Twp. of Green v. Prager

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TOWNSHIP OF GREEN, Plaintiff-Respondent, v. MARC PRAGER, Defendant-Appellant.

No. A-1637-21

Superior Court of New Jersey, Appellate Division

March 28, 2023

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.

Submitted March 13, 2023

On appeal from the Superior Court of New Jersey, Law Division Sussex County, Docket No. DC-001943-21.

George T. Daggett, attorney for appellant.

Laddey, Clark &Ryan, LLP, attorneys for respondent (Janet C. Lucas and Shan H. Kadkoy, on the brief).

Before Judges Gooden Brown and Fisher.

PER CURIAM

Defendant Marc Prager appeals from the January 26, 2022 Law Division order denying his motion for reconsideration of a December 28, 2021 order of ejectment entered in favor of plaintiff, Township of Green. The December 28 order was entered following a bench trial that resulted in the trial judge ordering Prager to remove a split-rail fence that encroached upon the Township's property. We affirm.

The Township and Prager are the owners of adjacent properties in Green Township. Prager owns a split-rail fence that encroaches on the Township's property and encloses an area owned by the Township (the encroachment area). In May 2020, the Township's attorney sent a cease-and-desist notice to Prager advising that his use of the encroachment area had caused damage to the Township's property and demanding the removal of the portion of the fence in the encroachment area. When Prager failed to comply with the notice, as well as with the Township's subsequent written demands for removal of the fence, the Township filed a verified complaint against Prager in the Chancery Division, which was later amended. In the amended complaint, the Township sought damages for trespass and negligence as well as injunctive relief, including the removal of the fence. Prager filed an amended answer and counterclaim, seeking to estop the Township from retaking the encroachment area and compel the Township to convey it to him.

The Chancery judge denied the Township's application for a preliminary injunction and, finding Prager had no colorable claim of title to the encroachment area, transferred the matter to the Special Civil Part for trial as an ejectment action. At the trial, which was conducted on December 20, 2021, Patty DeClesis, the Township's deputy clerk, and Prager were the only witnesses. DeClesis testified for the Township, while Prager testified as a Township witness as well as on his own behalf. The parties also stipulated to the chain of title, which showed that Prager's property was originally created by subdivision and conveyed from the Township to Michael Burger in 1999. After two subsequent transfers of ownership, the property was ultimately conveyed to Prager by deed dated October 2, 2017. The stipulations specified that the description of the property conveyed in each instance did not include the encroachment area.

Because of the stipulations, the testimony of the witnesses was limited. Although there was no testimony as to when the split-rail fence was erected, DeClesis confirmed that in 1999, Burger had been issued a zoning permit to construct the fence. The permit was accompanied by a map that contained an area demarcating the location of the proposed fence entirely within the borders of Burger's then-property. However, the parties stipulated that the fence was actually erected in the encroachment area contrary to the permit application, and that it remained in place during the subsequent conveyances of the property, including the conveyance to Prager.

DeClesis testified that following the construction of the fence by Burger, the fence would have been inspected by the Township to ensure compliance with the specifications of the permit application, building code regulations, and Township ordinances. However, the inspection would not "include going out with a surveyor to ensure that [the fence] was installed within the parameters of the survey submitted in the application," and the Township's inspectors were not surveyors. DeClesis acknowledged that the Township inspector approved the fence notwithstanding the fact that it was constructed in the encroachment area. DeClesis added that although the Township employed maintenance staff to "care for . . . and mow the property of Green," the staff was not required "to know the exact boundaries of all of the Green Township properties," and were only required to mow "[c]lose enough" to the property lines to maintain the property for public use.

In his testimony for the Township, Prager confirmed that before purchasing the property in 2017, he had received a survey certified to him. Although the survey "clearly ha[d] a solid line delineating the break between [Prager's] property and the Green Township property" as well as the location of the fence in the encroachment area, Prager refused to acknowledge those facts, stating he was not "a blueprint reader." Prager testified that when he received the survey, he did not question his surveyor about the encroachment area, nor did he address any questions to his attorney about the metes and bounds indicated in the survey. Prager explained that because "[t]he fence was clearly there for quite some time prior to [his] purchase," he operated "under the assumption" that he owned the property that the fence encompassed. However, he conceded that he never paid any taxes on the encroachment area.

Testifying on his own behalf, Prager averred that he had at one point offered to purchase the encroachment area from the Township, an offer which the Township apparently rejected. Prager testified that he currently used the encroachment area as a grazing area for his horses. He confirmed that he had been issued a zoning permit for construction of an open-horse riding arena on September 11, 2019, and the construction had been subsequently approved by the Township on November 20, 2019. Prager stressed that those approvals were given notwithstanding the fact that both applications were submitted with maps showing the fence in the encroachment area, but he did not receive letters from the Township demanding the removal of the fence until the following May.

During his direct testimony, Prager identified his property as well as the location of the fence in various Google Earth satellite images that showed an aerial view of the adjacent properties. Prager pointed to coloration differences in the grass on the adjoining plots to explain why the Township inspector mistakenly approved the original construction of the fence. Over the Township's objection, the judge permitted the testimony and admitted the images, stating:

The [c]ourt is going to admit these [photos] for the purpose of demonstrating the location of the [Township's] property, as well as . . . to the extent that they . . . visually show the fence. The [c]ourt is not going to take notice of changes in coloration as [an] indication of where the property line is. As I've indicated, I don't believe it would be appropriate without any expert testimony as to why the changes of coloration are there, or how the photographs were taken, and/or whether the views from above, the demarcations above with respect to the various squares would be likewise visible from the ground.

So for those reasons I'm going to admit them with those limitations.

On cross-examination, Prager was adamant that he had no notice of the encroachment and insisted that while he had a survey done of his property before purchasing it, the survey was "for a mortgage, not for where th[e] fence was." However, ultimately, Prager conceded that the encroachment appeared on the survey he had received before he purchased the property, that the approvals of his 2019 zoning and construction applications "had nothing to do with the fence," and that he was "not a party" to any application or approval for the construction of the fence that predated his ownership of the property.

Following the trial, on December 28, 2021, the judge granted the Township a judgment of possession for the encroachment area, entered an order of ejectment in favor of the Township, and entered a warrant of removal requiring Prager to remove the fence in the encroachment area. In his accompanying statement of reasons, the judge found DeClesis's testimony "credible in all material respects," but "did not find certain important aspects of [Prager's] testimony . . . credible." Specifically, the judge rejected Prager's "testimony regarding his lack of awareness" of the encroachment when he purchased the property or "his expressed belief that he owned the [e]ncroachment [a]rea." To support his credibility assessment, the judge relied on Prager's seemingly contradictory testimony, the circumstances of his purchase, particularly the 2017 survey, and Prager's demeanor while testifying. As to the evidentiary issue pertinent to this appeal, the judge reiterated his ruling regarding the admission of the Google Earth satellite images for the limited purpose.

Turning to the substantive issues, based on "the chain of title and the stipulations of fact, "the judge found Prager "admitted that the [p]roperty . . . he purchased [did] not include the [e]ncroachment [a]rea." Consequently, the Township satisfied its burden of proof in establishing its case for ejectment. The judge then addressed Prager's estoppel claim at length, ultimately determining that Prager "failed to establish an equitable interest in the [e]ncroachment [a]rea." In that regard, the judge looked to First Union National Bank v. Nelkin, 354 N.J.Super. 557 (App. Div. 2002), for guidance.

In Nelkin, we explained that...