Appeal from a judgment of the Supreme Court (Dawson, J.), entered July 24, 1998 in Clinton County, which, inter alia, granted plaintiffs’ motion for partial summary judgment.
This appeal centers on a dispute between plaintiffs and de
In June 1991, plaintiffs purchased their parcel of property by warranty deed consisting mainly of land situated to the east of the old road, but with the centerline of that abandoned road being the westerly boundary of their property. In May 1995, the County conveyed to defendant the entire abandoned road bed of the old road by quitclaim deed. In October 1995, defendant purchased, by warranty deed, a pаrcel of real property which includes a piece of land which on its east side abuts the centerline of the old road, according to a corrected deed dated and recorded in Octоber 1996.
After a boundary line dispute arose between the parties, plaintiffs instituted this action pursuant to RPAPL article 15 alleging, inter alia, that defendant unjustly claimed right to possession of the entire abandoned roadway pursuant to the May 1995 quitclaim deed from the County. Further, plaintiffs alleged that, in 1995, defendant had wrongfully entered upon plaintiffs’ land and erected a split rail fence along the easterly side of the abandoned road bed and built a small building, both within plaintiffs’ portion of the abandoned road. Plaintiffs sought a declaration that they are owners in fee of the land upon which defendant’s fence and building stood, that is, that they owned the eastеrly portion of the old road up to the centerline and that the encroaching structures be removed permanently.
Plaintiffs moved for partial summary judgment pursuant to CPLR 3212 (e) on their third, fourth and fifth causes of actiоn. Their premise was that their deed and the deeds of their predecessors in title established that the western boundary of their property was the centerline of the old road. Thus, upon the County’s abandonment of the old road — when it shifted the road to the west to create the new road — their fee ownership was no longer encumbered by the prior public easement which
The key issue herein is whether the Town had acquired a public easement over the old road which would revert back to the landowners and their successоrs upon abandonment of the road, as plaintiffs argue, or whether the Town acquired fee title to the road pursuant to condemnation, as defendant contends. If the Town obtained only a public easement, the Town did not possess fee title and the County’s conveyance to defendant — as successor in title to the Town — by quitclaim deed was worthless; if so, the abandonment of the road in 1962 would have resulted in the possessory rights to the easterly half of the old road reverting to plaintiffs’ predecessors in title, while the westerly half would have reverted back to defendant’s predecessors in title. By contrast, if the Town had acquired the old road by grant or condemnation, thus acquiring fee title over the entire road, the 1995 quitclaim deed would have conveyed fee title to the entire road to defendant.
On this central issue Supreme Cоurt, in a well-reasoned decision, held that there was no evidence that the Town or the County had ever acquired the old road by grant. The court also noted that the portion of the old road in dispute aрpeared to already exist as a road in 1826 when it was declared to be a public highway and, notably, there is no proof in the record that compensation was ever paid by the Town for the land and nо other proof was submitted by defendant of the alleged condemnation of the road. Supreme Court held that the evidence submitted by defendant to prove a condemnation was insufficient and, thus, that the old rоad was a public easement; as such, the County did not have an ownership interest in the old road in 1995 when it delivered the quitclaim deed to defendant. Accordingly, the court granted plaintiffs’ motion for partial summary judgment, dismissed defendant’s affirmative defenses based on the quitclaim deed and declared plaintiffs’ property line to be the centerline of the old road. Defendant now appeals from the judgment entered on Supreme Court’s decision.
We affirm. In response to plaintiffs’ motion for summary
It is settled law that when the language of a statute or other act of a governmental body providing for the acquisition of land for use as a highway will support “a construction which will leave the fee in the landowner, that construction will be preferred” (Mott v Eno,
A careful review of all of the documents submitted by defendant confirms that they do not support the conclusion that the 1826 instrument — declaring thе public highway — effected the taking of fee title to the old road by grant, condemnation or any other type of acquisition which would vest title to the road in the Town. Defendant’s assertion that the 1826 instrument was a cоndemnation, i.e., an eminent domain acquisition, is not supported anywhere in the record. Significantly, there is no mention of condemnation or compensation in the instrument. In our view, the Commissioners were merely declaring an existing road — as evidenced by the words “as the road now runs”—
Finally, we reject defendаnt’s argument that plaintiffs’ title and property rights do not extend to the center of the old road because prior deeds in plaintiffs’ chain of title did not mention that the property conveyed to plaintiffs extended to the center of the old road. It is well settled that when lands described in a conveyance are bounded by a street, highway or road, the conveyance is deemed to pass title to the centеr of the abutting roadway unless the conveyance reflects an intent of the grantor to limit the grant to the edge of the road (see, City of Albany v State of New York,
We have considered defendant’s remaining contentions and find them to be without merit.
Notes
The geographic area within which the parcel is located now constitutes the Town of Ausable which was at one time part of the Town of Peru; where appropriate we will hereinafter refer to them collectively as the Town.