City of Tonawanda v. Ellicott Creek Homeowners Ass'n, Inc.

• Decision Date: 12 April 1982
• Citation: 86 A.D.2d 118,449 N.Y.S.2d 116
• Parties: CITY OF TONAWANDA, a Municipal Corporation, Appellant-Respondent, v. ELLICOTT CREEK HOMEOWNERS ASSOCIATION, INC., et al., Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 116

449 N.Y.S.2d 116

86 A.D.2d 118

CITY OF TONAWANDA, a Municipal Corporation, Appellant-Respondent, v. ELLICOTT CREEK HOMEOWNERS ASSOCIATION, INC., et al Respondents-Appellants.

Supreme Court, Appellate Division Fourth Department.

April 12, 1982.

Joseph J. Cassata, City Atty., Tonawanda, for appellant-respondent.

Joseph J. Schoelkopf, Jr., Depew (Gerald Gorman, Buffalo, of counsel), for respondents-appellants.

Before SIMONS, J. P., and HANCOCK, DOERR, DENMAN and SCHNEPP, JJ.

DENMAN, Justice.

This case concerns the ownership and use of certain real property lying between Ellicott Creek and Ellicott Creek Road in the City of Tonawanda (City) in Erie County. The City has record title to the property but certain individuals who own residential property across Ellicott Creek Road from the contested strip of creekfront property, as well as ten boat owners who own no adjacent property, have used the creekfront property for years.

In February, 1977 the City commenced an action for ejectment against 41 named defendants, including the Ellicott Creek Homeowners Association, Inc. (Association). ¹ The action has been discontinued against certain individuals and other individuals are in default. The Association and 24 individuals answered and asserted affirmative defenses and counterclaims for adverse possession and easements by prescription. The City moved for summary judgment dismissing those affirmative defenses and counterclaims. Special Term granted partial summary judgment in favor of the City dismissing the defenses and counterclaims for adverse possession and denied summary judgment with respect to the prescriptive easement claims. The City has appealed and the defendants have cross-appealed from that order.

The various defendants make no claim of title under a written instrument and do not controvert that the City is the record owner. Legal title carries with it the presumption that the record owner has been possessed of the premises and that the occupation by another is subordinate, not hostile, to legal title (Real Property Actions and Proceedings Law, § 311; Harrison v. New York Central R. R. Co., 255 App.Div. 183, 186-187, 6 N.Y.S.2d 978, affd. 281 N.Y. 653, 22 N.E.2d 483; see 2 N.Y.Jur.2d, Adverse Possession, § 10, p. 315). Therefore, the City would be entitled to summary judgment unless the defendants can demonstrate their rights by competent evidence or at least raise a factual issue regarding their claim to title through adverse possession or prescriptive easement. With respect to a claim of adverse possession, five elements must be established: possession was hostile and under claim of right; actual; open and notorious; exclusive, and continuous for the statutory period (Belotti v. Bickhardt, 228 N.Y. 296, 302, 127 N.E. 239; Gerwitz v. Gelsomin, 69 A.D.2d 992, 416 N.Y.S.2d 127). The elements of an easement by prescription are similar although demonstration of exclusivity is not essential (Di Leo v. Pecksto Holding Corp., 304 N.Y. 505, 512, 109 N.E.2d 600; Weinberg v. Shafler, 68 A.D.2d 944, 945, 414 N.Y.S.2d 61, affd. 50 N.Y.2d 876, 430 N.Y.S.2d 55, 407 N.E.2d 1351). In either case where all of the other elements are established by the one claiming title or easement under adverse possession or user, the first element of hostile possession or user will be presumed and the burden shifts to the record owner to produce evidence rebutting the presumption of adversity (Real Property Actions and Proceedings Law, § 521; Di Leo v. Pecksto Holding Corp., supra; Beutler v. Maynard, 80 A.D.2d 982, 437 N.Y.S.2d 463, affd. 56 N.Y.2d 538, 449 N.Y.S.2d 966, 434 N.E.2d 1344 (1982); Village of Schoharie v. Coons, 34 A.D.2d 701, 309 N.Y.S.2d 545, affd. 28 N.Y.2d 568, 319 N.Y.S.2d 612, 268 N.E.2d 325; Weil v. Snyder, 25 A.D.2d 605, 267 N.Y.S.2d 334).

