                     NOT FOR PUBLICATION WITHOUT THE
                    APPROVAL OF THE APPELATE 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-5469-15T2

1701 E. MAIN, LLC,

           Plaintiff-Appellant,

     v.

WAWA, INC.,

          Defendant-Respondent.
_______________________________________

           Argued September 19, 2017 – Decided October 11, 2017

           Before Judges Fisher and Moynihan.

           On appeal from the Superior Court of New
           Jersey, Law Division, Cumberland County,
           Docket No. L-0895-14.

           William F. Ziegler argued the cause for
           appellant (Holston, MacDonald, Uzdavinis,
           Ziegler & Myles, PA, attorneys; Mr. Ziegler,
           on the briefs).

           Erin P. Loucks argued the cause for respondent
           (Shook, Hardy & Bacon, LLP, attorneys; Joseph
           H. Blum and Ms. Loucks, on the brief).

PER CURIAM

     Plaintiff 1701 E. Main, LLC, appeals a summary judgment that

declared   an   alleged    cross-easement      between    its   property        and
defendant         Wawa,   Inc.'s    adjoining       property      "terminated          by

estoppel."        Because    the   underlying       circumstances        were     fact-

sensitive and clouded by the passage of time, and because Brill1

requires      that    1701   be    given   the     benefit   of    all    reasonable

inferences, we reverse.

       The circumstances are uncomplicated but also uncertain. 1701

is the owner of a nearly square lot at the corner of Wade Boulevard

and East Main Street2 in Millville. 1701's property is adjoined by

Wawa's much larger lot. If the reader pictures the entire area as

a window with four panes, 1701 owns the pane in the upper left-

hand corner, and Wawa the other three, as depicted in the map

taken from the record and appended at the end of this opinion.

       In 1971, Miles Petroleum, Inc. purchased the lot now owned

by    1701.   A    year   later,   Miles       Petroleum   and    Wawa   reached       an

agreement memorialized in a June 19, 1972 letter. They agreed that

Miles Petroleum would remove "an old dog pen" and some other "junk"

from its property, that it would cease parking a truck in a

particular area, and that the parties would equally share the cost

of black-topping their properties. Of greater importance here,


1
    Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
2
  East Main Street is also known as County Highway #49; some maps,
such as that appended, and other materials in the record, also
refer to the same roadway as Cumberland Road. We will refer to it
as East Main Street.

                                           2                                    A-5469-15T2
Miles Petroleum and Wawa "both agree[d] to keep the adjoining

perimeter of [their] premises free from obstructions in order to

permit each other's customers ingress and egress across said

property lines from the two business operations."

     At the time, Wawa maintained a convenience store, and Miles

Petroleum operated a gas station. They apparently both benefited

from the 1972 letter-agreement because they agreed to freely allow

patrons in need of both a convenience store and a gas station

access to both businesses without having to reenter one of the

adjoining roadways. The 1972 letter-agreement was never recorded

nor were its terms ever included in any other recorded document.

     In 2000, Wawa considered redeveloping its property to include

the operation of gas pumps. In 2001, after its attempts to purchase

another    adjoining    property   failed,      and   after   additional

frustrations caused by local resistance to the removal of an old

oak tree of historic interest, William Van Artsdalen, a Wawa

representative, met with Miles Lerman, the president of Miles

Petroleum, for the purpose of buying Miles Petroleum's lot. Lerman,

however, sought compensation far greater than what Wawa thought

reasonable. Their meeting terminated with Van Artsdalen advising

Lerman    that   Wawa   remained   interested    in   purchasing     Miles

Petroleum's lot but would, if necessary, proceed with a plan to

redevelop the property to include gas pumps by running a driveway

                                   3                               A-5469-15T2
from East Main Street through the upper quadrant into the lower

two-thirds of its property (as depicted in the appended map).

     Wawa and Miles Petroleum never again discussed the matter,

and Wawa proceeded with its plans to redevelop its property.

