Billerman v. Basiak

• Decision Date: 23 May 1966
• Docket Number: No. A--104,A--104
• Citation: 220 A.2d 105,47 N.J. 226
• Parties: John C. BILLERMAN and Juanita C. Billerman, Plaintiffs-Respondents, v. Ted BASIAK and Jane Basiak, Defendants-Appellants.
• Court: New Jersey Supreme Court

Page 226

47 N.J. 226

220 A.2d 105

John C. BILLERMAN and Juanita C. Billerman, Plaintiffs-Respondents, v. Ted BASIAK and Jane Basiak, Defendants-Appellants.

No. A--104.

Supreme Court of New Jersey.

Argued Feb. 23, 1966.

Decided May 23, 1966.

Edward M. Hogan, Somerville, for appellants (Hogan, Folk & Hutchison, Somerville, attorneys).

Arthur S. Mott, Jr., Somerville, for respondents.

PER CURIAM.

The parties are neighbors though no longer friendly ones. The plaintiffs needed a new well and arranged to have it drilled about a hundred feet from their old well in the rear of their property. After the drilling was completed, they learned that their new well was on the defendants' property about twelve feet from the boundary line. They were unable to reach an adjustment and when the defendants threatened to cut off their use of the well, they instituted an injunctive action.

After hearing testimony and viewing the premises, the trial judge concluded that the plaintiffs were entitled to equitable relief. He found that when they had their new well drilled they mistakenly believed they owned the land and were not culpably negligent in so believing, and that the defendants had constructive knowledge that the well was being drilled but said nothing about ownership until after the drilling was completed. Cf. Brick Tp., Ocean County v. Vannell, 55 N.J.Super. 583, 593, 151 A.2d 404 (App.Div.1959). In finding constructive knowledge, the trial judge credited the testimony on the plaintiffs' behalf and concluded that the presence of the drilling equipment and the related activities were sufficient to place the defendants under the duty of inquiring and speaking up in timely fashion. He gave the defendants the following options: they could (1) purchase the well 'for the price that it cost,' (2) sell a sufficient amount of land 'at a price to be agreed upon' or fixed by the court, (3) have an 'exchange of lands' between the parties, or (4) have the judgment 'act as an easement permitting the well to remain upon the defendants' property.' See McKelway v. Armour, 10 N.J.Eq. 115, 118 (Ch. 1854); cf. Magnolia Construction Co. v. McQuillan, 94 N.J.Eq. 736, 738, 121 A. 734 (E. & A. 1923); Dorfman v. Lieb, 102 N.J.Eq. 492, 493, 141 A. 581 (Ch. 1928), affirmed 104 N.J.Eq. 497, 146 A. 326 (E. & A. 1929).

At one point the defendants appeared to have chosen the second option but then withdrew after the trial judge announced that, the parties having failed to agree, he would proceed with the taking of testimony towards the fixing of the price. The plaintiffs then moved for the entry of judgment and in due course a judgment was entered granting an unconditional easement to the plaintiffs to expire when the plaintiffs abandon their...