Devins v. Borough of Bogota

• Decision Date: 10 July 1991
• Citation: 124 N.J. 570,592 A.2d 199
• Parties: , 60 USLW 2087 James J. DEVINS and Mary J. Devins, his wife, Plaintiffs-Appellants, v. BOROUGH OF BOGOTA, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 570

124 N.J. 570

592 A.2d 199, 60 USLW 2087

James J. DEVINS and Mary J. Devins, his wife, Plaintiffs-Appellants, v. BOROUGH OF BOGOTA, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Oct. 22, 1990.

Decided July 10, 1991.

Allen M. Bell, for plaintiffs-appellants (Jacobs, Bell & Baumol, attorneys; Doreen E. McManimon, on the brief), Tenafly.

Joseph G. Monaghan, for defendant-respondent (DeMarrais & Monaghan, attorneys), Hackensack.

The opinion of the Court was delivered by

POLLOCK, J.

The primary issue on this appeal is whether adverse possession should apply to municipally-owned property not dedicated to or used for a public purpose. Ruling that adverse possession should not so apply, the Appellate Division affirmed the Chancery Division's grant of summary judgment for the municipality, Borough of Bogota ("the Borough" or "Bogota"). 237 N.J.Super. 596, 568 A.2d 903 (1989). We granted the petition for certification of plaintiffs-appellants, James J. Devins and Mary J. Devins, his wife, 121 N.J. 603, 583 A.2d 307 (1990), and now reverse and remand to the Chancery Division. We hold that municipally-owned property neither dedicated to nor used for a public purpose is subject to acquisition by adverse possession.

I

Because this matter reaches us on plaintiffs' appeal from a summary judgment for defendant, we accept plaintiffs' version of the facts and give plaintiffs the benefit of all favorable inferences. R. 4:46-2; see Pierce v. Ortho Pharmaceutical, 84 N.J. 58, 61, 417 A.2d 505 (1980); Judson v. Peoples Bank & Trust, 17 N.J. 67, 73-77, 110 A.2d 24 (1954).

The property is a 25 X 100 foot lot located on Fairview Avenue and identified as Lot 10, Block 98 on the municipal tax map. In 1962, Bogota acquired title to the property through an in rem foreclosure. At that time, the lot was vacant. Since then, Bogota has not improved or used the property, nor has it dedicated the property to public use.

In 1965, plaintiffs purchased from James and Jeanette Geraghty an adjacent single-family residence at 132 Fairview Avenue, identified as Block 98, Lots 11 and 11A on the municipal tax map ("the house lot"). At that time, the Geraghtys, who in 1958 had received a quitclaim deed to Lot 10 from their grantors, also executed a quitclaim deed for that lot. Sometime before 1958, a chain link fence had been erected around Lot 10. That fence matches a fence around the house lot, creating the appearance that the lots are commonly owned. A barbecue pit, which had been constructed before plaintiffs acquired the house lot, remains on Lot 10.

Since 1965, plaintiffs have used Lot 10 for parking, cookouts, lounging, and other recreational purposes. Plaintiffs installed a basketball backboard on the lot in the mid-1970s and erected a shed around 1980. Additionally, they have mowed the grass and otherwise maintained the lot. At some point, a portion of Lot 10 was paved to provide parking for the house lot. Before the institution of suit, Bogota had not challenged plaintiffs' use of the property.

For their part, plaintiffs have never paid taxes on Lot 10. In 1985, however, their attorney sent a letter to the Mayor and Council of Bogota requesting that the Borough concede that plaintiffs had acquired title to Lot 10 by twenty years' adverse possession. The Borough promptly denied plaintiffs' claim, asserting that adverse possession cannot run against a municipality.

Plaintiffs then filed this action seeking a declaration that they had acquired title by twenty years' adverse possession. Although the Chancery Division believed that plaintiffs had established facts that could constitute adverse possession, it ruled that "adverse possession will not run against a municipality." Consequently, the court granted summary judgment for the municipality.

The Appellate Division affirmed. Its opinion begins by noting the general rule "that title to property held by a municipal corporation which is dedicated to public use cannot be acquired by adverse possession." 237 N.J.Super. at 600, 568 A.2d 903. The court declined to draw the distinction between public and non-public uses, and rejected plaintiffs' argument that by failing to use the property for a public purpose, Bogota had made "it vulnerable to alienation by adverse possession." Id. at 601, 568 A.2d 903. Instead, the court concluded that plaintiffs had not acquired title to the property "regardless of whether the land is deemed to be dedicated to public use or not." Id. at 603, 568 A.2d 903.

II

Adverse possession is a method of acquiring title by possessing property in a specified manner for a statutory period. The expiration of that period bars the owner's right to bring an ejectment action and transfers title from the owner to the possessor. Title passes to the adverse possessor when the owner fails to commence an action for recovery of the property within the specified statutory period. Patton v. North Jersey Dist. Water Supply Comm'n, 93 N.J. 180, 186, 459 A.2d 1177 (1983). In effect, the acquisition of title by adverse possession is based on the expiration of a statute of limitation. O'Keeffe v. Snyder, 83 N.J. 478, 494, 416 A.2d 862 (1980).

