| Robert v Shaul |
| 2009 NY Slip Op 03811 [62 AD3d 1127] |
| May 14, 2009 |
| Appellate Division, Third Department |
| Timothy J. Robert et al., Appellants, v Holly Shaul et al.,Respondents. |
—[*1] Corbally, Gartland & Rappleyea, L.L.P., Poughkeepsie (Allan B. Rappleyea of counsel), forrespondents.
Malone Jr., J. Appeal from a judgment of the Supreme Court (Devine, J.), entered December3, 2007 in Schoharie County, upon a decision of the court in favor of defendants.
Plaintiffs and defendants own adjacent parcels of real property in the Town of Fulton,Schoharie County. Plaintiffs' property is located to the west and defendants' property is locatedto the east. A fence runs in a northerly direction close to the boundary line between theproperties, but lies entirely on defendants' property. The small strip of land that exists betweenthe boundary line and the fence (hereinafter referred to as the disputed parcel) is in dispute.
Plaintiffs acquired their property in 1988, at which time they had it surveyed, and theyincorporated the survey into the deed description. At that time, Keith Nelson owned the adjacentproperty to the east upon which he had previously placed a fence near the boundary line for thepurpose of keeping his cattle from straying. While he owned the property, Nelson grantedpermission to plaintiffs to use the disputed parcel. Plaintiffs, in turn, used it by, among otherthings, planting vegetation and erecting a swing set. In 2004, following Nelson's death,defendants acquired his property. Thereafter, a disagreement developed between plaintiffs anddefendants regarding plaintiffs' use of the disputed parcel, which culminated in a letter fromdefendants revoking plaintiffs' permission to use it.
As a result, plaintiffs commenced this action to obtain title to the disputed parcel by [*2]adverse possession or by accession. Following joinder of issue,defendants moved for summary judgment dismissing the complaint. Supreme Court (Lamont, J.)partially granted the motion by dismissing plaintiffs' adverse possession cause of action, butdeclined to dismiss plaintiffs' cause of action based upon the doctrine of practical location andacquiescence.[FN*]Following a bench trial, Supreme Court (Devine, J.) rendered judgment in favor of defendants.Plaintiffs now appeal.
Initially, we do not find that the appeal is rendered moot by the fact that defendants haveremoved the original fence and replaced it with one that is located on the boundary linedescribed in the deeds, since the underlying controversy remains whether plaintiffs acquired titleto the disputed parcel under the doctrine of practical location (see Dalton v Pataki, 5 NY3d 243,267 [2005], cert denied 546 US 1032 [2005]). Turning to the merits, "[i]t is well settledthat 'the practical location of a boundary line and an acquiescence of the parties therein for aperiod of more than [the statutory period governing adverse possession] is conclusive of thelocation of the boundary line' " (Kaneb v Lamay, 58 AD3d 1097, 1098 [2009], quotingWentworth v Braun, 78 App Div 634, 635 [1903], affd 175 NY 515 [1903]).Indeed, to be effectual, the acquiescence " 'must be an act of the parties, either express orimplied; and it must be mutual, so that both parties are equally affected by it [and i]t must bedefinitely and equally known, understood and settled' " (Adams v Warner, 209 App Div394, 397 [1924], quoting Hubbell v McCulloch, 47 Barb 287, 299 [1866]; see Riggsv Benning, 290 AD2d 716, 717 [2002]).
In the case at hand, plaintiffs maintain that they and Nelson agreed that the original fence onthe property would function as the boundary line regardless of the deed descriptions or surveyand that this agreement was in effect for more than the 10-year statutory period governingadverse possession as was necessary for them to acquire title to the disputed parcel under thedoctrine of practical location. The evidence in the record, however, does not support thisconclusion. Unrefuted testimony was presented that plaintiffs never removed the pins that wereplaced on the boundary line at the time their property was surveyed and that they pointed thesepins out to defendants after they acquired Nelson's property. Likewise, it is undisputed thatplaintiffs offered to purchase the disputed parcel from defendants, but that the offer was notaccepted. These actions are inconsistent with plaintiffs' claim that they and Nelson mutuallyagreed to move the boundary line to the fence location. Furthermore, by plaintiff Linda Robert'sown testimony, plaintiffs characterized their arrangement with Nelson as an agreement underwhich they were allowed "to use" the disputed parcel as their own. They did not state that Nelsonagreed to give them ownership of the disputed parcel. In view of the foregoing, Supreme Courtproperly concluded that plaintiffs did not acquire title to the disputed parcel under the doctrine ofpractical location and dismissed the complaint.
Peters, J.P., Rose, Lahtinen and Garry, JJ., concur. Ordered that the judgment is affirmed,with costs.
Footnote *: It is to be noted that SupremeCourt interpreted plaintiffs' cause of action for "accession" as pleading a cause of action basedon the doctrine of practical location and acquiescence.