In Re South Orange Utility Pole Litigation v. Public Service Electric & Gas

A-1482-97T5 (N.J. Super. App. Div. 1999) (Unpublished)
  • Opinion Date: June 17, 1999

EASEMENTS; ADVERSE POSSESSION; UTILITIES—Public utility poles on private land without a proper easement may remain pursuant to the adverse possession doctrine if they were in place for the requisite period of time.

A group of property owners filed suit against a group of utilities, seeking ejectment and damages for utility poles and wires placed on or across their property. Their claim was that the utility companies did not have easements or other legal permission for the poles and wires that provided utility and television service to the properties. The utility companies filed a third-party complaint against the municipality because the municipality prohibited by ordinance, since the early 1900s, the installation of utility poles in the public right-of-way. To conform with the municipality’s policies respecting utility poles, the companies’ poles and wires were located in the backyard of each property owner’s land. The utility companies sought summary judgment in their favor on the ground of adverse possession. The property owners argued that the utility companies could not prevail on that ground, citing two statutes. The first provides that “[w]henever any wire or cable used for any telegraph, telephone, electric light or other wire or cable for electric purposes, is or shall be attached to, or does or shall extend upon any building or land, no lapse of time whatsoever shall raise a presumption, or justify a presumption of any perpetual right to such attachment or extension.” The second statute bars a lawsuit to remove any utility pole that has been in place for ten years “in, on or along any such public highway, street or other place… .” The lower court rejected the property owners’ arguments, concluding that the first statute was limited to “wire or cable” and that the omission of any reference to any pole, which obviously had been required to support the wire or cable, sufficiently evidences the legislative intent to limit the effect of the statute to “wire or cable.” The lower court concluded that the second statute did not apply to utility poles located on private property. The property owners moved for class certification with respect to the wires as opposed to the poles. Their motion was denied because the lower court concluded that “there would be a risk of inconsistent and varying adjudication, which with respect to individual members of the class, which would obviate the appropriateness of a maintenance of a whole class.” Because none of the individual property owners wished to proceed individually, their claim with respect to the wires was voluntarily dismissed. The Appellate Division held that the lower court correctly concluded that in light of the parties’ stipulation that the poles had been on the properties for the requisite number of years to establish adverse possession, the two statutes cited did not preclude a finding of adverse possession in favor of the utility companies.