Case Law Summaries

Pompton Lakes Borough MUA v. North Jersey Police Radio Association, Inc.

• Opinion Date: December 10, 2001
• Real Property Law
• E-Mail

EASEMENTS—An easement allowing a certain use “as presently constituted” looks to the way in which the easement was used at the time of the grant and not the intensity of its use for that purpose.

An association composed of nine police departments formed for the purpose of maintaining a radio tower for police communication facilities operated a tower for that purpose on property originally owned by a municipality. When the municipality transferred the property to its Municipal Utilities Authority (MUA), the deed provided that the conveyance was “subject to easement” of the association “for the purpose of maintaining a radio tower and allied equipment as presently constituted.” After that conveyance, the association had at least one or two commercial tenants “which maintained transmission facilities on the tower and paid rent to the Association.” Over the years, the number of commercial uses increased until the association contracted with a cellular phone company “to construct a needed replacement tower as well as an ancillary eight foot by sixteen foot equipment room for the Association’s use.” In return, the cellular company obtained the right to use a portion of the new tower, rent free, for a period of ten years. The MUA filed suit claiming that the contract with the cellular company “represented an impermissible expansion of the Association’s easement since, by the terms of the 1965 deed, the easement was linked to the Association’s ‘maintaining a radio tower and allied equipment as presently constituted.’ Essentially, the MUA claimed that the new operation went beyond the manner in which the tower was operated in 1965. After suit was filed, the MUA settled with the cellular company, but continued its lawsuit against the association. The lower court dismissed the lawsuit. In its decision, it concluded that “the deed reference to the easement ‘as presently constituted’ referred to ‘the tower functioning as it was, keeping in mind all of the surrounding circumstances at the time the conveyance was made to the [MUA].’ The lower court found “that the heart of the matter lay in the use of the tower, as that use existed in 1965 – providing a location for transmitting facilities – and concluded there was no reason to believe the language was intended as a restriction ‘against using the tower to raise money for the [association’s] public purposes’ so long as the tower continued to be used for its essential public purpose.” It analogized the situation to churches that hold bingo games, and concluded that increasing the number of commercial users of the tower imposed “no greater burden on the MUA.” The Appellate Division agreed that since “the easement was still being used for the same purpose for which it had always been used,” the lower court’s conclusion was correct.

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