SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-2866- 21
BENJI 1 SWAN and RUSSELL 2 SWAN, Plaintiffs-Appellants,

v. STEPHEN LAMANNA and LILA LAMANNA, Defendants-Respondents.

___________________________

Argued November 27, 2023

– Decided January 2, 2024 Before Judges Sabatino, Mawla, and Chase. On appeal from the Superior Court of New Jersey, Chancery Division, Cape May County, Docket No. C- 000054

- 17. Frank L. Corrado argued the cause for appellants (Barry, Corrado & Grassi, PC, and Gillin Schwartz Law, LLC, attorneys ; Frank L. Corrado and Joseph Christopher Gillin-Schwartz, on the brief).

1 Portions of the record spell this first name "Benji e."

2 Misstated as "Russel." NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 2866

- 21 Lila Lamanna, respondent, argued the cause pro se (Stephen Lamanna, respondent pro se, and Lila Lamanna, on the brief).
PER CURIAM The present appeal is the latest chapter in a seri es of long-running

easement dispute s between the owners of neighboring properties in M iddle Township. After a bench trial that consumed fifteen intermitt ent trial days, the Law Division judge determined that plaintiffs , Benji and Russell Swan, had certain easement rights with respect to one of two lots the y own (Lot 21). The ruling enabl es them to make use of most of an unpaved private roa dway

— known as Gus's Beach Road

— located on the property of defendants, Stephen and Lila
Lamanna. The judge rejected plaintiffs' demand to modify the de eded terms of the prescriptive easement to allow them to use approximately the last 200 feet of the roadway, which veers closer to defendants' far mhouse. Instead, the judge ruled the terms of the easement did not encompass t he disputed approximate 200 feet, and instead follows a straight line across a wooded, low-lying area to State Highway 47 without a driveway or roadway. On reconsideration, the court revised its final jud gment to require defendants to cooperate with plaintiffs in pursuing environmental permits to3 A- 2866

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allow a roadway to extend across the low-lying area. The c ourt specified, however, that if plaintiffs did not obtain such per mits, the entire easement would be extinguished. Plaintiffs now appeal the trial court's denial of the reque sted modification and its limitation of the ir easement rights solely to Lot 21 and not Lot 24 , another nearby parcel they own. Plaintiffs further appeal the court's condition that they must obtain permits as a condition of retaining the ir easement rights. Although their responding brief expresses dissatisfaction wi th aspects of the amended final judgment, defendants have not cross-appealed. For reasons that follow, we affirm the trial court' s rulings concerning the location and terms of the easement and its denial o f plaintiffs' requested modification. We do so substantially for the sound legal and equitable reasons expressed in the trial court's February 28, 2022 de tailed written opinion. We reverse and remand in part, solely for the trial court' s reconsideration of aspects of the permit condition.
I. The extensive factual record and procedural histor y of this property dispute are well known to the parties, and we need n ot de tail it comprehensively here. The following summary will suffice.4 A- 2866

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Plaintiffs acquired two tracts lying mostly to the south and west of defendants' property in Middle Township in 1992. Plaint iffs' Lot 24 3 is directly south of defendants' Lot 20, and these two lots are similarly sized long but narrow properties that run from the Delaware Bay in the west to State Route 47 to the east. Along their boundary runs an unimprov ed private road known as Gus's Beach Road. Gus's Beach Road was impassable from at least 1984 until approximately 2005. Gus's Beach Road is located on defendants' lot, Lot 20. Plaintiffs' second lot is Lot 21, a small bayside l ot that had been severed from Lot 20 in 1950 and sold to East Point Oyster C ompany ("East Point"). The 1950 deed from the Lucianos to East Point for Lot 2 1 describes two easements, a ten-foot-wide easement allowing Lot 21's owners a ccess north to Bay Avenue, and a thirty-three-foot- wi de easement east to State Route 47. That same year, the Lucianos and East Point signed a lease that provided East Point with space to conduct an oyster shucking operation on the bay shore and allowed it to use a "private road" on the prope rty, Gus's Beach Road.

