| Wilcox v McLean |
| 2011 NY Slip Op 09230 [90 AD3d 1363] |
| December 22, 2011 |
| Appellate Division, Third Department |
| Richard B. Wilcox et al., Appellants, v Martin E. McLean,Respondent. |
—[*1] Davidson & O'Mara, P.C., Elmira (Thomas F. O'Mara of counsel), for respondent.
Garry, J. Appeal from an order of the Supreme Court (Argetsinger, J.), entered December 8,2010 in Schuyler County, which, among other things, granted defendant's cross motion forsummary judgment dismissing the complaint.
In 2000, defendant purchased a waterfront parcel in the Barnard Subdivision, located on theeastern side of Lamoka Lake in the Town of Tyrone, Schuyler County. Defendant's deed providesthat the western boundary of his lot runs along "the approximate high water line of LamokaLake," conveys "all rights of grantor between the west line above described and the low waterline of [the lake]" and provides that the conveyance is "[subject] to the right of other ownerswithin the Barnard Subdivision to use, in common with others, the right to the boat launch,docking in designated areas and swimming rights as conveyed to those particular propertyowners as by reference to their particular deeds."
Plaintiffs own two nonwaterfront properties in the subdivision, which they purchased in1989. Their deed includes rights of access to the lake, including a right-of-way in common withothers over roads identified as Jerry Lane and the lake road.[FN1] Plaintiffs' deed also grants [*2]them a right, subject to rentpayments, to use a dock space identified as "No. 2," which is one of a row of dock spaces locatedalong the shore adjoining defendant's property. With reference to the dock space, the deedprovides: "Intending hereby to grant that appurtenance designated as a permanent right to usesaid dock space . . . together with a right of way in common with others over JerryLane to the east shore of Lamoka Lake for the purpose of access to said dock space." The deeddoes not include dimensions or property descriptions for the dock space or the right-of-way, nordoes it indicate whether any part of the dock space extends onto the land.
The parties' dispute concerns a 15-by-18-foot waterfront parcel (hereinafter the parcel)located in or adjacent to plaintiffs' dock space.[FN2]Plaintiffs assert that they believed their 1989 purchase included ownership of the parcel and thatthey have used and maintained it exclusively since then. In 2001, defendant allegedly sent thesubdivision's nonwaterfront owners, including plaintiffs, a list of rules for dock space use which,among other things, prohibited "permanent objects" and "unsafe objects or other conditions" inthe area and required docks to be removed between Labor Day and Memorial Day. Plaintiffsneither acknowledge nor deny that they received these rules, merely asserting that they ignoredany "pamphlets, fliers or verbal directives" issued by defendant. Defendant asserts that plaintiffscomplied with these rules until 2009, when they erected a plastic fence around the parcel,allegedly to exclude geese. Defendant then sent a letter advising plaintiffs that they had fencedpart of the common right-of-way and directing them to remove the fence. When they did notcomply, he removed it. Plaintiffs thereafter commenced this action pursuant to RPAPL article 15seeking a determination that they had acquired title to the parcel by adverse possession. Afterjoinder of issue, plaintiffs moved for summary judgment in their favor, and defendantcross-moved seeking dismissal of the complaint. Supreme Court denied plaintiffs' motion andgranted the cross motion, and plaintiffs appeal.
To demonstrate adverse possession of the parcel, plaintiffs must show by clear andconvincing evidence "that the character of the possession is hostile and under a claim of right,actual, open and notorious, exclusive and continuous for the statutory period of 10 years"(Ray v Beacon Hudson Mtn. Corp., 88 NY2d 154, 159 [1996] [internal quotation marksand citation omitted]; accord Robinsonv Robinson, 34 AD3d 975, 976 [2006], lv denied 8 NY3d 805 [2007]; [*3]see RPAPL former 501).[FN3]As plaintiffs' claim of right is not based on a written instrument, they must further demonstratethat the parcel was, as pertinent here, "usually cultivated or improved" (RPAPL former 522 [1];see former 521; 2 N. St. Corp. vGetty Saugerties Corp., 68 AD3d 1392, 1393 [2009], lv denied 14 NY3d 706[2010]; Comrie, Inc. v Holmes, 40AD3d 1346, 1346 [2007], lv denied 9 NY3d 815 [2007]). The nature ofimprovements sufficient to provide a record owner with notice of a hostile claim "will vary withthe nature and situation of the property and the uses to which it can be applied and must consistof acts such as are usual in the ordinary cultivation and improvement of similar lands by thriftyowners" (Ray v Beacon Hudson Mtn. Corp., 88 NY2d at 160 [internal quotation marksand citation omitted]; accord Robinson v Robinson, 34 AD3d at 976).
Plaintiffs contend that their predecessors in title, who owned the properties now belonging toplaintiffs between 1983 and 1989, believed that their ownership included the parcel, maintainedthe parcel exclusively, and used it for picnics and sunbathing. Plaintiffs allege that after 1989,they mowed, cleaned, repaired, excavated, and repaved[FN4]the parcel, as well as picnicked and congregated there, and that each summer they placedseasonal items thereon such as lawn furniture, a portable storage shed, and a temporary deck.
