Belotti v. Bickhardt

• Decision Date: 13 April 1920
• Citation: 127 N.E. 239,228 N.Y. 296
• Parties: BELOTTI v. BICKHARDT et al.
• Court: New York Court of Appeals Court of Appeals

228 N.Y. 296

127 N.E. 239

BELOTTI

v.BICKHARDT et al.

Court of Appeals of New York.

April 13, 1920.

Action by Anselmo Belotti against Andrew Bickhardt and others. From a judgment of the Appellate Division, First Department (180 App. Div. 890,167 N. Y. Supp. 19), affirming by a divided court a judgment for plaintiff, the defendant named appeals.

Reversed, and new trial granted.

Hogan, J., dissenting.Appeal from Supreme Court, Appellate Division, First department.

Stephen O. Lockwood, of New York City, for appellant.

Charles P. Hallock, of New York City, for respondent.

ELKUS, J.

The plaintiff's mother, Maria G. Belotti, in 1897, and the defendant Bickhardt's predecessor in interest, Gustave Riedel, in 1892, purchased adjoining parcels of land now in the borough of the Bronx, New York City, and then on Berrian avenue, and now by the opening of Webster avenue located on the latter avenue. The plaintiff's property was a lot known as K on a map made by Josiah A. Briggs, dated May 5, 1889, and the defendant's property was known as lots H, I, and J on the same map. Lot J immediately adjoined lot K. About 1892 the then owner of defendant Bickhardt's lots, one Van Schaick, erected a building on lot J and a portion of lot K, the building extending from the rear of the lots to the easterly side of Berrian avenue. The building thus erected actually encroached upon plaintiff's lot, so that it covered a portion of it, 12 feet in width and 51 feet in depth, with a substantial structure.

In December, 1892, Van Schaick conveyed the three lots known as H, I, and J to Riedel, with the building thus erected, partly on lot J and partly on lot K, as indicated, and Riedel entered into the occupation of the premises and used the building as a saloon and roadhouse continually thereafter until his death, which occurred June 18, 1898.

In 1897 Webster avenue was legally opened, and Berrian avenue closed, the grade of Webster avenue was raised, and Riedel raised his building, placing a foundation under it, to conform to the grade of Webster avenue, and added an extension westerly over the discontinued Berrian avenue to the new easterly line of Webster avenue. This addition likewise encroached on the plaintiff's lot for a width of 12 feet and the depth of the widening of the avenue.

Riedel left a last will and testament, and his devisees and heirs conveyed the four lots G, H, I, and J to the defendant Bickhardt by deed dated August 16, 1906. Between Riedel's death in 1898 and the conveyance by the heirs at law and devisees in 1906 the premises, including that portion of the building which was upon the plaintiff's lot, were actually occupied by Riedel's heirs and devisees.

After Bickhardt received this deed, the possession of Riedel and his widow and devisees was continued in him uninterruptedly.

By an alleged corrective deed dated April 24, 1916, and not recorded, the devisees and heirs of Riedel attempted to correct their deed of 1906 and convey to the defendant Bickhardt by correct description the premises of which he was actually possessed, including the portion of the plaintiff's property which is the subject-matter of this action. The trial court held that this instrument was champertous and of no effect.

Since August 16, 1906, Bickhardt has used and rented the entire building, including that portion of the property of plaintiff on which the portion of the building stands, for a hotel, and collected rent therefor.

The contest of the parties is as to the right of possession and title to the strip 11.31 feet wide and by about 51.34 feet in depth on part of lot K. Riedel and his devisees and heirs had undisputed possession from December, 1892, to 1906, a period of 14 years, and Bickhardt has had possession ever since. Bickhardt's claim is that his possession tacked onto that of his grantors and their testator entitles him to defeat the plaintiff's claim and justifies his claim of title by adverse possession.

The action was for recovery of the land thus seized and for possession thereof, for damages, and for a mandatory injunction directing the removal of the encroaching building.

The trial court held that the defendant, having no record or paper title to the disputed premises, must show not only adverse possession as provided by sections 371 and 372 of the Code of Civil Procedure, but that there was privity of estate or contract between the successive possessors. It also held that there was no evidence of any intent on the part of Riedel or his predecessors in title to take possession of any portion of the plaintiff's lot, except as may be inferred from the fact of possession alone. The Appellate Division affirmed this judgment by a divided court without opinion.

