JOSEPH HERBERT WEBB v. HUBWARD CO. (C-000111-18, BURLINGTON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1730-20
JOSEPH HERBERT WEBB
and BETTY JO WEBB, h/w,
Plaintiffs-Appellants,
v.
HUBWARD CO., a New Jersey
Partnership, MIDAS REALTY
CORPORATION, AUTO
EXPERTS USA, L.L.C., t/a
MIDAS AUTO SERVICES
EXPERTS,
Defendants-Respondents.
__________________________
Argued August 16, 2022 – Decided September 13, 2022
Before Judges Messano and Natali.
On appeal from the Superior Court of New Jersey,
Chancery Division, Burlington County, Docket No.
C-000111-18.
Joseph M. Pinto argued the cause for appellants (Polino
and Pinto, PC, attorneys; Joseph M. Pinto, on the brief).
Stuart J. Polkowitz argued the cause for respondent
Hubward Co. (Brach Eichler LLC, attorneys; Stuart J.
Polkowitz, of counsel and on the brief; Mark E.
Critchley, on the brief).
PER CURIAM
In this quiet title action involving a dispute between two adjoining
property owners, plaintiffs Joseph Herbert Webb 1 and his wife, Betty Jo Webb,
appeal from a January 27, 2021 Chancery Division order granting judgment after
a non-jury trial to defendant Hubward Co. The court dismissed plaintiffs' claim
sounding in adverse possession and declared defendant the exclusive and sole
owner of the entire tract of land formally identified as 1627 Route 38, Block 18,
Lot 4, in Lumberton Township (Hubward Property). The court denied plaintiffs'
remaining requests for relief, including their claim for money damages and
counsel fees, and dismissed defendant's counterclaims and requests for
attorneys' fees and costs.
I.
Plaintiffs initiated this action by filing a verified complaint, which they
twice amended, seeking to quiet title based on their alleged adverse possession
of an approximate 10,000 square foot portion of defendant's property. To
1
Where necessary, we refer to plaintiffs throughout our opinion by their first
names to distinguish them, intending no disrespect.
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establish that they satisfied all elements of N.J.S.A 2A:14-30, plaintiffs' proofs
addressed their open encroachments on defendant's land, commencing with the
planting of a line of trees in approximately 1978 or 1979, and continuing with
the installation of permanent structures upon it between 2003 and 2004, and
recreational use of that tract of land since. We briefly detail those proofs as
found by the judge to provide context for her opinion and our decision.
When plaintiffs purchased their lot in 1975, it was undeveloped and
surrounded by similar tracts of land, including an abandoned farmhouse and
barn located on its western border. The property is roughly rectangular in shape,
with its northern boundary line bordering County Route 683 in Mount Holly
Township. Its southern boundary line, which abuts the Hubward Property,
demarcates Mount Holly Township from Lumberton Township.
Shortly after purchasing the property in September 1975, plaintiffs
completed construction of a single-family home, and later in 1977, installed an
in-ground swimming pool and concrete deck in the rear of the property, which
they enclosed with a metal fence. In 1978 or 1979, plaintiffs hired a landscaper
who planted a staggered line of evergreen-type trees along the rear boundary
line. These plantings, referred to in the record as the "Back Forty Trees,"
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generally began at the southeast corner of the property, ending at the western
boundary.
As detailed by defendant's surveyor and expert witness, Suzanne E.
Warren, PLS, of MidAtlantic Engineering Partners, at the time the Back Forty
Trees were planted, the property to the south was an undeveloped field,
consisting primarily of scrub brush, bushes, and small, deciduous trees. Further,
according to plaintiffs, this area included debris scattered across portions of the
property. That tract of land to the immediate south of the Back Forty Trees,
comprising approximately 10,000 square feet, is the subject of this appeal
(Contested Property).
Defendant purchased its property, a commercial lot consisting of a single
building, in 1984. From 1988 to April 2018, Midas Realty Corporation was
defendant's tenant, and since that time, a Midas franchisee has occupied the
property. Plaintiffs' and defendant's properties share a common rear lot line
which, as noted, divides Mount Holly and Lumberton Townships.
