Backus v. Lyme Adirondack Timberlands II, LLC

• Citation: 43 N.Y.S.3d 529,144 A.D.3d 1454,2016 N.Y. Slip Op. 07901
• Parties: James P. BACKUS, Respondent, v. LYME ADIRONDACK TIMBERLANDS II, LLC, et al., Appellants, et al., Defendants.
• Decision Date: 23 November 2016
• Court: New York Supreme Court Appellate Division

144 A.D.3d 1454

43 N.Y.S.3d 529

2016 N.Y. Slip Op. 07901

James P. BACKUS, Respondent,

v.LYME ADIRONDACK TIMBERLANDS II, LLC, et al., Appellants, et al., Defendants.

Supreme Court, Appellate Division, Third Department, New York.

Nov. 23, 2016.

Cooper Irving Savage, LLP, Albany (Christopher P. Flint of counsel), for appellants.

Wilkins & Griffin, PLLC, Lake Placid (John T. Wilkins of counsel) and Katherine McNamara, Ticonderoga, for respondent.

Before: PETERS, P.J., McCARTHY, LYNCH, ROSE and MULVEY, JJ.

LYNCH, J.

Appeals (1) from an order of the Supreme Court (Buchanan, J.), entered March 27, 2015, which, among other things, granted plaintiff's motion for partial summary judgment, and (2) from an order of said court, entered November 23, 2015 in Essex County, which, among other things, denied motions by defendants Lyme Adirondack Timberlands II, LLC, Lyme Adirondack Timber Sales, Inc. and Upland Resource Group, Inc. to reargue.

Plaintiff and defendant Lyme Adirondack Timberlands II, LLC (hereinafter Lyme Timberlands)¹ own adjoining forested parcels located in the Adirondack Park. The property at issue in this case is an 11.09–acre parcel known as Burt's Swamp. Plaintiff acquired the property in 2007 pursuant to an oral agreement he entered into with his predecessor in title in 2004.² Burt's Swamp borders a parcel (hereinafter parcel 17) that was part of a 275,000 acre purchase completed by Lyme Timberlands in 2006. Lyme Timberlands sold a conservation easement on parcel 17 to the state but retained, as relevant here, timber and recreational rights in the property. Lyme Timberlands retained defendant Upland Resource Group, Inc. to manage certain property, including parcel 17. It is not disputed that, in 2007, Upland directed an entity to clear cut an area that was located on parcel 17 and which included approximately three acres located in Burt's Swamp (hereinafter the disputed area).

Plaintiff commenced this action against, among others, Lyme Timberlands and Upland (hereinafter collectively referred to as defendants) seeking treble damages pursuant to RPAPL 861, punitive damages and to quiet title to the disputed area. Defendants joined issue, arguing, among other things, that Lyme Timberlands adversely possessed the disputed area. Following discovery, plaintiff moved for summary judgment on liability and defendants each sought summary judgment dismissing the complaint against them or, in the alternative, partial summary judgment dismissing plaintiff's claims for treble and punitive damages. Supreme Court determined that defendants failed to raise triable issues of fact on their adverse possession claim, granted plaintiff's motion for summary judgment against defendants, declared that plaintiff owned the disputed area and denied defendants' motions. Thereafter, Supreme Court issued an order denying defendants' motions to reargue. Defendants now appeal both orders.³

A cause of action for timber trespass may be maintained by a property owner against " ‘any person’ who, without the owner's consent, ‘cuts, removes, injures or destroys, or causes to be cut, removed, injured or destroyed, any underwood, tree or timber from the owner's land’ and recover from that person damages amounting to ‘treble the stumpage value of the tree or timber or $250 per tree, or both’ for the injury" (Fernandes v. Morgan, 95 A.D.3d 1626, 1627, 945 N.Y.S.2d 786 [2012] [brackets omitted], quoting RPAPL 861[1] ; see Jones v. Castlerick, LLC, 128 A.D.3d 1153, 1154, 8 N.Y.S.3d 727 [2015] ). In this action, plaintiff claims to be the record owner of Burt's Swamp and defendants claim that Lyme Timberlands acquired title to the disputed area by adverse possession. Accordingly, Lyme Timberlands was required to prove by clear and convincing evidence that its possession was "(1) hostile and under a claim of right (i.e., a reasonable basis for the belief that the subject property belongs to a particular party), (2) actual, (3) open and notorious, (4) exclusive and (5) continuous for the statutory period (at least 10 years)" (Estate of Becker v. Murtagh, 19 N.Y.3d 75, 81, 945 N.Y.S.2d 196, 968 N.E.2d 433 [2012] ; see Walling v. Przybylo, 7 N.Y.3d 228, 232, 818 N.Y.S.2d 816, 851 N.E.2d 1167 [2006] ).⁴ "[W]here, as here the claim of right is not founded upon a written instrument, the party asserting title by adverse possession must establish that the land was ‘usually cultivated or improved’ or ‘protected by a substantial inclosure’ (Estate of Becker v. Murtagh, 19 N.Y.3d at 81, 945 N.Y.S.2d 196, 968 N.E.2d 433 ; accord Bergmann v. Spallane, 129 A.D.3d 1193, 1193, 10 N.Y.S.3d 670 [2015] ). The required cultivation and improvement "must be such that they would place the record owner on notice of an adverse claim, an analysis that varies with the nature of the property" (Bergmann v. Spallane, 129 A.D.3d at 1194–1195, 10 N.Y.S.3d 670 ; see Ray v. Beacon Hudson Mtn. Corp., 88 N.Y.2d 154, 160, 643 N.Y.S.2d 939, 666 N.E.2d 532 [1996] ).