3 Over the years, Middle Township has numerically r edesignated the lots subject to this appeal. Lot 20, which is owned by defendants, had been refe rred to as Lot 6; Lot 7.02, owned by plaintiffs, is now Lot 24 ; Lot 9, owned by plaintiffs, is now designated Lot 21. For the sake of clarity, we refer to all lots by their current designations.5 A- 2866

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Plaintiffs' two lots, Lots 21 and 24, are not stric tly contiguous, and Lot 21 does not afford Lot 24 access to Bay Avenue. The deed from Luciano to East Point for Lot 21 cont ains the following

easement terms:

BEGINNING at a point set at the high[-]water mark o f the easterly shore of Delaware Bay, said point bein g five feet from a concrete monument on a course nort h thirty -seven degrees and nine minutes east, said monument being the northwest corner of the above described land; thence south fifty-two degrees and fifty-one minutes east, one hundred forty-three and fifty-three hundredths feet to a point in the cente r line of a proposed avenue to be known as Bay Avenue; thence along the center of said proposed Bay Avenue , south twenty-four degrees and thirty-two minutes wes t, one hundred fifty-five feet to the center of anothe r proposed avenue, and there to end. Said courses an d distances are the center line of said right- of -way, the width of which shall be a total of ten feet measure d five feet at right angles from the above line in either direction. The deed goes on to recite:

TOGETHER with a further right- of -way from the end of the immediately preceding right of way to State Highway Route S-4[7] on a course south forty-eight and thirty-nine minutes east, running to said State Highway Route S-4[7] for a width of thirty-three fe et, the aforesaid course representing the center line thereof.6 A- 2866

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The first paragraph above, concerning the ten-foot easement, grants Lot 21's owners access to Bay Avenue. At trial, defend ants' expert, Joseph Grabas, explained that the thirty-three-foot easement runni ng between the end of Lot 21's ten-foot easement to Bay Avenue and Route 47 d escribes a "straight line that runs up a long the property line." Grabas acknowledged that the easement described in the deed and Gus's Beach Road were oft en "congruent." However, for the purposes of selling a bay side portion of L ot 20 as Lot 21, as Luciano did in this transaction, Grabas opined that an express easement was preferable because "the purchaser of that lot wants to know th at forever they'll be able to access that lot." Defendants acquired Lot 20 from the heirs of the Lu cianos in 1984. In 1985 or 1986, defendants purchased two gates. The first gate was installed at the time of purchase at the eastern end of the now- disputed 200-foot travel way that defendants consider their driveway, controllin g access from Route 47 onto the travel way. In 1989 defendants installed another gate blocking access to those traversing Bay Avenue to points south. Defendants installed the gates at least in part to prevent illegal dumping, which was commo n on the property. The dumping problem was so pervasive, including large a ppliances and discarded7 A- 2866

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construction materials, that portions of Gus's Beac h Road were impassible until approximately 2005 when defendants arranged with a tenant to clear the

ro adway. As noted above, in 1992, plaintiffs purchased thei r two tracts, Lots 21 and 24, in a single transaction from the Estate of Erne st Schleusener. When asked at trial if "the Swans acquired the same package of rights that was transferred in 1963?" plaintiffs' expert, Lewis Conley, answered " Yes." Accordingly, plaintiffs possess an express easement for access t o Route 47 from Lot 21. Defendants blocked plaintiffs' access to the dispu ted 200 feet of travel way between Gus's Beach Road and Route 47 in 2004, and plaintiffs removed the obstruction in 2006. Plaintiffs continued to a ssert their rights to the easement during this time, and defendants filed tre spassing charges against plaintiffs in 2009 and 2010. Meanwhile, in November 2009, plaintiffs successfull y sued defendants to acquire a prescriptive easement across Lot 20 for t he benefit of Lot 24. Lamanna v. Swan, No. A- 1280 -10 (App. Div. July 20, 2012) (slip op. at 4, 57 ). We affirmed that particular easement grant in our unpu blished 2012 opinion. Id. at 57. That prescriptive easement for the benefit of Lot 24 allows plaintiffs to traverse the far western end of defendants' propert y to access Bay Avenue,8 A- 2866

