Ludwig v. Gosline

• Decision Date: 31 August 1983
• Citation: 191 N.J.Super. 188,465 A.2d 946
• Parties: Charles LUDWIG and Margaret Ludwig, husband and wife, Plaintiffs-Appellants, v. Andrew J. GOSLINE and Mary Gosline, husband and wife, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 188

191 N.J.Super. 188

465 A.2d 946

Charles LUDWIG and Margaret Ludwig, husband and wife Plaintiffs-Appellants, v. Andrew J. GOSLINE and Mary Gosline, husband and wife Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Submitted June 7, 1983.

Decided Aug. 31, 1983.

Anschelewitz, Barr, Ansell & Bonello, Oakhurst, for plaintiffs-appellants (James M. McGovern, Jr., Oakhurst, on the brief). Steven C. Rubin, Freehold, for defendants-respondents.

Before Judges BOTTER, POLOW and BRODY.

The opinion of the court was delivered by

BRODY, J.A.D.

This is a suit between neighbors occupying homes on adjacent properties in Ocean Grove. The issue raised on appeal is whether defendants acquired by prescription an easement approximately six inches wide over plaintiffs' property along their common boundary. The adverse use occurred as a result of the placement of defendants' concrete walk over the boundary line. Plaintiffs and defendants hold leases, not deeds, to their properties. The record owner of both properties is The Ocean Grove Camp Meeting Association of the Methodist Episcopal Church. Plaintiffs acknowledge that defendants have established all the requisites of a prescriptive easement but one. They contend, and defendants appear to agree, that a prescriptive easement cannot legally be acquired by a tenant over land of a neighboring tenant of the same landlord. The trial judge accepted this legal premise but held that the leases in effect were deeds because each was for a term of 99 years "renewable for a like term of years forever." He entered a judgment declaring the leases deeds as between the parties and ordering plaintiffs to remove a fence which encroached on defendants' easement.

The parties have submitted authority supporting the conclusion that for some purposes a lease of the kind here will be treated as a deed and for other purposes it will not. They concede that none of their cases is directly on point.

For the purpose of this case it makes no difference whether the parties are tenants or owners of the fee. A party claiming the right to an easement by prescription must be an adverse user. He need not own anything. See Baker v. Normanoch Ass'n, Inc., 25 N.J. 407, 421-422, 136 A.2d 645 (1957), where the court said:

We must consider whether the adjudication of title in the judgment below was appropriate or necessary.... We concede that during the trial some question was raised as to whether certain of the plaintiffs had rights by deed to minute portions of the lake bed. But the thrust of the litigation was that the plaintiffs had acquired easements to use the lake, not that they had or claimed title to any substantial portion of it. The major controversy involved herein can be settled by the granting of injunctive relief restraining the plaintiffs from a general user of the lake.

Nor need the holder of the servient property be the owner of the fee. An easement by prescription may be obtained against the holder of a present interest subject to divestment if and when the property passes to the holder of a future interest. In Hazek v. Greene, 51 N.J.Super. 545, 144 A.2d 199 (App.Div.), certif. den. 28 N.J. 58, 145 A.2d 167 (1958), plaintiff sought to...