| Miller v Powers |
| 2008 NY Slip Op 06258 [53 AD3d 1125] |
| July 11, 2008 |
| Appellate Division, Fourth Department |
| Jeanette L. Miller et al., Appellants, v Timothy Powers et al.,Respondents. |
—[*1] Richard P. Urda, Ithaca, for defendants-respondents.
Appeal from a judgment (denominated order) of the Supreme Court, Cayuga County (PeterE. Corning, A.J.), entered January 22, 2007. The judgment following a nonjury trial, inter alia,declared that defendants may exercise their riparian rights to Cayuga Lake from a certain parcelowned by plaintiffs and that the boundary between plaintiffs' parcel and defendants' parcel is 30feet easterly of the centerline of the former railroad bed.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby vacating the last decretal paragraph and granting judgment in favor of plaintiffs as follows:
"It is ORDERED, ADJUDGED and DECREED that the boundary between plaintiffs' parceland defendants' parcel runs along the fence line depicted as the railroad right-of-way fence thatruns along the top of the bluff in the survey maps of George Schlecht, dated April 16, 1981 andfiled April 30, 1981 in the Cayuga County Clerk's Office, as Maps 81-64, 81-126, 81-180 and81-203 and as modified the judgment is affirmed without costs."
Memorandum: Plaintiffs commenced this action seeking, inter alia, judgment declaring thatthe boundary line between the respective parcels of the parties "runs along the line of theRailroad Fence" and that defendants do not have riparian rights to Cayuga Lake. In thealternative, they sought judgment declaring that defendants may not utilize one of the two parcelsowned by plaintiffs, known as "parcel A," to access their riparian rights to Cayuga Lake. The twoparcels are adjacent to the eastern shore of Cayuga Lake, and defendants own a parcel located tothe east of plaintiffs' parcels, which the parties identify as the "upland parcel." We note, however,that the term "upland parcel" is a misnomer because such land runs along a navigable body ofwater (see generally Town of Oyster Bay v Commander Oil Corp., 96 NY2d 566, 571 n 1[2001]), and defendants' parcel is not located along Cayuga Lake. Plaintiffs appeal from ajudgment entered following a bench trial that, inter alia, declared that defendants may exercise[*2]their riparian rights to Cayuga Lake from parcel A, and thatthe boundary between the respective parcels of the parties is 30 feet easterly of the centerline ofthe former railroad bed.
In 1872, Jason and Mary Atwater, defendants' predecessors in interest at that time, conveyeda strip of land along Cayuga Lake to the Cayuga Lake Railroad Company, plaintiffs' predecessorin interest. The issue whether the owner of the "upland parcel" had riparian rights to the lake afterthe conveyance to the railroad was previously litigated by defendants' predecessor in interest,Claude L. Pyle, and plaintiffs' predecessor in interest, Thomas G. Miller, the husband and father,respectively, of the plaintiffs herein. We affirmed the order in that action in which SupremeCourt (Boehm, J.) determined, inter alia, that Claude Pyle had riparian rights that were accessiblefrom parcel A (Pyle v Estate of Miller, 163 AD2d 820 [1990]). Thomas Miller diedduring the pendency of that appeal, and leave to appeal our order to the Court of Appeals was notsought. Although plaintiffs contend on appeal that our decision in Pyle that the "uplandowner" has riparian rights was erroneous, they failed to raise that contention at the nonjury trialin this action and thus failed to preserve it for our review (see Ciesinski v Town ofAurora, 202 AD2d 984 [1994]). In any event, even assuming, arguendo, that plaintiffs hadpreserved their contention for our review, we would conclude that the contention is barred by thedoctrine of res judicata. The decision of this Court addresses the merits of that contention, andthe interests of the plaintiffs herein " 'can be said to have been represented in the priorproceeding' " (Tuper v Tuper, 34AD3d 1280, 1282 [2006]; seegenerally Matter of Hunter, 4 NY3d 260, 269 [2005]). We therefore affirm that part ofthe judgment on appeal determining that defendants may exercise their riparian rights fromparcel A.