Supreme Court determined that plaintiffs' use of the parcel was permissive and not hostile,and we agree. Where permission has been granted or can be inferred, " 'adverse possession doesnot commence until such permission or authority has been repudiated and renounced and thepossessor thereafter has assumed the attitude of hostility to any right in the real owner' "(Longshore v Hoel Pond Landing, 284 AD2d 815, 816 [2001], lv denied 97NY2d 603 [2001], quoting Hinkley v State of New York, 234 NY 309, 316 [1922]).Here, plaintiffs had a deeded right to use the dock space that was unqualified except for anobligation to pay rent, as well as a right-of-way in common with others to reach the lake shore inorder to do so. Even if, as plaintiffs contend, no part of the parcel is located within the undefinedbounds of the dock space, permission to use the area immediately adjacent to it in a seasonallyappropriate manner that does not conflict with the record owner's rights or those of other dockspace users may be inferred from these grants. The continuance of this permission throughoutplaintiffs' period of ownership can be inferred from their affidavit testimony that their use of theparcel was never challenged and that an amicable relationship prevailed among the ownersbefore defendant acquired his property (see Chaner v Calarco, 77 AD3d 1217, 1218-1219 [2010], lvdenied 16 NY3d 707 [2011]; Hassinger v Kline, 91 AD2d 988, 989 [1983]). Notably,even after defendant purchased the property, his rules against constructing permanent structuresand creating unsafe conditions "in the area" of the dock spaces, and his unrebutted assertion thatplaintiffs did not disobey these rules until 2009, imply that they had continued permission to usethe parcel for [*4]seasonal purposes.
Nothing about plaintiffs' use of the parcel indicates that they assumed a hostile attitudetoward the record owner's rights prior to erecting the fence in 2009 (see Longshore v HoelPond Landing, 284 AD2d at 816). Nor have they demonstrated that their use of the parcelwas sufficient to establish adverse possession, even if it were established that permission neverexisted or was revoked at some point. An adverse possession claim to seasonal property must besupported not only by seasonal presence and activities on the property, but also by other actions"demonstrat[ing] continuous, actual occupation of land by improvement" during absences(Ray v Beacon Hudson Mtn. Corp., 88 NY2d at 161; see Robinson v Robinson,34 AD3d at 976-977; Gorman v Hess, 301 AD2d 683, 684 [2003]).[FN5]Here, plaintiffs do not claim that they ever ejected trespassers, posted the parcel, marked itsboundaries, fenced it before 2009, or took other affirmative actions to exclude others. Moreover,other than repairing or replacing pavement that apparently was already present in some formwhen they acquired the parcel, they do not claim that they made any changes in the parcel thatwould have signaled continuous occupation beyond the summer season, such as landscaping it orconstructing permanent seating, decks, or storage structures (compare Gorman v Hess,301 AD2d at 684). Plaintiffs' temporary placement during the summer season of portable itemssuch as lawn furniture is insufficient, without more, to constitute the requisite improvement(see Campano v Scherer, 49 AD2d 642, 643 [1975]; compare Van Valkenburgh vLutz, 304 NY 95, 99 [1952]; Silipigno v F.R. Smith & Sons, Inc., 71 AD3d 1255, 1257 [2010]).
In short, plaintiffs did not present evidence of possession that " 'actually infringe[d] upon theowner's rights, such as to give the owner a cause of action in ejectment against the occupierthroughout the requisite period' " (Eddyville Corp. v Relyea, 35 AD3d 1063, 1067 [2006], quotingBirkholz v Wells, 272 AD2d 665, 667 [2000]), and did not demonstrate that their use ofthe parcel was not permissive. Accordingly, plaintiffs' summary judgment motion was properlydenied, and defendant's cross motion was properly granted. We modify Supreme Court's orderonly to make the declaration in defendant's favor that was implicit in its decision (seeRPAPL 1521 [1]; Led Duke v Sommer, 205 AD2d 1009, 1010 n [1994]; Riggs vKirschner, 187 AD2d 759, 760 [1992]).
Peters, J.P., Lahtinen, Stein and McCarthy, JJ., concur. Ordered that the order is modified, onthe law, with costs to defendant, by declaring that defendant is the fee simple owner of thesubject property, subject only to the rights of other owners in the Barnard Subdivision as set forthin his deed, and, as so modified, affirmed.
Footnote 1: Jerry Lane runs through thesubdivision and terminates at a boat launch on the lake shore. The "lake road" is a grassy lanethat runs parallel to the shore, intersects Jerry Lane, and crosses defendant's propertyapproximately 20 feet from the water's edge.
Footnote 2: Plaintiffs contend that the parcelis located between the dock space and the common right-of-way, which they assert islimited to the lake road. This contention is not supported by their deed, which unambiguouslyprovides that plaintiffs' right-of-way for access to the dock space is held in common with othersand extends "to the east shore of Lamoka Lake." Accordingly, the parcel is necessarily locatedwithin the common right-of-way, but our resolution of this matter makes it unnecessary todetermine whether others with interests in the common right-of-way should have been named asnecessary parties (see CPLR 1001 [a]; RPAPL 1511 [2]; Sorbello v Birchez Assoc., LLC, 61AD3d 1225, 1226 [2009]).
Footnote 3: The amendments to the RPAPLeffective in 2008 (see L 2008, ch 269) do not apply, as plaintiffs assert that their title tothe parcel vested by 1999 at the latest (see Barra v Norfolk S. Ry. Co., 75 AD3d 821, 825-826 [2010]; see also Hogan v Kelly, 86 AD3d590, 592 [2011]; Franza v Olin,73 AD3d 44, 46 [2010]).
Footnote 4: The record does not clarify thenature of this pavement, but photographs of the parcel taken shortly after plaintiffs' purchaseappear to show deteriorated concrete, and the parcel is now allegedly covered with stone andgravel.
Footnote 5: By contrast, since "theenjoyment of easements lies in use rather than in possession" (Di Leo v Pecksto HoldingCorp., 304 NY 505, 511 [1952] [internal quotation marks and citation omitted]), an adverseclaim to an easement may be supported solely by seasonal use or presence (see Ray v BeaconHudson Mtn. Corp., 88 NY2d at 160; Led Duke v Sommer, 205 AD2d 1009, 1010[1994]).