NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1588-24
NEWPORT ASSOCIATES DEVELOPMENT COMPANY,
Plaintiff-Appellant,
v.
PUBLIC SERVICE ELECTRIC AND GAS COMPANY,
Defendant/Third-Party Plaintiff-Respondent,
CONSOLIDATED RAIL CORPORATION,
Third-Party Defendant. _____________________________
Argued March 5, 2026 ‒ Decided May 12, 2026
Before Judges Mawla, Marczyk and Bishop-Thompson.
On appeal from the Superior Court of New Jersey, Chancery Division, Hudson County, Docket No. C-000081-21. Jonathan P. Vuotto argued the cause for appellant (McAndrew Vuotto, LLC, attorneys; Jonathan P. Vuotto, on the briefs).
Paige Nestel argued the cause for respondent (O'Toole Scrivo, LLC, and PSEG Services Corporation, attorneys; Paige Nestel, on the brief).
PER CURIAM
Plaintiff Newport Associates Development Company (Newport) appeals
from a January 6, 2025 final judgment dismissing its claims against defendant
Public Service Electric and Gas Company (PSE&G). We affirm.
I.
This action concerns two underground transmission lines operated by
PSE&G. The facts relevant to this dispute were established at trial, where the
trial judge heard testimony from seven witnesses and considered numerous
documents admitted into evidence.
On April 29, 1971, pursuant to a license agreement (1971 License
Agreement), PSE&G installed an underground transmission line (B Line) under
535 Monmouth Street, a/k/a 354 10th Street in Jersey City (Premises), owned
A-1588-24 2 by Erie Lackawanna Company (Erie). 1 Erie conveyed the Premises to
Consolidated Rail Corporation (Conrail) in March 1976.
On June 5, 1980, PSE&G and Conrail signed a license agreement (1980
License Agreement) that allowed PSE&G to install a second underground
transmission line (C Line) and continue maintaining the existing B Line. Under
that agreement, PSE&G paid Conrail $300,000 as full consideration for the
irrevocable right to continue maintenance of the B Line and the construction of
the C Line. The 1980 License Agreement was a standard form license used by
Conrail, and it canceled and superseded the 1971 License Agreement. Notably,
the agreement: (1) removed any reference to the arrangement as temporary; (2)
specified only three means of termination—removal or abandonment of the
cables by PSE&G, mutual consent of the parties, or by a violation of any of the
terms, covenants, and conditions; (3) was binding on the parties and their
successors and assigns; and (4) did not include the word revocable.
In November 1982, Conrail conveyed the Premises to Harbour City
Development Company (HCDC). The deed expressly stated the conveyance was
subject "to (1) any easements or agreements of record or otherwise affecting the
1 The 1971 License Agreement lists Penn Central Transportation Company and PSE&G as the parties; however, the record identifies Erie as the rail company. A-1588-24 3 land hereby conveyed; and (2) the state of facts disclosed by a survey made by
Geod Survey & Ariel Mapping Corporation, dated August 1982 and revised
October 19, 1982, October 29, 1982[,] and November 15, 1982" (the Geod
survey). The Geod survey included a map showing an "underground cable"
running approximately parallel to the property line, but did not specify the cable
as a transmission cable or it was operated by PSE&G. The deed made no
reference to the 1980 License Agreement. A revocable license agreement was
also recorded, which allowed Conrail to use the surface license area solely for
rail transportation to and from storage, and to perform necessary work on the
property to maintain the tracks.
On January 31, 1984, HCDC conveyed the Premises to Newport City
Development Corporation (NCDC), which later changed its name to Newport in
1986. The record shows NCDC and Newport are the same entity.
In 2017, Newport discovered the lines while conducting a survey in
preparation for a plan to develop the Premises with a multi-family apartment
building. In February 2018, Newport requested from PSE&G "any information
or records on this [lin]e," noting "[w]e cannot find any easements on record."
The email attached excerpts from the Geod survey and photos of the
aboveground red markers—tall, red poles, used to inform third parties and
A-1588-24 4 property owners of the existence of the lines. In response, PSE&G confirmed
the presence of transmission lines and attached a copy of the 1971 License
Agreement and several other documents.
In June 2021, Newport filed an action against PSE&G, seeking a
declaratory judgment challenging the transmission lines on the Premises.
Approximately a year later, Newport applied to the Jersey City Planning Board
to develop the Premises into a 246-unit residential building, which included a
driveway over the underground transmission lines. The Planning Board
approved the application on August 23, 2022.
