NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3984-23
KENNETH SHEA and CATHERINE ANN SHEA,
Plaintiffs-Appellants/ Cross-Respondents,
v.
ROMO DIPOPOLO and DOLORES ANN DIPOPOLO,
Defendants-Respondents/ Cross-Appellants. __________________________
Submitted October 16, 2025 – Decided March 30, 2026
Before Judges Berdote Byrne and Jablonski.
On appeal from the Superior Court of New Jersey, Chancery Division, Morris County, Docket No. C- 000057-23.
Piro Zinna Cifelli Paris & Genitempo, LLC, attorneys for appellants/cross-respondents (Kristen Jones, of counsel and on the briefs). Schenck Price Smith & King, LLP, attorneys for respondents/cross-appellants (Gary F. Werner, of counsel and on the briefs).
PER CURIAM
Plaintiffs Kenneth Shea and Catherine Ann Shea appeal from a final order
denying a prescriptive easement over the property of defendants Remo
DiPopolo1 and Dolores Ann DiPopolo in Florham Park. Since their purchase of
the property on December 10, 2003, plaintiffs have accessed their home using a
horseshoe-shaped driveway, which connects to Columbia Turnpike at both ends.
A portion of the western end of the driveway cuts through defendants' property.
Plaintiffs sued for declaratory judgment, stating they were entitled to a
prescriptive easement over that portion of the driveway. Following a bench trial,
the trial court found plaintiffs were not entitled to a prescriptive easement
because defendants also used the disputed portion of the driveway, which meant
plaintiffs' use was not "exclusive," as required for a claim of adverse possession.
Because the trial court analyzed plaintiffs' claim pursuant to the law of
adverse possession rather than the elements of prescriptive easements, we are
constrained to vacate and remand for proper application of the prescriptive
easement standard.
1 Improperly pleaded as "Romo DiPopolo." A-3984-23 2 I.
We summarize the following facts from the trial testimony and exhibits.
Plaintiffs purchased their home at 111 Columbia Turnpike in 2003. At the time
of the closing, a survey indicated a portion of the home's driveway ran onto the
edge of defendants' property located at 113 Columbia Turnpike, which was then
a vacant lot. The house at 111 Columbia was built in 1981. An aerial
photograph indicates the driveway (including the portion on defendants'
property) has existed since April 19, 1990. When plaintiffs purchased the home,
the driveway was made of gravel, but plaintiffs paved the driveway between
2005 and 2007.
Plaintiffs used the driveway continuously until 2021, when defendants
sent a letter asking plaintiffs to cease using the portion of the driveway on 113
Columbia. Thereafter, defendants erected a fence that barred plaintiffs ' access
to the disputed portion of the driveway.
Defendants purchased 113 Columbia in 2001. It remained vacant until
2016, when defendants moved into a newly built home on the property. At the
time of the purchase in 2001, they also owned a property abutting the rear of
113 Columbia (Brooklake). Remo redeveloped Brooklake between 2004 and
2005. During the construction, Remo, his son, and one of Remo's employees
A-3984-23 3 used the disputed portion of the driveway on 113 Columbia to park and transfer
construction equipment to Brooklake.
II.
We apply a deferential standard of review to the factual findings of the
trial court on appeal from a bench trial. See Nelson v. Elizabeth Bd. of Educ.,
466 N.J. Super. 325, 336 (App. Div. 2021). A trial court's findings will not be
disturbed unless they are "so manifestly unsupported by or inconsistent with the
competent, relevant and reasonably credible evidence as to offend the interests
of justice." Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 484
(1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App.
Div. 1963)). "The trial court's factual findings are entitled to deference on
appeal so long as they are supported by sufficient credible evidence in the
record." Accounteks.Net, Inc. v. CKR Law, LLP, 475 N.J. Super. 493, 503
(App. Div. 2023). However, we owe no deference to the trial court's
interpretation of the law and its application of the law to the facts. Ibid.
