O'Hara v. Wallace

• Decision Date: 08 July 1975
• Parties: Bernard O'HARA and Ruth O'Hara his wife, Plaintiffs, v. Dana WALLACE, Jr., Defendant.
• Court: New York Supreme Court

Page 570

371 N.Y.S.2d 570

83 Misc.2d 383

Bernard O'HARA and Ruth O'Hara his wife, Plaintiffs, v. Dana WALLACE, Jr., Defendant.

Supreme Court, Special Term, Suffolk County, Part III.

July 8, 1975.

James V. Fallon, Sayville, for plaintiffs.

Austin & DuPont, Mineola, for defendants.

MEMORANDUM

LEON D. LAZER, Justice.

May a lot owner's right of egress and ingress over an undedicated street on a filed map be extinguished by adverse possession? The issue is posed in this action in which plaintiffs seek a declaration of their rights to utilize a Fire Island walkway obstructed by the defendant whose possession allegedly has continued for the required statutory period.

The contesting parties are the fee owners of certain lots on the map of Corneille Estates, a 150 lot subdivision plat which was filed in 1905. In the deeds by which defendant acquired his lots between 1952 and 1957 and plaintiffs obtained theirs in 1968 the property conveyed was described by reference to map and lot number. Dehnhoff Roadway, the filed map street in issue, is 25 feet in width and runs from Great South Bay on the north to the Atlantic Ocean on the south. It is intersected by an east-west street called Midway which is well north of the parties property and which has been improved with a concrete roadway. Defendant's eleven lots, which he has improved with dwellings, run north from the ocean and are located on both sides of Dehnhoff Roadway. Plaintiffs' six lots, which he has also improved with homes, lie to the north of those of defendant and are directly adjacent to them on the western side of the Roadway. Plaintiffs have constructed a four foot wooden walkway on Dehnhoff running northerly from in front of their lots to connect with a short section of walk which runs south from Midway. Aside from these walkways, Dehnhoff Roadway has never been improved nor has it been dedicated. The plaintiffs are unable to reach the ocean over Dehnhoff Roadway because of a grove of trees and other obstacles allegedly planted and placed there by the defendant more than 15 years prior to the institution of this action. Although access to the ocean is available to the plaintiffs by use of another street which is off the map of Corneille Estates, they seek direct access to it, by extending their walkway southerly over that portion of Dehnhoff Roadway which runs between defendant's lots.

While defendant does not deny that an implied easement of ingress and egress over Dehnhoff Roadway was created for plaintiffs' benefit by the filing of the map of Corneille Estates (see In re Northern Boulevard, City of New York, 258 N.Y. 136, 179 N.E. 321; Rose v. Indian Park Association, 3 A.D.2d 274, 160 N.Y.S.2d 353), he contends that his adverse possession has extinguished plaintiffs' easement rights. The plaintiffs concede that, because defendant owns the lots on either side of Dehnhoff Roadway, he has title to that portion of it which intersects his land (see Anno., 49 A.L.R.2d at 999) but they maintain that their ownership of lots on the filed map precludes the extinction of their easement rights by adverse possession.

Defendant's primary reliance is upon the general principle, last restated by the Court of Appeals in Gerbig v. Zumpano, 7 N.Y.2d 327, 197 N.Y.S.2d 161, 165 N.E.2d 178, that an easement created by grant, express or implied, can be extinguished, Inter alia, by adverse possession (see also In re Willard Parker Hospital, 217 N.Y. 1, 111 N.E. 256; 5 Warren's Weed New York Real Property § 1.04). A multiplicity of other jurisdictions have held that easements of lot owners over filed map streets can be extinguished by adverse possession (see e.g., Wattles v. McHenry, 305 Ill. 189, 137 N.E. 114; Mumaw v. Roberson, 60 So.2d 741 (Fla.); Brewer v. Claypool, 223 Iowa 1235, 275 N.W. 34; Desotell v. Szczygiel, 338 Mass. 153, 154 N.E.2d 698; Harris v. City of South Portland, 118 Me. 356, 108 A. 326; Klein v. Dove, 205 Md. 285, 107 A.2d 82; Dulany v. Bishoff, 165 Pa.Super. 207, 67 A.2d 600; Outlaw v. Moise, 222 S.C. 24, 71 S.E.2d 509; see 3 Tiffany Real Property, 3d Ed. § 827; Anno., 1 A.L.R. at 887; but see Burkhard v. Bowen, 32 Wash.2d 613, 203 P.2d 361).