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which, in turn, allows plaintiffs to access Route 4 7 via Highs Beach Road, a public street that runs to the north of defendants' property. Id. at 36 . Defendants' petition for certification to the Supreme Court was denied. Lamanna v. Swan , 213 N.J. 568 (2013). The central issue in the present case is that Gus' s Beach Road deviates from the path of the express thirty-three-foot-wide easement that runs from the termination of the ten-foot-wide easement in the we st to Route 47 in the east. Although the easement and Gus's Beach Road are largely cont iguous, and run i n a straight line along the border of Lots 20 and 24, the 200 feet of Gus's Beach Road approaching Route 47 veer off the path describ ed in the easement and cross Lot 20 to intersect with Route 47 thirty-five feet further north. On crossexamination at trial, defendants' expert Grabas, ag reed that the "vast majority" of the easement is contiguous with Gus's Beach Road

. Plaintiffs assert their easement rights can only be protected if the court uses its equity powers to modify the easement by re locating the easement to coincide with the disputed 200-foot portion of Gus' s Beach Road, thus allowing plaintiffs to access Route 47 in that more direct m anner without using the easement access to Highs Beach Road. Defendants in sist that the disputed 2009 A- 2866

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feet of Gus's Beach Road is their private driveway to Route 47, and that plaintiffs have no right to access it. In October 2017, plaintiffs filed this law suit in the Law Division, seeking to enforce an alleged express easement that would a llow them direct access from both of their lots to Route 47 via Gus's Beach Road . Defendants asserted counterclaims related to a culvert that plaintiffs allegedly blocked, harassment, and other poor conduct by plaintiffs, which are not the sub ject of a cross-appeal and are not before us . When the initial easement for Lot 21 was granted, no permitting was required to traverse wetlands with a roadway or dri veway that would connect it to Route 47. That situation has changed due to the enactment of environmental laws and regulations.
Pl aintiffs have inquired with the New Jersey Departme nt of Environmental Protection ("DEP") about acquiring pe rmits. They were informed that, although the issuance of permits was possible, plaintiffs' existing alternative access to Route 47 via Bay Avenue would hamper their application. The DEP's response, read into the transcript at tri al, is as follows:

Dear Ms. Swan, I am writing in response to your letter inquiring about what sort of permits would be required for construction of a new road to your existing home. It10 A- 2866

- 21 would appear the primary permit necessary would be an individual permit under the Fresh Water Wetlands Protection Act. Individual permits are often diffi cult to receive since for nonwater dependent activities suc h as a road applicants are required to demonstrate there is no alternative location for the activity that would not impact on a fresh water wetland. Since the activit y in this case is a new road to access your existing hom e there already exists a nonwetland alternative, the existing road, it would be very difficult for you t o demonstrate a new road is necessary. In addition t o satisfying the alternative test non water dependent activities that impact on threatened and endangered species habitat also have to demonstrate the activi ty as a compelling public need greater than the need to protect the wetland. Again, since you already have use of a viable access road to your property it will be difficult to satisfy the compelling public need argument. I trust the above addresses your immedia te concerns. But should you have any further question s please do not hesitate to contact me. [(Emphasis added ). ] Following the lengthy bench trial, on February 28, 2022, the court issued an order and accompanying opinion. It found that th e express easement did not include access to an existing travel way that exten ded from within the bounds of the easement across defendants' property to Rout e 47. Plaintiffs moved for reconsideration. On April 25 , 2022, the court granted that motion in part, issuing an amended final judgm ent ordering plaintiffs to engage in a "good faith" effort to obtain "all appl icable permitting to repair or11 A- 2866

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improve the wooded, low-lying area contained in the right of way at the intersection of Route 47." The amended final judgment also ordered defendants to cooperate with any "professional work or inspect ion necessary for the same[,]" and detailed procedures by which the parti es could petition the court to resolve any future disputes. This appeal by plaintiffs ensued. As clarified at oral argument, they raise three points: (1) the trial court erred in denying their request to modify the easement so as to include the approximate 200 feet of roadway; (2) the court should have extended their easement rights for Lot 21 to their other parcel, Lot 24; and (3) the permit condition imposed by the tri al court is inequitable and should be excised.
II. Our standard of review is well known. "Final deter minations made by the trial court sitting in a non-jury case are subject to a limit ed and well-established scope of review . . . ." Seidman v. Clifton Sav. Bank, 205 N .J. 150, 169 (2011). An appellate court shall "not disturb the factual f indings and legal conclusions of the trial judge unless [it is] convinced that th ey are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]" Id. at 1 69 (second alteration in original)12 A- 2866

