Commonwealth Land Title Ins. Co. v. Conklin Associates

• Decision Date: 06 July 1977
• Citation: 377 A.2d 740,152 N.J.Super. 1
• Parties: COMMONWEALTH LAND TITLE INSURANCE CO., a corporation of the State of New Jersey, U.S. Life Title Insurance Co. of New York, a corporation and Joseph P. McGovern and Camille McGovern, his wife, Plaintiffs, v. CONKLIN ASSOCIATES, a corporation, and Ernest G. Topping, Defendant andThird-Party Plaintiff, v. Howard HARRISON, Third-Party Defendant.
• Court: New Jersey Superior Court

Page 1

152 N.J.Super. 1

377 A.2d 740

COMMONWEALTH LAND TITLE INSURANCE CO., a corporation of the

State of New Jersey, U.S. Life Title Insurance Co. of New

York, a corporation and Joseph P. McGovern and Camille

McGovern, his wife, Plaintiffs, v. CONKLIN ASSOCIATES, a corporation, and Ernest G. Topping, Defendant andThird-Party Plaintiff, v. Howard HARRISON, Third-Party Defendant.

Superior Court of New Jersey, Law Division.

July 6, 1977.

Morton R. Covitz, Englewood, for plaintiffs (Greenberg & Covitz, Englewood, attorneys).

James P. Logan, Englewood, for defendant and third-party plaintiff (Logan & Logan, Englewood, attorneys).

Charles C. Collins, Jr., Ridgewood, for third-party defendant.

DALTON, J. S. C.

On April 21, 1975 plaintiffs initiated this action seeking damages from defendants, professional engineers and land surveyors, arising from an alleged error committed by them in March 1963. ¹ The complaint is framed in six counts and charges defendants with negligence and breach of contract in conducting certain surveys here in issue. As stipulated, the material facts are as follows:

In early 1963, members of the DePuy family contracted to sell to Harold S. Wells, a land developer, a portion of their property located in the neighboring municipalities of Ramapo, New York, and Upper Saddle River, New Jersey. The contract provided that the land to be conveyed was estimated to be 35.688 acres and was to be subject to an accurate survey. Consequently, Wells engaged Conklin Associates to perform the necessary survey and on March 5, 1963 a perimeter survey of the tract was made. Thereafter the DePuy family deeded the property to Fox Hill Estates, an assignee of Wells, for the contract price of $3,500 an acre. Subsequent to this conveyance a subdivision map was prepared and filed with the county clerk; roads and utilities were constructed and installed; individual lots were sold, and residences were built.

In September 1969, the DePuy family sold the balance of its property, located in Ramapo, New York, to the Old Hickory Land Development Company which, in turn, conveyed the land to Wulster Realty, Inc. Both corporations were principally owned by William Wulster, who intended to develop the tract with residential housing. Accordingly, in early 1973, Wulster hired Ostertag and McDougall, another engineering and surveying firm, to prepare the necessary survey. As a result of this survey it was discovered that the 1963 survey prepared by Conklin Associates had erroneously located the New York State-New Jersey boundary line which served as the dividing line of the Wells and Wulster properties. The true boundary was, in fact, approximately 20 feet further south than the survey of Conklin Associates had indicated. Thus, those residences which abutted the southern border of the Wulster property encroached upon and overlapped approximately six-tenths of an acre of the Wulster tract. Desirous of an expeditious resolution of the problem, Wulster contacted his neighbors to the south and initiated negotiations with them and their title companies. After an extended discussion, a settlement was eventually reached whereby Wulster received $30,000 for the encroachment. As a result, this action was initiated by the two title companies, suing as subrogees, and by the McGoverns suing as uninsured property owners who had contributed $4,000 to the settlement. ²

At trial, defendants raised the defense of the ten-year statute of limitations, N.J.S.A. 2A:14-1.1. The statute provides in pertinent part:

No action whether in contract, in tort, or otherwise to recover damages for any deficiency in the design, planning, supervision or construction of an improvement to real property, or for any injury to property, real or personal, * * * shall be brought against any person performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property, more than 10 years after the performance or furnishing of such services and construction.

Defendants further urged that the settlement figure of $30,000 was an arbitrary and unreasonable sum to have paid for the encroachment. Plaintiffs, however, maintained that the statute is inapplicable to the occurrences here, relying on New Market Poultry Farms, Inc. v. Fellows, 51 N.J. 419, 241 A.2d 633 (1968), and that the $30,000 accord was, under the circumstances, a reasonable, soundly negotiated settlement.