The trial court relied on the elements of adverse possession in denying
plaintiffs a prescriptive easement for the driveway. However, plaintiffs did not
seek to own the land in fee simple, but rather obtain an easement over a specific
portion of the driveway. Easement claims are analyzed pursuant to a different
A-3984-23 4 body of law. See Restatement (Third) of Prop.: Servitudes § 2.17 cmt. a. (A.L.I.
2000) (Restatement) ("Whether a property interest is claimed by adverse
possession or prescription makes a difference in the requirements that must be
met and in the nature of the interest acquired.").
An easement is "a nonpossessory incorporeal interest in another's
possessory estate in land, entitling the holder of the easement to make some use
of the other's property." Leach v. Anderl, 218 N.J. Super. 18, 24 (App. Div.
1987). Easements may be created by an express conveyance, implication, or
prescription. Ibid.
The parties do not dispute the absence of an express conveyance. An
implied easement is also not applicable, as the record shows that the properties
never shared a common owner. Thus, to establish a prescriptive easement, a
plaintiff must demonstrate its use of the property is "adverse or hostile,
exclusive, continuous, uninterrupted, visible[,] and [open and] notorious."
Baker v. Normanoch Ass'n, 25 N.J. 407, 419 (1957). The plaintiff must prove
these elements by a preponderance of the evidence. Plaza v. Flak, 7 N.J. 215,
222 (1951). "Open" use means the "use is not secret." Yellen v. Kassin, 416
N.J. Super. 113, 121 (App. Div. 2010). "Notorious" use denotes the "use is
actually known to the owner, or is widely known in the neighborhood." Ibid.
A-3984-23 5 (quoting Restatement, § 2.17 cmt. h). Additionally, the claimant must show the
adverse and open or notorious use continued for thirty years. Id. at 120, 122.
However, pursuant to the doctrine of tacking, the claimant may combine the
years of use with those of their predecessors in interest. See Plaza, 7 N.J. at
222-23 (combining "plaintiff's use and that of his predecessors in title"); Leach,
218 N.J. Super. at 29. Although the claimant bears the burden of proving the
required elements of a prescriptive easement, the adversity element is presumed
if the claimant "shows open, continuous, uninterrupted, exclusive use for the
prescriptive period." Plaza, 7 N.J. at 222.
Although the legal elements for prescriptive easements and adverse
possession are similar in many respects, the doctrines impose a materially
different standard specifically as to the exclusivity requirement. To obtain title
by adverse possession, the plaintiff must use the property exclusively and it
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3984-23
KENNETH SHEA and CATHERINE ANN SHEA,
Plaintiffs-Appellants/ Cross-Respondents,
v.
ROMO DIPOPOLO and DOLORES ANN DIPOPOLO,
Defendants-Respondents/ Cross-Appellants. __________________________
Submitted October 16, 2025 – Decided March 30, 2026
Before Judges Berdote Byrne and Jablonski.
On appeal from the Superior Court of New Jersey, Chancery Division, Morris County, Docket No. C- 000057-23.
Piro Zinna Cifelli Paris & Genitempo, LLC, attorneys for appellants/cross-respondents (Kristen Jones, of counsel and on the briefs). Schenck Price Smith & King, LLP, attorneys for respondents/cross-appellants (Gary F. Werner, of counsel and on the briefs).
PER CURIAM
Plaintiffs Kenneth Shea and Catherine Ann Shea appeal from a final order
denying a prescriptive easement over the property of defendants Remo
DiPopolo1 and Dolores Ann DiPopolo in Florham Park. Since their purchase of
the property on December 10, 2003, plaintiffs have accessed their home using a
horseshoe-shaped driveway, which connects to Columbia Turnpike at both ends.
A portion of the western end of the driveway cuts through defendants' property.
Plaintiffs sued for declaratory judgment, stating they were entitled to a
prescriptive easement over that portion of the driveway. Following a bench trial,
the trial court found plaintiffs were not entitled to a prescriptive easement
because defendants also used the disputed portion of the driveway, which meant
plaintiffs' use was not "exclusive," as required for a claim of adverse possession.
