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
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.
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