The majority of the claims for both adverse possession and prescriptive easement must be dismissed because the defendants have failed to demonstrate that their possession or user was continuous for the requisite statutory period. The applicable statutory period is 15 years for those whose possession commenced prior to September 1, 1963, the date on which the statutory period was changed, and 10 years for those whose possession began thereafter (Carrington v. McNeil, 58 A.D.2d 719, 396 N.Y.S.2d 286; Reiter v. Landon Homes, 31 A.D.2d 538, 295 N.Y.S.2d 103).

The claim of defendant Stephen A. Capuson must be dismissed. He purchased his property on the south side of Ellicott Creek Road prior to September 1, 1963 and his purported occupation or user of the creekside land commenced at the time of his purchase. He makes no claim of tacking and has failed to demonstrate that he occupied the parcel for 15 years prior to February, 1977 when the action was commenced. Defendants Roland E. and Annette M. Caron, Louis T. and Virginia Zwolinski, and Madeline M. (Landon) Eber took title to their property on the south side of Ellicott Creek Road after September 1, 1963. They claim no tacking and have not demonstrated possession or user with respect to the creekside land for 10 years prior to February, 1977. Defendants George E. and Ardyce Matzke took title to their property in September, 1975 from defendant Charles Gauvreau who took title in August, 1963 and no prior adverse possession or user for tacking purposes has been pleaded. Accordingly, the Matzkes have not been in possession for 10 years on their own nor for 15 years if tacking with respect to Gauvreau is utilized. Defendants Ellwood E. and Dorothy L. Scheley took title to their property on June 30, 1970 by deed which granted "all interest of sellers in and to lands between the above described parcel and Ellicott Creek"; nevertheless, since the record does not show when the previous owners acquired title or began occupation, the Scheleys have failed to meet their burden.

Certain defendants are boat owners who claim interest in the creekside property because they have used docks abutting the property with the knowledge or consent of the owners of property south of Ellicott Creek Road. James L. Shannon, Weldon Rutter and Willard Kling have failed to establish their user for the 10-year prescriptive period. Charles Gauvreau built a dock opposite 392 Ellicott Creek Road in August, 1963 and has used it since (from 1975 by agreement with Matzkes); he thus failed to establish the 15-year period of prescription. Defendant Bauer built and used one dock opposite 404 Ellicott Creek Road from 1962 to 1973. In 1973 he abandoned that dock and has used a dock opposite 398 Ellicott Creek Road by agreement with defendant Maurer. He has not met the prescriptive period of 15 years for the first dock or 10 years for the second dock. Accordingly, summary judgment should have been granted against all defendants except the Branns, Eckerts, Melick, Maurer, Anderson and the Leases, dismissing the defenses and counterclaims for both adverse possession and prescriptive easement on the ground that continuous occupation or user for the appropriate statutory period had not been established.

With respect to the adverse possession claim of the Branns and Eckerts, other than conclusory assertions of open, continuous, exclusive and hostile possession and use, they merely assert that they have maintained the creekfront land by mowing the grass and planting trees. One seeking to obtain title by adverse possession on a claim not based upon a written instrument must show actual occupation of the premises which requires that the parcel be "usually cultivated or improved" or that it "has been protected by a substantial inclosure" (Real Property Actions and Proceedings Law, §§ 521, 522, subds. and see Lewis v. Village of Lyons, 54 A.D.2d 488, 389 N.Y.S.2d 674). The type of cultivation or improvement sufficient under the statute will vary with the character, condition, location and potential uses for the property (Ramapo Mfg. Co. v. Mapes, 216 N.Y. 362, 372-373, 110 N.E. 772) and need only be consistent with the nature of the property so as to indicate exclusive ownership (Camfield v. Luther Forest Corp., 75 A.D.2d 671, 426 N.Y.S.2d 855). The creekside property was suitable for more extensive use than that asserted by the Branns and Eckerts as is indicated by the improvements and uses made by neighbors. The acts of the Branns and Eckerts are insufficient as a matter of law to establish that the land has been "usually cultivated" as contemplated by section 522 of the Real Property Actions and Proceedings Law (see 1 Warren's Weed, New York Real Property, Adverse Possession, § 5.02, p. 44) and there is no evidence of substantial inclosure. While the actual occupation requirement of sections 521 and 522 is not applicable to the claim of easement by prescription (Di Leo v. Pecksto Holding Corp., 304 N.Y. 505, 109 N.E.2d 600; 1 Warren's Weed, New York Real Property, Adverse Possession, § 1.07, p. 9), those claims of the Branns and Eckerts should also be dismissed inasmuch as the conclusory statements in their affidavits are insufficient to establish a factual issue concerning that claim (Zuckerman v. City of New York, 49...