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Pinkowski v. Township of Montclair

299 N.J. Super. 557, 691 A.2d 837 (App. Div. 1997)

MUNICIPALITIES; EASEMENTS—A natural water course is neither an easement nor an encumbrance; it is part of the underlying property itself. A culvert built by a municipality to contain the water course underground does not require an easement because it can be located in an “implied” easement where the water course runs (but entry upon the land may require permission). Therefore, a municipality has no duty to record an easement or give the public notice of the culvert.

Seventy years ago, the Township of Montclair constructed a concrete culvert three feet below ground to carry water through a particular property into flood drains located near the boundary of the property. The culvert ran under a portion of the property, but over time that portion was sold as a separate lot. There was no recorded easement for the culvert and there was no evidence of record of the culvert. The culvert’s presence made construction on the lot impossible. Upon discovery of the culvert, the most recent owner’s title insurance company reimbursed the owner for the purchase price of the lot and took title to the lot along with an assignment of the owner’s rights. The owner then sought additional damages from the Township and claimed that the Tort Claims’ Act prohibition against subrogation does not apply because the Act permits recovery from an insurer and a public entity as long as the proceeds from the insurance policy are used to offset damages received from the public entity. The owner also claimed the Township was unreasonable in not recording an easement and that it should have discovered the culvert during later surveys and notified people of its existence. The trial court granted immunity to the Township under the Act, and held that the Act also prohibited insurance companies from asserting subrogated tort claims against government entities.

The first issue was whether a property owner may collect money from a municipality after receiving payment from his insurer. The Appellate Division stated that the landowner may assert a claim against a municipality under the Act for injuries not compensated by insurance, as long as the right to assert such a claim has not been subrogated to the insurer. However, the Court disposed of the owner’s claim of negligent inspection by noting that municipalities have immunity under the Act with respect to injuries attributable to inspections, whether arising from a failure to inspect or from a negligent inspection. A second issue was whether the Township had a right to enter onto the land to construct the culvert originally and whether the presence of the culvert was a continuing, unauthorized trespass. Furthermore, the Court had to resolve the owner’s claim that the Township had a duty to record the culvert as an easement, to show it on any applicable map, or at least to notify the owner of the land when the application for subdivision was first made to the Township. The Court opined that the natural water course under the property gave the Township an implied easement to maintain the water course by constructing the culvert. Relying on precedent, the Court stated that a natural water course does not create an easement or an encumbrance since it is naturally part of the land itself. Therefore, the culvert was not a continuing trespass and imposed no obligation on the Township to inform the landowner of its existence. Finally, the Court addressed an inverse condemnation claim, whereby the owner sought compensation for a de facto taking of property. To succeed with such a claim, a landowner must be deprived of all reasonably beneficial use of the property as a result of the exercise of government authority. The Appellate Court concluded it was the existence of the water course, not the Township’s construction of the culvert, that left the land undevelopable.


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