NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NOS. A-3857-11T11 A-4784-11T1
CARIBBEAN HOUSE, INC., a New Jersey Corporation, APPROVED FOR PUBLICATION Plaintiff-Respondent, December 30, 2013
v. APPELLATE DIVISION
NORTH HUDSON YACHT CLUB, a New Jersey Corporation,
Defendant-Appellant,
and
THE RIVER PALM TERRACE,
Defendant-Respondent.
______________________________
Argued March 6, 2013 - Decided December 30, 2013
Before Judges Grall, Koblitz and Accurso.
On appeal from Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. C-322-11.
Peter J. Koulikourdis argued the cause for appellant (Koulikourdis and Associates, attorneys; Sasha C. Intriago, on the brief
1 These are back-to-back appeals consolidated for the purpose of this opinion. (A-3857-11T1); Mr. Koulikourdis, on the briefs (A-4784-11T1)).
Mark Turnamian argued the cause for respondent Caribbean House, Inc.
Sekas & Abrahamsen, L.L.C., attorneys for respondent The River Palm Terrace, join in the brief filed by appellant.
The opinion of the court was delivered by
ACCURSO, J.A.D.
Defendant in these back-to-back appeals, North Hudson Yacht
Club (Yacht Club or the Club), appeals from two final orders in
favor of plaintiff Caribbean House, Inc. (Caribbean House),
restricting the use of a deeded access easement Caribbean House
granted to Yacht Club when it sold the Club its property in
1968. Because we believe the Chancery judge erroneously
concluded that the use of the easement to which Caribbean House
objected benefitted a property other than that to which the
easement is appurtenant, we reverse.
Although we have not been provided the deeds by which the
parties took title to their adjacent properties, the critical
facts underlying the controversy are undisputed. The two
properties were once part of a single rectangular tract bordered
on the east by the Hudson River and on the west by River Road in
Edgewater. The entire parcel appears to have consisted of
approximately eight acres. When Caribbean House acquired the
2 A-3857-11T1 tract in 1961, there was a newly-constructed six-story, sixty-
two unit apartment building and pool located on the western
portion, which Caribbean House now operates as a "co-op."
Caribbean House subsequently subdivided the parcel, retaining
the western portion bordering River Road for itself, and
conveying the eastern portion bordering the Hudson River to
Yacht Club by deed dated July 11, 1968.
As the sub-divided parcel was landlocked, Caribbean House
simultaneously and "as additional consideration" granted Yacht
Club an access easement across Caribbean House's retained land
as a means of ingress and egress to River Road from Yacht Club's
property. Specifically, the recorded Declaration of Easement
provides
The "[Caribbean] House," as additional consideration to that paid by the "[Yacht] Club" to [Caribbean House] for the delivery of a deed to the "Club" by the said [Caribbean House] of even date herewith, for certain lands and premises situate off the easterly side of River Road and abutting the most easterly rear line of the lands and premises now owned by "[Caribbean] House," and commonly known as No. 1375 River Road, Edgewater, N.J. does for itself, its successors and assigns, make, declare, set aside and grants an easement or right of way unto the "Club," its successors and assigns, as a means of ingress and egress to River Road from its lands and premises so conveyed to it by the said [Caribbean House], over the 10 foot wide strip of land, the same being shown on a survey
3 A-3857-11T1 attached to the document and specifically described by metes and
bounds therein.2 The parcel Caribbean House conveyed to Yacht
Club consisted of approximately five and one-quarter acres and
included a clubhouse, piers and docks, and a large parking lot,
which the parties agree can accommodate over one hundred and
fifty cars. The ten-foot-wide easement runs from River Road
through Caribbean House's driveway and parking area
approximately three hundred and seventy-two feet to the western
edge of Yacht Club's property.
Over the ensuing forty years, the easement was used by
club members, their guests, boat mechanics and detailers, police
and fire department personnel, boat haulers, waste haulers,
members of the Auxiliary Coast Guard, and the Sea Scouts, all
without incident. In 2010, however, Caribbean House objected to
Yacht Club allowing cars from a nearby restaurant to park on
Yacht Club's property. The River Palm Terrace (River Palm), a
restaurant located nearby on River Road, lost certain off-site
parking due to construction. One of the owners, John Campbell,
2 Although the "Declaration of Easement" states that Yacht Club's property was conveyed to it by Milton Karel, not Caribbean House, the parties agree that Caribbean House owned the undivided parcel and conveyed the eastern portion to Yacht Club. It appears that Milton Karel was merely authorized to transact business on behalf of Caribbean House, as he also signed the "Declaration of Easement" on Caribbean House's behalf.