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(quoting In re Trust Created by Agreement Dated Dec ember 20, 1961, 194 N.J. 276, 284 (2008)). The trial court's findings of fact are "binding on appeal when supported by adequate, substantial, credible evidence." Cesa re v. Cesare, 154 N.J. 394,
411 -12 (1998); see also Rova Farms Resort, Inc. v. Inv estors Ins. Co. of Am. , 65 N.J. 474, 483-84 (1974). However, we owe no com parable deference to the trial court's interpretation of the law or its application of the law to the facts, which we review de novo. Manalapan Realty, LP v. T wp. Comm. of Manalapan , 140 N.J. 366, 378 (1995). Viewed through this appellate prism, we proceed to consider in turn each of plaintiffs' arguments.
A. Plaintiffs first contend the trial court erred by f ailing to modify the easement so that the disputed 200 feet of travel wa y is considered part of Lot 21's express easement. They argue the easement mus t include an implied right to make minor deviations necessary to engender full enjoyment of the easement. They assert the court erred by declining to modify the eas ement, comparing this case to Kline v. Bernardsville Ass'n, 267 N.J. Supe r. 473, 480 (App. Div. 1993) ,13 A- 2866

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in which we allowed modification where it was "minor and t he parties' essential rights are fully preserved." The trial court explicitly found that plaintiffs h ave an easement appurtenant over the ten-foot-wide and thirty-three -foot- wide easements and the associated travel ways in order to access Lot 21 fr om Route 47. However, the court also made clear that plaintiffs' easement "sp ecifically exclude[s]" the approximately 200 feet where the travel way deviate s from the easement by crossing a corner of defendants' property and conne cting to Route 47. In making that finding, the court largely relied on the testimony of Grabas, who the court found "more persuasive" than plaintif fs' expert because of his background in title work and his clear descriptions of the competing "deeds, leases, easements, and other documents in evidence. " As the trier of fact, the court had the prerogative to find an expert witness 's testimony more credible than that of an opposing expert. Angel v. Rand Exp ress Lines, Inc., 66 N.J. Super. 77, 85-86 (App. Div. 1961) (citations omitte d). This principle flows out of the well-known proposition that jurors, or a jud ge in a bench trial, have the best "opportunity to hear and see the witnesses and to get a 'feel' for the case tha t the reviewing court [cannot] enjoy." Twp. of W. Windsor v. Nierenberg ,14 A- 2866

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150 N.J. 111, 132 (1997) ( quoting State v. Whitaker, 79 N.J. 503, 515- 16 (1979)). The trial court found there is no "latent ambiguit y" in the deeded easement. The court agreed with defendants' conten tions that the 200-foot deviation between Gus's Beach Road and the path of the express easement is supported by historical documentation, namely the 1 950 lease from Luciano giving express permission to an oyster cultivation busines s (i.e., East Point) to use the "private roadway" (i.e., Gus's Beach Road) that connected Route 47 to the oyster shelling lots that East Point used. The court also found that the disputed 200-foot por tion of the travel way is significantly closer to defendants' residence th an the deeded easement, and that allowing plaintiffs to use the driveway would "affect the peace and quiet enjoyment of [defendants'] property." These findings are well supported by the record. They are a lso consistent with the applicable legal principles concerning eas ement rights. "An easement is defined as 'a nonpossessory incorp oreal interest in another's possessory estate in land, entitling the holder . . . to make some use of the other's property.'" Kline , 267 N.J. Super. at 478 (quoting Leach v. Anderl ,15 A- 2866

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218 N.J. Super. 18, 24 (App. Div. 1987) (omission i n original)). There are "[s]ix factors . . . integral" to an easement:

(1) the fact that it is an interest in land which i s in the possession of another; (2) the content of the inter est as a "limited" use or enjoyment of the land in which t he interest exists; (3) the availability of protection of the interest as against interference by third persons; (4) the absence of terminability at the will of the possess or of the land; (5) the fact that it is not a normal inci dent of a possessory land interest, and (6) the fact that i t is capable of creation by conveyance. [Leach, 218 N.J. Super. at 24 (quoting Town of Kearny v. Mun. Sanitary Landfill Auth., 143 N.J. Super. 44 9, 459 (Law Div. 1976)).] There are three kinds of easements: easements "by implication; by an express conveyance; or by prescription." Ibid. (ci ting Mahoney v. Danis, 95 N.J. 50, 58 (1983) (Schreiber, J., dissenting) (cit ing John E. Cribbet, Principles of the L. of Prop. 336 (2d ed. 1975))); accord Mand ia v. Applegate, 310 N.J. Super. 435, 443 (App. Div. 1998). The second categ ory pertains here. To expressly convey an easement, a precise descrip tion of the easement must be recorded in a deed or other written instrum ent. Tide -Water Pipe Co. v. Blair Holding Co., 42 N.J. 591, 604 (1964). "What the easement holder's rights are . . . depends first of all on the intent of the parties as expressed in the language of the grant . . . ." Ibid. "Where the meaning is plain, as derived from16 A- 2866

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the language read as an entirety and in the light o f the surrounding circumstances, it will control without resort to ar tificial rules of construction." Id. at 605 (citing Hammett v. Rosensohn, 26 N.J. 41 5, 423 (1958)). Conversely, where the language of the instrument is not plain, "the question becomes a mixed one of law and fact to be determined within the framework of the universally accepted principle of easement law that the landowner may not . . . unreasonably interfere with the [easement holder's] rights or . . . make the use thereof significantly more di fficult or burdensome." Id. at 604. In such a case, the written instrument "must be read as a whole, without artificial emphasis on one section, with a conseque nt disregard for others. Literalism must give way to context." Borough of P rinceton v. Bd. of Chosen Freeholders of Cnty. of Mercer, 333 N.J. Super. 310 , 325 (App. Div. 2000), aff'd, 169 N.J. 135 (2001). "[A]rising out of every easement [is] an implied r ight to do what is reasonably necessary for its complete enjoyment . . . ." Tide -Water Pipe, 42 N.J. at 604. However, that implied right can only be exercised in a "reasonable manner as to avoid unnecessary increases in the bur den upon the landowner." Ibid. (citing Lidgerwood Ests., Inc. v. Pub. Serv. Elec. & Gas Co., 113 N.J. Eq. 403 (Ch. 1933)).17 A- 2866

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On rare occasions "a court may compel relocation o f an easement to advance the interests of justice where the modifica tion is minor and the parties' essential rights are fully preserved." Kline , 267 N.J. Super. at 480. Where a court considers such a remedy, it should be mindful that "relocation of an easement without the mutual consent of the parties is an extraordinary remedy and should be grounded in a strong showing of neces sity." Ibid. (emphasis added). A relocation meeting these stringent criteria would b e an exercise of the court's "equitable power." Id. at 481. In the illustrative case of Tide -Water Pipe, the plaintiff pipeline company acquired an easement in 1914 to run pipelines under a property and "with free ingress and egress, to construct, operate, repair, replace, maintain, and from time to time alter and remove the same in such manner as it may desire." 42 N.J. at 594. The grant also specified that the pipelines " shall be so laid as not to interfere with the usual cultivation of the premise s nor with any buildings thereon." Ibid. By 1937, a factory and two commercial or industrial buildings were constructed on the property. Id. at 596- 97. The defendants in Tide-Water Pipe "acquired the pr operty in 1957 with actual notice of the easement and the location of t he lines." Id. at 596. In 1961 the defendants proposed expanding a building over t he lines and encasing the18 A- 2866