We agree with plaintiffs, however, that Supreme Court erred in declaring that the easternboundary of parcel A is 30 feet from the centerline of the former railroad bed, which isapproximately halfway between the toe and the top of a steep, rocky bluff. We thus conclude thatthe court erred in failing to declare that the eastern boundary of parcel A is the railroadright-of-way fence that runs along the top of the bluff as depicted in the survey maps of alicensed land surveyor and professional engineer George Schlecht, dated April 15, 1981 and filedApril 30, 1981, and we therefore modify the judgment accordingly.
Although neither plaintiffs nor defendants submitted the deeds to their respective parcels inevidence at trial, they essentially agree that the 1872 deed conveying the parcel from theAtwaters to the Cayuga Lake Railroad Company is controlling with respect to the boundarybetween parcel A and the "upland parcel." That deed, however, provides only a vague descriptionof the boundary, as follows: "on the east side of [the railroad bed] centre line all the land in thebluffs that may be required to grade and make the road bed of said railroad and sufficient roomfor bed for side track and to protect the same by the necessary and usual slopes be the same moreor less." We conclude that the court erred in relying upon a survey map purportedly created in1904 by the Cayuga Lake Railroad Company in determining the eastern boundary of parcel A.That survey map is neither signed nor dated, and defendants' expert who testified with respect tothat survey map was unable to establish its authenticity. We therefore conclude that the surveymap "lacks any indicia of reliability as admissible documentary evidence" (Dewey vGardner, 248 AD2d 876, 878 [1998]). Because defendants' expert was unaware whether thesurvey map had been filed, the map cannot be said to be prima facie evidence of its contents(see CPLR 4522).
We conclude that plaintiffs established that the railroad right-of-way fence was constructedeither by the Cayuga Lake Railroad Company or its successor, the Lehigh Valley Railroad.Plaintiffs' expert testified that the wire mesh fence with steel posts has the same wire gauge asthe other fencing still in existence along the entire length of the former railroad bed and that itdiffers substantially from fencing typically used for agricultural purposes in that area. The [*3]latter fencing utilized wooden posts or ran from tree to tree. It isundisputed that the Lehigh Valley Railroad abandoned operations on that railway line inapproximately 1950, and we thus conclude that the fence was constructed at some point prior to1950.
We further conclude that the location of the fence is a practical boundary that complieswith the description of the 1872 conveyance granting to the Cayuga Lake Railroad Company "allthe land in the bluffs that may be required to grade and make the road bed . . . andto protect the same by the necessary and usual slopes." Although the parties' predecessors ininterest litigated the issue whether the western boundary of parcel A was the high water mark orthe low water mark (see Pyle, 163 AD2d 820 [1990]), they did not litigate the issue withrespect to the eastern boundary of parcel A. The record establishes that the plaintiffs herein, theirpredecessors in interest, and defendants' predecessors in interest have treated the railroadright-of-way fence as the eastern boundary of parcel A since at least 1950, and "[i]t is the settledrule in this state, resting upon public policy, that a practical location of boundaries which hasbeen acquiesced in for a long series of years will not be disturbed" (Katz v Kaiser, 154NY 294, 298 [1897]; see Chavoustie v Stone St. Baptist Church of Chaumont, 171 AD2d1055, 1056 [1991]). Furthermore, it is well established that, when resolving disputes concerningthe location of a boundary, "natural landmarks and artificial monuments take precedence overmere metes and bounds descriptions" (Zelnik Realty v York, 170 AD2d 926, 928 [1991];see Case v Dexter, 106 NY 548, 554 [1887]; Brown v Ames, 290 AD2d 693, 694[2002]; Hibiscus Harbor v Ebersold, 63 AD2d 824, 825 [1978], appeal dismissed45 NY2d 837 [1978]). Thus, the railroad right-of-way fence located at the top of the bluff takesprecedence over the metes and bounds description contained in the survey map purportedlycreated by the Cayuga Lake Railroad Company and the metes and bounds description containedin the 1981 survey maps of George Schlecht.We have reviewed plaintiffs' remaining contention and conclude that it is without merit.Present—Scudder, P.J., Smith, Centra, Peradotto and Pine, JJ.