Because the trial court analyzed plaintiffs' claim pursuant to the law of
adverse possession rather than the elements of prescriptive easements, we are
constrained to vacate and remand for proper application of the prescriptive
easement standard.
1 Improperly pleaded as "Romo DiPopolo." A-3984-23 2 I.
We summarize the following facts from the trial testimony and exhibits.
Plaintiffs purchased their home at 111 Columbia Turnpike in 2003. At the time
of the closing, a survey indicated a portion of the home's driveway ran onto the
edge of defendants' property located at 113 Columbia Turnpike, which was then
a vacant lot. The house at 111 Columbia was built in 1981. An aerial
photograph indicates the driveway (including the portion on defendants'
property) has existed since April 19, 1990. When plaintiffs purchased the home,
the driveway was made of gravel, but plaintiffs paved the driveway between
2005 and 2007.
Plaintiffs used the driveway continuously until 2021, when defendants
sent a letter asking plaintiffs to cease using the portion of the driveway on 113
Columbia. Thereafter, defendants erected a fence that barred plaintiffs ' access
to the disputed portion of the driveway.
Defendants purchased 113 Columbia in 2001. It remained vacant until
2016, when defendants moved into a newly built home on the property. At the
time of the purchase in 2001, they also owned a property abutting the rear of
113 Columbia (Brooklake). Remo redeveloped Brooklake between 2004 and
2005. During the construction, Remo, his son, and one of Remo's employees
A-3984-23 3 used the disputed portion of the driveway on 113 Columbia to park and transfer
construction equipment to Brooklake.
II.
We apply a deferential standard of review to the factual findings of the
trial court on appeal from a bench trial. See Nelson v. Elizabeth Bd. of Educ.,
466 N.J. Super. 325, 336 (App. Div. 2021). A trial court's findings will not be
disturbed unless they are "so manifestly unsupported by or inconsistent with the
competent, relevant and reasonably credible evidence as to offend the interests
of justice." Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474, 484
(1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App.
Div. 1963)). "The trial court's factual findings are entitled to deference on
appeal so long as they are supported by sufficient credible evidence in the
record." Accounteks.Net, Inc. v. CKR Law, LLP, 475 N.J. Super. 493, 503
(App. Div. 2023). However, we owe no deference to the trial court's
interpretation of the law and its application of the law to the facts. Ibid.
The trial court relied on the elements of adverse possession in denying
plaintiffs a prescriptive easement for the driveway. However, plaintiffs did not
seek to own the land in fee simple, but rather obtain an easement over a specific
portion of the driveway. Easement claims are analyzed pursuant to a different
A-3984-23 4 body of law. See Restatement (Third) of Prop.: Servitudes § 2.17 cmt. a. (A.L.I.
2000) (Restatement) ("Whether a property interest is claimed by adverse
possession or prescription makes a difference in the requirements that must be
met and in the nature of the interest acquired.").
An easement is "a nonpossessory incorporeal interest in another's
possessory estate in land, entitling the holder of the easement to make some use
of the other's property." Leach v. Anderl, 218 N.J. Super. 18, 24 (App. Div.
1987). Easements may be created by an express conveyance, implication, or
prescription. Ibid.
The parties do not dispute the absence of an express conveyance. An
implied easement is also not applicable, as the record shows that the properties
never shared a common owner. Thus, to establish a prescriptive easement, a
plaintiff must demonstrate its use of the property is "adverse or hostile,
exclusive, continuous, uninterrupted, visible[,] and [open and] notorious."
Baker v. Normanoch Ass'n, 25 N.J. 407, 419 (1957). The plaintiff must prove
these elements by a preponderance of the evidence. Plaza v. Flak, 7 N.J. 215,
222 (1951). "Open" use means the "use is not secret." Yellen v. Kassin, 416
N.J. Super. 113, 121 (App. Div. 2010). "Notorious" use denotes the "use is
actually known to the owner, or is widely known in the neighborhood." Ibid.
A-3984-23 5 (quoting Restatement, § 2.17 cmt. h). Additionally, the claimant must show the
adverse and open or notorious use continued for thirty years. Id. at 120, 122.