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pipelines. Id. at 597. The plaintiff objected to the encasing, but the defendants decided to proceed, and the plaintiff sued to enjoi n construction. Ibid. The plaintiff objected to encasement because it interfe red with its ability to repair the pipelines in a timely and cost-efficient manner . Id. at 598-99. The most timely and cost-efficient manner for repairing leak s is known as "straight-down digging" and that method cannot be used where a pipeline is encased. Id. at 599. The Court in Tide -Water Pipe ruled that the language of the grant of the easement was "plain enough" and "broad" and did not require the application of "artificial rules of construction." Id. at 605. N onetheless, the Court analyzed whether accessing the pipes by digging straight dow n was "reasonably necessary for the full enjoyment of the easement or only for the mere convenience of its holder." Id. at 607. The Court agreed with the tr ial court's finding of reasonable necessity "because of the substantially additional burden in time and money" that the plaintiff would incur to repair the pipeli nes if they were encased. Ibid. Accordingly, the Court upheld the ruling that the d efendants were not entitled to modify the plaintiff's easement by building over it. Id. at 608. Here, plaintiffs have a recorded appurtenant easem ent that stretches from the Delaware Bay to Route 47. The existence of this easeme nt is not in dispute. What is in dispute is whether that easement tracks the path of an existing travel19 A- 2866

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way. The court, relying on the expert testimony of Grabas, reasonably determined that the easement and the travel way, (G us's Beach Road) are not identical. The court declined to prescribe the "extraordinary remedy" of relocating that easement. Kline , 267 N.J. Super at 480. That decision is well sup ported by our case law. While there is an "implied right to do what is reasonably necessary for [ the ] complete enjoyment" of an easement, that implied right can only be exercised in a "reasonable manner as to avoid unnec essary increases in the burden upon the landowner." Tide -Water Pipe, 42 N.J. at 604. The trial court's finding that the disputed travel way is closer to d efendants' residence than the express easement, and the associated conclusion tha t modification of the easement would diminish defendants' "quiet enjoymen t" of the property, is wellsupported by the record. Plaintiffs minimize the proximity of defendants' re sidence to a modified easement roadway that plaintiffs and their visitors would use. They stress the roadway would only be about 165 feet from the resid ence, and that such a distance would not significantly diminish defendant s' quiet use and enjoyment of their dwelling. The trial court reasonably foun d to the contrary. By numerical comparison, we note that the Municipal Land Use Law ("MLUL") generally20 A- 2866

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requires notices of land use applications to be ser ved on all nearby owners whose properties are within 200 feet of the applicant's p roperty. N.J.S.A. 40:55D12(b). Although the MLUL's 200 -foot notice requirement does not govern the present parties' easement rights, the statute refle cts a concern that living within at least 200 feet of a neighbor's property can affe ct one's quality of life if the neighbor obtains permission to use the property a c ertain way. In any event, the trial court had ample reason to conclude that the r oadway's proximity would detract from defendants' quiet enjoyment of their h ome. We also concur with the trial court that plaintiffs have not demonstrated "necessity" to modify the easement. As the previou s litigation established, plaintiffs can gain access to Route 47 through thei r separate easement connecting to Highs Beach Road. To be sure, that r oute is indirect and less convenient. But it is not manifestly vital to plai ntiffs to access Route 47 by driving past defendants' residence. In sum, the trial court had sound reasons

— grounded in the factual record and consistent with the law

— to reject plaintiffs' request for the "extraordinar y remedy" of modification. Kline , 267 N.J. Super. at 480.21 A- 2866

- 21 B. Plaintiffs further seek this court to alter the tr ial court's judgment and specify that their easement rights attach not only to their Lot 21, but also to Lot 24. We decline to do so. This argument rests upon the fact that although th e Lucianos conveyed easement rights to East Point to be used by Lot 21, East Point bought Lot 2 4 from Lucianos' neighbor directly to the south in 1950 . Thereafter, in 1963, East Point conveyed Lots 21 and 24 to a buyer in a singl e transaction. Ownership of those two lots was subsequently conveyed to other s uccessors in title until plaintiffs acquired them in 1992. Plaintiff argues that the easement rights originally con veyed solely to Lot 21 in 1950 are now also rights attached to Lot 24, because the lots have had common ownership and plaintiffs bought the lots in a single transaction. This argument proves too much. The easement originated in the 19 50 deed to Lot 21 only. The grantor did not specify that the easement be attached to other parcels. The plain language of the conveyance controls. Tide -Water Pipe, 42 N.J. at 605. Basic principles of property law undermine plaintif fs' argument. For instance, suppose a deed granted the Owner of Blackacre an easement to travel on the Grantor's property. If the Owner separately acquired Greenacre and22 A- 2866

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Brownacre, which are also nearby parcels, that does not me an that the easement is now expanded to those additional parcels and the reby potentially increasing the usage of the easement