4 A-3857-11T1 an honorary member of Yacht Club, approached the commodore of
the Club seeking permission for River Palm to park its
customers' cars in Yacht Club's parking lot. Yacht Club agreed,
and River Palm's valet service began parking patrons' cars on
Yacht Club's property in August 2010. The arrangement was made
as a courtesy to Campbell and done without any payment to Yacht
Club.
By letter dated February 1, 2011, Caribbean House notified
Yacht Club of its objection to River Palm's use of the easement.
Caribbean House claimed that River Palm's use of the access
easement "to park [its] cars on your property" was
"impermissible, and exceeds the use for which the easement was
granted." Caribbean House stated that it "might be willing to
entertain a proposal for a temporary license across the easement
upon the payment of a fee each month, [but] without any such
license, the unauthorized use of this easement . . . needs to
cease immediately."
When Yacht Club continued to allow River Palm to park its
patrons' cars on the Club's property, Caribbean House filed a
complaint in the Chancery Division seeking to enjoin the use.
Caribbean House thereafter sought summary judgment contending
that a dominant tenement cannot allow a third party to use its
easement without benefit to the dominant tenement, in the
5 A-3857-11T1 absence of a possessory interest. Yacht Club countered that it
was free to invite whomever it wished to use its property, which
can only be accessed via the easement. The Club contended that
Caribbean House was attempting to restrict the use of Yacht
Club's property and that the Club would be willing to lease its
property to River Palm if necessary to address Caribbean House's
concerns over use of the easement.
At the conclusion of oral argument on the motion, Yacht
Club's counsel asked whether a written lease agreement between
Yacht Club and River Palm would allow River Palm's continued use
of the easement. The Chancery judge declined to consider the
scenario as it was not before the court. The judge thereafter
granted Caribbean House's motion for summary judgment, finding
that Yacht Club was without authority to grant permission to a
third party "to burden the easement with uses not serving or
benefitting the Club."
Shortly thereafter, Yacht Club entered into a one-year
"Commercial Lease Agreement" with River Palm at a rent of $500
per month. Although purporting to lease "a portion of the
property," the agreement does not specify what "portion" of the
land is being leased. The lease is, however, subject to the
lessor's rules and regulations "which may include but is not
necessarily limited to . . . the number of cars, location of
6 A-3857-11T1 parking, hours of the use of the access easement and any other
rules and regulations deemed to be in the interest of Lessor."
A "First Rider" specifies,
Lessor states that unused parking spaces on the Premises may be used to park thirty (30) to forty (40) motor vehicles on the Premises from 6:00 p.m. to 10:00 p.m. on each Friday and Saturday evening for the duration of this Lease Agreement. Lessee shall not interfere with the normal operation of the North Hudson Yacht Club during any other hours not herein specified.
Following execution of the agreement, River Palm's valet service
resumed its use of Yacht Club's parking area.
After an exchange of letters in which the parties disagreed
over whether this new arrangement constituted a violation of the
prior order, Caribbean House filed a motion to enforce
litigant's rights. The next day, members of its Board of
Directors used their cars to block River Palm's valets from
accessing Yacht Club's parking area. Thereafter, Yacht Club
filed an order to show cause seeking temporary restraints that
would prevent Caribbean House from interfering with River Palm's
use of the easement. After hearing argument on the competing
applications, the Chancery judge determined that the purported
lease did not entitle River Palm to use the easement in order to
park its customers' cars on Yacht Club's property. Accordingly,
he granted Caribbean House's request to enforce the prior
7 A-3857-11T1 summary judgment order and denied Yacht Club's and River Palm's
requests for an injunction. Yacht Club appeals both the summary
judgment and the Chancery judge's subsequent order enforcing it.
