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Pettineo v. Borough of Brielle

A-6203-97T1 (N.J. Super. App. Div. 1999) (Unpublished)

EASEMENTS; MAINTENANCE—A dominant tenant has the obligation to maintain and repair an easement which is incident to its beneficial use.

A property owner owned one of two lots that had been created through a subdivision. A natural stream ran between the two lots. Drainage from the road in front of those lots was discharged through two drainage pipes into a manhole and piped into the stream. The stream was not very well defined where it ran through the owner’s property, but eventually it continued through other rear yards down to another public road, where after “becoming more defined,” the water flowed into a storm sewer system that ultimately discharged into a major river. When the property was subdivided, no conditions were imposed, but the approval was “subject ... to the submission of a drainage easement to the existing drainage pipe, going from the catch basins on [the road].” In accordance with that provision, the property owner’s predecessor in title granted a deed of easement and right-of-way to the municipality “for the purpose of installing and maintaining a drainage right-of-way, pipes and appurtenances as may be necessary.” The easement gave the municipality the right to grade the width of the easement and to “enter into and upon the premises for the purpose of maintaining, repairing, renewing or adding to the aforesaid and for doing anything necessary for the enjoyment of the easement herein granted.” Moreover, the municipality agreed that “upon any opening being made in connection with any of the purposes of this easement and right-of-way, said opening shall be back-filled and resurfaced as to nearly as possible the same condition as existed when said opening was made” at the municipality’s expense. About a year after purchasing their home, the owners wrote to the municipality and complained that the storm drain was esthetically [sic] displeasing” and a potential safety, health, and environmental hazard. The municipality’s counsel agreed there was a problem, and to avoid the need to obtain special permits, the municipality arranged to have the County Mosquito Commission submit a proposal to solve the problem. The proposed solution proved to be inadequate. Following that discovery, the municipality advised the property owner that the stream and the “wetlands” were under the jurisdiction of the New Jersey Department of Environmental Protection and that the municipality could not perform any work there without permits, which it did not plan to obtain. Testimony at the time of trial pointed out that the streambed’s banks had deteriorated to the point where the channel was not as deep as it was when the attempted repair work was completed. In addition, more water than before was in the stream. An expert hired by the property owner testified before the lower court that one possible solution included the installation of an underground metal pipe which would dissipate the energy of the water flow in cases of high runoff and would not adversely affect anything downstream. The engineer claimed that his solution “was in keeping with the purpose of the easement.” Further, the engineer observed that a footbridge and a dam had been built downstream and that both of them blocked the flow of the stream. Further, according to the expert’s testimony, “the stream had created a swamp at the rear of [the property owner’s] property which had developed and worsened over a number of years.” The municipality’s engineer testified that after the initial repair had been made, the water flow “greatly improved” and the standing water adjacent to the road had been eliminated. That engineer “believed the major factor impacting the flow of the stream was that over time, property owners such as plaintiff and [the adjacent property owner] and others had made a series of improvements.” Hearing all of that testimony, the lower court ordered the municipality to install a pipe in accordance with the property owner’s engineer’s plan. The municipality appealed that ruling, claiming that it was not required to install a pipe under the express terms of the deed of easement and right-of-way. It argued that the extent of an easement created by conveyance is controlled by the language of the conveyance. Under that theory, because the deed of easement for the right-of-way did not require it to install a pipe within the easement, it claimed that it had no obligation to do so. Under its theory, while it reserved the right to install pipes within the channel if, in its discretion, it determined that pipes were necessary, the choice to install the pipes or not was entirely its own. The Appellate Division upheld the lower court. In doing so, it found that the municipality’s contention “evinces a misunderstanding of the reason why [the lower court judge] ordered it to install a pipe in accordance with “the property owner’s plan.” The Appellate Division, found that the lower court acknowledged that the extent of an easement created by a conveyance was controlled by the terms of the conveyance. However, it also pointed out that the lower court upheld another principle. That principle is that “a dominant tenant has a common law duty to maintain and repair the easement which is incident to its beneficial use.” The Appellate Division’s view was that the lower court had relied upon the deed of easement merely as proof that the easement existed. The lower court found that there was a water flow problem and that the walls of the stream/ditch had collapsed. “Because the common law requires a dominant tenant to maintain and repair and [sic] easement [the lower court judge] was within his authority to order defendant to maintain and/or repair the easement so that the standing water would be eliminated.”


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