Joseph testified that in 1978 or 1979, subsequent to the planting of the
Back Forty Trees, he cut an approximate twenty- to thirty-foot-wide strip of the
scrub grass immediately to the south of those trees. Plaintiffs referred to this
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area as the "strip," and their landscaper maintained that area for a portion of the
year.
Plaintiffs used this strip area for recreational purposes. Joseph explained
that he hit golf balls from the strip into an open area to the east "mostly" on
weekends. Betty Jo and her friends occasionally joined Joseph hitting golf balls
and stated that in the warmer months they would also take their daughter to the
strip for about an hour after work. Plaintiffs also stated they utilized the strip
of grass area for picnics, badminton, volleyball, horseshoes, soccer , birthday
events, and pool parties during holidays.
On cross-examination, plaintiffs acknowledged they removed the
recreational equipment from the strip at the end of each day, and did not walk
their dog in the area, or maintain it during the winter months. Plaintiffs further
clarified that between the April and October period, they used the area no more
than a couple hours a day, primarily on weekends and some evenings during the
weekdays.
Joseph testified that in the late 1970s he noticed an area south of the strip
had been excavated with concrete objects placed in the open area, which he
believed to be part of a municipal drainage project related to the widening of
Route 38. After contractors filled the trench and graded the area, vegetation
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began to grow including poison ivy and sumac, which plaintiffs periodically
sprayed in order to control and contain the plants' growth.
In 1983, Lumberton Township approved a site plan for the Hubward
Property that included a paved parking area north of a building constructed on
the property, bordered by a vegetation buffer on a raised embankment, which
included white pine trees. These trees, referred to as the "Midas Trees," grew
to the south of the Back Forty Trees. As noted, the area described as scrub by
the parties separated the two tree lines.
In approximately 1986, Joseph testified that he began to see homeless
persons "quite often" on the Hubward Property, specifically near the paved area
behind the Midas building, in the area of the vegetation buffer, and in the scrub
below the embankment. Plaintiffs contacted the police regarding the presence
of the homeless persons, but never notified anyone associated with the Hubward
Property. The homeless individuals remained present on the property until the
Back Forty Trees were removed some time in 2003 or 2004.
Keith Eberly, the Webb's landscaper, testified that he removed the Back
Forty Trees and leveled the area "around 2004." While it is unclear from the
conflicting testimony who physically removed it, the scrub vegetation located
on the strip to the south of the former Back Forty Trees was also excavated, and
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the section of land from the former Back Forty Trees extending to or near the
base of the embankment containing the Midas Trees was leveled. This resulted
in a standing water condition at a low spot in the lawn, which Eberly later re-
graded to mitigate. Both Joseph and Eberly testified that a "swamp maple" tree
that existed in the scrub area was not removed during this clearing.
Eberly testified that after the scrub was cleared and leveled, he planted
grass seed in the area and installed two "kidney" shaped planter beds, a twenty -
foot by twenty-three-foot concrete slab, basketball hoop, and underground
sprinklers. Eberly stated he also planted a row of thirty-five to forty evergreen-
type trees approximately parallel to, but beyond, the eastern boundary of the
plaintiffs' backyard. Betty Jo testified that some of those trees, however,
belonged to plaintiffs' neighbor to the east, and Eberly only planted the
evergreen-type trees to supplement the tree line after some trees had died.
David Lichterman, defendant's partner, testified he had no knowledge of
Hubward, or any predecessors-in-interest, being contacted by the plaintiffs at
any time regarding their use of portions of the property. For their part, plaintiffs
acknowledged they never sought permission from Hubward or any prior owners
to use the Contested Property nor did they display "no trespassing" or similar
signs on the Contested Property.
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In 2018, after a storm destroyed many of the evergreen trees planted by
Eberly in 2004, plaintiffs installed a six-foot wood "stockade" fence on the
inside of the remaining eastern tree line. Plaintiffs conceded that they failed to
apply to Lumberton Township to install the 2018 fence. That fence continued
onto the Hubward Property approximately sixteen feet north of the eastern
boundary line. It then makes an approximately ninety-degree westward turn
onto the Hubward Property and terminates at a split rail fence enclosing the yard
of a western neighbor.
