| West Middlebury Baptist Church v Koester |
| 2008 NY Slip Op 03753 [50 AD3d 1494] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| West Middlebury Baptist Church, Appellant, v Kevin A. Koester etal., Respondents. |
—[*1] Kibbe, King & Moran, Attica (Timothy F. Moran of counsel), fordefendants-respondents.
Appeal from a judgment (denominated decree) of the Supreme Court, Wyoming County(Thomas P. Flaherty, J.H.O.), entered November 16, 2006 in an action pursuant to RPAPL article15. The judgment, insofar as appealed from, dismissed the first cause of action and granteddefendants judgment on the counterclaim after a nonjury trial.
It is hereby ordered that the judgment insofar as appealed from is unanimously reversed onthe law without costs, the first cause of action is reinstated and judgment is granted in favor ofplaintiff as follows:
"It is ORDERED, ADJUDGED and DECREED that plaintiff is the owner in fee simple ofthe property at issue, and the counterclaim is dismissed."
Memorandum: As limited by its brief, plaintiff appeals from a judgment that, following abench trial, dismissed the first cause of action seeking judgment that it is the lawful owner ofproperty that it allegedly acquired by adverse possession, and granting defendants judgment onthe counterclaim by determining that defendants are the lawful owners of the property. Theproperty at issue is a pie-shaped parcel that is 12½ feet at its base and occupies whatplaintiff believed was the northern boundary of its property. Plaintiff and defendants ownadjoining parcels of property that were part of the same farm prior to the 1832 conveyance toplaintiff of "premises, containing one acre and two tenths of an acre, more or less. . . bounded . . . north by a line 3 chains 25 links." At trial, plaintiffpresented evidence that it, as well as surrounding landowners, believed that the northernboundary of the parcel as conveyed by the deed ran along a line of maple trees. The deed todefendants' property, which defendants acquired in 1986, contains boundary descriptions that"exclud[e] an approximate 1.19 acre parcel currently used by [plaintiff]." Both plaintiff anddefendants engaged surveyors in 1999 to determine the northern boundary, and the surveyorsagreed that defendants' parcel included the pie-shaped parcel south of the maple tree line.Defendants then erected a fence along the property line. In the first cause of action, plaintiffsought a determination that it is the lawful owner of the pie-shaped parcel [*2]through adverse possession and, in their counterclaim, defendantssought a determination that they are the lawful owners of that parcel by virtue of their deed. Weconclude that plaintiff is entitled to judgment on the first cause of action and that Supreme Courterred in granting defendants judgment on the counterclaim.
"To acquire title to real property by adverse possession, . . . the possessor. . . [must] establish that the character of the possession is hostile and under a claimof right, actual, open and notorious, exclusive and continuous . . . for the statutoryperiod of 10 years" (Palumbo v Heumann, 295 AD2d 935, 936 [2002] [internal quotationmarks omitted]). The record establishes that plaintiff proved those elements by clear andconvincing evidence for the requisite 10-year period (see generally Walling v Przybylo, 7 NY3d 228, 232 [2006]).Plaintiff established that it had openly and exclusively used the parcel for more than 10 years forparking and as part of the lawn without objection by defendants (see generally id.). Wenote that plaintiff presented evidence establishing that horse sheds had been erected for thechurch during the 1800s and that they were removed in 1955 or 1956, and the evidence supportsplaintiff's position that the sheds were erected based on the belief that the maple tree line definedthe northern border of plaintiff's property. Plaintiff established that its possession of the parcelwas hostile inasmuch as the use of the parcel constituted an actual infringement upon defendants'parcel, and that plaintiff's use of the parcel was under a claim of right, based upon the descriptionof the northern boundary in the deed, which plaintiff believed ran along the tree line (see United Pickle Prods. Corp. v PrayerTemple Community Church, 43 AD3d 307, 308-309 [2007], lv denied 9 NY3d977 [2007]; Katona v Low, 226 AD2d 433, 434 [1996]). Further, in light of the natureand location of the parcel, we conclude that the acts of mowing, raking, and clearing the propertyas part of the lawn and parking area are sufficient to satisfy the requirement of RPAPL 522 (1)that the parcel "has been usually cultivated" (see Fatone v Vona, 287 AD2d 854, 857[2001]; Wagman v Village of Catskill, 213 AD2d 775, 776-777 [1995]; Mastin vVillage of Lima, 86 AD2d 777 [1982]). In view of our determination, we need not addressplaintiff's remaining contention. Present—Scudder, P.J., Centra, Lunn, Fahey and Green,JJ.