However, pursuant to the doctrine of tacking, the claimant may combine the
years of use with those of their predecessors in interest. See Plaza, 7 N.J. at
222-23 (combining "plaintiff's use and that of his predecessors in title"); Leach,
218 N.J. Super. at 29. Although the claimant bears the burden of proving the
required elements of a prescriptive easement, the adversity element is presumed
if the claimant "shows open, continuous, uninterrupted, exclusive use for the
prescriptive period." Plaza, 7 N.J. at 222.
Although the legal elements for prescriptive easements and adverse
possession are similar in many respects, the doctrines impose a materially
different standard specifically as to the exclusivity requirement. To obtain title
by adverse possession, the plaintiff must use the property exclusively and it
cannot be shared with anyone, including the owner of the property in fee simple.
See Raritan Engine Co. No. 2 v. Mayor & Council of Edison Twp., 184 N.J.
Super. 159, 166 (App. Div. 1982); 16 Richard R. Powell, Powell on Real
Property § 91.06 (Michael Allan Wolf ed., 2007) ("[A]dverse possession must
be exclusive of the true owner such that the owner must be excluded from
A-3984-23 6 possession by the claimant. Possession that is concurrent with that of the true
owner is never exclusive." (footnote omitted)).
By contrast, in the prescriptive-easement setting, the claimant's use may
be shared with the record owner and still meet the exclusivity requirement as
that term is used under this analysis. See Randolph Town Ctr., L.P., v. Cnty. of
Morris, 374 N.J. Super. 448, 454 n.4 (App. Div. 2005), vacated on other
grounds, 186 N.J. 78 (2006) (per curiam) (explaining the exclusivity
requirement as used in the prescriptive easement context "means only that the
user have acted independently of the rights claimed by others, such as the
general public"); Bioletti v. Sindoni, 135 N.J. Eq. 609, 616 (Ch. 1944) ("[T]he
requirement of 'exclusive' . . . does not mean that the complainants shall have
been the sole users . . . but simply that the individual right shall not depend for
its enjoyment upon a similar right in others . . . ."); Restatement § 2.17 cmt. g
("The exclusivity requirement is most often applied to deny prescriptive rights
to one whose use is indistinguishable from uses being made by the general
public.").
Plaza v. Flak, the seminal prescriptive-easement case in New Jersey,
makes clear that shared use of the disputed property with the record owner does
not defeat a prescriptive-easement claim. 7 N.J. at 220 ("[T]he general rule to
A-3984-23 7 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.").
Plaza involved neighboring homes with a five-foot alleyway between
them that was bisected by the property line. Id. at 218. The disputed area was
"used in common as an alleyway by the owners and tenants of both properties
until . . . the defendants erected a fence on the boundary line in the approximate
center of the area." Ibid. The Supreme Court concluded the plaintiff had
demonstrated his entitlement to a prescriptive easement in the portion of the
alleyway on his neighbor's property. Id. at 222-23. And because the entire
alleyway was shared, the Court held the defendants had a prescriptive easement
over the plaintiff's portion of the alleyway. Id. at 223.
Here, plaintiffs did not seek title of the driveway through adverse
possession. Rather, their complaint sought only a prescriptive easement over a
portion of it. Accordingly, the trial court erred in concluding Remo DiPopolo's
A-3984-23 8 use of the disputed portion of the driveway rendered plaintiffs' claim non-
exclusive and therefore required denial of a prescriptive easement. Plaintiffs'
use was independent of any rights claimed by others, as they exercised it as
owners of the neighboring property for ingress and egress to their property, and
did not depend on any similar right held by defendants nor the general public.
See Randolph Town Ctr., 374 N.J. Super. at 454 n.4.
Because the trial court did not address the remaining elements, we decline
to do so, and remand for proper application of the prescriptive easement
standard. We therefore decline to address defendants' cross appeal challenging
the "temporary easement," and the denial of the trespass counterclaim.
The order dated July 8, 2024, is vacated and this matter is remanded for
proceedings consistent with this opinion. We do not retain jurisdiction.
A-3984-23 9