Tim J. Maser, PLS, of Maser Surveying LLC, testified for plaintiffs as an
expert witness in the fields of surveying and interpretation of aerial
photography. Maser prepared and identified the survey of the parties' respective
properties, their common Mount Holly/Lumberton Township border line, and
the Contested Property and prepared a survey of each area.
At trial, the principal surveys of Maser and Warren did not conflict in any
material way and were consistent with the metes and bounds descriptions of the
parties' respective deeds. Both surveys similarly identified the Contested
Property as the four-sided area on the Hubward Property, which enclosed the
kidney-shaped flower beds, the basketball court, and the thirty-foot swamp
maple tree.
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Warren acknowledged that the precise location of where the east-west
portion of the Back Forty Trees were planted was difficult to decipher because
the growth of the trees obscured a more specific identification of where the trees
were planted. Warren testified, however, that by examining the deeds,
comparing the historic aerial photos, and utilizing standard survey
measurements, she was able to determine that a section of the Back Forty Trees
followed a seventy-five-degree angle relative to the north-south tree line running
in the vicinity of the plaintiffs' eastern boundary.
Warren stated that based upon her interpretation, the east-west portion of
the Back Forty Tree line proceeded parallel to plaintiffs' home. From there, the
tree line continued and extended southward fourteen to sixteen feet along the
western boundary at a perpendicular angle. Warren testified that based upon her
calculations, the tree line intersected with the western boundary and created a
triangular encroachment of 365.75 to 477.68 square feet on the Hubward
Property.
On August 28, 2020, the Chancery judge issued a written opinion and
corresponding written order denying plaintiffs' action to quiet title to the
Contested Property. In support of her decision, the judge first concluded that
the improvements to the Property made in 2003 and 2004 "fail[ed] to satisfy the
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essential requirement in N.J.S.A. 2A:14-30 of [thirty] years' actual possession
of the real estate."
The judge also determined plaintiffs' use of the Contested Property "prio r
to 2003 also f[ell] short of satisfying the elements for adverse possession." She
explained that plaintiffs' recreational use of the Contested Property was
"periodic throughout the week and weekends, of limited duration, and non -
existent in the late[-]fall and winter months," and therefore not continuous. The
judge also determined plaintiffs' use of the Contested Property was neither open
nor notorious, as prior to the 2003 and 2004 improvements, the Contested
Property was "substantially different from [plaintiffs'] well-manicured lawns,"
"largely mirrored the surrounding undeveloped properties," and "was sheltered
on three sides and cutoff by trees from the [plaintiffs'] property." The judge
further concluded plaintiffs' use of the land was not exclusive "as homeless
people also were seen in the area" prior to the 2003 and 2004 development.
Further, the judge found that "planting and cultivation of the Back Forty
Trees [wa]s not sufficient evidence of their adverse possession." The judge
explained that the trees were planted in 1978 or 1979 and were removed in 2003
or 2004, and as such, only existed on the property for twenty-five or twenty-six
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years, which fell short of the "[thirty]-year prescription period of actual and
notorious possession."
In addition, the judge stressed the "evidence was imprecise, at best, as to
whether, and to what extent, the Back Forty Trees encroached onto the Contested
Property." She accepted Warren's testimony that the Back Forty Trees may have
slightly encroached across the boundary "in a triangular wedge," but concluded
this intrusion was relatively minor, as it "did not extend the full border of the
common boundary line and its area of likely encroachment diminished as it
proceeded." The judge cited Mannillo v. Gorski, 54 N.J. 378, 388-89 (1969),
and stated that in cases of "minor border encroachments," actual knowledge of
the intrusion is necessary, and plaintiffs' arguments to the contrary were
"unpersuasive." She also relied upon our decision in Stump v. Whibco, 314 N.J.
