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Burke v. Jennings

A-4821-06T2 (N.J. Super. App. Div. 2008) (Unpublished)

EASEMENTS — An easement is a non-possessory interest in another’s land entitling the easement holder to make some use of the other’s property, and, therefore, it is the exclusive right of the easement holder to say whether the landowner over whose property the easement runs can change the character and location of the easement.

Homeowners removed a portion of road that traversed their property and planted trees and bushes where the road previously had been located. The road was part of a deed-recorded easement which was designed to provide full access to properties within their development for residents and emergency equipment. The other residents filed suit against the homeowners to compel them to restore the road, and ultimately moved for summary judgment. In response, the homeowners conceded that the easement had to be restored, but sought its modification to permit installation of pavers in place of the former macadam road surface. The other residents refused to consent to this modification. As a result, the lower court granted summary judgment, ordering the homeowners to restore the macadam road that had previously existed.

The homeowners appealed, claiming that the lower court failed to recognize that it had the discretion to order that the replacement of the roadway be accomplished by use of the pavers. The Appellate Division disagreed and affirmed the lower court ruling. It first stated that an easement is a non-possessory interest in another’s land entitling the easement holder to make some use of the other’s property. Secondly, the Court stated it is the exclusive right of an easement holder to say whether the landowner through whose property the easement runs can change the character and location of an easement. Finally, the Court concluded that, in the instant matter, the easement holders did not consent to a change to the roadway’s surface, and that justice and equity did not permit any judicial modification given that the homeowners’ concern was aesthetic only.


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