Kruvant v. 12-22 Woodland Ave. Corp.

• Decision Date: 26 November 1975
• Citation: 138 N.J.Super. 1,350 A.2d 102
• Parties: Philip KRUVANT et al., Plaintiffs, v. 12--22 WOODLAND AVENUE CORPORATION t/a Suburban Essex Riding Club, Defendant.
• Court: New Jersey Superior Court

Page 1

138 N.J.Super. 1

350 A.2d 102

Philip KRUVANT et al., Plaintiffs, v. 12--22 WOODLAND AVENUE CORPORATION t/a Suburban Essex Riding Club, Defendant.

Superior Court of New Jersey,

Law Division.

Nov. 26, 1975.

William L. Brach, East Orange, for plaintiffs (Brach, Eichler, Rosenberg & Silver, East Orange, attorneys).

Sheppard A. Guryan, Newark, for defendant 12--22 Woodland Ave. Corp. (Lasser, Lasser, Sarokin & Hochman, Newark, attorneys).

Charles E. Villanueva, Newark, for defendant Mayfair Farms Holding Corp.

DWYER, J.S.C.

While sipping a drink and chatting with an attorney at a party about plans to develop what is labeled as Lot 1445--B in Block 152--X on the tax maps of Town of West Orange (Lot B), one of the owners was startled to hear the attorney tell him that those who had been riding horses across Lot B from the nearby stable might have acquired an easement across it because the activity had been going on for as long as the attorney could remember. Shortly thereafter the owners of Lot B demanded for the first time that the stable either pay rent or stop using Lot B. The stable refused both demands. The owners then commenced this action.

By conveyance from Empire Holding Co. (Empire) to plaintiffs Philip Kruvant, Charles Kruvant and Bobcar Corporation the latter are the record owners of Lot 1445--B in Block 152--X on the tax maps of Town of West Orange Lot B containing 10 acres. 12--22 Woodland Avenue Corporation, trading as Suburban Essex Riding Club (club) operates a boarding stable for approximately 100 horses, and a riding academy on premises which the club owns on the north side of Nicholas Avenue, a paper street, and which premises face Lot B located on the opposite, or south, side of Nicholas Avenue.

The matters at issue are: (1) the right of plaintiffs to terminate the club's use of the bridle trail which extends approximately 800 feet diagonally across Lot B to an oversize culvert constructed in 1939 by Essex County to permit horses to pass from that bridle trail under Prospect Street and into Eagle Rock Reservation (Reservation) where there are several miles of bridle trails, the right to terminate the club's use of certain other areas of Lot B, and the right of plaintiffs to collect money damages from 1973 based on use and occupancy, and (2) the right of the club, asserted by counterclaim, to have the court declare that it has either title to said bridle trail and said certain other areas under the doctrine of adverse possession, or a prescriptive easement for the bridle trail and those other areas. Depending upon the resolution of the main question, there is a related question of whether plaintiffs have a cause of action against Mayfair Farms Holding Corporation (Mayfair) for breach of Mayfair's full warranty deed executed and delivered to Empire on December 30, 1955, because of the club's rights in the bridle trail and said certain other areas in Lot B.

Although a predecessor in title of the club established a riding stable on the club's premises in 1927 and utilized both the lands now in Lot B as well as Woodland Avenue, a paved public street which runs parallel to Nicholas Avenue, as a means of travel to reach Prospect Street where the riders crossed into the Reservation, the court finds that the critical point of inquiry begins after 1939.

The subject premises is part of a large block bounded on the north by Nicholas Avenue, on the east by Prospect Street, on the south by Eagle Rock Avenue, and on the west by Terrace Avenue. The same streets existed in 1939. In 1939 Lot B consisted of one tract and a portion of another, I.e., the Mateer tract and a portion of the Lanzer tract. The Mateer tract embraced all the frontage on Nicholas Avenue between Terrace Avenue and Prospect Street, and had a depth, or frontage, on those streets of 200 feet and 152 feet, respectively. Except for some lots and home fronting on Terrace Avenue and several other acres in the center of the block connected to Eagle Rock Avenue by a 50-foot strip owned by a corporation related to Mayfair, the Lanzer tract included the remainder of the block which was then wooded, unenclosed and undeveloped. The subject bridle trial starts on the north side of Nicholas Avenue, crosses that street, enters Lot B and runs 800 feet diagonally across Lot B to the culvert which is about 330 feet south of the intersection of Nicholas Avenue and Prospect Street. The bridle trail crosses the Mateer tract and the portion of the Lanzer tract now forming part of Lot B.

