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State of New Jersey v. Fairfield Park, L.L.C.

A-2709-03T1 (N.J. Super. App. Div. 2004) (Unpublished)

EMINENT DOMAIN; ADVERSE POSSESSION—In a condemnation proceeding, a neighbor may claim compensation for the taking of land to which it is entitled by way of adverse possession, but merely having planted grass, shrubs, flowers, and trees on the area in question is not generally considered an open and notorious act of possession as would support the adverse possession claim.

The state acquired part of a landowner’s property to make road improvements. Those improvements eliminated several existing parking spaces on the owner’s property. To minimize the parking loss, the state presented plans for the relocation of most of the lost spaces to another state-owned property. During the course of the trial to determine the compensation to be awarded to the owner based on the state’s condemnation of its property, the lower court barred testimony regarding a possible adverse-possession claim by a nonparty neighboring church that the owner claimed would have impeded the implementation of the state’s proposed relocation cure of the parking space problem. Specifically, the church had been using the proposed relocation site for overflow parking for its congregation, and the owner wanted to allege that the church owned part of that area by adverse possession. The owner appealed, claiming that the lower court improperly prohibited the testimony regarding possible adverse-possession that could have impeded the state’s proposed relocation cure of the parking space problem. Its theory was that had the lower court not done so, it would have received higher compensation.

The Appellate Division noted that this issue was first raised during a site visit on the second day of trial, and was thus untimely. Adverse possession was not pled in the owner’s answer or at any other time before the trial. An affirmative defense is waived if not pled or otherwise timely raised. The owner’s only explanation for not raising the issue before the trial was that he did not notice it until the court’s site visit on the second day of trial. The Court stated that this was not sufficient to justify the introduction of a last minute defense. Furthermore, the court questioned whether such a claim could have been properly decided in the context of a condemnation trial.

More importantly, the Appellate Division pointed out that the owner’s proffer did not present any basis for adverse possession by the church. A claim of adverse possession must be proven by a preponderance of the evidence. The right to use another’s land by adverse possession requires actual and exclusive, open and notorious, continued and uninterrupted, and adverse and hostile use of the land for the statutory period. The only proof the owner had of adverse possession was that the church had planted grass, shrubs, flowers, and trees around the area in question. The Court held that such things alone are not generally considered open and notorious acts of possession, and that the church members’ use of the property was no more than permissive. The Court pointed out that the state had actually planted most of the trees and had installed a walkway leading from the parking area to the church’s property so as to facilitate the permissive use. For those reasons, the Appellate Division held that the owner’s proffer was insufficient to establish the elements required for an adverse possession claim.


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