In February 2023, Newport filed an amended complaint seeking a
declaratory judgment the easement does not encumber the premises: (1) because
Conrail had no rights to convey; and (2) the easement violates the statute of
frauds. Newport also asserted, in the alternative, PSE&G violated the easement,
sought specific performance, and a declaratory judgment voiding the easement
due to a material breach by PSE&G, voiding the license, breach of contract, and
trespass. Shortly thereafter, in March, PSE&G filed a third-party complaint
against Conrail for indemnification and contribution. This third-party action
was resolved and dismissed on July 15, 2024.
A-1588-24 5 The bench trial was held over five non-consecutive days. After
thoroughly considering the testimony of the witnesses and reviewing the
documents admitted into evidence, the trial judge entered an order dismissing
Newport's complaint and denied PSE&G's counterclaim seeking the designation
of a prescriptive easement for the transmission lines. In a comprehensive
opinion, the judge detailed his findings of fact and conclusions of law, ultimately
determining PSE&G "has an irrevocable license to maintain the transmission
lines on the [P]remises." Both the order and accompanying opinion were filed
on January 6, 2025.
II.
Newport challenges the judge's determination the 1980 License
Agreement was irrevocable as it pertains to Newport, arguing the license was
revoked when Conrail conveyed the Premises to HCDC. It further contends the
judge erred by placing the burden of proof on it, even though PSE&G asserted
irrevocability as an affirmative defense.
"Our review of a judgment following a bench trial is limited."
Accounteks.Net, Inc. v. CKR L., LLP, 475 N.J. Super. 493, 503 (App. Div.
2023) (citing Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011)).
We apply "'a deferential standard'" when we "review a 'trial court's
A-1588-24 6 determinations, premised on the testimony of witnesses and written evidence at
a bench trial.'" Nelson v. Elizabeth Bd. of Educ., 466 N.J. Super. 325, 336 (App.
Div. 2021) (quoting D'Agostino v.
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-1588-24
NEWPORT ASSOCIATES DEVELOPMENT COMPANY,
Plaintiff-Appellant,
v.
PUBLIC SERVICE ELECTRIC AND GAS COMPANY,
Defendant/Third-Party Plaintiff-Respondent,
CONSOLIDATED RAIL CORPORATION,
Third-Party Defendant. _____________________________
Argued March 5, 2026 ‒ Decided May 12, 2026
Before Judges Mawla, Marczyk and Bishop-Thompson.
On appeal from the Superior Court of New Jersey, Chancery Division, Hudson County, Docket No. C-000081-21. Jonathan P. Vuotto argued the cause for appellant (McAndrew Vuotto, LLC, attorneys; Jonathan P. Vuotto, on the briefs).
Paige Nestel argued the cause for respondent (O'Toole Scrivo, LLC, and PSEG Services Corporation, attorneys; Paige Nestel, on the brief).
PER CURIAM
Plaintiff Newport Associates Development Company (Newport) appeals
from a January 6, 2025 final judgment dismissing its claims against defendant
Public Service Electric and Gas Company (PSE&G). We affirm.
I.
This action concerns two underground transmission lines operated by
PSE&G. The facts relevant to this dispute were established at trial, where the
trial judge heard testimony from seven witnesses and considered numerous
documents admitted into evidence.
On April 29, 1971, pursuant to a license agreement (1971 License
Agreement), PSE&G installed an underground transmission line (B Line) under
535 Monmouth Street, a/k/a 354 10th Street in Jersey City (Premises), owned
A-1588-24 2 by Erie Lackawanna Company (Erie). 1 Erie conveyed the Premises to
Consolidated Rail Corporation (Conrail) in March 1976.
On June 5, 1980, PSE&G and Conrail signed a license agreement (1980
License Agreement) that allowed PSE&G to install a second underground
transmission line (C Line) and continue maintaining the existing B Line. Under
that agreement, PSE&G paid Conrail $300,000 as full consideration for the
irrevocable right to continue maintenance of the B Line and the construction of
the C Line. The 1980 License Agreement was a standard form license used by
Conrail, and it canceled and superseded the 1971 License Agreement. Notably,
the agreement: (1) removed any reference to the arrangement as temporary; (2)
specified only three means of termination—removal or abandonment of the
cables by PSE&G, mutual consent of the parties, or by a violation of any of the
terms, covenants, and conditions; (3) was binding on the parties and their
successors and assigns; and (4) did not include the word revocable.