Plaintiffs proved their deed and the use by the club. Frank M. Cummins, Assistant County Engineer for Essex County, who holds a B.S. degree in Civil Engineering, a master's degree in Civil Engineering and is a licensed professional engineer, was called at trial by the club to testify about the culvert under Prospect Street through which the bridle trail is connected to the Reservation. The testified that, based on the engineering data in the files of the county Engineer, before the culvert was reconstructed in 1939 it could carry storm water and the water of a stream from the Reservation to a stream bed in Lot B on the other side of Prospect Street, but it was not large enough to accommodate a horse. Subsequent to the construction of the present culvert a horse and mounted rider could pass through it.

During the adjournment overnight he rechecked the files of the office of the county engineer and discovered some correspondence between a Mr. Girdler and the county engineer in 1939, as well as a copy of an unsigned two-year license agreement between the club and Marion Lanzer for use of the bridle trail across the portion of present Lot B that was then part of the Lanzer tract. The form of agreement and correspondence were admitted into evidence for the purpose of showing that the club negotiated with Lanzer in 1939, but not for the purpose of establishing that permission was granted.

The court was subsequently informed by counsel that the law firm which represented Lanzer no longer had any file on the matter. Through the testimony of a witness called by plaintiffs on rebuttal, Leroy DuBois, one of three brothers who started the riding stable in 1927, it was established that Girdler was a relatively wealthy individual whose children boarded horses at the riding stable in the 1930s. He became concerned about the safety of the riders crossing Prospect Street on horseback as automobile traffic developed in the 1930s. DuBois' brothers had attended to the business affairs of the stable and he to the horses and riders. He stated that the corporate records and business records no longer exist. He said he recalled that Girdler undertook to negotiate with the county concerning the culvert for the riding stable and those who rented and boarded horses there.

The minutes of the board of freeholders regarding the culvert project reflect that there was inquiry about the right of the riding stable to use the bridle trail on the other side. From the records introduced into evidence there is no definite answer as to what right the riding stable had in 1939 to use the bridle trail on the Lanzer tract in 1939. The court finds that, in respect to Lanzer, the riding stable, predecessor in title of the club, recognized the paramount rights of Lanzer in 1939 by Girdler's negotiations.

DuBois also testified that he recalled a dispute about the riders crossing the Mateer tract before the tract was sold. Although he was not personally involved in the matter, he recalled that it was settled by his brothers, or the riding stable, making a payment of money. He believed that the Mateers wanted them to buy the land but did not have the money. Although DuBois is now in his 80s and his memory weakened by passage of time and advancing age, the court found him a credible witness and finds that this sort of event is of the type that would have been discussed among the owner brothers and particularly with DuBois who lived, and lives, in a home adjoining the club. The court finds that the riding stable did recognize the paramount rights of the Mateers when it made the payment.

Based on the foregoing findings, the riding stable, in or about 1939, but in any event prior to the conveyances by Lanzer and Mateer, recognized the paramount rights of Lanzer and Mateer in what is now Lot B. In light of the inquiry made by the officials of Essex County of Girdler about the rights of riding stable to use the opposite lands for a bridle trail to the proposed culvert before authorizing the project, as well as the correspondence of Girdler in response to that inquiry and the payment to Mateer, the court finds that the riding stable obtained permission to use said lands for a bridle trail in the period between 1939 and the respective dates of the subsequent Lanzer and Mateer conveyances.

By deed dated October 28, 1944 the Lanzer tract, which comprised basically the whole of the block with the exceptions noted above, was conveyed to Mayfair. By deed dated November 1, 1945 the Mateer tract was conveyed to Mayfair.

The critical date for the start of inquiry into the rights of the respective parties to this action is November 1, 1945, the date of the conveyance of the land across which the portion of the bridle trail closest to Nicholas Avenue crossed.

The activities of riding stable in making payment to Mateer and obtaining a license from Lanzer may be considered as evidence of permission and a break in the continuity of any previous period of adverse use. See Kiernan v. Kara, 7 N.J.Super. 600, 72 A.2d 402 (Ch.Div.1950); Penna. R.R. Co. v. Hulse, 59 N.J.L. 54, 35 A. 790 (Sup.Ct.1896); Soper v. Conly, 108 N.J.Eq. 370, 154 A. 852 (Ch.1929), aff'd 107 N.J.Eq. 537, 153 A. 586 (E. & A.1931); Strong v. Baldwin, 137 Cal. 432, 70 P. 288 (Sup.Ct.1902) (payment for use broke continuity of adverse use). Compare Kana v. Bolton, 36 N.J.Eq. 21 (Ch.1882); 3 Powell, Real Property. 'Easement by Prescription.'

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