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Fisher v. Yates2/15/1994
[270 NJSuper Page 461] These consolidated appeals by plaintiff Nancy Fisher (plaintiff) arise from the denial of plaintiff's motion, heard just one week before trial, to amend the pleadings to join an additional party and to assert new contradictory theories of liability (Fisher I), and from the Law Division's dismissal of plaintiff's subsequent complaint
on grounds of collateral estoppel. (Fisher II). The second complaint asserted theories precluded by the denial of plaintiff's motion to amend the pleadings in Fisher I against different defendants. We consider these two appeals in a single opinion because both cases involve substantially similar operative facts, and affirm.
Fisher I
Plaintiff is the owner of landlocked real property known as Block 3201, Lot 14 on the Tax Map of Southampton Township. The property, used mainly for logging purposes, has been owned by plaintiff's family for the past 150 years. For public road access, plaintiff and her family have used a ten to twelve foot wide sand road that traverses the adjacent Block 3201, Lot 3 ("the servient tenement") to Friendship Road, formerly Powell Place Road.
On April 6, 1987, Allen Joyce and Mary H. Joyce, the previous owners of the servient tenement, signed an ingress/egress easement agreement conveying to plaintiff and her since deceased husband, their successors and assigns, and to the owners of lots 8, 13, and 16, use of the sand road in perpetuity. Under the agreement, the Joyces reserved the right to relocate the sand road on their property, so long as such relocation "provide access to Powell Place Road or New Road for ingress and egress of the same type and quality that presently exists."
It later became known that when the Joyces executed the agreement they were not the record owners of the servient tenement because, three weeks prior to executing the April 1987 agreement, the Joyces, who owned a substantial amount of land in the area, executed a deed to the Yates transferring a parcel of property which included the servient tenement. The Yates assert that the deed was in error, to the extent it purported to transfer the servient tenement. They note that, although the deed's metes
and bounds description included the servient tenement located in Southampton Township, it described all property conveyed as being in Tabernacle Township, where the lands intended to be conveyed were located. The copy of the deed contained in the record on appeal has the name "Southampton" crossed out, supposedly before the deed was executed. Significantly, on May 10, 1988, the Yates executed a deed which reconveyed to the Joyces for the nominal consideration of $1.00 the property located in Southampton (the servient tenement). The Yates retained all property located in Tabernacle township.
On the same date, the Joyces transferred to Yates Enterprises of New Jersey, Inc. (Yates Enterprises) one portion of Block 3201 Lot No. 3, located in Southampton Township, for $37,488. On January 31, 1989, the Joyces transferred the remainder of Block 3201, Lot No. 3, including the servient tenement, to Yates Enterprises for an additional consideration of $575,000.00. This, according to the Yates, evidenced the Joyces' obvious original intent in 1987 to transfer to them only the property located in Tabernacle Township, and not the Southampton property containing the servient tenement.
Following their 1989 purchase, the Yates sought to obtain a major subdivision approval from the Township of Southampton in order to build a residential development in Block 3
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