In November 1982, Conrail conveyed the Premises to Harbour City
Development Company (HCDC). The deed expressly stated the conveyance was
subject "to (1) any easements or agreements of record or otherwise affecting the
1 The 1971 License Agreement lists Penn Central Transportation Company and PSE&G as the parties; however, the record identifies Erie as the rail company. A-1588-24 3 land hereby conveyed; and (2) the state of facts disclosed by a survey made by
Geod Survey & Ariel Mapping Corporation, dated August 1982 and revised
October 19, 1982, October 29, 1982[,] and November 15, 1982" (the Geod
survey). The Geod survey included a map showing an "underground cable"
running approximately parallel to the property line, but did not specify the cable
as a transmission cable or it was operated by PSE&G. The deed made no
reference to the 1980 License Agreement. A revocable license agreement was
also recorded, which allowed Conrail to use the surface license area solely for
rail transportation to and from storage, and to perform necessary work on the
property to maintain the tracks.
On January 31, 1984, HCDC conveyed the Premises to Newport City
Development Corporation (NCDC), which later changed its name to Newport in
1986. The record shows NCDC and Newport are the same entity.
In 2017, Newport discovered the lines while conducting a survey in
preparation for a plan to develop the Premises with a multi-family apartment
building. In February 2018, Newport requested from PSE&G "any information
or records on this [lin]e," noting "[w]e cannot find any easements on record."
The email attached excerpts from the Geod survey and photos of the
aboveground red markers—tall, red poles, used to inform third parties and
A-1588-24 4 property owners of the existence of the lines. In response, PSE&G confirmed
the presence of transmission lines and attached a copy of the 1971 License
Agreement and several other documents.
In June 2021, Newport filed an action against PSE&G, seeking a
declaratory judgment challenging the transmission lines on the Premises.
Approximately a year later, Newport applied to the Jersey City Planning Board
to develop the Premises into a 246-unit residential building, which included a
driveway over the underground transmission lines. The Planning Board
approved the application on August 23, 2022.
In February 2023, Newport filed an amended complaint seeking a
declaratory judgment the easement does not encumber the premises: (1) because
Conrail had no rights to convey; and (2) the easement violates the statute of
frauds. Newport also asserted, in the alternative, PSE&G violated the easement,
sought specific performance, and a declaratory judgment voiding the easement
due to a material breach by PSE&G, voiding the license, breach of contract, and
trespass. Shortly thereafter, in March, PSE&G filed a third-party complaint
against Conrail for indemnification and contribution. This third-party action
was resolved and dismissed on July 15, 2024.
A-1588-24 5 The bench trial was held over five non-consecutive days. After
thoroughly considering the testimony of the witnesses and reviewing the
documents admitted into evidence, the trial judge entered an order dismissing
Newport's complaint and denied PSE&G's counterclaim seeking the designation
of a prescriptive easement for the transmission lines. In a comprehensive
opinion, the judge detailed his findings of fact and conclusions of law, ultimately
determining PSE&G "has an irrevocable license to maintain the transmission
lines on the [P]remises." Both the order and accompanying opinion were filed
on January 6, 2025.
II.
Newport challenges the judge's determination the 1980 License
Agreement was irrevocable as it pertains to Newport, arguing the license was
revoked when Conrail conveyed the Premises to HCDC. It further contends the
judge erred by placing the burden of proof on it, even though PSE&G asserted
irrevocability as an affirmative defense.
"Our review of a judgment following a bench trial is limited."
Accounteks.Net, Inc. v. CKR L., LLP, 475 N.J. Super. 493, 503 (App. Div.
2023) (citing Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011)).
We apply "'a deferential standard'" when we "review a 'trial court's
A-1588-24 6 determinations, premised on the testimony of witnesses and written evidence at
a bench trial.'" Nelson v. Elizabeth Bd. of Educ., 466 N.J. Super. 325, 336 (App.
Div. 2021) (quoting D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013)).
Factual 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." Griepenburg v. Twp. of Ocean, 220 N.J.
239, 254 (2015) (quoting Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65
N.J. 474, 484 (1974)). However, we review de novo the trial "court's
interpretation of the law and the legal consequences that flow from established
facts." Accounteks.Net, Inc., 475 N.J. Super. at 503-04 (quoting Manalapan
Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
We likewise defer to the credibility determinations made by a judge after
a bench trial. Balducci v. Cige, 240 N.J. 574, 594-95 (2020). We "give
deference to the trial court that heard the witnesses, sifted the competing
evidence, and made reasoned conclusions." Griepenburg, 220 N.J. at 254.
Applying these principles, we conclude there is no reason to disturb the
trial judge's ruling, which is supported by substantial credible evidence in the
record. We therefore affirm substantially for the reasons expressed in the trial
court's written opinion and add the following comments.
