Daily Development for Tuesday, March 29, 2005
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
dirt@umkc.edu

EASEMENTS ; CREATION; PRESCRIPTION: New Jersey court holds that statute of limitations for prescriptive easement may be as long as sixty years, and never less than thirty years.

Randolph Town Center, L.P. v. County of Morris, 864 A. 2d 1191 (N.J. Super. 2005)

Landowner sued the County because it drained water through a culvert under a local road onto its property, turning the property into a wetland and thus rendering it virtually undevelopable under current development standards.  County defended on the grounds that it had obtained a prescriptive easement to flood the property by continuous operation of the culvert for over twenty years.

Landowner responded that the New Jersey Supreme Court had recently determined that the adverse possession period in that state in fact was thirty years, or in the case of undeveloped land, sixty years.  J & M Land v. First Union Nat’l Bank, 766 A. 2d 1110, 2001 N.J. LEXIS 176 (2001) (the DIRT DD for 3/21/01).

In J&M the court refuted a belief in some quarters that the proper measuring period of adverse possession in New Jersey was twenty years, and clarified the meaning of two statutes setting two different periods of 30 years and 60 years by concluding that the 60 year period applied only to “uncultivated land.”   The L&M court stated in dicta that the same measuring periods probably ought to apply to prescriptive easement claims, as they do in other common law jurisdictions where there is no separate prescriptive easement statute, but found on the facts of the case before it that the use in question was a possessory use, and not a mere easement use.  The court here adopts that dictum as law and remands for a determination of whether the county could meet the applicable measuring period, since the trial court had applied only a twenty year period.

In commenting on  J&M, the editor stated that the defining the concept of “uncultivated land” in  modern America is somewhat problematic, and this case proves the point.  In remanding, the court noted that there was some evidence of the ruins of some old buildings on the land, which would have meant that the land would qualify for the thirty year statute.

Comment 1: The lawyer in this case was in fact the landowner - Lawrence S. Berger - who also is a land developer and, I am told,  was a principal in the MetLife cases decided a few years ago (and reported on DIRT), which clarified a lot of law in New Jersey concerning late fees, default interest and other mortgages issues. I am told that Larry acquired this property in a sheriff’s sale back in the 1960's, and now may have struck some gold.  We’ll see.

Comment 2: The question of whether the same limitations period ought to apply to prescriptive easement cases as to adverse possession cases is answered variously when legislatures get hold of it.  The editor is aware that Florida and California, among others, have quite distinct approaches to prescriptive easements and adverse possession.  In some jurisdictions prescriptive easements take longer than for adverse possession, but in others the time is less.

Items reported here and in the ABA publications
are for general information purposes only and
should not be relied upon in the course of
representation or in the forming of decisions in
legal matters.  The same is true of all
commentary provided by contributors to the DIRT
list.  Accuracy of data and opinions expressed
are the sole responsibility of the DIRT editor
and are in no sense the publication of the ABA.

Parties posting messages to DIRT are posting to a
source that is readily accessible by members of
the general public, and should take that fact
into account in evaluating confidentiality
issues.

ABOUT DIRT:

DIRT is an internet discussion group for serious
real estate professionals. Message volume varies,
but commonly runs 5  15 messages per work day.

Daily Developments are posted every work day.  To
subscribe, send the message

subscribe Dirt [your name]

to

listserv@listserv.umkc.edu

To cancel your subscription, send the message
signoff DIRT to the address:

listserv@listserv.umkc.edu

for information on other commands, send the message
Help to the listserv address.

DIRT has an alternate, more extensive coverage that includes not only
commercial and general real estate matters but also focuses specifically upon
residential real estate matters.  Because real estate brokers generally find
this service more valuable, it is named “BrokerDIRT.”  But residential
specialist attorneys, title insurers, lenders and others interested in the
residential market will want to subscribe to this alternative list.  If you
subscribe to BrokerDIRT, it is not necessary also to subscribe to DIRT, as
BrokerDIRT carries all DIRT traffic in addition to the residential discussions.

To subscribe to BrokerDIRT, send the message

subscribe BrokerDIRT [your name]

to

listserv@listserv.umkc.edu

To cancel your subscription to BrokerDIRT, send the message
signoff BrokerDIRT to the address:

listserv@listserv.umkc.edu

DIRT is a service of the American Bar Association
Section on Real Property, Probate & Trust Law and
the University of Missouri, Kansas City, School
of Law.  Daily Developments are copyrighted by
Patrick A. Randolph, Jr., Professor of Law, UMKC
School of Law, but Professor Randolph grants
permission for copying or distribution of Daily
Developments for educational purposes, including
professional continuing education, provided that
no charge is imposed for such distribution and
that appropriate credit is given to Professor
Randolph, DIRT, and its sponsors.

DIRT has a WebPage at:
http://cctr.umkc.edu/dept/dirt/

*************************************

Your e-mail address will only be used within the ABA and its entities. We do not sell or rent e-mail addresses to anyone outside the ABA.

To change your e-mail address or remove your name from any future general distribution e-mails you can call us at 1-800-285-2221, or write to: American Bar Association, Service Center, 321 N Clark Street, Floor 16, Chicago, IL 60610

If you are an ABA member, log in to the ABA Web site at http://www.abanet.org/abanet/common/MyABA/home.cfm to edit your member profile. Otherwise, complete the form located at https://www.abanet.org/members/join/coa2.html

To review our privacy statement, go to http://www.abanet.org/privacy_statement.html.

If you have any problems, please contact the list owner at
dirt-dd-request@mail.abanet.org.