Construction    occurred   in   2006.    As   part   of    the   property's

redevelopment, Wawa blocked any existing right Miles Petroleum may

have had to cross over from its lot onto Wawa's, and vice versa,

by erecting curbing along their common perimeter.

     Miles Lerman died in 2008, and 1701 took title to the Miles

Petroleum lot from the Lerman estate. David Lerman, Miles Lerman's

son, is 1701's principal.

     Sometime    between    2010   and    2012,      the   Department      of

Transportation reconstructed the intersection of Wade Boulevard

and East Main Street and pursued condemnation of 1701's property.

That circumstance prompted David Lerman's visit to the site,3 where

he discovered for the first time the curbing along the property's

perimeter that is the genesis for this suit.

     Following discovery, Wawa moved for summary judgment, arguing

the material facts are not in dispute and entitle Wawa to a

judgment declaring that any easement rights were terminated by


3
  David Lerman's deposition testimony is not entirely clear about
when this visit occurred. A fair reading of that testimony would
suggest he learned about the curbing no later than March 21, 2012,
the date the existing circumstances were confirmed in an email.

                                   4                                A-5469-15T2
estoppel. Wawa contends that either 1701 or its predecessor, Miles

Petroleum, were aware of the 2001 curb installation and uttered

no discouraging words until more than ten years later.

     There is no doubt that an easement or servitude – assuming

1701 possessed any such rights4 – may be "lost . . . through

estoppel." Rossi v. Sierchio, 30 N.J. Super. 575, 578 (App. Div.



4
  Although the trial judge's ruling presupposed not only the
existence of an easement but also that it was possessed by 1701
and not terminated when the original owner conveyed it either
directly or indirectly to 1701, the only proof of such an easement
is concededly contained in the 1972 letter-agreement. The 1972
agreement, however, does not include the word "easement" or, for
that matter, "servitude," and it expresses only the mutual granting
to the other a right to allow their customers to cross the property
line. If we assume this was intended to be an easement or servitude
– and the existence of such a right is always dependent upon the
parties' intentions, Tide-Water Pipe Co. v. Blair Holding Co., 42
N.J. 591, 604 (1964) – the 1972 letter-agreement gives no
expression of an intent to allow the conveyed rights to be assigned
or inherited. The letter does not state that the right devolves
to the recipient's "heirs and assigns," or any similar language,
so there is no reason to assume at this stage that Wawa conveyed
rights to any person or entity other than Miles Petroleum. The
language suggests that the parties conveyed rights only to "each
other[]" and not to others who may in the future obtain an interest
in the property; that is, the right granted was for the purpose
of "permit[ting] each other's customers ingress and egress across
said property lines from the two business operations." A literal
reading would therefore suggest that "each other's customers"
refers to Wawa's and Miles Petroleum's customers and not
necessarily 1701's, and that "the two business operations"
mentioned were the business operations of Wawa and Miles Petroleum,
not 1701. There may be other uncertainties about the relationship
between the owners or occupiers of the two lots due to the sparse
record of events between the 1972 agreement and the 2001 meeting
that may impact the ultimate disposition of this action.


                                5                           A-5469-15T2
1954); see also Johnston v. Hyde, 33 N.J. Eq. 632, 643 (E. & A.

1881). The American Law Institute recognizes that a servitude will

be deemed modified or terminated when the party possessing the

servitude's benefit not only "communicates . . . by conduct, words,

or silence, an intention to modify or terminate the servitude,"

but   also   communicates      "under   circumstances      in   which    it    is

reasonable to foresee that the burdened party will substantially

change position on the basis of that communication, and the

burdened     party     does   substantially   and   detrimentally        change

position     in      reasonable   reliance    on    that    communication."

Restatement (Third) Property § 7.6 (2000).

      In applying these principles,5 which closely align with New

Jersey common-law estoppel principles, see, e.g., Segal v. Lynch,

211 N.J. 230, 254 (2012); Carlsen v. Masters, Mates & Pilots

Pension Plan Tr., 80 N.J. 334, 339 (1979); Clark v. Judge, 84 N.J.

