at 229-233. Id. They suffered no wrong that would justify granting relief to them in the form of an easement. Relying once again on Mannillo, the judge granted respondents the easement covering the encroachment. at 737 (ordering defendant to convey fee to plaintiff over portion of land on which plaintiff built four-story building). Gleek was unconcerned with where the Yorks paved, as long as the bushes were not harmed. The properties were separated by azalea bushes, which Gleek treated as the boundary line. She did not obtain a new title survey, relying instead on Gleek's title survey. These sheds shall be placed on a bed of gravel not less than four inches in depth or have other frost protected design. In Riggle, the plaintiffs partially erected a house on the defendant's property. 736, 738-39 (E. & A. Take time to lay out the fence carefully. Respondents continued using the driveway and did not inform the then-owner of 22 Forest Avenue, Stephanie Williams, of the encroachment. However, the judge also found that the resulting narrowing of the driveway by the erection of the fence constituted a hardship to respondents.
See Mannillo, supra, 54 N.J. at 382; Riggle, supra, 9 N.J. Super. 9 N.J. Super. Ibid. Check for easements in your deed. All sheds must be anchored at all four corners. Div.
Instead of negotiating with Williams for an easement or license to render their use legal, respondents continued using the driveway and eventually made improvements. Check local zoning laws and neighborhood association rules, which may regulate the size and placement of your fence. 1885), the judge enjoined the plaintiff from trespassing on the defendant's property because the cost to remove the encroaching section of the plaintiff's house from the defendant's property was minimal.
The repaved driveway was 11.2 feet wide at its narrowest point, increasing the encroachment to about three feet, plus the Belgian block curbstone. You'd be constricted on one side by the fence and on the other side by the building." Apply for the proper building permit as directed by local code. Appellants Edwin and Lydia Rodriguez challenge that portion of a September 8, 2008 Chancery Division order which granted an easement interest over their property, and limited their right to install a fence. Here, the appellants' predecessors in title did not know that the Yorks and respondents made improvements to the driveway that resulted in an encroachment. By contrast, in Kirchner v. Miller, 39 N.J. Eq.
The judge found that respondents would suffer hardship only because removing the encroachment would have resulted in a driveway that is impractical and unsafe. We agree. Their expert, Michael Junghans, opined that the driveway would have to be at least 11.2 feet wide to be safe and functional. Although a September 1984 survey shows a 2.2 foot encroachment, and a July 1997 survey, a 2-foot encroachment, respondents were not aware of these earlier surveys before purchasing the property. Pour 5 in. It is considered dimensionally stable if it is provided with a floor system tied to the walls of the structure. This isn’t an issue with metal … It is not clear whether Mannillo is adequate authority to grant an easement to a trespasser who failed to prove the elements of adverse possession. They later discovered from a topographical survey dated August 29, 1997, that their existing driveway encroached on 22 Forest Avenue.
435, 445 (App. A party acting under a mistake of law or fact may seek relief in equity under three theories: "(1) the equitable maxim that he who seeks equity must do equity; (2) unjust enrichment; and (3) estoppel." We reverse. Backfill each hole with 6 inches of gravel to drain water away from the bottom of the post. Without such a mistake, the plaintiffs were not unjustly enriched by retaining the benefits of the defendant's labor. Therefore, respondents' hardship does not flow from removing the encroachment, but from appellants' erection of a fence. at 360. 368, 370 (E. & A.
That's why measuring is a must. Final BUILDING INSPECTION is required for sheds and fences. An incorrect measurement could result in problems. Relying on Mannillo v. Gorski, 54 N.J. 378 (1969), the judge found that the encroachment was "minor," which as a matter of law required respondents to show that appellants had actual knowledge of the encroachment to satisfy open and notorious use. Cutting the rails themselves isn't difficult. . Francis B. Sheehan argued the cause for appellants (Beattie Padovano, attorneys; Mr. Sheehan, of counsel and on the brief). We agree that the vacation of the "judgment granting the easement will perforce result in [their] property interest being restored and quiet title being awarded." .