Of significance in determining the issue of the applicability of the statute of limitations is the fact that subsequent to the 1963 survey, and within ten years of the filing of the complaint, individual surveys were prepared for six of the seven lots surveyed by Conklin Associates. ³ In each of these, the erroneous boundary line appears. Thus, plaintiffs suggest that should this court conclude that the statutory limitation is applicable to the 1963 survey, the subsequent acts of defendants amount to an independent recurrence of the error and, as such, are removed from the protective bar of the statute.

Effective on May 18, 1967, N.J.S.A. 2A:14-1.1 has been interpreted by our Supreme Court as having broad, remedial purposes. In addition to the fundamental principles of repose and stability in human affairs common to all statutes of limitations, this legislation was also designed to offset the increased exposure to which architects, contractors and the like had been subjected as a result of the judicial expansion of the discovery rule and the rejection of the "completed and accepted" rule. O'Connor v. Abraham Altus, 67 N.J. 106, 117-119, 335 A.2d 545 (1975); Rosenberg v. North Bergen, 61 N.J. 190, 198, 293 A.2d 662 (1972). In Rosenberg Justice Mountain upheld N.J.S.A 2A:14-1.1 against various constitutional attacks and discussed its parameters, reasoning that the statute is "a legislative response to delimit this greatly increased exposure." (At 194, 293 A.2d at 664). Consequently, the statute was held to apply to "all who can, by a sensible reading of the words of the act, be brought within its ambit." Id. at 198, ⁴ 293 A.2d at 666.

Following the guide of Rosenberg, this court is of the view that the defendants, as surveyors, fall within the protection afforded by N.J.S.A. 2A:14-1.1. There can be little doubt that the work of a surveyor is an integral part in the design and planning of a residential housing development. The reports, analysis, investigation and plat map preparation are all necessary elements in the planning of such an improvement to land. Plaintiff's reliance on New Market Poultry Farms, Inc. v. Fellows, is misplaced. Although decided subsequent to the enactment of N.J.S.A. 2A:14-1.1, New Market did not concern the ten-year statute of limitations. Rather, the court was faced with the six-year tortious injury to property statute, N.J.S.A. 2A:14-1, and with the issue of whether the equitable discovery rule should be expanded in application so as to afford to plaintiff there the benefit of the rule. In holding that application of the rule was warranted, the court did so without allusion to the statute which is raised in this case. In light of Rosenberg, it must be concluded that New Market is inapposite with respect to the applicability of the ten-year statute to the instant matter. While the facts of the tortious conduct involved in New Market are closely in point with those here, significantly the legal facts are not.

Notwithstanding these conclusions, the issue of the subsequent individual lot surveys, prepared in reliance upon the original 1963 survey is, in essence, the core of this litigation. It is fundamental that the tort of negligence is not committed unless and until there has been a negligent act with proximately resulting injury or damage. The careless act itself is not enough to give rise to a cause of action; there must also be consequential injury or damage. Rosenau v. New Brunswick, 51 N.J. 130, 137-139, 238 A.2d 169 (1968); Burd v. New Jersey Tel. Co., 149 N.J.Super. 20, 30, 372 A.2d 1355 (App.Div.1977). Thus, plaintiffs' causes of action did not arise until 1973 when the new survey was obtained. Thus, if defendants' premise that the sole offending act occurred in 1963 is adopted here, not only are plaintiffs' claims time-barred but, more precisely, they never arose. See Rosenberg v. North Bergen, supra, 61 N.J. at 199, 293 A.2d 662. Such a conclusion is unwarranted. All seven individual surveys, which are the subject matter of this suit, were completed between 1963 and 1966 by Topping on behalf of Conklin Associates. However, in view of the above finding that N.J.S.A. 2A:14-1.1 is applicable to land surveyors, the survey of Lot 11, performed in 1964, cannot constitute a cause of action or basis of recovery against Conklin Associates. Also, it is well to note that while these surveys were not certified or performed by Harrison, his liability rests on the settled principle of partnership law that all partners are jointly and severally liable for the torts committed by a member of the partnership in the course of partnership business. Eule v. Eule Motor Sales, 34 N.J....