Guardino v. Colangelo

• Decision Date: 10 June 1999
• Parties: PATRICIA GUARDINO et al., Respondents,<BR>v.<BR>FRANK L. COLANGELO et al., Defendants, and RMF PARTNERS, Appellant.
• Court: New York Supreme Court — Appellate Division

262 A.D.2d 777

691 N.Y.S.2d 664

PATRICIA GUARDINO et al., Respondents,

v.FRANK L. COLANGELO et al., Defendants, and RMF PARTNERS, Appellant.

Spain, J.

Decided June 10, 1999.

Cardona, P. J., Peters, Carpinello and Graffeo, JJ., concur.

Spain, J.

The issue on this appeal is whether plaintiffs acquired title by adverse possession to property on which they built their house in 1977 on the belief that it was part of their abutting real property, but was in fact within a cul-de-sac over which the deed into plaintiffs conveyed an easement. To summarize, in 1974 the original grantor, Albert Christiana, filed in the Columbia County Clerk's Office a map of a four-lot subdivision carved out of land owned by him in the Town of Copake, Columbia County. In 1975 he conveyed by deed one of the parcels to plaintiffs: a 0.76-acre lot set forth on the filed map as Parcel "K" which included an easement over a proposed 50-foot wide private roadway leading to the public highway, County Route 11-A. The deed specifically refers to the filed map on which the four lots, the private roadway and a cul-de-sac, located at the interior end of the roadway, are depicted. Thereafter, Christiana, without the aid of a surveyor, had a cul-de-sac created in a location somewhat different from, but in proximity to, that depicted on the filed map. To this day, a narrow driveway connects the disputed area with the public highway. In 1977 plaintiffs, also without the aid of a surveyor and relying on the misplaced cul-de-sac, erected a house on what they believed was their property; the house was actually built, however, within a portion of the mapped cul-de-sac, entirely outside their property. The misplaced cul-de-sac was never used and eventually became overgrown and virtually indistinguishable from the rest of the terrain surrounding the house.

Christiana and his successors subsequently conveyed the remaining three lots in the subdivision (Parcels "G", "M" and "O"). Of particular significance, the deeds to these three lots conveyed a fee interest in the private roadway as tenants in common where, by contrast, plaintiffs' deed had conveyed only an easement over that roadway. From 1977 to 1993, none of the other lot owners attempted to use any portion of the mapped cul-de-sac, nor did they object to the location of plaintiffs' house. In 1993 plaintiffs had their property surveyed, revealing their encroachment. Shortly thereafter, with full knowledge of plaintiffs' encroachment, defendant RMF Partners purchased Parcel "O" from Christiana's successor, as an undeveloped 1.70-acre lot which borders the mapped cul-de-sac within which plaintiff's house has stood since 1977.

In 1994 plaintiffs commenced the instant action to quiet title with respect to the area of their encroachment based on adverse possession. RMF answered and asserted a counterclaim seeking to quiet title to the same area in its favor and asserting an easement by necessity.^[*] Following a nonjury trial, Supreme Court determined that plaintiffs had, by adverse possession, acquired "the land upon which their residence and immediate improvements with respect thereto are located" and judgment was issued in their favor. RMF has appealed.

It is well settled that to prevail on a claim to title by adverse possession, it is the possessor's burden "to establish that the character of the possession is `hostile and under a claim of right, actual, open and notorious, exclusive and continuous' * * * for the statutory period of 10 years" (Ray v Beacon Hudson Mtn. Corp., 88 NY2d 154, 159, quoting Brand v Prince, 35 NY2d 634, 636). Here, the record reveals that in 1977 plaintiffs built their house on property which was later acquired in fee by RMF in common with the owners of the two remaining lots. Clearly, the erection of a building constitutes an "open and notorious" use of the disputed area (see, Sinocropi v Town of Indian Lake, 148 AD2d 799, 799-800). Moreover, "hostility may be found even though the possession occurred inadvertently or by mistake" (id., at 800; see, Bradt v Giovannone, 35 AD2d 322, 325-326). Our review of the record supports Supreme Court's conclusion that plaintiffs satisfied their burden and were entitled to judgment declaring that they are the owners of the disputed area by adverse possession.

We find incorrect RMF's assertion that plaintiffs were tenants in common with RMF and the other lot owners and, thus, plaintiffs were required to adversely possess the disputed area for 20 years rather than 10 years (see, RPAPL 541; Myers v Bartholomew, 91 NY2d 630). RMF relies on the common-law rule that "[w]here parties hold property as tenants in common, RPAPL 541 creates a statutory presumption which the adverse claimant must overcome * * * that a possessory tenant in common holds the property for the benefit of the other co-tenant(s) * * * [which] ceases only after the expiration of ten years of exclusive and hostile occupancy by the adverse claimant, or upon ouster of the co-tenant(s)" (Perez v Perez, 228 AD2d 161, 162; see, RPAPL 541). However, plaintiffs are not tenants in common with RMF or the others to the disputed area. The plain language of the relevant deeds demonstrates, as noted, that the deed to plaintiffs, unlike the deeds conveying the other three lots in the subdivision, conveys only an easement and not a fee interest in the disputed area. Accordingly, RPAPL 541 does not extend the 10-year period with respect to plaintiffs' adverse possession claim. Moreover, even if plaintiffs were cotenants, the RPAPL 541 presumption ceases "immediately upon an ouster by one tenant of the other" (RPAPL 541 [emphasis supplied]). In our view, plaintiffs' erection of a house and improvements within the disputed area was so open, public and unequivocal that it clearly constituted ouster, rendering inapplicable the additional 10-year period (see, Myers v Bartholomew, supra, at 634-635).

Additionally, RMF's reliance upon the "paper street" rule to defeat plaintiffs' claim is without merit because RMF has fee title rather than an easement in the disputed property. While generally an easement created by grant, either express or implied, can be extinguished by adverse possession (see, Spiegel v Ferraro, 73 NY2d 622, 625; Gerbig v Zumpano, 7 NY2d 327, 330), the paper street rule creates an exception providing that, where an easement in a street or road is created by reference to a filed map, it "can be...