                                NOT FOR PUBLICATION WITHOUT THE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-3033-16T4

120 MINUE STREET, LLC,

           Plaintiff-Respondent,

v.

110 MINUE STREET, LLC, and
HAMPSHIRE REAL ESTATE
COMPANIES,

           Defendants/Third-Party
           Plaintiffs-Appellants,

v.

AMQUIP CORPORATION,

           Third-Party Defendant,

and

SBA TOWERS V, LLC,

           Third-Party Defendant-
           Respondent.


                    Argued September 13, 2018 – Decided November 29, 2018
            Before Judges Alvarez, Nugent, and Reisner.

            On appeal from Superior Court of New Jersey,
            Chancery Division, Middlesex County, Docket No.
            C-000218-15.

            David O. Marcus argued the cause for appellants
            (Shapiro, Croland, Reiser, Apfel & Di Iorio, LLP,
            attorneys; Robert P. Shapiro and David O. Marcus, of
            counsel and on the brief).

            Michael E. Holzapfel argued the cause for respondent
            120 Minue Street (Becker LLC, attorneys; Michael E.
            Holzapfel, on the brief).

            Richard C. Bryan argued the cause for respondent SBA
            Towers V, LLC (Cipriani & Werner, PC, attorneys;
            Richard C. Bryan, on the brief).

PER CURIAM

      Defendants 110 Minue Street, LLC, and Hampshire Real Estate

Companies, appeal the January 23, 2017 grant of summary judgment to plaintiff

120 Minue Street, LLC. The claims against third-party defendant SBA Towers

V, LLC, were also dismissed, as were defendants' counterclaims and cross -

motions for summary judgment. We affirm for the reasons stated in Judge Frank

M. Ciuffani's cogent and thorough written decision.

      By way of background, in 1991 Bagcraft Corporation subdivided a several

acre parcel into two lots, identified on the Borough of Carteret's tax map as Lots

1.01 and 1.02. Lot 1.02, although it has 165 feet of frontage on Minue Street,

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                                        2
has no direct access to any road. The frontage consists of a seven to twelve-foot

slope transversed by several key utility lines and cables, including a thirty-inch

high pressure natural gas pipe. In 1994, Bagcraft sold Lot 1.01 to Florence Paper

Corporation reserving a thirty-foot easement across Lot 1.01 for street access

for Lot 1.02. The contract described the easement as "temporary," however, the

relevant language included the following:

            In the event [Bagcraft] is unable to obtain access to [Lot
            1.02] through other reasonable means at reasonable
            expense, [Bagcraft] shall have the right to cause the
            Easement to become permanent by filing the of an
            election with the Middlesex County Recorder . . . and
            [Bagcraft] shall, at its sole expense, construct on the
            south side of the existing building located on the Land,
            a number of parking spaces equal to the number of
            parking spaces consumed by the permanent Easement.
            . . . Upon [Bagcraft's] election to make the Easement
            permanent, [Bagcraft] or its assigns shall, at its sole
            expense, maintain the Easement . . . . Such Easement
            shall terminate . . . . At [Bagcraft's] option, the
            Easement shall be filed with the Office of the Recorder
            of Deeds, County of Middlesex, N.J. at any time
            following the execution of this Contract upon
            determination by [Bagcraft] that the Easement shall
            become permanent, and shall run with the Land.

      In the "Easement Agreement" attached to the contract as an exhibit, the

parties stated the easement was granted by Florence, the buyer, and that Florence

intended to convey to Bagcraft "an easement appurtenant, a perpetual right-of-

way . . . solely for purposes of ingress and egress to and from the land of Grantee

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                                        3
('Lot 1.02') over and across the easterly portion of land of the Grantor ('Lot

1.01')[.]"

      The 1994 easement agreement included a provision that Bagcraft assume

responsibility for keeping the easement in good repair, plowing snow, and

maintaining adequate lighting. Additionally, Bagcraft also promised to pay 3%

of the annual property tax bill for Lot 1.01 as consideration for the use of the

easement. The agreement stated that the easement would "run with the land and

[is] binding upon and enure[s] to the heirs[,] assigns, successors, tenants and

personal representative of the parties[.]"

      Florence's principals formed a limited liability company, 10 Minue Street,

LLC, in order to acquire Lot 1.01. On December 8, 1994, 10 Minue Street, LLC

took title to Lot 1.01 by way of deed.