We review summary judgment using the same standard that
governs the trial court. Henry v. N.J. Dep't of Human Servs.,
204 N.J. 320, 330 (2010). As the parties agreed on the material
facts for purposes of the motion, our task is limited to
determining whether the trial court's ruling on the law was
correct. Prudential Prop. & Cas. Ins. v. Boylan, 307 N.J.
Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608
(1998). Because a trial court does not enjoy an advantage in
discerning the law, as it does in discerning the facts, a
reviewing court owes no special deference to the "trial court's
interpretation of the law and the legal consequences that flow
from established facts." Manalapan Realty, L.P. v. Twp. Comm.
of Manalapan, 140 N.J. 366, 378 (1995).
The general rules governing easements are well-known and
easily stated. The Restatement provides, "[a]n easement creates
a non possessory right to enter and use land in the possession
of another and obligates the possessor not to interfere with the
uses authorized by the easement." Restatement (Third) of
Property: Servitudes, § 1.2 (2000). Our law is in accord. See,
e.g., Krause v. Taylor, 135 N.J. Super. 481, 484 (App. Div.
8 A-3857-11T1 1975) ("An easement is an interest in the land of another
affording a right to use the other's land"). We have recently
explained that an "easement appurtenant is created when the
owner of one parcel of property (the servient estate) grants
rights regarding that property to the owner of an adjacent
property (the dominant estate)." Rosen v. Keeler, 411 N.J.
Super. 439, 450 (App. Div. 2010). The extent of the rights
conveyed rests on the intent of the parties as expressed in the
language creating the easement, "read as a whole and in light of
the surrounding circumstances." Id. at 451.
Express "easements of way," such as the one at issue, may
be further categorized as general grants of easements of way or
limited grants, with the limitation referring to the purposes
for which the easement may be used. Leasehold Estates, Inc. v.
Fulbro Holding Co., 47 N.J. Super. 534, 551 (App. Div. 1957),
certif. granted, 25 N.J. 538 (1958). We have observed that
"'[i]t is not difficult to describe an unlimited easement. A
mere statement that a way is "for ingress and egress" . . . or
for "the purpose of passing and repassing" . . . aptly
describes an easement of way without restriction.'" Id. at 556-
57 (quoting Wilson v. Ford, 133 N.Y.S. 33, 40 (App. Div. 1911),
rev'd on other grounds, 102 N.E. 614 (N.Y. 1913)). "Where no
limitation is placed on the extent of the use of an easement of
9 A-3857-11T1 way, it is available as a general way for all purposes to which
the dominant tract might be devoted, National Silk Dyeing Co. v.
Grobart, 117 N.J. Eq. 156, 165-66 (Ch. 1934); 23 William St.
Corp. v. Berger, 10 N.J. Super. 216 (Ch. Div. 1950)." Id. at
551.
From this, it is obvious that Caribbean House by express
easement appurtenant granted Yacht Club a general way from its
otherwise landlocked tract to River Road for all purposes to
which Yacht Club's property might be devoted. Accordingly, the
question to be resolved must be whether the use to which
Caribbean House objects, the valet parking of cars of patrons of
River Palm on Yacht Club's property, with or without
compensation, is a purpose to which Yacht Club's property might
be devoted.
Instead of attempting to resolve that question as our cases
and the Restatement advise, that is by attempting to ascertain
the expressed intent of the parties from the language of the
easement interpreted in light of the relevant circumstances such
as "the location and character of the properties burdened and
benefitted by the servitude, the use made of the properties
before and after creation of the servitude, [and] the character
of the surrounding area," Restatement, supra, § 4.1, comment d,
the trial court chose a different path. The court, at Caribbean
10 A-3857-11T1 House's urging, employed one of the Restatement's "default"
rules "to be used where the parties have not clearly expressed
their intentions or the servitude was not created by an express
transaction," to resolve the extent of Yacht Club's use rights.
Id. at § 4.1, Introductory Note. In this we think the court
erred.
The default rule on which the court relied is the one set
forth in Section 4.11 of the Restatement, "[u]nless the terms of
the servitude determined under § 4.1 provide otherwise, an
appurtenant easement or profit may not be used for the benefit
of property other than the dominant estate." Although the
provision might appear on its face as relevant to the parties'
dispute, a review of its rationale as well as its application in
the case law make clear that it does not apply to the situation
before the court.
