| Mohonk Preserve, Inc. v Ullrich |
| 2014 NY Slip Op 05234 [119 AD3d 1130] |
| July 10, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 Mohonk Preserve, Inc., Respondent, v Christopher E.Ullrich et al., Appellants. |
Graff Law, LLC, Kingston (Sharon A. Graff of counsel), for appellants.
Kellar Kellar & Jaiven, Kingston (Paul T. Kellar of counsel), forrespondent.
McCarthy, J. Appeals (1) from an order of the Supreme Court (Cahill, J.), enteredApril 18, 2013 in Ulster County, upon a decision of the court in favor of plaintiff, and (2)from the judgment entered thereon.
Plaintiff is a not-for-profit organization, founded in 1963 as the Mohonk Trust, thatexists primarily to protect and manage land in the Shawangunk Mountains that it holds intrust for the public. In 1981, defendant Thomas E. Marks and his former wife purchaseda parcel adjoining plaintiff's property. In 2005, Marks and his current wife, defendantHelen G. Ullrich, who was by then a co-owner of the parcel, sold that same parcel todefendants Christopher E. Ullrich and Sarah C. Emond (hereinafter collectively referredto as the current owners). That same year, a dispute arose when plaintiff's employeesobserved that signs had been removed and trees had been cut near the current owners'southern and plaintiff's northern boundary. In 2009, plaintiff commenced this action,pursuant to RPAPL article 15, to, among other things, establish the boundary line inaccordance with a survey it had commissioned and to obtain a preliminary injunctionprohibiting defendants from trespassing or despoiling its land. Defendants answered andthereafter presented their own survey. Although the survey was in substantial agreementwith plaintiff's survey regarding the originally disputed boundary line, it also depictedthat the current owners owned a substantial portion of property that is northwest of theirproperty as depicted in plaintiff's survey. According to plaintiff's survey, that disputedarea was on a parcel of land that plaintiff purchased in 2010. Soon after that purchase, anadditional conflict arose surrounding allegations that the current owners had alsoremoved timber from this disputed portion of land. Thereafter, plaintiff filed an amendedcomplaint seeking to additionally establish [*2]theboundary lines for its newly-acquired parcel in accordance with its surveys and to obtaina preliminary injunction to prevent defendants from entering that parcel. Defendantscounterclaimed, seeking, among other things, to establish the disputed boundary lines inaccordance with their survey. After a nonjury trial, Supreme Court entered an order andjudgment finding that, among other things, plaintiff's survey was controlling as to thedisputed boundary lines and awarding plaintiff damages for 49 trees cut from itsproperty.[FN1]Defendants now appeal.
Supreme Court did not err in crediting plaintiff's survey as establishing the relevantboundary lines. Upon review of a verdict following a nonjury trial, this Court, whilegranting deference to Supreme Court's credibility assessments, has the authority toindependently review the evidence and grant the judgment that such evidence warrants(see Henshaw v Younes,101 AD3d 1557, 1560 [2012]; Krol v Eckman, 305 AD2d 709, 710 [2003]).In an action to quiet title, the plaintiff bears the burden of proving his or her claim by apreponderance of the evidence (see Glenn Acres Tree Farm, Inc. v Town of Hartwick HistoricalSocy., Inc., 84 AD3d 1529, 1529-1530 [2011]). In the context of a boundarydispute, deeds must be construed in accordance with the parties' intent and extrinsicevidence is admissible to clarify any ambiguities (see Henshaw v Younes, 101AD3d at 1559; Schweitzer v Heppner, 212 AD2d 835, 838 [1995]). Further,references to " 'natural landmarks and artificial monuments take precedence overmere metes and bounds descriptions' " (Brown v Ames, 290 AD2d 693,694 [2002], quoting Zelnik Realty v York, 170 AD2d 926, 928 [1991]).
Initially, we agree with both parties' concessions at trial that, despite consideration ofover 150 deeds, some stretching back into the 1700s, independent documentary evidencedoes not conclusively establish the disputed boundary lines. Accordingly, the recordbefore us illustrates that each parties' expert witnesses necessarily relied on incomplete,ambiguous and sometimes even self-contradictory descriptions of relevant parcels whenthey drafted surveys showing the alleged placement of the disputed boundary lines.Considering this imperfect documentary evidence, the resolution of the dispute, in largepart, turned on the credibility of each parties' expert witnesses' testimony in regard to theproposed surveys (see e.g. Levy v Braley, 176 AD2d 1030, 1032 [1991]).
Supreme Court made numerous findings that testimony regarding the production ofplaintiff's survey was more credible than the testimony regarding the production ofdefendants' survey. Plaintiff's surveyor, Richard Brooks, testified that the survey heproduced was certified as being in accordance with the standards of the New York StateLicensed Professional Land Surveyors, and he noted that the most recent draft of thesurvey contained notations describing the changes made in each of the six revisions thathe had made to incorporate newly-acquired information since his original draft in 2006.In contrast, the surveyor who produced defendants' survey, Rodney Knowlton, did nottestify that his survey was certified to any professional standards. Even more strikingly,Knowlton acknowledged that he had created earlier survey drafts, but that he haddiscarded each upon Christopher Ullrich's disapproval of the results of those surveys.Notably, defendants did not provide any additional evidence that could be [*3]reasonably interpreted as clarifying what revisions weremade to defendants' survey or whether they would generally be accepted as permissiblewithin the professional surveying community.
