Plaza v. Flak

• Decision Date: 28 May 1951
• Docket Number: No. A--121,A--121
• Citation: 7 N.J. 215,81 A.2d 137,27 A.L.R.2d 324
• Parties: , 27 A.L.R.2d 324 PLAZA v. FLAK et al.
• Court: New Jersey Supreme Court

Page 215

7 N.J. 215

81 A.2d 137, 27 A.L.R.2d 324

PLAZA v. FLAK et al.

No. A--121.

Supreme Court of New Jersey.

Argued April 23, 1951.

Decided May 28, 1951.

Louis C. Friedman, Paterson, argued the cause for the appellants (Ward & Freidman, Paterson, attorneys).

Manfield G. Amlicke, Passaic, argued the cause for the respondent. Isadore Rabinowitz, Paterson, of counsel.

The opinion of the court was delivered by

BURLING, J.

This is a civil action involving the conflicting claims of the plaintiff, Joseph Plaza, and the defendants, Anthony Flak and Frances Flak, his wife, to rights in lands mutually adjacent to their respective dwellings in the City of Passaic and there is brought here for review a judgment of the Chancery Division of the Superior Court adverse to the defendants. Defendants' appeal was addressed to the Appellate Division of the Superior Court and while pending there was certified to us upon our own motion.

The parties to this litigation are the owners of adjoining improved lots situate on Van Buren Street in the City of Passaic. The improvement on each lot consists primarily of a two family house. Between these two structures there exists an areaway 4.75 feet in width, approximately bisected by the joint property line of the premises. It was stipulated at the trial that common owners of the two properties caused both the houses to be erected at the same time, some 38 or 40 years before the trial of this matter. The common owners conveyed out the property now owned by plaintiff to his predecessor in title on April 27, 1914, and that now owned by defendants to their predecessor in title on May 7, 1915. The area between the two houses was used in common as an alleyway by the owners and tenants of both properties until 1948 when the defendants erected a fence on the boundary line in the approximate center of the area. The plaintiff instituted this action to obtain a judgment compelling defendants to remove this fence, and defendants counterclaimed, seeking by that means to require plaintiff to remove another fence which extends for 10 feet along the rear portion of the joint boundary line, which latter fence encroaches upon the defendants' property. Counsel for both parties signed the pretrial order waiving any rights which either of them may have had to a trial by jury. A trial to the court concluded in a judgment of the Chancery Division of the Superior Court filed on February 2, 1951, granting the relief sought by the plaintiff and denying the relief sought by the defendants in their counterclaim. Defendants appealed from the whole of the judgment to the Appellate Division of the Superior Court and while awaiting consideration there the matter was certified to this court upon our own motion.

Three questions are presented by this appeal. Of these two are similar substantive matters: the first relates to plaintiff's alleged prescriptive right to an easement over that portion of defendants' premises contained within the areaway between the houses, the second concerns plaintiff's right by adverse possession to retain that portion of defendants' premises contained within the 10 feet of fence on the rear of the boundary line between the premises. The third question is whether the defendants were deprived of due process of law in that they were denied a jury trial by the pretrial waiver thereof signed by their counsel. We deem the problem presented by the question of easement by prescription to be the crux of this case, so accord it first consideration here.

The gist of plaintiff's claim is that he has acquired an easement by prescription over that portion of defendants' premises contained within the area or alleyway between the parties' houses. It is well understood that 'prescription' is the term usually applied to the acquisition of incorporeal hereditaments by adverse user, while 'adverse possession' is the term applied in matters concerning title to lands. Black's Law Dict. 3rd ed. (1933), p. 1405. Compare Clement v. Bettle, 65 N.J.L. 675, 678, 48 A. 567 (E. & A.1901); 1 Thompson on Real Property, Perm.Ed. (1939) sec. 414, pp. 675, 677. Prescription has been a subject of discussion in our courts with some degree of regularity, hence it is necessary only to refer here to the principles laid down in the decisions, and not to repeat the history and development of this phase of our law. The American and English authorities are analyzed in Lehigh Valley R.R. Co. v. McFarlan, 43 N.J.L. 605, 617--630 (E. & A.1881).

At an early date, it was laid down that the doctrine of prescription is based upon an analogy to the statutes of limitation which are concerned with adverse possession of land, although originally stemming from a theory or legal fiction of lost grant, which latter theory is more or less in disrepute today, and is dependent upon the same principles as adverse possession. Cobb v. Davenport, 32 N.J.L. 369, 385, 387 (Sup.Ct.1867). This is likewise the general view. 17 Am.Jur.Easements, sec. 55; 1 Thompson on Real Property, Perm.Ed. (1939) sec. 415, pp. 677--680; Minor on Real Property, 2nd ed., Ribble (1928), Vol. II, sec. 984; Commentaries on Law of Real Property, Walsh (1947) Vol. II, sec. 238; Burby on Real Property (1943), sec. 68; 16 Harv.L.Rev. 438, 439.