Super. 560 (App. Div. 1998), for the proposition that under certain
circumstances, even the placement of a fence on disputed property could be
deemed a minor encroachment.2 This appeal followed.
2
In Stump, we affirmed a trial court's ruling that the plaintiffs failed to establish
the elements of adverse possession, albeit on different grounds than relied upon
by the trial court. Stump, 314 N.J. Super. at 575. In that case, the plaintiffs
claimed ownership of a significant portion of their neighbor's property by
adverse possession based, in part, on the presence of a temporary wire mesh
fence. Id. at 580-81. The trial testimony established that the wire mesh fence
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II.
Plaintiffs raise several points on appeal. They argue the judge erred when
she concluded plaintiffs' use of the Contested Property did not satisfy the
elements of adverse possession. Plaintiffs also assert the judge improperly
credited the testimony of defendant's surveyor, particularly because the surveyor
did not rely upon historical aerial photographs and "strictly gave a visual opinion
rather than one based on calculations."
Finally, plaintiffs argue the judge misapplied our holding in Stump,
resulting in an "erroneous conclusion concerning the [plaintiffs'] planting and
activity concerning the Back Forty Trees." Specifically, plaintiffs contend the
judge incorrectly relied upon the trial court's reasoning in Stump, which we
rejected, rather than our holding. Plaintiffs maintain Stump stands for the
proposition that a "fence or a hedgerow" can "delineate the boundaries" for
was "covered with bushes," and the previous owners could not recall where it
"originated and where it terminated." Id. at 581. The wire mesh fence was
eventually replaced by a more permanent and conspicuous railroad tie and cable
fence. Ibid. Following its installation, the new fence was maintained and kept
clear of brush. Ibid. We determined "that [the railroad tie and cable] fence in
the condition described met the requirements for boundary definition that a
claim for adverse possession must of necessity entail." Ibid. We concluded,
however, that the poorly maintained wire mesh fence was an encroachment, but
did not begin the period of "open and notorious" possession, id. at 581-82, and
the railroad tie and cable fence was not present for the appropriate amount of
time needed to satisfy the statutory requirement of thirty years. Ibid.A-1730-20
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purposes of an adverse possession claim. They further assert the placement of
the Back Forty Trees "represent[ed] an enclosure of the type discussed in
Stump" as it intruded on defendant's boundary line in a triangular wedge, as
conceded by Warren, which "remained there from 1977 to 2004."
Our review of a trial court's fact-finding in a non-jury case is limited.
Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011). "The general
rule is that findings by the trial court are binding on appeal when supported by
adequate, substantial, credible evidence." Ibid. (quoting Cesare v. Cesare, 154
N.J. 394, 411-12 (1998)). We owe no deference, however, to a trial court's
interpretation of the law, and review issues of law de novo. State v. Parker, 212
N.J. 269, 278 (2012); Mountain Hill, LLC v. Twp. Comm. of Middletown, 403
N.J. Super. 146, 193 (App. Div. 2008).
We have considered plaintiffs' contentions in light of the record and
applicable legal principles and conclude they are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Here, we are
satisfied that the judge correctly granted judgment to defendant and dismissed
plaintiffs' second amended complaint. We affirm substantially for the reasons
expressed in the judge's comprehensive August 28, 2020 written opinion and
add the following to amplify the reasons for our decision.
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Turning first to plaintiffs' argument that the judge erred in dismissing their
adverse possession claim, we disagree that her conclusion was a mistake of law,
and not supported by substantial and credible evidence in the record. Our
Supreme Court has recognized that "adverse possession promotes certainty of
title . . . promotes active and efficient use of land, and 'tends to serve the public
interest by stimulating the expeditious assertion of . . . claims'" before they
become stale. Devins v. Borough of Bogota, 124 N.J. 570, 577 (1991) (citations
omitted). Adverse possession "rewards the person who has made productive use
of the land, it fulfills expectations fostered by long use, and it conforms titles to
actual use of the property." Randolph Town Ctr., L.P. v. Cty. of Morris, 374
N.J. Super. 448, 458 (App. Div. 2005) (quoting Restatement (Third) of Prop.:
Servitudes § 2.17 cmt. c (2000)), aff'd in part, vacated in part on other grounds,
186 N.J. 78 (2006).
In order to obtain property by adverse possession or to create an easement
by prescription, however, the use must be adverse or hostile, visible, open and
notorious, and continuous. Yellen v. Kassin, 416 N.J. Super. 113, 119-20 (App.