      Approximately three years later, Bagcraft entered into a contract with

AmQuip for the sale of Lot 1.02. At the closing of that transaction, AmQuip

assigned all the rights, title and interest to Joseph and Marion Wesley, who took

title individually. They leased Lot 1.02 to AmQuip for the next thirteen years.

On March 4, 2011, Joseph conveyed his interest in the property to Marion by

way of deed. Shortly thereafter, Marion conveyed title to plaintiff, 120 Minue

Street, LLC, by way of deed.


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                                         4
      Some additional discussion of the sale to AmQuip is necessary. The

contract between Bagcraft and AmQuip included a section making the sale

contingent upon AmQuip obtaining approval from the county for access from

Minue Street. The relevant language declared that if AmQuip did not notify

Bagcraft within a sixty-day period of problems with obtaining approval,

rescission was waived.

      AmQuip applied for Carteret Zoning Board of Adjustment (Board)

approval for the construction of a commercial facility and communications

tower.   A site plan was prepared by AmQuip's engineer depicting the

construction of a curb cut and driveway for direct access to Minue Street. The

plan also depicted the easement as an optional access point. The Board engineer

inquired whether AmQuip had an actual easement over Lot 1.01 in the event that

the gas main could not be relocated. AmQuip's engineer responded that AmQuip

anticipated utilizing the current easement until the gas main was lowered.

Development of the project was approved.

      Because of the expense of cutting through the slope and addressing the

multiple utility lines running through that area, however, AmQuip notified

Florence that it wished to perfect permanent access rights by making

improvements as contemplated in the easement agreement. When the Board


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                                      5
engineer later met with AmQuip representatives, he advised that he believed

permanent use of the easement would require an amended site plan approval —

a conclusion with which AmQuip's representative disagreed. The AmQuip

representative believed that since the easement was on the original plan, so long

as Florence signed off, there was no need for an additional submission to the

Board.

      On December 8, 1998, counsel for 10 Minue Street, LLC, by now the

owner of Lot 1.01, and Florence, acknowledged the existence of the easement

across Lot 1.01 and AmQuip's right to make the easement permanent. He

notified AmQuip's counsel in writing that 10 Minue approved AmQuip's

permanent use of the easement as per the easement agreement. Florence's

representative advised the Board engineer that he had approved the proposed

easement, including the construction of a new parking area on the north side of

the building on Lot 1.01 to replace parking spaces lost due to the use of the

easement.

      AmQuip     submitted    revised   site   plan   drawings   reflecting   the

improvements made to Lot 1.01 so it could permanently use the easement. On

that same day, copies of the plans were forwarded to the Board's engineer and




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                                        6
the revisions were filed with the Freehold Soil Conservation District. The

improvements were made by AmQuip over the next few months.

      By June 1999, when AmQuip opened its crane facility on the premises, all

the improvements were in place. In March 2000, once the communication tower

was complete, Wesley leased the antenna space to various wireless carriers. The

leasing was conducted with the assistance of Network Management Ltd.,

(Network), and Wesley and Network entered into and recorded an easement

agreement to allow Network to use the easement across Lot 1.01.

      The crane business remains on Lot 1.02, and the communication tower

site also located there is currently leased. Police and fire personnel use and

maintain facilities on the tower site.

      In 2009, Florence closed the warehouse on Lot 1.01, and 10 Minue Street

sold the property to defendant Hampshire, who then assigned the agreement to

110 Minue Street, LLC. 10 Minue Street did not execute an affidavit of title

stating that it had sole right of possession during the sale. Hampshire, during

the course of the transaction, visited the site, obtained aerial and land

photographs, and reviewed at least three surveys between August and September

2012. Each survey noted that the driveway was "actively being utilized by the

adjacent premises for access."


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                                         7
      The initial title search did not reflect easements or restrictions of record ,

however, the title insurance agency informed Hampshire it would not insu re

easements not shown on public records. The company had access to the prior

title insurance policy issued to 10 Minue Street, LLC, which expressly did not

insure against "loss or damages, costs, attorney's fees or expenses that arise by

reason of" the driveway across Lot 1.01.

      On December 13, 2012, 10 Minue Street deeded lot 1.01 to 110 Minue

Street, LLC. The deed included standard language that the transfer was subject

to existing easements and "the state of facts that would be shown on a current,

accurate survey[.]"

