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Wiggins v. Dorsey

A-6446-08T1 (N.J. Super. App. Div. 2010) (Unpublished)

EASEMENTS — The failure to claim a right of property over a prescribed period of time can defeat a claim of an easement by prescription over a neighbor’s property.

For about thirty years prior to selling its mobile home trailer park, its owner had used a driveway on an adjacent lot. Three years after the sale, the new owner’s neighbor wrote to the new owner, saying he would be moving an existing fence line to reflect the property line between the lots. This would have prevented the new owner from using the driveway.

The new owner sued to restrain its neighbor from blocking the driveway, to permit the new owner to continue using the driveway, and to grant the new owner an easement. The neighbor responded that the new owner had other means of access for his purposes, and that the driveway had been used without permission.

The lower court dismissed the lawsuit by summary judgment, finding that the new owner was not entitled to relief, having failed to establish the elements of adverse possession, easement by prescription or easement by necessity. The lower court said that a party claiming title to property by adverse possession must have used the property in such an open and notorious manner that an ordinarily prudent person would be put on notice that the land is in actual possession of another. The lower court held that even though the new owner was claiming continuous use of the driveway for decades, he did not prove a claim of right to the driveway. Rather, the new owner acknowledged the driveway was part of the neighbor’s property and that he was merely using the driveway with the neighbor’s knowledge. This failure to claim a right to the property, over a prescribed period of time as an average owner would have done, also defeated his claim of an easement by prescription. Finally, the lower court said because the new owner’s land was not landlocked, no equitable considerations existed to allow for an implied easement by necessity.

The Appellate Division held the lower court correctly found that the facts did not give rise to the creation of any property rights in the neighbor’s driveway, by either adverse possession, easement by prescription or as an easement by necessity.


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