Knapp v. HughesKnapp v. Hughes
Plaintiffs commenced this action pursuant to
Specifically, in 1963, Juriga conveyed to Forrest a 30-acre wa
In 1973, Furlano and his wife conveyed a portion of the property obtained from Juriga to William Hall and Robert Mallery, doing business as Robil. That deed (hereinafter the 1973 Robil deed) described the land as running “to a point at the waters edge” and “along the waters edge of Perch Pond.” Notably, this deed did not contain language similar to the 1968 Furlano deed indicating that land beneath the water was also being conveyed. It is from the 1973 Robil deed that defendants Charles Buelow, Concetta Buelow, Paul Hauptmann, Joanne C. Hauptmann, James W. Walsh, Jr., Phyllis Ann Walsh and James R. Hughes trace their deeds to the unnumbered lots. Additionally, in 2002 the Guokases acquired lot Nos. 13 and 14, which can also be traced to the 1973 Robil deed. Eventually, in 1993, the Furlanos conveyed the remainder of their property abutting the pond, i.e., lot No. 8, to Richard Burden and Barbara Burden. The property conveyed therein is described as running “along the edge of water of [the pond],” however, there is also a paragraph stating that what is intended to be conveyed is “all remaining lands of Grantors.” The Burdens then conveyed this property to plaintiffs in a deed using identical language.3
Following commencement of this action, defendants answered and asserted various affirmative defenses and counterclaims alleging, inter alia, that they own title to the land beneath the pond abutting their respective properties and, alternatively, they obtained the right to use the waters and the land beneath
Initially, we find Supreme Court properly concluded that the Guokases have littoral rights by deed with respect to the 30-acre parcel originally conveyed to Forrest by Juriga in 1963. Plaintiffs do not dispute that the language in the 1963 deed, stating that the property line ran “along the southerly bounds of Perch Pond,” conveys rights to the land underneath the water (see White v Knickerbocker Ice Co., 254 NY 152, 156 [1930]; 1 NY Jur 2d, Adjoining Landowners § 80). However, plaintiffs challenge the Guokases’ entitlement to littoral rights on the basis of a so-called “corrective deed” signed only by Juriga that was recorded in 1968. That deed purported to change the language in the 1963 deed to read “along the southerly bounds of Perch Pond Road” (emphasis added). In maintaining that this 1968 deed is effective against the Guokases, plaintiffs appear to argue that a grantor of land, following the execution and recording of a deed conveying a certain amount of land to a grantee, may thereafter unilaterally execute and record another deed, significantly reducing the property granted in the first deed, and concomitantly claim that the second deed is proper without any indicia that the grantee accepted the deed diminishing the property rights obtained by reason of the first deed. Such is not the law. While there is no question that delivery and acceptance of a beneficial interest in favor of a grantee can be presumed by reason of an executed deed in the grantee‘s favor (see Spencer v Carr, 45 NY 406, 410 [1871]; Schell v Schell, 192 App Div 419, 421 [1920]; Starbuck v Farmers’ Loan & Trust Co., 28 App Div 272, 275 [1898]; Safford v Burke, 130 Misc 12, 15 [1927]; 43A NY Jur 2d, Deeds § 190), by no construction can the “corrected” deed recorded by Juriga in 1968 herein be considered beneficial to Forrest‘s interest, as opposed to a burden (see 4 Tiffany Real Prop § 1057). Accordingly, no presumption of delivery and acceptance exists, and we conclude that the 1968 deed purporting to take away Forrest‘s ownership of the property between Perch Pond Road and Perch Pond has no effect and is not properly included in the Guokases’ chain of title for the 30-acre parcel.
Turning to the issue of record title to the land beneath the pond as traced from the 1973 Robil deed, we find persuasive plaintiffs’ argument that the language in the deeds to defen
Here, the description contained in all the conveyances emanating from the 1973 Robil deed clearly set the boundaries at the edge of the pond, a phrase which touches the land and not the water (see White v Knickerbocker Ice Co., supra at 156; 1 NY Jur 2d, Adjoining Landowners § 81). In fact, this Court has held that a boundary described as the “water‘s edge” was an exclusion of the land under the water (see Town of Guilderland v Swanson, 29 AD2d 717, 718-719 [1968], affd 24 NY2d 872 [1969]). Given the foregoing, we conclude that defendants’ deeds do not carry title to any part of the pond or the land beneath it that can be traced from the 1973 Robil deed and, therefore, they were not entitled to summary judgment as to those claims.
Next, we must address plaintiffs’ contention that defendants’ counterclaims for adverse possession, which were not addressed by Supreme Court due to the court‘s determination that the 1973 Robil deed conveyed littoral rights to Perch Pond, should be dismissed. “Generally, where a party seeks to establish title by adverse possession, it is incumbent upon the party ‘to demonstrate by clear and convincing evidence that for a period of 10 years it actually possessed the property in dispute and that such possession was open and notorious, exclusive, continuous, hostile and under a claim of right‘” (Kitchen v Village of Sherburne, 266 AD2d 786, 786 [1999], quoting Village of Castleton-On-Hudson v Keller, 208 AD2d 1006, 1008 [1994]).
Here, defendants submitted affidavits setting forth the extent and duration of their use of the disputed property. Notably, the Buelows did not obtain their property abutting the pond until 1999 and the Guokases did not gain title to lot Nos. 13 and 14 until 2002. Inasmuch as neither party sets forth credible proof creating a question of fact as to whether they could “tack on” the use of their predecessors in title so as to meet all the elements of adverse possession, plaintiffs are entitled to summary judgment against these parties on these issues. As for the Walshes, the Hauptmanns and Hughes, each of them asserted adverse use in excess of 10 years. Specifically, the Walshes and the Hauptmanns presented sufficient evidence on each of the necessary elements of adverse possession so as to withstand dismissal of their counterclaims alleging adverse use (see Parillo v Prunier, 257 AD2d 807, 808 [1999]; Carlino v Barton, supra at 243-246; Brant Lake Shores v Barton, 61 Misc 2d 902, 905-906 [1970]). There are also factual questions remaining regarding those parties’ claims of prescriptive easement (see Gorman v Hess, 301 AD2d 683, 685 [2003]). However, Hughes, in his deposition testimony, acknowledged that he does not believe that he owns the land beneath the pond and that his use thereof, at least since plaintiffs’ purchase in 1994, was with plaintiffs’ express permission, which he sought and was granted. Under the circumstances, plaintiffs’ motion for summary judgment dismissing his claims must be granted.
In sum, Supreme Court properly granted summary judgment to the Guokases with respect to the issue of their entitlement to ownership of littoral rights regarding the 30-acre parcel, however, the court should have granted plaintiffs’ motion to dismiss the Guokases’ claim to said rights with respect to lot Nos. 13 and 14. Additionally, plaintiffs are entitled to dismissal of those claims asserted by the Buelows and Hughes. Finally, the matter must be remitted to Supreme Court for determination of the claims for adverse and/or prescriptive use asserted by the Hauptmanns and the Walshes.
We have examined the parties’ remaining arguments and find them to be unpersuasive.
Mercure, Carpinello, Mugglin and Lahtinen, JJ., concur.