The Comment to Section 4.11 explains the rule's rationale
is that use to serve other property is not within the intended purpose of the servitude. This rule reflects the likely intent of the parties by setting an outer limit on the potential increase in use of an easement brought about by normal development of the dominant estate, permitted under the rules stated in § 4.10. Where it applies, the rule avoids otherwise difficult litigation over the question whether increased use unreasonably increases the burden on the servient estate.
[Restatement, supra, §4.11, comment b.]
11 A-3857-11T1 The illustrations provide examples of its intended application.
Illustrations:
1. Hotel Corporation, the owner of a five- acre parcel on which it operated a hotel, purchased a lot in Greenacres, the adjacent subdivision. An easement appurtenant to the Greenacres lot granted rights to use the Greenacres community beach and recreational facilities. In the absence of other facts or circumstances, Hotel Corporation is not entitled to use the Greenacres beach or recreational facilities for the benefit of its hotel operation.
2. Able assembled a parcel of land from Whiteacre and Brownacre, two adjoining parcels acquired from two different sellers. Whiteacre included the benefit of an appurtenant access easement over Blackacre, the adjacent property to the south. Able then built a house straddling the old boundary between Whiteacre and Brownacre. In the absence of other facts or circumstances, Able is not entitled to use the easement for access to that part of the house located on Brownacre.
[Id. at § 4.11, comment b, Illustrations 1-2.]
The Restatement comment and illustrations to Section 4.11
make clear that the rule, applied to an easement of way is
intended to prevent use of the way to access a property other
than the dominant, appurtenant estate. Other commentators share
this view of the Restatement rule. See, e.g., 7 Thompson on
Real Property § 60.04(a)(1)(ii) (Thomas ed. 2012) ("An easement
can be used only in connection with the estate to which it is
appurtenant and cannot be extended by the owner to any other
12 A-3857-11T1 property which he may then own or afterward acquire, unless so
provided in the instrument by which the easement is created.").
New Jersey cases apply the Restatement rule in the same fashion.
See Rosen, supra, 411 N.J. Super. at 452-53 (prohibiting
assignment of easement of way to the ocean by owners of dominant
estate to owners of land across the street from dominant estate,
citing the rule); Levinson v. Costello, 74 N.J. Super. 539, 544-
47 (App. Div.) (prohibiting owner of dominant estate from
permitting third parties, residing across a road from dominant
estate in another development, to use easement of way to access
beach shared by dominant and servient estates with all members
of private beach community), certif. denied, 38 N.J. 307 (1962).
The distinction between those illustrations and cases and
the situation before the court is that in this case the owner of
the dominant estate, Yacht Club, is not granting use of the
easement to access any property other than its own dominant,
appurtenant estate. The distinction is a critical one because
the rule has no application where the owner of the dominant
estate is using the easement to access only the land to which
the easement is appurtenant. This case is, for all practical
purposes, indistinguishable from 23 William St. Corp., supra, 10
N.J. Super. at 222, in which the court rejected the claim of the
owner of the servient estate that the appurtenant easement of
13 A-3857-11T1 way was being used for the benefit of premises other than the
dominant estate.
The lands at issue in 23 William St. Corp., were located in
the vicinity of Halsey and William Streets in Newark. Id. at
218. The servient estate fronted on William Street. Ibid.
The only access from William Street to the dominant estate was
via the alleyway on the servient estate. Id. at 221. The
defendant, Berger, used his easement through the alleyway to
access his dominant estate from William Street. Berger also
owned adjacent land to the west of the dominant estate, which
fronted on Halsey Street and was "entirely built upon." Id. at
220. Roth-Schlenger leased the dominant estate from Berger,
which it used "for the free parking of cars of customers of the
Roth-Schlenger store at the corner of William and Halsey Street,
while such customers are at the store or while accessories
purchased at the store are installed on their automobiles."3 Id.
at 221. The plaintiff adduced testimony that eighty or ninety
cars used the alley daily. Ibid.
The deed creating the easement imposed no limitation on the
extent of the use to which the right of way could be put. Id.
