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Scipio v. Township of Fairfield

A-1964-97T3 (N.J. Super. App. Div. 1998) (Unpublished)

ENCROACHMENTS; STANDING—The spouse of a property owner does not have the requisite possessory interest to have standing to maintain an action for encroachment.

A homeowner complained that the municipality and neighboring landowners encroached upon and caused excess water run-off onto its property. At the outset, the defendants claimed that the complaining homeowner did not have standing to maintain the action. Apparently, the complainant and his wife had recently deeded the property solely to the wife, purportedly to “correct” prior deeds. As a result, the Court agreed that the husband’s interest in the drainage ditch servicing the property was only that of a conditional right of possession as spouse of the owner. Insofar as the complaint asserted that the municipality and the neighboring homeowner had affected the marketability of the property, the husband was found to be without standing. Nonetheless, because the complainant also asserted that his wife had assigned her claims to him, the Court continued to make a determination on the merits.

This matter was provoked when the homeowner received a violation notice from the municipal engineer, demanding that the homeowner clear a drainage ditch on the property. In response, the homeowner claimed that not only was the drainage ditch blocked as a result of the action of others, it actually did not fall on his property. He asserted that after receiving the violation notice, he retained a surveyor to install property line markers. According to the homeowner, the survey revealed that an abutting sub-division encroached into the drainage ditch right-of-way and onto his property at least 8 to 15 feet. The homeowner further claimed that the encroachments were made without his knowledge and consent, and were a result of a failure on the part of the municipality and the neighboring landowner to supervise construction of the adjoining subdivision. In oral argument, it was revealed that the offending road had been built by a developer 30 years earlier and later deeded to the municipality by the developer. A court-entered settlement ten years earlier had already affirmed that the municipality was not responsible for any encroachment and, as a consequence, the claims against the municipality were dismissed. As to the homeowner’s claim that dirt had been moved so as to create an “8 or 10 foot encroachment of unspecified land upon his tract,” he was unable to say who moved the dirt or when. Consequently, the complaint was also dismissed against the neighboring landowner.


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