The appellate case, Benji and Russel Swan v. Stephen and Lila Lamanna, concerns an easement in which access to the last 200 feet is in question. Plaintiffs argued the trial court modify the easement by relocating it to allow plaintiffs’ access to Route 47. Defendants insist that the disputed 200 feet is their private driveway to Route 47 and Plaintiffs have no right to access it. When the initial easement was granted, no permitting was required to build a road or driveway to transverse the potential wetlands to gain access to Route 47, but the situation has changed due to the enactment of environmental laws and regulations.

The trial court determined that the Plaintiffs did not have easement rights with respect to the above 200 feet, despite this portion extended into the second of two lots that they own, as there was no latent ambiguity in the deeded easement. This determination enabled Plaintiffs to make use of most of an unpaved private roadway, located on Defendants property, except for the last 200 feet, which veers closer to defendants’ farmhouse and would affect the peace and quiet enjoyment of defendants’ property. Again, on reconsideration, the trial court declined to prescribe the “extraordinary remedy” of relocating the easement, but they did revise their final judgment to require defendants to cooperate with plaintiffs in pursuing environmental permits to allow a roadway to extend across the low-lying area that are potential wetlands. However, the trial court specified that if plaintiffs did not obtain such permits, the entire easement would be extinguished.

Plaintiffs appealed the trial court’s denial of the requested easement modification. Plaintiffs further appeal the trial court’s condition that they must obtain permits as a condition to retaining their easement rights.

The Appellate Court affirmed the trial court’s ruling concerning Plaintiffs’ requested easement modification. They found the trial court’s reasoning grounded in the factual record and consistent with the laws concerning easements.

As to the permit condition, the Appellate court referenced correspondence from the NJDEP, which provided, that it would be difficult, maybe impossible, for the plaintiffs to obtain a permit that would authorize 200 feet of roadway over an area that may be protected wetlands. Given this difficulty, it appears the condition the trial court set may be too onerous and inequitable. The Appellate Court reversed and remanded in part, solely for the trial court’s reconsideration of aspects of the permit condition.