      On January 16, 2013, counsel for 110 Minue Street requested that 120

Minue Street explain the legal basis for its use of the driveway. Counsel

exchanged correspondence until 110 Minue Street demanded 120 Minue Street

and its tenants cease using the driveway. Accordingly, 120 Minue Street filed

the within complaint seeking enforcement of its easement rights. 120 Minue

Street alleges that each owner in its chain of title has fulfilled its responsibilities,

including payment by the owner of Lot 1.02 of three percent of the annual

property tax on Lot 1.01.

      By way of points on appeal, defendants contend:


                                                                                A-3033-16T4
                                           8
I.     The Trial Court Erred in Finding that Respondent
       Possesses an Easement in Perpetuity Entitling it
       to Use the Driveway of Appellant to Access
       Respondent's Property.

       A.    No Factual Support for Permanent
             Easement By Grant or Reservation.

       B.    Evidence of Effective Zoning Approval of
             a Permanent Easement is Lacking.

       C.    A Finding of Intent to Grant or Reserve An
             Easement Over Lot 1.01 to Benefit 1.02 is
             Unsupported.

II.    Whether or Not Appellant is Entitled to
       Protection As a Bona Fide Purchaser Does Not
       Alter the Fact That No Easement in Favor of
       Respondent Exists. Notwithstanding, Appellant
       is a Bona Fide Purchaser Which Acquired Title
       Free and Clear of the Purported Interest or
       Existence of an Easement for the Permanent Use
       of the Driveway.

III.   At a Minimum, The Case Should Be Remanded
       for a Plenary Hearing to Resolve Disputed
       Factual Issues As to Whether or not a Permanent
       Easement Exists.

IV.    On Remand, The Trial Court Should Establish a
       Date By Which Plaintiff/Respondent and Third
       Party Defendants Should be Directed to
       Relinquish Possession Of the Appellant's
       Property and Establish the Compensation Due
       Appellant for the Continued Use from January,
       2013 Through the Date of Vacation.



                                                          A-3033-16T4
                           9
      As the trial court found, defendants were well aware of the existence of

the driveway at the time of purchase. The driveway serves as 120 Minue's only

means of ingress and egress, and the AmQuip sign is permanently displayed at

the driveway entrance.     Defendants' surveyor noted the active use of the

driveway on multiple occasions prior to closing. Defendants' title commitment

and insurance policy specifically excluded this active use from coverage. This

was thoroughly discussed prior to closing. Defendants were familiar with the

history of the properties and the creation and use of the easement.

      The judge observed that:

            under these circumstances, a reasonably prudent
            contract purchaser acting in good faith had a duty to go
            beyond a conventional title search by, for example,
            making a direct inquiry of AmQuip or performing an
            expanded name search for Bagcraft (a record owner of
            the 110 parcel) or Florence. Defendants do not dispute
            that doing either of these extremely basic things would
            have led to the discovery of the recorded Bagcraft-
            Florence contract.

      Judge Ciuffani further addressed defendants' argument that even if they

had engaged in such inquiries, they would have been meaningless because no

actual easement existed, and the use was nothing more than a license. The judge

opined that even if that were the case, when a "licensee expends substantial sums

of money in pursuance of the privilege [ ] which the Wesley Interest did, having


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                                      10
expended several hundred thousand dollars in improving the 110 Parcel, and

such expenditures are made with the acquiescence of the licensor (also present

here), the license is regarded as executed and, as such, irrevocable." Where a

license is irrevocable, it is essentially an easement where the use is of that type.

      Accordingly, the court held:

                  The Court finds that the record does not support
            a finding that the property interest Plaintiff claims for
            its benefit is a revocable license as opposed to an
            easement. The intent of Bagcraft and Florence to create
            an easement appurtenant for the benefit of themselves
            and their successors and assigns (of which 10 Minue
            Street LLC, 110 Minue Street LLC, Plaintiff and the
            Wesleys all plainly qualify) is reflected in countless
            documents — not just the integrated Bagcraft-Florence
            Contract and Easement Agreement, but in multiple
            confirming letters exchanged between AmQuip, the
            [owners of Florence], and their respective attorneys
            thereafter.

      The judge's findings are entirely supported by the record.          We thus

conclude that defendants' points are so lacking in merit as to not warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E). Even viewing the facts in

the light most favorable to defendants, it is clear that an easement appurtenant

was created by Bagcraft and Florence for their benefit, and the benefit of their

successors and assigns. There are no material facts in dispute. Although we




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                                        11
review Judge Ciuffani's legal conclusions de novo, they too are entirely

supported by applicable law.

     Affirmed.




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                                  12
