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Smothergill v. Hirschberg

A-5119-08T3 (N.J. Super. App. Div. 2010) (Unpublished)

EASEMENTS; DEEDS — It is irrelevant that some deeds in a chain of title refer to a right of way, while others do not, because easements run with the land regardless of whether they are mentioned in subsequent deeds.

Two neighbors had a dispute regarding an access easement. One owned a “flag” lot and had no access to public roads. Over the years, the flag lot owner and his predecessors-in-title made use of an unpaved pathway that abutted the property in order to get to the public road. The path was listed on the municipal tax maps as a 33-foot wide right of way stretching about 400 feet between two roads.

Shortly after the flag lot owner purchased his property, a dispute arose regarding the other neighbor’s right to use the right of way. The flag lot owner claimed exclusive ownership over the right of way, and tried to protect it with fencing and signs. The neighbor sued. The title work showed that both properties had originally been part of a larger tract. The original owner of both tracts had conveyed a landlocked portion of her property, but that original owner also obtained an access easement from a property owner to the east. The original owner then divided her property into smaller tracts and a network of interconnecting rights-of-way was created to provide the landowners with ways to connect to the access easement. In 1923, her heir sold one lot to a third party and conveyed a rectangular lot to his own wife. The deed to his wife contained a reservation for a sixteen-foot right of way for the “lawful use and benefit of all owners of the premises contained herein described as well as owners of other lands of the grantor situate[d] west of said premises.”

The husband and wife subdivided the tract and then sold the western portion of the tract. That western portion covered the southeast corner of the property owned by the neighbor in the current dispute and all of the flag lot owner’s property. The deed for the western portion of the property contained the same reservation of a sixteen-foot right of way as listed in the 1923 deed to the wife. The wife sold the eastern tract, but repurchased the western tract, which included the same reservation of a sixteen-foot right of way. She then resold the western tract back to the original owner of the undivided lot, but the reservation for the right of way listed it as a sixteen and one-half foot right of way. That owner then subdivided the property into two smaller properties, and the subdivision map showed that the parcels would be serviced by a right of way, but the map did not indicate its dimensions. When the original lot owner sold the western portion of property, the deed did not expressly mention the right of way, but described the property as being a portion of the property conveyed to the grantor. Then, the original lot owner sold the eastern portion of the subdivided property to the flag lot owner’s predecessor in title, but made no mention of the right of way. However, the deed to the flag lot owner referenced the easements by their book and page. Eventually, the western parcel was sold to the complaining neighbor On the day before the complaining owner filed suit, the flag lot owner obtained a quit claim for the pathway.

The lower court found that it was undisputed that the flag lot owner’s right of way was derived from the 1923 deed. The lower court rejected the flag lot owner’s contention that the original owner only intended for his own lands to benefit from the right of way. Under that reading, the original owner would have intentionally landlocked one of the parcels. The lower court noted that later deeds also recited the right of way. It discounted a discrepancy in deeds listing the right of way as sixteen and one-half feet, noting the discrepancy was likely due to more exact measurements being made by a later surveyor. The lower court deemed it a correction of, and not a modification of, the original right of way.

The Appellate Division affirmed. The Court found it irrelevant that some of the deeds in the chain specifically referred to the right of way while others did not, since easements run with the land regardless of whether they are mentioned in subsequent deeds. The Court also found it irrational to conclude that when the original owner subdivided the lots that were eventually owned by the complaining neighbor and the flag lot owner, he intended to create a landlocked parcel.


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