NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Plaintiffs James Bocchino and Anne Bocchino own real property intersected by transmission lines maintained by defendant PSE&G Services Corporation (PSE&G).1 It is undisputed that utilities have the authority to maintain trees and other vegetation pursuant to the New Jersey Board of Public Utilities (BPU) Integrated Vegetation Management Regulations, N.J.A.C. 14:5-9, in the utility right of way, "typically memorialized in an easement." N.J.A.C. 14:5-1.2.
The Bocchinos initiated these proceedings by filing a verified complaint and order to show cause seeking to enjoin PSE&G's maintenance of vegetation in the right of way. At oral argument on the order to show cause, the first hearing in the matter, the Bocchinos disputed the existence of any easement.
PSE&G did not file a motion to dismiss the complaint pursuant to Rule 4:6-2 for "(a) lack of jurisdiction over the subject matter[.]" Nor did PSE&G file a motion to dismiss the complaint for "(e) failure to state a claim upon which relief can be granted[.]" Nonetheless, at the close of oral argument, the General Equity judge dismissed the complaint and denied the request for injunctive relief. We now reverse, reinstate the complaint, and remand for further proceedings.
The judge reasoned that the Bocchinos' challenge to PSE&G's right to clear trees and maintain vegetation on their property was not "an appropriate case to be here . . . because what's at issue is an application of these regulations. . . ." She assumed the easement was established by a lis pendens filed in 1973 incidental to a condemnation proceeding, an unsigned judgment regarding the condemnation award, and an Appellate Division remand regarding the amount to be paid to the Bocchinos' predecessor in the line of title. Therefore, the judge opined that the controversy should be properly placed before the BPU regarding the manner in which the vegetation maintenance would be completed.
In other words, the judge assumed from the documents PSE&G produced that an easement existed as delineated in the metes and bounds description found in the notice of lis pendens. She did not grant PSE&G's request that the matter be transferred to the BPU for resolution of the dispute over vegetation management.
No copies of the complaint or order to show cause, or PSE&G's opposition, other than the trial briefs, were included in the appendices. See R. 2:6-1; R. 2:6-3.
The Bocchinos filed a motion, pursuant to Rule 4:50-1, for relief from the order of dismissal and the denial of their request for a stay. We were not provided copies of the notice of motion nor any means of determining under which section of the rule the application was made. At that oral argument, no one discussed the section of the rule under which the Bocchinos were proceeding.
The judge denied reinstatement of the complaint. She added that she had earlier "concluded that there was an easement. . . . We didn't have an issue about the easement. We had an issue about what trees to cut."
Thereafter, PSE&G filed a motion for enforcement of litigant's rights pursuant to Rule 1:10, heard on December 5, 2014. The parties' failure to include their pleadings in the appendices as to this application is all the more perplexing.
It is not clear how a litigant's rights can be enforced if no orders were ever entered, other than an order which dismissed the complaint at issue and denied injunctive relief, and a subsequent order denying reinstatement of the complaint or the grant of a stay. Nonetheless, on this application, the judge said:
[T]he [c]ourt's hard pressed to say now that enforcement of its orders would also not include the request that PSE&G makes here, e.g., to order that the plaintiff should not interfere with PSE&G's activities in following its own regulations. The [c]ourt believes it to be a logical corollary. The request made by the defendant PSE&G is a logical corollary of its prior orders.
The judge went on to discuss recent correspondence between the property owners, the local police department, and the local municipality regarding the Bocchinos' intent to charge anyone attempting to maintain the easement with trespassing, and to use force if necessary, such as pepper spray. The judge also denied what we assume was the Bocchinos' cross-motion that the judge recuse herself for bias.
In making her ruling, the judge said:
The [c]ourt will enter an order. However, the order that the [c]ourt enters with respect to the application will be modified. The [c]ourt will not enter a blanket contempt provision. The [c]ourt does not believe that that's appropriate. Contempt is something that is a further proceeding based upon an alleged violation of an order, and there are any other ranges of things but I don't believe it is appropriate to put in an order an automatic contempt provision.
By the time the judge enforced litigant's right on December 5, the Bocchinos' appeal was pending. The appeal had been filed on October 9, 2014, from the September 19 order. After the December decision, the Bocchinos filed a motion in the Appellate Division to include the December order enforcing litigants' rights in the appeal, an application which we granted. Unfortunately, no copy of the December order was provided, nor was there additional briefing on the subject.
