not extinguish the private rights of access to the beach and ocean. The Court initially noted that the word “beach” is commonly understood to refer to the area between the low and high water lines. Consequently, it was reasonable to assume that the parties to the original conveyances contemplated that the portion of the land that was subject to the expressed easement (the Beach) was below the mean water line. Although an upland owner does not own the public land that is below the mean water line, in the nineteenth century an upland owner could obtain ownership of the land between the mean high tide and low tide lines by artificially filling the area. It was also recognized that the upland owner could place encroachments, such as bath houses, below the mean water line. Consequently, the complaining property owner’s private right of access to the beach and ocean was not contingent upon some portion of the Beach and Bluff remaining above the high water line. As support for this proposition, a line of cases held that a right of way terminating at the mean high water line will be extended over areas that were below the line at the time of the conveyance but which subsequently were claimed by filling or natural accretion.


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