A-1588-24 7 "[A] license is an agreement that only gives permission to use the land at
the owner's discretion." Van Horn v. Harmony Sand & Gravel, Inc., 442 N.J.
Super. 333, 341 (App. Div 2015). "A license is simply a personal privilege to
use the land of another in some specific way or for some particular purpose or
act." Twp. of Sandyston v. Angerman, 134 N.J. Super. 448, 451 (App. Div.
1975). A license is limited in scope by the granting agreement. Van Horn, 442
N.J. Super. at 341.
A license is generally subject to revocation "by a conveyance of the land
upon which it was intended to operate." Kiernan v. Kara, 7 N.J. Super. 600, 603
(Ch. Div. 1950). However, a license "becomes irrevocable if the licensee
expends substantial sums of money pursuing the privilege while the licensor
acquiesces to the expenditures, or if permitting revocation would permit the
licensor to practice a fraud on the licensee." Van Horn, 442 N.J. Super. at 342;
see Moore v. Schultz, 22 N.J. Super. 24, 29 (App. Div. 1952).
The express language of the 1980 License Agreement intended to confer
the benefit of the underground transmission lines to PSE&G and its successors
and assigns. This agreement does not connote an intention the construction and
maintenance of the B and C lines is temporary.
A-1588-24 8 We reject Newport's contention the mere payment of consideration, even
if substantial, renders a license revocable. Newport's reliance on River
Development Corp. v. Liberty Corp. 51 N.J. Super. 447 (App. Div. 1958) is
misplaced. In River Development Corp., the licensee paid consideration but
failed to exercise the granted rights for many decades. 51 N.J. Super. at 453 -
54, 472-73. In contrast, PSE&G not only paid consideration but also exercised
the rights granted by constructing and maintaining the transmission lines.
Moore, 22 N.J. Super. at 29.
Notwithstanding the express terms of the 1980 License Agreement,
Newport contends the license was revoked upon conveyance of the Premises by
Conrail to HCDC, relying on Chancery Division cases. However, Newport's
argument is belied by the record. The subsequent transfers from HCDC to
NCDC to Newport were not true conveyances, as these entities are, in effect, the
same. Accordingly, Newport remains bound by the terms of the 1980 License
Agreement.
We are not persuaded by Newport's argument the judge improperly shifted
the burden of proof from PSE&G. The two cases relied upon by Newport are
inapposite to this matter. Italian Fisherman, Inc. v. Commercial Union
Assurance Co., addresses the affirmative defenses of arson, fraud, and false
A-1588-24 9 swearing. 215 N.J. Super. 278, 282 (App. Div. 1987). While F.K. v. Integrity
House, Inc. focuses on charitable immunity as an affirmative defense. 460 N.J.
Super. 105, 116 (App. Div. 2019).
The trial court properly required Newport to prove its claim the 1980
License Agreement was revocable. See Biunno, Weissbard & Zegas, Current
N.J. Rules of Evidence, cmt. 2 on N.J.R.E. 101(b)(1) (2025-2026). The record
establishes Newport did not meet its burden to prove the agreement had been
revoked or breached.
Moreover, the question of whether the 1980 License Agreement was
irrevocable was one of fact, compelling an analysis of credibility. We therefore
defer to the credibility determinations:
The inconsistencies presented by [Newport's general counsel]'s foundational testimony and compounded by that of [Newport]'s own valuation expert that it would not only be able to construct the building as permitted by Jersey City, but increase the unit size substantially, deprecate[d] the credibility of [Newport]'s overall litigation position as to all its causes of action presented and [wa]s detrimental to [Newport]'s ability to meet its burden of proof.
The judge's credibility determinations are supported by the record.
Having reviewed the record, and applying our deferential standard of
review, we are satisfied Newport failed to establish the 1980 License Agreement
A-1588-24 10 was not irrevocable. We discern no abuse of discretion in the judge's dismissal
of Newport's complaint. Accordingly, the judge properly entered judgment in
favor of PSE&G and dismissed Newport's complaint.
III.
Finally, Newport argues for the first time on appeal the court erred in its
application of the law, claiming its lack of notice of the license protects it as a
bona fide purchaser of the Premises. We do not consider issues that were not
properly raised before the trial judge, unless the court's jurisdiction is at stake
or the issue of great public importance. Nieder v. Royal Indem. Ins. Co., 62 N.J.
229, 234 (1973). This issue does not implicate either the court's jurisdiction or
a matter of public importance.
Affirmed.
A-1588-24 11