Rule 2:6-1(a)(1) provides that an appellant's appendix or a joint appendix "shall" in civil actions include "the pleadings. . . the judgment, order or determination appealed from or set to be reviewed or enforced." Rule 2:6-1(a)(2) makes clear that "briefs submitted to the trial court shall not be included in the appendix" except in limited circumstances. Rule 2:6-3 states that the respondent's appendix shall conform to the requirements of Rule 2:6-1.
In response to the Bocchinos' merits brief, PSE&G supplied a "letter brief" which merely drew our attention to N.J.A.C. 14:5-9 and which reiterated its position that the description of the utility easement was attached to the 1974 notice of lis pendens. Included in the appendix were three exhibits: first, a photocopy of an "in condemnation" uncertified notice of lis pendens purportedly filed on November 5, 1973. Attached to the lis pendens is a description of an easement. The notice names as the defendant a presumed predecessor in title to the Bocchinos.
Second, we also have an unsigned "in condemnation judgment" making reference to condemnation commissioner's "hand[ing] down an award, which award was filed February 20, 1974; and . . . that the commissioners took additional testimony and filed an amended report on July 8, 1974." The unsigned judgment awarded the Bocchinos' predecessor in title $20,700, and further required PSE&G to pay an additional $700 into court to add to the previously deposited $20,000, together with interest in the amount of $1067.65.
Lastly, we were supplied a copy of our April 27, 1976 opinion, in which we remanded the matter for a new hearing on the appeal by PSE&G and cross-appeal by the Bocchinos' predecessor in title because of an error in the calculation of value in the condemnation proceeding. We do not have a signed order regarding the remand.
We have no recorded document, such as a quit claim deed, describing the boundaries of the easement for which the Bocchinos' predecessor in title was compensated. We agree with the trial judge that it is reasonable to assume from the documents that condemnation proceedings were completed, and that, as a result, PSE&G prevailed and obtained an easement. Even if those documents had not been provided, the Bocchinos would be hard-pressed to explain how they could have been surprised regarding PSE&G's easement given the visible presence of high tension wires crossing their property. It is well-established that an easement can be created by implication, express conveyance, or prescription, and certainly can be created by a condemnation action. See Leach v. Anderl, 218 N.J.Super. 18, 24 (App. Div. 1987); Eggleston v. Fox, 96 N.J.Super. 142, 147 (App. Div. 1967).
But in this case, the sua sponte dismissal by the judge was made on the assumption that the metes and bounds description contained in the notice of lis pendens, filed as a corollary to the condemnation proceedings, adequately delineates the easement eventually obtained as a result. There were no additional efforts made by any party to more thoroughly search the records, either of the court or the county clerk, to determine the boundary lines of the utility right of way or any other information about it. In the absence of a signed judgment, deed, or other instrument conveying an easement, PSE&G has no paper trail of its presumed right of way. Nothing in the record describes the area in which PSE&G could perform vegetation maintenance.
Furthermore, we do not agree that in a dismissed case it is possible to enforce litigant's rights. No action was filed by PSE&G seeking affirmative relief. There was literally no proceeding in existence at the time its application was filed.
Rule 1:10-3 relief requires that a court order exist before it can be enforced. If the only order that was entered was a dismissal, it is in the most literal sense impossible for enforcement of that order to achieve the result PSE&G wanted — namely, that plaintiffs would be required to cooperate with vegetation maintenance.
In any event, the information we have makes appellate review difficult. Neither party had an adequate opportunity to flesh out the record in a manner that would allow for thoughtful consideration.
Had a signed court order or judgment been produced which described the easement in the same terms as were attached to the notice of lis pendens, the Bocchinos could have applied to the BPU in order to negotiate the extent of vegetation maintenance. But without knowledge of the final boundaries of the easement, presumably the Bocchinos cannot obtain meaningful relief from the BPU. Similarly, PSE&G, without being certain of the boundaries of its right of way, would have difficulty in conducting any necessary vegetation maintenance.
It is probable that the actual boundaries of the easement eventually obtained by the utility were the same as those delineated in the notice of lis pendens. That should not, however, be left to speculation as the notice expires after five years. See N.J.A.C. 2A:15-11.
Accordingly, we reverse the trial judge's September 19, 2014 order denying reinstatement of the complaint and the court's December 2014 order which granted PSE&G relief to the litigant. On the remand, the trial court is to allow for a reasonably abbreviated term of discovery to ensure that the parties have an adequate opportunity to locate any relevant documents, but must also move forward with the case expeditiously. We do not retain jurisdiction.
Reversed and remanded.