Super. 35, 54 (Ch. Div. 1964), aff’d, 44 N.J. 550 (1965), to the

circumstances available from the factual material provided by both

1701 and Wawa, there's no question that if a communication was

made by Miles Petroleum – the party then possessing the alleged

benefit – it was, at best, conveyed through silence. Van Artsdalen


5
  In reviewing the summary judgment in question, we apply the same
Brill standard that governed the trial court's disposition of the
motion. See Townsend v. Pierre, 221 N.J. 36, 59 (2015); Gil v.
Clara Maass Med. Ctr., 450 N.J. Super. 368, 375 (App. Div. 2017).

                                        6                               A-5469-15T2
acknowledged in his deposition that when he met in 2001 with Miles

Lerman – the only interaction between the parties regarding Wawa's

redevelopment plans – neither Lerman nor Van Artsdalen mentioned

the 1972 letter-agreement and the latter never mentioned Wawa's

intent to preclude vehicles from crossing the perimeter. So, as

to the first element of the Third Restatement's estoppel test,

Wawa would have us assume that Miles Lerman's silence in response

to Van Artsdalen's silence about the installation of curbing or

any other obstacle conveyed an intention to modify or terminate

the alleged easement. Because this question was posed at the

summary judgment stage – a time at which 1701 was entitled to the

benefit of all reasonable inferences – we must conclude that this

fact-sensitive question about the significance of Miles Lerman's

silence as a response to Van Artsdalen's silence may be determined

only at trial. That issue alone compels reversal of the order

under review.

     The same conclusion must also be reached with respect to the

other aspects of the Third Restatement's estoppel test. Even if

this factual record could be interpreted as demonstrating Miles

Lerman's silence – about either the 1972 letter-agreement or Wawa's

unspoken intent to install curbs around the perimeter – conveyed

an intention favorable to Wawa's position, the court must also be

satisfied   this   silence   occurred,   in   the   words   of   the     Third

                                   7                                   A-5469-15T2
Restatement, "under circumstances in which it [was] reasonable to

foresee that [Wawa would] substantially change position." A fair

reading of Van Artsdalen's deposition testimony, which provides

the   only   insight   into   the   parties'   discussions   about    Wawa's

redevelopment of its property, reveals that neither party had any

interest in changing any position or giving up any rights. When

asked to sell the property to Wawa, Miles Lerman made what Wawa

viewed as an exorbitant offer that ended the "negotiations." And,

while Wawa remained interested in buying, but not at Lerman's

price, Wawa neither expressed nor suggested any intention but to

proceed with its redevelopment in some other manner than it would

have if it owned all four window panes. In short, both parties

stuck to their guns and it is reasonable to infer that not an inch

was given by either party about their intentions prior to the

meeting. From this factual record and through the application of

the Brill standard, the trial judge could not conclude Miles Lerman

silently conveyed a willingness to allow Wawa to terminate an

alleged   and   unmentioned    easement   during   their   meeting.    These

questions can only be resolved at trial.6


6
  Similarly, there is no evidence in the summary-judgment record
to suggest Miles Lerman was otherwise aware of Wawa's actions in
curbing around Miles Petroleum's property. We are not presented
with a situation where the silent party resided across the street
from the construction site and waited until the work was done


                                      8                              A-5469-15T2
     Reversed   and   remanded   for   trial.   We   do   not    retain

jurisdiction.




                             APPENDIX7




before complaining. Miles Lerman was retired and, by all accounts,
was spending his days either in Vineland, Philadelphia or Florida.
It has not been shown he ever observed Wawa's construction work
or was ever aware of the curbing before his death in 2008. In
fact, David Lerman testified at a deposition that his father never
visited or drove by the property at any time relevant to these
circumstances.
7
  1701's lot is the 150-by-150-foot lot in the upper lefthand
corner; Wawa owns the other property depicted.

                                 9                              A-5469-15T2