In response, plaintiffs have cited a number of cases which stand for the rule that grantees of lots abutting a street on a filed map are entitled to have the land so demarcated remain as a street 'forever' and cannot be deprived of the benefit of having those streets left open (Lord v. Atkins, 138 N.Y. 184, 33 N.E. 1035; Fiebelkorn v. Rogacki, 280 App.Div. 20, 111 N.Y.S.2d 898, aff'd 305 N.Y. 725, 112 N.Y.S.2d 846; see also Reis v. City of New York, 188 N.Y. 58, 80 N.E. 573; White's Bank of Buffalo v. Nichols, 64 N.Y. 65; Wysocki v. Kugel, 282 App.Div. 112, 121 N.Y.S.2d 528, aff'd 307 N.Y. 653, 120 N.E.2d 839; Hunter v. Van Keuren, 130 Misc. 599, 224 N.Y.S. 153). Research establishes that the apparently contradictory theses propounded by these litigants can be reconciled by analysis of other relevant decisional law and that the actual rule in this State permits the extinction of easement rights in a platted street only under severely restricted circumstances.

Adverse possession is a doctrine of inchoate title which might ripen into perfect title by the lapse of time (Bordwell, Property in Chattels, 29 Harv.L.Rev. 374, 378 (1916)). The policy and purpose of the doctrine is the settlement and repose of titles (Berke v. Lang, 202 Misc. 1108, 115 N.Y.S.2d 83) and thus the statute of limitations which embodies the doctrine has proprietary as well as procedural significance and accomplishes more than the simple barring of stale claims. The doctrine of adverse possession, which in essence permits a person to take someone else's private property for his own use (2 C.J.S. Adverse Possession § 2), is rationalized by a number of judicially created fictions stated as presumptions. Two such presumptions, each vital to the establishment of adverse possession, do not exist when the right sought to be appropriated is an easement created by reference to a filed map.

Of the five essential elements necessary to constitute an effective adverse possession, the first is that the possession must be hostile and under a claim of right (see Belotti v. Bickhardt, 228 N.Y. 296, 127 N.E. 239). Ordinarily, possession accompanied by the usual acts of ownership is presumed to be adverse (and thus under claim of right) until shown to be subservient to the title of another (Monnot v. Murphy, 207 N.Y. 240, 100 N.E. 742; Barnes v. Light, 116 N.Y. 34, 22 N.E. 441; Smith v. Folmsbee, 31 A.D.2d 584, 294 N.Y.S.2d 888; Weil v. Snyder, 25 A.D.2d 605, 267 N.Y.S.2d 334; see also Di Leo v. Pecksto Holding Corp., 304 N.Y. 505, 109 N.E.2d 600). However, if the occupation begins with a recognition of the real owner's estate, it is presumed that the entry is subservient to that estate and that the one making the entry intends to hold honestly and not tortiously (Lewis v. New York & Harlem R. Co., 162 N.Y. 202, 56 N.E. 540; 5 East 73rd, Inc. v. 11 East 73rd Street Corporation, 16 Misc.2d 49, 183 N.Y.S.2d 605, aff'd 13 A.D.2d 764, 217 N.Y.S.2d 1017). A presumption flows from the putative adverse possessor's prior acceptance of a deed conveying property described by plat reference that his entry upon the servient tenement was made in subordination to the servitude and that the occupation is temporary until the use of the easement by other lot owners should be required (see Matter of Village of Olean v. Steyner, 135 N.Y. 341, 32 N.E. 9; Wysocki v. Kugel, supra; see also In re 125th Street In City of New York, 270 N.Y. 495, 200 N.E. 287; Hubbard v. City of White Plains, Sup., 231 N.Y.S.2d 313). Therefore, in a mapped street case, occupation cannot be presumed to have been made under a claim of title hostile to other lot owners where the occupier received his own lot subject to the reservation (Smyles v. Hastings, 22 N.Y. 217). Possession by one lot owner is not adverse as against other lot owners who have no occasion to assert their rights in the easements (Smyles v. Hastings, supra) and such possession can...