In support of his motion for summary judgment on his first and third causes of action, plaintiff submitted an affidavit by Kevin Hall, a surveyor who concluded, with detailed reference to existing maps and deeds and markers discovered during his survey, that the disputed area was in fact located on the Burt's Swamp parcel. Plaintiff also submitted an affidavit wherein he avers that he discovered Upland's contractor on the disputed parcel cutting trees and an affidavit by a forester who counted and assigned a stumpage value to the trees cut on the disputed parcel. In our view, plaintiff's submissions were sufficient to demonstrate prima facie entitlement to summary judgment on the issue of liability pursuant to RPAPL 861 (see Morrison v. Wescor Forest Prods. Co., 28 A.D.3d 1225, 1226, 814 N.Y.S.2d 474 [2006] ). These submissions were also sufficient to demonstrate prima facie entitlement to summary judgment on its third cause of action seeking to quiet title, but only to the extent that plaintiff claims that he has record title to the property (see Gallas v. Duchesne, 268 A.D.2d 728, 729, 701 N.Y.S.2d 497 [2000] ). Although defendants do not challenge plaintiff's record title on this appeal, they contend that there are factual questions with regard to whether Lyme Timberlands adversely possessed the disputed parcel for the requisite period. We agree.

In support of their motions for summary judgment, defendants submitted proof that a blazed and painted boundary line has existed on the disputed parcel since at least 1963.⁵ Further, Upland's employee responsible for managing the property asserted that his job required him to walk the property to assess timber growth and that he always believed that the painted boundary line was the boundary line between parcel 17 and the Burt's Swamp parcel. Lyme Timberlands' predecessor began leasing parcel 17 to a hunting club in 1989 and, since that time and continuously through 2007, the leased property included the area up to the blazed boundary line. A representative of the hunting club testified that, in 1989, he and other club members posted no trespassing signs along the blazed and painted boundary line and reblazed and repainted the line. They also hunted in the disputed area every weekend and sometimes during the week from approximately October through December. Lyme Timberlands also submitted an affidavit by an expert who averred that the "highest and best use of forest properties in the Adirondack is joint production of timber and amenities."

Plaintiff's submissions indicate that both he and his predecessor believed that the disputed parcel was within the Burt's Swamp parcel. Both claim that they used the property, although the nature of such use is not detailed in the record. Also, plaintiff's evidence was equivocal with regard to whether and where plaintiff and his predecessor had ever observed the hunting clubs posted signs or the blazed and painted tree line. When we consider the "acts of dominion and control over the premises that would appropriately be undertaken by owners of properties of similar character, condition and location" (Ray v. Beacon Hudson Mtn. Corp., 88 N.Y.2d at 160, 643 N.Y.S.2d 939, 666 N.E.2d 532 ), we find that Lyme Timberlands' use of the property raises factual questions with regard to whether it has established ownership based on adverse possession (see Gallas v. Duchesne, 268 A.D.2d at 730, 701 N.Y.S.2d 497 ; Shawangunk Conservancy v. Fink, 261 A.D.2d 692, 695, 690 N.Y.S.2d 158 [1999] ; Parillo v. Prunier, 257 A.D.2d 807, 807, 683 N.Y.S.2d 662 [1999] ).

Next, we find that Supreme Court properly denied Upland's motion for partial summary judgment dismissing plaintiff's claim for treble damages pursuant to RPAPL 861(2). To avoid such damages, a defendant must prove, by clear and convincing evidence, that "he or she had cause to believe the land was his...