Weil v. Snyder
| Decision Date | 17 February 1966 |
| Citation | 267 N.Y.S.2d 334,25 A.D.2d 605 |
| Parties | Susan B. WELL, Appellant, v. Robert L. SNYDER, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Ransom Pratt, Corning, for appellant.
Joseph J. Nasser, Corning, for respondent.
Before WILLIAMS, P. J., and BASTOW, HENRY, DEL VECCHIO and MARSH, JJ.
Summary judgment was improperly granted. A trial is required to resolve the factual issues presented. Defendant acquired his alleged title by deed from a consolidated school district. The latter acquired its interest from a rural school district which for many years had used the land for school purposes without record title from plaintiff or her predecessors. (Heller v. Cohen, 154 N.Y. 299, 311, 48 N.E. 527, 530.) To constitute a proper basis for adverse possession, the use must be inconsistent with the rights of the record owner, and must call for outright objection. (Rusy-Bohm Post No. 411, American Legion, Inc. v. Islip Enterprises, Inc., 5 A.D.2d 774, 170 N.Y.S.2d 23, affd. 5 N.Y.2d 856, 181 N.Y.S.2d 796, 155 N.E.2d 676.) It is recognized that '[p]ossession, accompanied by the usual acts of ownership, is presumed to be adverse until shown to be subservient to the title of another.' (Barnes v. Light, 116 N.Y. 34, 40, 22 N.E. 441, 442.) The record before us, however, is barren of any proof that the possession of the school district was (1) hostile to the record owners and under a claim of right, or (2) that it was actual, or (3) open and notorious, or (4) exclusive and (5) continuous for the statutory period. (Cf. Belotti v. Bickhardt, 228 N.Y. 296, 302, 127 N.E. 239, 241.) The affidavit submitted by defendant contains the conclusory allegation that the property was 'used' by the school district for more than fifteen years. His attorney avers that 'it is a reasonable conclusion to draw that the school district claimed title by adverse possession otherwise it would not have sold the land.' There was a complete failure to establish the five essential elements necessary to constitute an effective adverse possession as stated in Belotti v. Bickhardt, supra.
Judgment and order unanimously reversed with costs to appellant, and motion and cross-motion for summary judgment denied.
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