Further, although Knowlton acknowledged that a survey should depict improvementsmade to land, he also admitted that his survey did not contain improvements on portionsof the contested land, such as a driveway, a septic tank, a wellhead and power utilitypoles, all of which were noted on plaintiff's survey.[FN2] In addition, defendants' survey failed todepict conflicting boundaries as depicted in senior surveys, failed to depict numerouspieces of hardware and markings left by previous surveyors and failed to clearly labelparcels by their current owners, all of which, according to various testimony by expertwitnesses for plaintiff, departed from generally accepted professional practices.
In addition, Knowlton's credibility was drawn further into question based on theintroduction of certain highly reliable documentary evidence that contradicted certain ofhis conclusions. Multiple witnesses, including Knowlton on cross-examination, agreedthat defendants' survey had omitted a certain lot by doubling the width of a different lot,a decision that directly contradicted uncontroverted evidence from a field book and mapdating back to 1793. In addition, despite the fact that at least 12 deeds in the chain of titlefor one nearby parcel called for a boundary line as a ledge of rocks, Knowlton insteadused a stone wall that was never mentioned in any deed for the parcel as marking thatboundary line. Not only did Knowlton ignore the repeatedly noted landmark for thisboundary line, but he did so despite the fact that use of the ledge boundary line wasrelatively consistent with the purported acreage of the parcel contained in various deeds,whereas use of the stone wall decreased the acreage of the parcel by over a quarter fromsuch purported acreage.
Moreover, defendants failed to provide an adequate account of how evidence relatingto the current owners' chain of title fit into Knowlton's depiction of their property.Although acreage is not necessarily a compelling factor on its own, none of defendants'expert witnesses provided a reasonable explanation for the significant discrepancybetween the acreage provided for in the current owners' deed and the acreage thatdefendants' survey attributed to the current owners, which was over four times greaterthan that described in the deed. Given the additional evidence that defendants' surveydepicted multiple parcels as also significantly departing from the acreage described inrespective deeds, it is appropriate to consider the failure of defense witnesses toadequately explain how such widespread errors would have remained uncorrected in laterdeeds and surveys (see Levy v Braley, 176 AD2d at 1033).
Finally, Supreme Court properly rejected defendants' central contention that a defectin plaintiff's survey caused it to place various parcels approximately 660 feet too far tothe south. As to this point, both parties opined as to the location of the Benjamin Freerlot, a parcel of land eventually acquired by plaintiff and which bordered the currentowners' parcel to the north. An 1837 deed describing the lot provides for an easternboundary along a road that, as it travels north, bends eastward. While plaintiff's surveyplaces the Freer parcel's eastern boundary along a point in the road that contains a bendsubstantially similar to the 1837 description, defendants' [*4]survey placed the Freer lot further north along the sameroad at a point that, as Knowlton conceded, does not match the described curvature. Inlight of this evidence, and providing deference to Supreme Court's assessments of thevarious experts' credibility, the court's finding that plaintiff's survey established thedisputed boundary lines was warranted (see Leitch v Jackson, 243 AD2d 873,874 [1997]; Schweitzer v Heppner, 212 AD2d at 839; Stratton v Keefe,191 AD2d 871, 873 [1993]; Fletcher v Flacke, 97 AD2d 623, 623-624[1983]).
However, Supreme Court erred in awarding damages to plaintiffs for trees cut byChristopher Ullrich in 2005. Under RPAPL 861, an owner may recover treble thestumpage value of a tree, $250 per tree or both when, without the owner's consent, anyperson cuts or removes a tree from the owner's land. CPLR 214 (4) provides that anaction to recover damages for injury to property is subject to a three-year statute oflimitations (see Mandel v Estate of Frank L. Tiffany, 263 AD2d 827, 829[1999]).[FN3] Here,evidence was presented that Christopher Ullrich admitted to cutting 31 trees in 2005, alllater determined to be within plaintiff's parcel. As this case was commenced in 2009, thecause of action with respect to the 31 trees was time-barred. On the other hand, the causeof action seeking damages for the trees that were cut in 2010 is not time-barred.Considering the testimony from an employee of plaintiff that he determined that the 18trees were cut after plaintiff acquired ownership of the parcel in 2010 and thatChristopher Ullrich had admitted to cutting those trees, we see no reason to disturb thatportion of Supreme Court's determination.
Defendants' remaining contentions are rendered academic by this decision.
Lahtinen, J.P., Rose, Lynch and Devine, JJ., concur. Ordered that the order andjudgment are modified, on the law, without costs, by reducing the damages thatdefendants owe to plaintiff for cut trees to $4,500, and, as so modified, affirmed.
Footnote 1:Although the orderspecifies that Supreme Court awarded damages for 31 trees, the monetary award, asconfirmed in the judgment, indicates that the court actually provided damages for 49trees.
Footnote 2:Although not germane tothe instant discussion, the visibility of improvements was relevant to the issue at trial ofwhether plaintiff, in any event, had established ownership of disputed portions of land byadverse possession.
Footnote 3:To the extent thatTon-Da-Lay, Ltd. v Friedman (75 AD2d 976, 977 [1980]) asserts that RPAPL861 claims are subject to a six-year statute of limitations, it should not be followed.