Hannah v. Baylon Holding Corp.

• Decision Date: 03 March 1971
• Citation: 268 N.E.2d 775,28 N.Y.2d 89,320 N.Y.S.2d 35
• Parties: , 268 N.E.2d 775 Helen R. HANNAH, Appellant, v. BAYLON HOLDING CORP., Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 35

320 N.Y.S.2d 35

28 N.Y.2d 89, 268 N.E.2d 775

Helen R. HANNAH, Appellant, v. BAYLON HOLDING CORP., Respondent.

Court of Appeals of New York.

March 3, 1971.

William W. Esseks, Riverhead, for appellant.

John J. Boyle and John C. O'Malley, New York City, for respondent.

BERGAN, Judge.

Proof of physical location of the southerly boundary of plaintiff's land where it adjoins defendant's land, at 1,508.6 feet from the Wading River Road, is sufficiently reliable to sustain, as consistent with the weight of evidence, its location at this point by the court at Special Term.

The 1847 deed to plaintiff's grandfather and predecessor in title fixed the southern boundary as being at 'a certain road'. It conveyed 12 acres 'by measurement' and the public highway, now Wading River Road, was the northern boundary.

Plaintiff established by the testimony of observations made on survey by an engineer in 1966 and by notations made by another engineer on a map in 1939, and by monuments attributed to that engineer, the physical existence of the remains of an old road at the point found at Special Term to be the boundary.

Defendant offered no proof of physical conditions in the disputed area to refute these factual observations, nor to show the existence of the remnant of an old road at or near the place where it contended the boundary is located.

The 'ditch' which plaintiff's surveyor found farther north was not the remnant of a road and was not at the point imputed by defendant to be the disputed boundary, but was at a point consistent with another boundary shown on both surveys of plaintiff. Plaintiff's engineer testified that he examined the area where defendant contends the boundary is and found no evidence of the existence of a road.

Moreover plaintiff testified that both her grandfather, the original grantee under the 1847 deed, and her father, also a predecessor in title, walked along the old road with her in the early part of this century and both stated that the property then owned by them adjoined that road.

The old road which plaintiff described as 'a logging road' left the Wading River Road west of her property, curved around the south of the property and then came out into the Wading River Road to the east. She visited the property 'often' before 1914. There were no other roads than this one. The road at this time was 'one wagon wide'; it had ruts. Her grandfather and father told her as they walked along the old road where the boundary of their property was. They said that the boundary was the 'old logging road' and the property was north 'of it'.

The Trial Judge regarded the declaration of the original grantee as to location as an important part of the proof, and he noted that plaintiff's grandfather stated that 'the woods road was the southerly boundary of the twelve acre parcel'. The Judge felt that the 1847 deed reference to a 'certain road' was of controlling importance and he was led by the proof to locate it at the place fixed by plaintiff and her surveyor.

Parol declarations of a deceased person who owned or was in possession of land, as to the boundary line between him and the land of another, are admissible as an exception to the hearsay rule (Jackson v. McCall, 10 Johns. 377; Beattie v. Garrison, 204 App.Div. 335, 198 N.Y.S. 71, affd. 236 N.Y. 574, 142 N.E. 289; Partridge v. Russell, 50 Hun 601, opn. in 2 N.Y.S. 529; 5 Wigmore, Evidence (3d ed.) § 1562 et seq.). There is discussion in some of these cases about the need for 'pointing out' the boundary. The physical means by which the boundary is indicated could not itself be decisive. It is good enough if the declarant, on the scene and in possession of the land, tells the witness where the boundary is. Reference to a road as a boundary ought to be reliable enough.

On cross-examination plaintiff's engineer testified that the 'ditch' was along another part of the north-south boundary between plaintiff and defendant (not at the line in dispute) where there is a jog 422.12 feet north of the old road. If that line, conceded by both sides to be the boundary at that point, were continued straight to the west, it would at the point of dispute be the line as defendant claims it.

But there is no proof in the record that this 'ditch' extended west of the place where it was...