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Marinelli v. Marsillo

A-3630-00T2 (N.J. Super. App. Div. 2002) (Unpublished)

EASEMENTS— The failure of a property owner to maintain a bridge within a recorded easement in its favor is a self created hardship and such an owner cannot replace the recorded easement with an easement of necessity or with a quasi-easement over another’s land.

The owner of an approximately two acre residential tract had purchased its property from a party that owned that land, adjacent cemetery land, and what became a county park. The homeowner had access to a public road “through a recorded easement comprised of a driveway, fifteen feet wide, and a wooden surfaced bridge (the wooden bridge), the maintenance and repair of which [was] the homeowner’s responsibility.” This was the only recorded easement for the house. The bridge was supported by concrete and steel girders that spanned a brook. The property immediately surrounding the wooden bridge, and the land under it, were owned by the county and were in a flood plain. “After a number of years, the wooden bridge deteriorated due to flooding, and there was considerable erosion of the driveway portion of the easement with the result that passenger vehicles [could not] safety traverse the bridge, and even access by foot [was] problematic.” The cost to restore the easement appeared to be prohibitive so the homeowner (unsuccessfully) sought access to his property through the cemetery. Without such access, the value of the property would be greatly diminished. The cemetery owner refused and the homeowner sued for access in a form of “an easement by necessity or a quasi-easement over the cemetery property… .” The lower court, with the Appellate Division’s approval, found that the recorded easement provided access and that the homeowner’s hardship could be viewed as “self-created” in that the homeowner “failed to inspect and investigate the ‘integrity of the bridge’ before [the homeowner] acquired the property.” As a consequence, the lower court determined that the homeowner was not entitled to an easement by necessity and the Appellate Division upheld that ruling. Further, the lower court found that if the homeowner were allowed to use the roadways through the cemetery, the cemetery owner could incur “a substantial financial loss with regard to the operation and future development of the cemetery.” After “balancing the equities,” the lower court, with the Appellate Division’s affirmance, determined that the cemetery was entitled to prevail.


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