Div. 2010); see also Plaza v. Flak, 7 N.J. 215, 222-23 (1941). The requisite
adverse time period in New Jersey is generally thirty years, however, the period
is sixty years for woodlands or uncultivated tracts. N.J.S.A. 2A:14-30. The
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proponent of the easement has the burden of establishing the elements by a
preponderance of the evidence. Yellen, 416 N.J. Super. at 120.
"Open" use, in the context of easement law, "generally means that the use is
not secret." Id. at 119-21. The related term "notorious" generally means actual
knowledge on the part of the property owner or that the use is widely known. Id. at
121. In addition,
A use is adverse or hostile if a person uses the property of
another under a claim of right, "'pursued with an intent to
claim against the true owner in such circumstances of
notoriety that the owner will be aware of the fact and thus
alerted to resist the acquisition of the right by claimant
before the period of adverse possession has elapsed.'"
[Id. at 120 (quoting A. J. & J. O. Pilar, Inc. v. Lister
Corp., 22 N.J. 75, 81 (1956)).]
Viewing the record through this analytical framework, we find adequate,
substantial and credible evidence in the record to support the judge's decision.
In addition to the testimony of the parties, the judge had a thorough visual record
in evidence, including accurate surveys as well as multiple photos of the parties'
property, including the contested tract of land and the surrounding environs.
Simply put, plaintiffs failed to establish that they utilized any portion of
the Contested Property in an open and notorious fashion for the requisite
statutory period. The Back Forty Trees, planted in 1978 or 1979, were, as the
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judge found, essentially placed on the rear boundary line of plaintiffs' property
and removed in 2003 or 2004. We agree with the judge that placing a group of
trees creating a natural border on a boundary line was neither open nor notorious
under our case law such that defendant should have been on notice that plaintiffs
claimed an ownership interest in any section of the Contested Property, let alone
an area encompassing approximately 10,000 square feet straddling two
municipalities.
As noted, the Back Forty Trees were removed in 2003 or 2004. While we
agree that plaintiffs' placement of the basketball court and flower beds on the
Contested Property clearly qualifies as open and notorious use, those acts did
not commence until 2004, a mere fifteen years before plaintiffs filed the verified
complaint. We also agree with the judge that the intermittent and seasonal
recreational activities simply are not of the sort that would support a finding that
plaintiffs utilized the property openly and notoriously for thirty years. This is
particularly so in light of the judge's specific and credibility-based findings as
to the location of the Back Forty Trees. That finding essentially started the
thirty-year clock in 2003 or 2004, as opposed to 1978 or 1979.
Finally, plaintiffs' criticism of the judge's reliance on Stump is unavailing
for two reasons. First, "appeals are taken from judgments and not from
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opinions," Bandler v. Melillo, 443 N.J. Super. 203, 210 (App. Div. 2015)
(quoting Glaser v. Downes, 126 N.J. Super. 10, 16 (App. Div. 1973)), and thus
even if we accept plaintiffs' claim that the judge minimized the significance of
a fence in the context of an adverse possession claim, any error in that regard
would have no effect on our determination that the court's conclusion plaintiffs
failed to establish all elements of N.J.S.A. 2A:14-30 was supported by
substantial credible evidence in the record.
Second, we disagree with plaintiffs' suggestion that the holding in Stump
provides them with relief in any event. As discussed, supra, we concluded in
that case that plaintiffs failed to establish they encroached upon the disputed
portion of their neighbor's property openly and notoriously for the required
statutory period. We acknowledge plaintiffs' contrary evidence but are satisfied
the judge carefully considered the trial proofs, credited the testimony of Warren,
and determined that evidence did not establish their right to the Contested
Property by adverse possession.
Affirmed.
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