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Stump v. WHIBCO

314 N.J. Super. 560, 715 A.2d 1006 (App. Div. 1998)

ADVERSE POSSESSION—Where fencing alone is the evidence on which an adverse possession claim is based, it must, to be effective, be complete and so open and notorious as to charge the owner with knowledge thereof.

A landowner filed an adverse possession claim pursuant to a New Jersey statute which requires 30 years of “actual possession” for real estate that is not “woodlands or uncultivated” in order to “vest a full and complete right and title” in the adverse possessor. A counterclaim was filed for an ejectment and for damages under two other New Jersey statutes.

Each neighboring landowner purchased its property in 1974. The previous owners of the plaintiff’s property operated a boat yard and marina on that property and built a railroad tie and cable fence between the two properties “without the benefit of a survey.” That new fence replaced a wire mesh fence that had separated the adjacent properties since at least 1948. Records indicated that conversations over encroachment took place between the litigants as early as 1976. In 1981, the plaintiff landowner began making improvements on the land within its side of the fence. Those improvements included a concrete walkway, a bulkhead, boat ramps, and a sign, as well as concealed encroachments, such as an underground conduit and septic systems. A subsequently prepared survey indicated that the new fence was an encroachment on the defendant landowner’s property, as the old one had been.

The lower court ruled in favor of the defendant landowner concluding that, as a matter of law, no presumptive knowledge of the encroachments arose before the extensive improvements were made in 1981. The lower court then ruled that the fence was only a minor encroachment. The lower court recognized that landowners can tack their adverse possession claim to that of previous owners, but held that the plaintiff landowners were barred from doing so in this case because the previous owner’s use of the land was not “open and notorious.”

The Appellate Division upheld the lower court’s ruling but held that the fence could not be considered a “minor encroachment” for adverse possession purposes and therefore could serve to give notice of adverse possession. The Court would not, however, begin the adverse possession “clock” with the erection of the original old wire mesh fence because it concluded that the old fence was an inadequate boundary marker that did not establish the clear boundary line which is necessary in an adverse possession case. Consequently, the Appellate Division placed the starting date of the adverse possession at 1967 (the year the new fence was constructed), which meant that 30 years had not yet run.


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