Therefore, there must exist a user that is adverse, hostile, continuous, uninterrupted, visible and notorious. Cobb v. Davenport, supra,32 N.J.L. at page 385; DeLuca v. Melin, 103 N.J.L. 140, 144, 134 A. 735 (E. & A.1926). This must be a continuing, open, visible and exclusive user, hostile, showing intent to claim as against the true owner, and must be under a claim of right with such circumstances of notoriety as that the person against whom it is exercised may be so aware of the fact as to enable him to resist the acquisition of the right before the period of prescription has elapsed. Poulos v. Dover Boiler & Plate Fabricators, 5 N.J. 580, 588, 76 A.2d 808 (1950); Carlisle v. Cooper, 21 N.J.Eq. 576, 596 (E. & A.1870).

Although there are some decisions elsewhere to the contrary, the general rule to be drawn from the authorities is that where adjoining proprietors lay out a way or alley between their lands, each devoting some portion of this premises to that purpose, and such area is used for the prescriptive period by the respective owners or their successors in title, neither can obstruct or close that portion of the area which is within the boundary of his own land. The mutual use of the whole of such alley or way will be considered adverse to a separate or exclusive use by either. 28 C.J.S., Easements, § 18, page 673; Johnson v. Whelan, 171 Okl. 243, 42 P.2d 882, 98 A.L.R. 1096, (Okl.Sup.Ct.1935); Anno. 98 A.L.R. 1098--1103. Compare 1 Thompson on Real Property, Perm.Ed. (1939) sec. 422, p. 697.

From an early period in this state, although the burden of proof of the elements of prescription is upon the party claiming the right to an easement by prescription, it has been held that a presumption of adverse use arises from uninterrupted user of twenty years or more, and the burden is then upon the opposing party to rebut the presumption. This he may do by contradicting or explaining the facts upon which it rests, but not by proof in denial of a grant, i.e., the grant assumed in the fiction of prescription, or he may prove the use was contentious or interrupted during the period of prescription. He may overcome the presumption of adverse use and the right to the easement arising therefrom by proof of permission Asked and granted, that it was secret user, or that it was such use as to be neither physically capable of prevention or of action. Lehigh Valley R.R. Co. v. McFarlan, supra, 43 N.J.L. at page 621; Clement v. Bettle, supra, 65 N.J.L. at pages 678--679, 48 A. at pages 567, 568; National Silk Dyeing Co. v. Grobart, 117 N.J.Eq. 156, 164, 175 A. 91 (Ch.1934); DeLuca v. Melin, supra. Compare 29 Harv.L.Rev. 88, 89; 1 Thompson on Real Property, Perm.Ed. (1939) sec. 418, pp. 683--686, sec. 435, p. 716, sec. 436, pp. 718--721; 2 Thompson on Real Property, Perm.Ed. (1939) sec. 525, pp. 114, 115. There appears to be a conflict of authority elsewhere concerning the presumption to be drawn from the open, continuous, exclusive and uninterrupted use by the adverse claimant for the prescriptive period. Some jurisdictions adhere to the presumption of adverse use, and some to the presumption of permissive use. Univ. of Chicago L.Rev. Vo1. 17, p. 211 (1949). Compare Poulos v. F. H. Hill Co., 401 Ill. 204, 81 N.E.2d 854, 859 (Sup.Ct.Ill.1948). It is suggested by the defendants that New Jersey is among the latter, by virtue of Weber v. Gerber Holding Co., 138 N.J.Eq. 544, 547--548, 49 A.2d 300 (Ch.1946) reversed on the ground that the former Court of Chancery lacked jurisdiction, sub nomine Weber v. L. G. Trucking Corp., in 140 N.J.Eq. 96, 52 A.2d 839 (E. & A.1947). Compare 1 Rutgers L.Rev. 313 (1947), wherein the author discussed the Weber case, but considered the decision insufficient to show adherence to the theory of permissive use. See also III Intramural L.Rev. (N.Y.U.) 176, 180--181 (1948) wherein the author also discussing the Weber case, concludes that New Jersey continues to stand on the theory of the presumption of adverse use. It is to be noted that the decision of the former Court of Chancery in the Weber case, supra, 138 N.J.Eq. at page 547, 49 A.2d at page 300, affirmed the preexisting rule stated in Clement v. Bettle, supra, but asserted that the circumstances of the Weber case required a different presumption. The decision in the Weber case appears to have been grounded on the rule that the determination whether the possession is sufficiently hostile and notorious to oust the true owner depends upon the situation and condition of the property and the uses to which the true owner designedly or permissively subjects it. Cobb v. Davenport, supra, 32 N.J.L. at page 385; compare Pirman v. Confer, 273 N.Y. 357, 7 N.E.2d...