The owner of property in the Township of Elsinboro, N.J., sued her neighbor to quiet title, seeking an order declaring that she owned property along the boundary and ordering her neighbor vacate the disputed property, arguing that the neighbor’s fence encroached on her property.
The case is Cheryl Leonard v. Pera Pantich (Superior Court of New Jersey, Appellate Division, No. A-5645-18T1).
Cheryl Leonard has owned property in the Township of Elsinboro, N.J., since Sept. 29, 2006. When she purchased the property, she obtained a survey from Richard Waddington, who performed a survey Sept. 27, 2006, as well as a title insurance policy. The survey included a notation identifying an iron pipe found 18 inches deep as the property line of the western side of her lot. The survey also noted a fence along the property with a portion of the neighbor, Pera Pantich’s, wire mesh fence located in the rear of the lot. It also noted the stone portion of Pantich’s driveway, but did not classify it as an encroachment.
Leonard testified that she obtained a $600 financial settlement from her title company for the loss of property shown on the 2006 endorsement, which appeared to be the rear fence encroachment. She further testified that after she acquired the property, she maintained the portion of the property surrounding the white post, abiding by what she believed to be the property line.
Pantich has lived in the property next door to Leonard since 1980. On Oct. 26, 2010, Leonard mailed a letter along with the Waddington survey to Pantich, stating her believe that Pantich’s fence was over the property line. She asked him to remove the fence. Pantich responded by letter Nov. 15, 2010, disagreeing with the property line in the Waddington survey and contending that the real property line was at the location of a white post near the hedges on the property.
Leonard stated that Pantich replenished his stone driveway in 2015 up to six inches away from the white post, which coincided with the area she believed to be her property. He also replaced the fence in the rear of the property with a new chain link fence.
Leonard obtained a survey by James Clancy in conjunction with a fence she planned to put up, as well a zoning permit so she could move forward with installing a fence at the correct location of her property. The Clancy survey indicated a 6-inch encroachment in the back corner. Pantich claimed that he owned that portion of the property and disputed that he extended the width of the driveway in any direction.
On Nov. 7, 2018, Leonard filed suit to quiet title, seeking a judgment ordering that she owned the disputed property as described in the Waddington survey and ordering that Pantich vacate the disputed property to the extent any encroachment existed.
The lower court granted judgment to Leonard, declaring her the owner of the disputed property, consistent with the Waddington survey. The court also ordered Pantich to remove a fence constructed on the rear of the property and an approximate 3-foot portion of a stone driveway that encroached on the front portion of the property, denied Leonard’s claim for money damages and counsel fees, and dismissed Pantich’s counterclaims of adverse possession and prescriptive easement.
Pantich appealed, arguing that Leonard was prohibited from seeking relief from him pursuant to the doctrine of election of remedies because she chose to be compensated for the loss of her land by making a claim on her title policy. He also argued that the lower court’s judgment was against the weight of the evidence.
The appellate court affirmed the trial court’s decision, first finding no basis for disturbing the lower court’s determination that Leonard’s acceptance of the $600 from her title insurer with respect to the Waddington survey did not preclude her equitable claim that Pantich improperly had encroached on her property.
“Initially, we note that defendant failed to introduce any documentary evidence by way of release or otherwise to establish the parameters of plaintiff’s settlement with her title insurer,” the court stated. “Instead, the sole evidentiary support for his election of remedies claim is plaintiff’s trial testimony that she ‘believed [the title company] intended’ to pay her for the loss in property indicated in their 2006 endorsement. That claim reasonably could be interpreted to address the encroachment at the rear fence line and not the encroachment of defendant’s driveway onto plaintiff’s property because the Waddington survey indicated only the rear fence as an encroachment on plaintiff’s property.”
The court also noted that Pantich did not produce a survey to support any claim that he was the rightful owner of the disputed portion of the property.
“We have noted that though ‘the doctrine of election of remedies is recognized in New Jersey’ it has long ago been ‘characterized as a harsh and now largely obsolete rule and one to be strictly confined within its reason and spirit,’ ” the court stated. “We have also held ‘the mere bringing of a suit asking one remedy rather than another practically never affords ground for an estoppel and is not sufficient reason to deny an application for an alternative remedy.’ Here, plaintiff has essentially brought this suit seeking a remedy that was an alternative to that which she urged against her title insurer. She is not barred from doing so under the doctrine of election of remedies and it would be unreasonable and contrary to the spirit of that equitable doctrine to transfer ownership of plaintiff’s property to defendant under the circumstances presented.”
The court also agreed with the lower court’s decision to dismiss Pantich’s adverse possession and prescriptive easement claims, disagreeing that the court’s decision was against the weight of the evidence.
“Here, defendant failed to establish that any use of the disputed property was ‘adverse or hostile’ and ‘under a claim of right,’ rather than ‘indulgent and permissive in character,’ ” the court stated. “In this regard, plaintiff and her son mowed the lawn for a decade in the area which defendant claims he owns and he never asked either person to stop or to leave his property. Further, he said nothing when plaintiff removed the original hedges along the disputed area in 2008, nor did he pay for the removal. And, plaintiff noted that she planted the new hedges ‘about five feet away [from the Waddington pipe] knowing the trees were going to extend’ to allow the trees to grow ‘so they wouldn’t cause an encroachment.’ We also note that defendant purchased the property in 1981 and plaintiff informed him of the boundary in 2010 and had been maintaining the property in the disputed area since 2006.
“We acknowledge defendant’s contrary evidence regarding the elements of adverse possession and prescriptive easement, but are satisfied Judge McDonnell carefully considered the evidence and glean from her ruling that she credited the testimony of plaintiff and plaintiff’s son and also concluded from the photographs that defendant’s driveway was extended as part of the replenishment,” the court stated. “Accordingly, we concur with the trial judge’s determination that no easement by prescription was created, and likewise that defendant did not satisfy the conditions for adverse possession.”