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O’Connor v. Nero

A-16-03T3 (N.J. Super. App. Div. 2004) (Unpublished)

ENCROACHMENTS; SURVEYS; ADVERSE POSSESSION—Hand drawn maps, though filed, are not necessarily accurate and are not binding in property line disputes and minor encroachments along a dividing line can be ignored as the basis for an adverse possession claim where there are no physical defining features such as hedges, fences or walls.

An owner of one lot of land sought to prove that due to an error in an 1871 filed map, his westerly property line was actually located ten feet closer to an adjacent lot shown on his deed. The owner also sought to demonstrate that he and his predecessors in title, for more than thirty years, had made sufficient use of the space in question so as to constitute adverse possession. The lower court rejected both theories.

The owner’s claim that he had title to the disputed space was based on the opinion of his expert, an engineer and land surveyor. The expert testified that the owner’s deed was in error based on a survey done in 1975 which failed to reflect a ten foot error in an 1871 map. The expert claimed that if that lot had been described correctly in the 1871 map, it would have shifted the first owner’s property ten feet to the west. The court, however, refused to accept the 1871 map as an accurate guide to determine the legal boundary between the two properties. It was a hand drawn map that, by its nature, contained errors in the terms of width of lines and in terms of scaling. In addition, the court found that the owner’s deed had a specific legal description, which made no reference to either the 1871 map or any predecessor who took title under a deed referring to the map. In addition, the owner and his immediate predecessors in title took title in reliance upon a location survey that expressly delineated the boundaries of the property. For those reasons, the court held that the owner did not have legal title to the disputed property, and that his property was limited to what was shown on his deed.

As to the adverse possession claim, the owner asserted he had used the disputed portion of the property as a driveway and a garden for the twenty years he had owned the property, and that his predecessor had used the same portion for the prior ten years. The owner introduced the testimony of a neighbor to establish evidence of use ten years before his purchase. The lower court, however, rejected the neighbor’s testimony as insufficient to establish a consecutive thirty-year period. The neighbor had testified that the predecessors had parked their cars side by side in their driveway and that they had a dog run next to it, encroaching upon the portion of the property in question. The lower court rejected such minor encroachments along a dividing line between properties as the basis for a successful claim of adverse possession, especially where there were no hedges, fences or walls along the boundary.


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