Case Law Summaries

Hugerich v. Township of Lacey

• Opinion Date: June 13, 2001
• Real Property Law
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EASEMENTS; PUBLIC ACCESS—A marginal roadway is not the equivalent of an easement area.

The backyards of several residential homes abutted a municipally-owned vacant parcel of land, partially asphalt-covered and partially grass-covered, which provided access to a creek and natural area. Several years prior, these residents filed a quiet title action to obtain possession of this strip of land, however, the lower court held, in that case, that the contested parcel “constituted a dedicated marginal roadway,” subject to the public right of access, and that the municipality [was] obligated to maintain it to ensure that it is not abused by the general public. The homeowners did not appeal. Several years later however, the residents filed a motion to enforce the lower court ruling that the municipality was required to maintain and prevent abuse of the strip of land. In particular, the residents complained that the municipality was neither policing the land nor preventing the general public from littering, having barbeques, urinating off the dock, or trespassing onto the residents yards. The residents also sought to permanently restrain and enjoin the municipality from constructing a fence along the common property boundary because this would prevent their access to the grassy area and the creek. Instead, the residents sought to have a fence installed across the asphalt paved area to prevent the general public from using the area and to have the municipality post signs indicating that the area was not a park. The lower court concluded that the proposal to put a fence along the common boundary would not result in a “spite” fence, but rather was a legitimate attempt to solve the resident’s complaints. However, the lower court also concluded that the use of the term “marginal roadway” by the court in the quiet title action was the equivalent of an easement and therefore barred the municipality from constructing a fence. Lastly, the lower court concluded that the municipality violated the previous court order by not properly maintaining the strip of land and directed the municipality to remedy the violations. The municipality appealed. The Appellate Division concurred with the municipality that the lower court erred in ruling that the municipality could not construct a fence, and also erred in concluding that the municipality was violating the previous court order. The Appellate Division relied on the limited precedent governing marginal roadways and concluded that “abutting property owners’ rights are subject to the public’s right of access to the township property.” It reasoned that the purpose of the marginal roadway was to provide public access to the creek and the surrounding natural area. The Appellate Division also concluded that the marginal roadway was not equivalent to an easement, holding that the proposed fence was a reasonable solution to remedy the resident’s complaints. So long as the fence was equipped with a gate, it would keep the general public off the resident’s property while giving the residents access to the creek and natural area. Although the “fence may not be the perfect solution, it is a realistic attempt by the municipality to address the homeowners’ complaints and deal with the problems, short of vacating the parcel and deeding it to the homeowners, which it is not obligated to do.”

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