. Such an expansion would deviate from the Grantor's original intent. Id . at 604. We therefore decline to alter the judgment to encom pass Lot 24 in addition
to Lot 21. C. Plaintiffs argue the trial court erred in imposing permit requirements as a condition of retaining the easement. In its first final judgment, issued February 28, 2022, the court ruled:

Barring [plaintiffs] obtaining a permit or other approvals to construct a roadway and constructing s aid roadway over the wooded, low-lying area contained i n the deeded right of way at the intersection of Rout e 47, plaintiffs are barred from utilizing the right of w ay eastward of its intersection with the eastern bound ary of the prescriptive easement over Lot 20 granted by previous judgment of this court up to its intersect ion with Route 47. [( Emphasis added).] In its written opinion supporting the first final judgment, the court elaborated that "the purpose of the 1950 deeded eas ement/ right of way is extinguished for the long portion of the right of w ay starting at Route 47 and23 A- 2866

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ending at the northern boundary of the prescriptive easement previously granted by judgment." (emphasis added). The trial court partially granted plaintiffs' ensu ing motion for reconsideration. In its written opinion the court explained reconsideration was warranted "as to its decision concerning the proces s of plaintiff seeking appropriate permits/approvals in relation to the ro adway plaintiffs may seek application to build over the low-lying area at the easement's intersection with R[oute] 47." The court reaffirmed that plaintiffs, with proper notice to defendants, would be able to utilize portions of de fendants' property in order to construct a new travel way in line with the easemen t, but otherwise left intact its earlier holdings related to the easement. The court partially granted plaintiffs' reconsider ation motion, upon further reflection, because:

[T]he language utilized in its judgment was unreasonable and ineffective as [ it ] failed to adequately set forth a fully detailed process concerning any f uture permit applications made by plaintiffs for the low- lying area contained in the easement/ right of way includ ing clearly setting forth the responsibilities of the p arties as to such process. [(Emphasis added) .]24 A- 2866

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However, the court maintained that "this term in th e judgment" confirmi ng plaintiffs' right to clear the last 200 feet of the easement served to "extinguish" their inability to use the easement and therefore t he "purpose" of the modification that plaintiffs were requesting. The court further noted that due to the previously granted prescriptive easement, plain tiffs "have 'street' access to Lot 21 and have ingress and egress to Lot 21 over t he prescriptive easement to Bay Ave to Highs Beach Road to R[oute] 47[.]" In t he court's assessment, the amended final judgment "remedied the entire situati on which has caused disputes[,]" and "[p]laintiffs have no less access to Lot 21 and the property where their home is located on Lot 24 due to the co urt's judgment herein." Litigants may seek reconsideration if the disposit ion of a relevant issue was not properly explained by the court. Calcaterr a v. Calcaterra, 206 N.J. Super. 398, 403 (App. Div. 1986) (citing R. 4:50 -1). As the trial court recognized, the language in its initial final order was insufficient to guide plaintiffs' actions with respect to permitting. Th is is an appropriate basis for reconsideration. Ibid. So was the trial court's pragmatic determination th at defendants must reasonably cooperate with plaintiff s in the permit application
process.25 A- 2866

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Even so, the portion of the amended judgment requi ring plaintiffs to pursue a permit is problematic. As the DEP's letter reflect s, it appears it will be difficult and perhaps impossible for plaintiffs to obtain a permit that would authorize construction of 200 feet of roadway over swampy terrain that may well be protected wetlands. Given that difficulty, it a ppears the trial court's condition of plaintiffs obtaining a permit in order to mainta in their easement rights may be too onerous and inequitable. Plaintiffs assert that they may still want to make

non -vehicular use of the easement through the 200-foot area. The trial court's decisions did not address such a possibility. The court also did not consider explicitly whether plaintiffs would make some use o f the roadway in traveling back and forth along the boundary, without exiting onto Route 47. Accordingly, we remand this matter to the trial cou rt, for the limited purpose of reconsidering whether the permit conditi on of the amended judgment should be revised in a manner that considers these equitable considerations. We intimate no views on the appropriate outcome. Affirmed in part, and remanded in part. We do not retain jurisdiction.