Case Law Summaries

Estate of Joy v. Paramus Board of Education

• Opinion Date: December 18, 2001
• Real Property Law
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LICENSES; REVOCATION—A revocable licence to use land of another can become irrevocable if the licensee can show that the license was coupled with an interest or that equity has been created by acts done pursuant to the license.

An estate owned two lots of land, largely separated by property owned by a board of education. The estate also enjoyed a right of way across the board of education’s land, designed to join the two lots. According to the terms of that easement, the estate was entitled to a “right of way on foot or with animals vehicles loads or otherwise through and over” the strip of land. The lots were also joined by a second right of way which ran between a major highway and the boundary of the board’s property. The estate claimed to be the outright owner of this second easement, which it asserted was retained by the estate’s decedent when the state took a portion of the decedent’s land in order to build an exit ramp from the highway. That exit ramp eliminated all access along one of the borders of one the two lots. Forty years earlier, the decedent orally agreed to allow the board to erect a chain link fence and to plant trees within the first right of way, along the border line of the board’s property, to prevent school children from accessing the highway. The decedent also orally agreed to allow the board to install an underground drainage pipe under the first right of way, and a storm drainage underneath and across the second right of way so that the board could drain its athletic fields. A site map showed that the board’s fence enclosed and prevented any usage of the first right of way over the board’s land, and confirmed that the board could not access the highway sewer system without crossing land which did not belong to it. Originally, both of the estate’s lots were actively farmed, but eventually one of the lots was sub-divided into four residential lots. The estate’s decedent then sought to sub-divide the second lot. To do so, it needed some land belonging to the board of education. Negotiations with the board of education fell through, and the sub-division application was denied. As a result, the estate demanded that the board remove its chain link fence and trees bordering the first easement and remove its sewer lines from under the second right of way. The board refused, and the estate instituted litigation.

The lower court ruled that the board had an irrevocable license to remain on both rights of way. Initially, the lower court found that the estate’s decedent had consented to the fence, trees, and the pipes. It then analyzed whether the estate had granted a revocable license that would enable it to “uproot the fence, the trees, the drainage system.” It was concerned that the board would suffer a significant amount of damage should it be required to remove its fence, trees, and especially its drainage pipes. In sum, the lower court believed, “[c]learly, therefore, the landscape has changed in its entirety, and while a license may have existed while the parties originally contemplated the right-of-way, the extensive damage and significant sums of money that would be paid, in my opinion, to stop [sic] the [estate] in suggesting that an irrevocable license exists.”

On appeal, the Appellate Division analyzed the matter as follows. The estate contended that the board possessed nothing more than an revocable license which the estate was entitled to revoke at will. In response, the board argued that because it had spent a great deal of funds to build and maintain the structures located on the easements, its license be should be deemed irrevocable. Under New Jersey law, “[a] license is revocable at will, upon the death of either party to it; or upon the licensor’s conveyance of the subject land, unless the license is coupled with an interest; or an equity has been created by acts done pursuant to the license.” Further, “[a] license is considered coupled with an interest where the licensee must enter the property of another to retrieve something in which he or she has an ownership interest.” Lastly, “[a]n equity is created in conjunction with a license when a licensee has expended substantial sums of money pursuant to the privilege such that it would work a fraud on the licensee to allow the licensor to revoke.” In such cases, the licensee is protected against revocation by principles of equitable estoppel. Based on the foregoing, Court concluded that the lower court “improperly placed the burden on [the estate] to demonstrate why it was entitled to retain its rights of way, rather than requiring the Board to show why it was entitled to supplant [the estate’s] pre-existing rights.” With that in mind, the Court felt that the lower court reached its conclusions “in the absence of any evidence presented by the Board regarding the costs it incurred in installing the fence, planting the trees which presently occupied the easement area, or adding the drainage.” Further, the Court pointed out that there were two separate rights of way and the “obstructive structures the Board [had] placed on or within each [were] different.” It wasn’t readily apparent to the Court that the cost of installing the fence or trees was significant. The Court mused that the cost of the drainage pipes may have been higher and that it might be that “the Board was entitled to continue the license in respect to the drainage system since it had no way to access the highway drainage system other than by crossing the estate’s land.” The board did not have any way to access the highway drainage system other than to cross the estate’s land when the license was given and the drain was installed. “Thus, it may have been contemplated that the drain would remain forever.” Moreover, the drain did not seem to actually impede access to the estate’s land, but the Court recognized that it might need to be relocated to a lower depth to accommodate the estate’s future use of the land. Finally, the board argued that “even if it [did] not possess irrevocable licenses, it nonetheless possesse[d] prescriptive easements entitling it to continued use of the Estate’s rights of way.” The Court rejected that argument because a prescriptive easement requires, among other things, “adverse” usage of the property in question. There was no dispute that the board’s use of the rights of way was based on permission initially given by the estate’s decedent.

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