| Henshaw v Younes |
| 2012 NY Slip Op 09133 [101 AD3d 1557] |
| December 27, 2012 |
| Appellate Division, Third Department |
| Suzanne H. Henshaw, Appellant, v Mark E. Younes,Respondent. |
—[*1] Bartlett, Pontiff, Stewart & Rhodes, PC, Glens Falls (Karla Williams Buettner of counsel),for respondent.
Stein, J. Appeal from a judgment of the Supreme Court (Muller, J.), entered October 17,2011 in Warren County, upon a decision of the court in favor of defendant.
Plaintiff and defendant each own real property, consisting of several parcels bordering theeastern side of Pease Hill Road in the Town of Horicon, Warren County. Plaintiff commencedthis action pursuant to RPAPL article 15, seeking, as relevant here, a determination of her rightsand the boundaries with respect to certain parcels. Defendant counterclaimed, also seeking adetermination of the parties' property lines. After a nonjury trial, Supreme Court dismissedplaintiff's complaint. In addition, the court granted defendant's counterclaim, finding, amongother things, that defendant held record title to the disputed property. Plaintiff now appeals.
Inasmuch as we agree with Supreme Court's determination that defendant holds record titleto the property in question, we affirm. Plaintiff's property consists of four parcels, designated asparcels I, IV, V and VII on a survey prepared by Bolster and Associates in 2007 and revised in2009 (hereinafter the Bolster survey). Defendant owns three parcels of land adjacent to oneanother, which are entirely bounded by plaintiff's property except for defendant's [*2]westernmost boundary.[FN1]The parties agree that plaintiff's parcels I and IV lie directly south of defendant's property andthat parcel V lies to the east and north thereof; the location of parcel VII is in dispute.[FN2]Defendant's deeds granted him an easement over a historical private road called In a MaeBolton's driveway (hereinafter the private road), which is located on plaintiff'sproperty—at least partially along the northern boundary of parcels I and IV—anddelineates the border between such parcels and defendant's southern boundary.
The crux of the parties' dispute concerns the exact location of the private road which, in turn,is determinative of where the southern boundary of defendant's property and the northernboundaries of parcels I and IV meet. Plaintiff asserts that the private road is depicted as anovergrown driveway on the Bolster survey and on a survey prepared for defendant by Van Dusen& Steves in 2008 (hereinafter the 2008 Steves survey), and that defendant has destroyed theprivate road and obstructed her use thereof and her access to parcel V. On the other hand,defendant contends, and Supreme Court found, that the private road is an approximatelynine-foot strip of land contained just south of the northern boundary of parcel I, as depicted by adotted line in a survey prepared by Van Dusen & Steves for a third party in 2000. If, as plaintiffalleges, the private road is the same as the overgrown driveway, the boundaries for parcels I andIV, as well as defendant's property boundaries, would shift north.[FN3]If, however, defendant's contentions are correct, the "obstructions" of which plaintiff complainsare located on property to which he holds record title.
It is well settled that deeds are to be construed with reference to the intent of the parties and,where ambiguity exists, parol evidence is admissible to resolve disputes (see Schweitzer vHeppner, 212 AD2d 835, 838 [1995]). Additionally, references to natural landmarks andartificial monuments take precedence over distance descriptions (see Brown v Ames, 290AD2d 693, 694 [2002]). In support of their respective positions, the parties proffered, amongother things, the deed descriptions and the testimony of licensed surveyors, who provided theirexpert opinions to Supreme Court. Significantly, plaintiff's expert did not find the iron stakesdescribed in her deed at any of the four corners of parcel I. Therefore, he relied on measurementsfrom what he alleged was the location of the private road referenced in the deed, as well as the[*3]recollection of a former owner, in determining theapproximate location of the private road, although he was not on the property when the formerowner indicated where the driveway was located.
In contrast, defendant's expert, Matthew Steves, testified that his field crew visited thesubject property and located the corners of defendant's property boundaries as depicted in thesurvey he prepared for defendant in 2002. That survey located five out of six monuments todelineate defendant's property boundaries. Steves asserted that his depiction of defendant'sboundaries was consistent with previous surveys and that the overgrown driveway depicted onthe 2008 Steves survey is not the private road located on plaintiff's property. He also testified thathe found no evidence to support plaintiff's assertion that parcel VII is located south of parcel Iand opined that such placement would be inconsistent with the deed description. Additionally,Steves testified that the location of the berm, ditch and apron, as shown on the Bolster survey, arehistorical indicators of the private road and are situated on the northern edge of plaintiff'sproperty, where he alleges the private road is located.
Based on our own independent review of the evidence and giving due deference to SupremeCourt's credibility assessments (seeSharpe v Raffer, 69 AD3d 1137, 1138 [2010], lv dismissed 15 NY3d 800[2010]; Brown v Ames, 290 AD2d at 694), we discern no basis to disturb SupremeCourt's determination that Steves' opinion was persuasive and, accordingly, that defendant holdsrecord title to the disputed property. We have examined plaintiff's remaining contentions and findthem to be either academic or without merit.
Mercure, J.P., Spain and McCarthy, JJ., concur. Ordered that the judgment is affirmed,without costs.
Footnote 1: Neither party obtained a surveyof their respective properties prior to purchasing them, although plaintiff did obtain a deed plotfrom a licensed surveyor, James Nestor, around the time of her purchase in 1988. While plaintiffnow claims that the Nestor deed plot is inaccurate, she referred to it as "a valid survey map" in a2002 letter to defendant.
Footnote 2: Plaintiff contends that parcel VIIlies to the south of parcels I and IV, while defendant contends that such parcel is located north ofhis property and west of the northernmost portion of parcel V.
Footnote 3: Notably, this would create anunexplained gap between the southern boundaries of parcels I and IV and the neighboringproperty to the south. In order to account for this gap, plaintiff alleges, and her expert testified,that parcel VII is located south of parcels I and IV, rather than to the north of defendant'sproperty, as previously believed.