Install the end posts first. Fill the holes with soil and tamp to firm. Using a post hole digger or power auger, dig the holes 10 inches to 12 inches wide and 6 inches deeper than needed. However, a judge's "interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Put a shorter section at each end to preserve the symmetry of the fence. Id. The most common materials are pine and cedar. at 594. Pending trial, the judge enjoined the appellants from building the fence. Leach, supra, 218 N.J. Super at 24. Div. Douglas and Milford York owned 26 Forest Avenue from 1973 to 1984. See http://www.nj.gov/dca/divisions/codes/codreg/ucc.html – 5:23-9.9 for full text. Split-rail fencing is an adaptation of the zigzagging, early American wood fences. 115, 117-18 (Ch. This appeal stems from a boundary dispute between adjoining property owners. ; Twp. In 1975, the Yorks informed Albert Gleek, the then-owner of 22 Forest Avenue, that they intended to pave their gravel driveway.
This proposed fence would reduce a thirty-foot length of respondents' driveway to a width of 8.6 feet. For most projects, size will make a difference. We are mindful that, even in a court of equity, the process of establishing interests in land is governed by real property law rather than amorphous concepts or considerations. Check each post to make sure it's plumb using a post level. Applying this rule to easements, it may be difficult to establish "hardship." 372, 380-81 (Ch. C-121-07. On appeal from the Superior Court of New Jersey, Chancery Division, Union County, Docket No. When buying fencing, make sure the components and wood finishes match. Junghans further explained that respondents' vehicle requires "a certain amount of room to be able to navigate without either hitting the house or hitting the fence," and an "8.6 feet driveway would not allow you enough room to get out of the car. For a fence, it’s imperative to start with posts that are arrow-straight. Some gravel comes mixed with sand to make it finer, while other gravel is made of crushed rock. Sheds require a permit from the Zoning Office. Posts and Rails It is unlikely that a trespasser's limited use of property would be so entrenched as to render the trespass too expensive or impractical to eliminate. Therefore, respondents sued to enjoin the erection of the fence, claiming adverse possession or a prescriptive easement over the encroaching strip of land. If your fence requires a permit, the depth may be specified there. But see Billerman v. Basiak, 47 N.J. 226, 228-29 (1966) (granting plaintiffs an easement to use a permanent well because discontinuing use would have resulted in hardship to the plaintiffs). Before you start a fencing project, a few preliminary steps are in order: Before beginning any excavation, call 811 to check for underground utilities. Yields will vary based upon waste, uneven subgrade, compaction, etc. Remember to take any gates or openings into account at this stage.
In addition to offering evidence of adverse use, respondents presented evidence that their driveway would be rendered unsafe if appellants were permitted to erect the fence. Co. v. McQuillan, 94 N.J. Eq. 7 out of 7 found this answer helpful. 1987), an easement is an "encumbrance" rather than an "encroachment." In Szymczak, we reversed an injunction ordering the removal of the plaintiffs' house from nineteen feet of the defendant's property. Link to Lowe's Home Improvement Home Page, Step 3: Set the Posts and Insert the Rails. Because equitable remedies require the court to balance the equities and fashion a remedy, such decisions will be reversed only for an abuse of discretion. Remember to take the overlap of the rails into account. Accordingly, hardship results from the expense and difficulty of removing an encroachment, and not by the resultant condition of the trespasser's own property. The court explained that a trespasser does not suffer hardship when he or she has expended little money on the owner's property. In 1975, the Yorks informed Albert Gleek, the then-owner of 22 Forest Avenue, that they intended to pave their gravel driveway. Make the gate(s) or opening wider or narrower. of gravel in the hole around the posts and tamp it down. Unlike Szymczak, respondents encroached only a few feet; were aware of the encroachment; did not rely on an incorrect survey; and did not make substantial improvements to the land. A year later, respondents repaved the driveway adding Belgian block curbstone. To establish title by adverse possession, a possessor must prove by a preponderance of the evidence that her use of the true owner's property was exclusive, continuous, uninterrupted, open and notorious for the statutory period. About one year later, respondents filed this lawsuit, asserting that they had acquired title to the encroachment by adverse possession or an easement by prescription. Consequently, she did not know about the encroachment.