Island Imp. Ass'n of Upper Greenwood Lake v. Ford
| Decision Date | 24 January 1978 |
| Citation | 383 A.2d 133,155 N.J.Super. 571 |
| Parties | ISLAND IMPROVEMENT ASSOCIATION OF UPPER GREENWOOD LAKE, a corporation, Plaintiff-Appellant, v. Edward W. FORD, Isaiah Minkoff and Edward Harris, Individually and as Representatives of a Class of Persons Consisting of Owners of Real Property in the Island Section of Upper Greenwood Lake, West Milford Township, New Jersey, and Their Heirs and Assigns, and others, Defendants-Respondents. |
| Court | New Jersey Superior Court — Appellate Division |
Hunziker, Hunziker & Jones, Paterson, for plaintiff-appellant (Walter J. Hunziker, Jr., Paterson, on the brief).
Edward W. Ford, pro se.
Lowenstein, Sandler, Brochin, Kohl & Fisher, Newark, for respondent Isaiah Minkoff (Alan V. Lowenstein, Newark, on the brief).
Dolan & Dolan, Newton, for amicus curiae Awosting Ass'n, Inc., Lakeside Community Club, Inc., Lindy's Lake Ass'n, Inc., Pine Cliff Lake Community Club, Inc., and Shady Lake Park Property Owners Ass'n (Francis E. Bright, Newton, on the brief).
No brief was filed on behalf of respondent West Milford Tp.
Before Judges FRITZ, BOTTER and ARD.
The opinion of the court was delivered by
FRITZ, P. J. A. D.
Appellant, a nonprofit voluntary association organized to raise funds to maintain the roads in a privately developed residential area of Upper Greenwood Lake, brought a class action against the owners of the residential properties in the area to compel all these owners to contribute to road maintenance costs. The township, West Milford, was also joined as a defendant.
There seems to be no factual question but that (1) title to the roads is in a private association, the grantor of the deeds to the individual purchasers, (2) an express easement to use the roads was conveyed to each property owner and (3) none of the deeds to the individual owners imposes any contractual obligation on the owners to maintain the roads.
At the end of plaintiff's case the trial judge granted defendants' motions to dismiss. He came to this conclusion with respect to the individual owners on the ground that there was no contractual obligation imposed on or assumed by those owners and he lacked the authority to "clothe the (plaintiff) association with quasi municipal authority." He granted the motion of the township on the basis of this being "a dedicated but unaccepted road * * * guided by R.S. 40:150-1."
We turn first to the matter of the township's involvement. Appellant appealed from the dismissal of the cause of action asserted against the township. However, the issue thus preserved is not addressed in its brief, unless it be in the short, undocumented entreaty in its final point imploring us to find an "imaginative and definitive solution" to the problem. Appellant's failure to offer us assistance on its appeal in this regard is not surprising: the trial judge was manifestly correct. The municipality has no obligation with respect to private roads although it can assume a part or all of that obligation. N.J.S.A. 40:67-23.1. 1 The judgment of dismissal in favor of the township is affirmed.
No contractual obligation having been undertaken by the individual owners, we look to see if any obligation is imposed on the dominant tenement by law. While Ingling v. Public Service Elec. & Gas Co., 10 N.J.Super. 1, 76 A.2d 76 (App.Div.1950) concerns itself with a different type easement and with problems of a somewhat different nature, we are satisfied that it correctly imposes upon the owner (or owners) of a dominant tenement in the case before us an easement over lands of another the duty of maintenance and repair. The right of the dominant tenant to maintain and repair has been recognized as an incident to the beneficial use of the easement. Hyland v. Fonda, 44 N.J.Super. 180, 189-190, 129 A.2d 899 (...
To continue reading
Request your trial
-
Freeman v. Sorchych
...repair and maintain an easement, even absent language requiring such in the conveyance or an express agreement. See, e.g., Island Improvement Ass'n, 383 A.2d at 134-35 (finding "compelling equitable reasons" to "declar[e] the obligation of all the individual owners to contribute to the repa......
-
Walsh v. U.S.
...57 Idaho 524, 66 P.2d 1013 (1937); Triplett v. Beuckman, 40 Ill.App.3d 379, 352 N.E.2d 458 (1976); Island Improvement Ass'n, etc. v. Ford, 155 N.J.Super. 571, 383 A.2d 133 (1978); Sinkey v. Board of Comm'rs, 80 Nev. 526, 396 P.2d 737 (1964); Nielsen v. Sandberg, 105 Utah 93, 141 P.2d 696 (1......
-
Xto Energy, Inc. v. Armenta
...of an easement cannot select a new route without the consent of the owner of the servient estate); Island Improvement Ass'n v. Ford, 155 N.J.Super. 571, 383 A.2d 133, 134 (App.Div.1978) (noting that in the absence of an agreement, the owner of an easement has a duty to maintain and repair i......
-
Braun v. Township of Mantua
...that a dominant tenant has a duty to maintain and repair an easement on the property of another. Island Improvement Association v. Ford, 155 N.J.Super. 571, 574-75, 383 A.2d 133 (App.Div.1978). Although Mantua admits that it is the dominant tenant, it contends that its sole responsibility i......