The statutory requirements vary according to the period of possession, the nature of the land possessed, and whether the adverse claim is under color of title. Two statutes, N.J.S.A. 2A:14-6 and N.J.S.A. 2A:14-7, require a twenty-year period; one, N.J.S.A. 2A:14-31, requires a thirty-year period for real estate held under a claim of title; and another, N.J.S.A. 2A:14-30, requires either thirty or sixty years, depending on whether or not the property is "woodlands or uncultivated." Yet another statute, N.J.S.A. 2A:14-8, imposes a twenty-year period of limitations on the State of New Jersey for actions concerning real property. Common to all the statutes is the requirement that the property must be adversely possessed for a considerable period of time. Plaintiffs have not identified the specific statute or statutes on which they base their claim. Instead, they have merely asserted that they have adversely possessed Lot 10 for more than twenty years.

Historically, courts have been more exacting when reviewing claims of adverse possession of governmentally-owned property. So stringent are the requirements that neither our research nor that of counsel has uncovered a New Jersey case allowing a claim of adverse possession of governmental property. In the absence of any authority, the Appellate Division denied plaintiffs' claim of title even though the property had not been dedicated to public use.

The rule restricting acquisition of governmental property, however, is narrower than the holding of the Appellate Division. As we stated in Patton v. North Jersey District Water Supply Commission, supra, 93 N.J. at 190, 459 A.2d 1177, "there can be no adverse possession against subdivisions of the State, at least with respect to property dedicated to public use." We now decide the question left undecided in Patton: whether municipal property not dedicated to or used for a public purpose is subject to adverse possession.

The restriction on the application of adverse possession to public property is rooted in the ancient doctrine that time does not run against the king, sometimes expressed in the Latin phrase nullum tempus occurrit regi. The phrase, which is often shortened to "nullum tempus," means "[t]ime does not run against the king." Black's Law Dictionary 1068 (6th ed. 1990). Although none of the New Jersey statutes of limitation expressly excepts governmental entities, courts have long ruled, in reliance on the principle of nullum tempus, that the statutes do not run against property owned by either the State, Quinlan v. Borough of Fair Haven, 102 N.J.L. 443, 446-47, 131 A. 870 (E. & A.1926), or by a municipality, Osterweil v. City of Newark, 116 N.J.L. 227, 182 A. 917 (E. & A.1935); City of Long Branch v. Toovey, 104 N.J.L. 335, 337-38, 140 A. 415 (E. & A.1927); Price v. Inhabitants of Plainfield, 40 N.J.L. 608 (E. & A.1878); Mayor of Jersey City v. Morris Canal & Banking Co., 12 N.J.Eq. 547 (E. & A.1859); Dvorin v. City of Bayonne, 111 N.J.Eq. 52, 54-55, 161 A. 654 (Ch.1932); Tainter v. Mayor of Morristown, 19 N.J.Eq. 46 (Ch.1868); Cross v. Mayor of Morristown, 18 N.J.Eq. 305, 313 (Ch.1867). These decisions, however, have all involved land dedicated to or used for a public purpose.

Our analysis leads us to conclude that the nullum tempus exception to adverse possession should not be extended to include land held by a municipality for non-governmental purposes. The original rationale supporting nullum tempus was that the king was too busy protecting the interests of his people to keep track of his lands and to bring suits to protect them in a timely fashion. Cornelius & Empson v. Giberson, 25 N.J.L. 1, 28 (Sup.Ct.1855); see Note, Developments in the Law; Statutes of Limitations, 63 Harv.L.Rev. 1177, 1251 (1950) (explaining origin and developments of the exception for sovereigns). A second reason was that the king established his own rules for litigation, see Note, State's Immunity to the Statute of Limitations, 38 Ill.L.Rev. 418, 419 (1944) (describing and criticizing nullum tempus ).

In New Jersey, nullum tempus developed primarily in the context of claims of adverse possession of public lands. As explained by the courts, the reasons for the rule include: first, the public should not suffer from the negligence of its agents, see State v. Owen, 23 N.J.Misc. 123, 127-28, 41 A.2d 809 (Sup.Ct.1945); Trustees, Pub. Schools v. The Ott & Brewer Co., 135 N.J.Eq. 174, 177, 37 A.2d 832 (Ch.1944); second, absent the express inclusion of the State, a statute of limitations should not be read to affect adversely the State's rights, see Osterweil, supra, 116 N.J.L. at 233, 182 A. 917; Trustees, Pub. Schools v. Inhabitants of Trenton, 30 N.J.Eq. 667, 681-86 (E. & A.1879); third, the State holds public property in trust for the...