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Trunell v. Trust for Hazel Harrison

A-1066-08T2 (N.J. Super. App. Div. 2010) (Unpublished)

EASEMENTS — A property is not truly inaccessible to the extent that it would be entitled to a prescriptive easement if its owner has had access to the property, for a very long time, over a road to which it had no formal right to use but where it was never blocked from using that road.

A-1066-08T2 (N.J. Super. App. Div. 2010), A property owner purchased a twenty-acre wooded lot without retaining counsel, obtaining a survey or ordering a title search. He then sought to subdivide the property into two lots. The municipality required a fifty-foot access road as a condition of subdividing the property. He sought a declaration of easement by necessity in order to access his “land-locked” property.

The lower court found that the owner did not prove that his property was inaccessible or that there was a need for an easement. It noted that the owner’s property was accessible by means of a gravel road that extended from a public street over the lands of other property owners to his property and that the owner was utilizing that gravel road to access his property. The lower court also noted that the property owners to the west also utilized the gravel road and entered into a mutual right-of-way agreement. Further, those property owners were never approached about selling a right of access to the gravel road over their lands. On the other hand, they never impeded the owner’s use of the gravel road.

The owner appealed, but the Appellate Division affirmed. The Court noted that an easement by necessity must be proven by clear and convincing evidence. An owner must show that its property is inaccessible and that there was unity in ownership of two parcels, and their subsequent severance of ownership resulting in a landlocked parcel of land. Further, the need for an easement by necessity arises when the properties are subdivided and terminates when the necessity is no longer present. It is not revived if the necessity recurs.

In this case, the owner failed to prove that his property was truly inaccessible. Even though he had no formal agreement for use of the gravel road to access his property, he had been using the gravel road and the other property owners did not block him from using it. Therefore, his property was not literally inaccessible. In addition, the owner failed to demonstrate by clear and convincing evidence that his property and the neighboring property had a unity of ownership, or that a subsequent severance of ownership resulted in its property being landlocked. Therefore, he was not entitled to an easement by necessity.

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