It appears that the encroachment by Van Schaick, who built the building now partially upon the plaintiff's lot in 1892, was because of a mistake made by reason of an error in an old sketch map erroneously locating lots H, I, and J and K, and, if this map was correct, the building did not encroach upon the plaintiff's lot. This faulty map appears to have been generally followed and was followed by both the plaintiff's and the defendant's predecessors in interest.

If Riedel or his heirs had retained title to the premises and occupied the same adversely until the 20 years required by law had expired, there would be little or no question as to their having acquired title by adverse possession. Bickhardt has continued to occupty the same building which has been occupied by him and his predecessors in interest for 35 years. The building is a substantial, twostory, frame structure with stone foundation, and is used as a hotel. The defendant's wife, who was the daughter of Riedel, testified that her father, with whom she then lived, moved on the premises in question in 1892, and lived there and carried on his business as a saloon keeper until his death. Bickhardt purchased the property in 1906 for $14,000. The plaintiff admits that he actually saw the building erected by defendant Bickhardt's predecessors in interest, that it substantially was as it is now, and that the plaintiff's father, one of his predecessors in title, had erected or moved a building on his own lot immediately adjoining.

[1] Adverse possession, even when held by a mistake or through inadvertence, may ripen into a prescriptive right after 20 years of such possession (Crary v. Goodman, 22 N. Y. 170;Barnes v. Light, 116 N. Y. 34, 22 N. E. 441;Baker v. Oakwood, 123 N. Y. 16, 25 N. E. 312,10 L. R. A. 387: Washburn Real Prop. [6th Ed.] § 1968, p. 130); the actual physical occupation and improvement being, in a proper case, sufficient evidence of the intention to hold adversely (Barnes v. Light, 116 N. Y. 34, 22 N. E. 441).

There are five essential elements necessary to constitute an effective adverse possession: First, the possession must be hostile and under claim of right; second, it must be actual; third, it must be open and notorious; fourth, it must be exclusive; and fifth, it must be continuous. If any of these constituents is wanting, the possession will not effect a bar of the legal title. Doherty v. Matsell, 119 N. Y. 646, 23 N. E. 994; Am. & Eng. Ency. of Law (2d Ed.) p. 795.

The trial court found that there was privity of estate between Riedel and his heirs, and that thus adverse possession was proven from 1892 to 1906. In 1906 the conveyance from Riedel's heirs to the defendant was made and recorded. This deed, however, did not include in its description any portion of the plaintiff's property, lot K, but described the northerly boundary of the property conveyed as running along lot K, claimed by plaintiff, thereby excluding any portion of lot K, plaintiff's property, from the terms of the conveyance. This, the trial court says, shows a clear intent upon the part of the grantors of the defendant Bickhardt not to convey any land not expressly included in the description, and not to convey that portion of the plaintiff's premises claimed to be adversely possessed.

The lower court and the respondent rely upon three cases decided by courts in this state as authority for this proposition. Staples v. Schnackenberg, 148 App. Div. 161,132 N. Y. Supp. 1092;Ridley v. Walter, 153 App. Div. 65, 137 N. Y. Supp. 1050;Smith v. Reich, 80 Hun, 287, 30 N. Y. Supp. 167, affirmed on opinion below in 151 N. Y. 642, 45 N. E. 1134. These cases may be distinguished on the ground that there was no evidence of an intent on the part of the grantor to transfer possession to the grantee of any land not expressly included in the descriptions of the conveyances there shown.

[3] The findings of fact and the evidence, however, clearly show the intent, not only to transfer the title to the lot which is described in the deed to the defendant Bickhardt, but also to transfer possession of the building as a whole, and not merely that part of it which stood upon the lot to which Riedel and his heirs had unmistakable title.

Smith v. Reich, 80 Hun, 287, 288, 30 N. Y. Supp. 167, was an ejectment suit affecting a small tract of land in the town of Islip. The Smiths, the plaintiffs, were owners of seversl hundred acres of land lying east of the defendant Reich's land, and the question turned upon the location of the westerly boundary of the plaintiffs' land and the easterly boundary of lands described in a deed from Cordts to Reich. The question arose as to evidence offered by Reich tending to establish adverse possession to the plaintiffs' land being excludedimproperly in order to change this line. The land in question was vacant land, and the claim was that it had been cultivated under a claim of title. Brown, J., says:

‘It did not appear that any person in appellant's (Reich's) chain of title ever had occupied the land, and no offer to show that fact was made.’

Staples v. Schnackenberg, 148 App. Div. 161, 162, 163,132 N. Y. Supp. 1092, 1093, was also a case of vacant land. Miller, J., says:

‘As the defendant's deed expressly...