3 The existence of this lease played no part in the court's analysis of the use of the easement except as necessary to note that Roth-Schlenger had all the same rights as Berger to the dominant estate. The court's holding was in no way dependent on the existence of the lease.
14 A-3857-11T1 at 222. Moreover, there was no means of direct access between
the dominant estate and the Roth-Schlenger store, nor any such
access between the dominant estate and Berger's remaining tract
fronting on Halsey Street. Id. at 221. Stated another way, no
one using the alleyway to access the parking lot could enter
either Berger's other tract or the Roth—Schlenger store from the
lot.4 Roth-Schlenger customers parking in the lot had to exit by
way of the alley and walk along William Street to enter the
store. Ibid. Accordingly, the court rejected the owner of the
servient estate's claim that the easement was being used for the
benefit of premises other than that to which it was appurtenant.
The right of way being appurtenant to the property of Berger, he had a right to lease the dominant tenement together with the right of way to Roth-Schlenger, Inc., who as lessee, acquired the dominant tenement together with the right to use it for any lawful purpose.
In the instant case the right of way is used as a means of ingress to and egress from the dominant tenement alone, for the sole benefit of the dominant tenement in connection with a purpose to which it is lawfully put by the tenant thereof, namely the parking of vehicles. It is impossible to pass beyond the dominant tenement to the premises occupied by Roth-Schlenger, Inc.,
4 The opinion includes a diagram at page 219 in the bound volume which is not available in the on-line version of the case. 23 William St. Corp., supra, 10 N.J. Super. at 219.
15 A-3857-11T1 without repassing over the right of way and along a public street.
[Id. at 223.]
Because the cars using the right of way did so only to
access the dominant estate, the use was found to be for the sole
benefit of the dominant estate, notwithstanding that the
parking lot was provided as a courtesy to customers of the
Roth-Schlenger store located on a third property. Similarly
here, River Palm's valet service is using the easement to access
only Yacht Club's property for a purpose to which the Club's
property is properly put, that is, parking. Thus the benefit is
solely to Yacht Club's property, notwithstanding the convenience
the arrangement provides to patrons of River Palm. Because the
easements, both here and in 23 William St. Corp., were used to
access only the dominant estate and no other property, they
cannot be accurately characterized as being used for the benefit
of lands other than those to which they are appurtenant.
The mistaken application of the default provision of
Section 4.1 had the effect of rewriting the terms of the
easement to include a limitation not found in the document, in
the trial court's words, to uses "serving or benefiting the
Club." That implied limitation greatly restricts the uses to
which Yacht Club might make of its property, and led to its
efforts to create a "benefit" to itself by monetizing its
16 A-3857-11T1 courtesy to Campbell by charging River Palm a monthly fee.5 No
such machinations are necessary in order for Yacht Club to
invite River Palm's valet service onto the Club's property to
park cars belonging to patrons of River Palm. The easement
granted to Yacht Club by Caribbean House was unlimited, and thus
is a general way for all purposes to which the Club's property
might be devoted.
As Caribbean House does not contend that the parking of
vehicles on Yacht Club's property constitutes an impermissible
use or that the number of cars using the easement has
unreasonably increased the burden on Caribbean House's servient
estate (neither likely given the commercial nature of both
parcels and that the Club's parking area can accommodate over
one hundred and fifty cars) the trial court erred in restraining
Yacht Club's use of the easement. Because we hold that Yacht
Club's invitation of River Palm's valet service onto the Club's
property to park cars belonging to patrons of River Palm, with
or without compensation to the Club, is within the scope of its
easement, we need not consider the effect of the lease agreement
between Yacht Club and River Palm.
5 We share the trial court's view that the arrangement was not an effort by Yacht Club to evade the court's order, but rather a good faith attempt to make lawful use of its property within the confines of the court's directive.
17 A-3857-11T1 Finally, we note that Caribbean House alleged before the
trial court that River Palm's valet drivers traversed the
easement at excessive speeds. Yacht Club and River Palm denied
the allegation and the trial court did not reach the issue in
light of its disposition of the case. In the event the parties
cannot come to agreement on the safe use of the easement, our
disposition of the appeal should not be read as precluding a new
application to the trial court for resolution of that issue.
Reversed.
18 A-3857-11T1