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Home > Underwriting > Title News > Fifteen Volume One

SERIES: Fifteen VOLUME: One DATED: January, 2000


A recently decided case Henry v. Malen (Appellate Division 3rd Department, decided July 15, 1999) illustrates the established principle that a Court's primary objective in construing an ambiguous boundary description is to determine the intent of the parties from the conflicting deeds as written.

In this particular case, the plaintiff's 1867 source of title set forth the following description of his west line: "thence westerly along said wall to the brook, thence southerly along the brook following the fence along the brook as it now runs to the center of the highway, ... " This source deed also stated that the 1867 grantor granted to the grantee (Luther Bullard) "The privilege of the right away [sic] to three places to said brook for the purpose of watering places by the [grantee] keeping the same fenced." The defendant's source of title derives from an 1876 deed which describes the west property line of the plaintiff and east property line of the defendant as follows: "Commencing at the center of a highway near a bridge; thence northerly along the lands of Luther Bullard as the fence now runs...". That same deed also recites that the grantee "grants to Luther Bullard the privilege of three watering places, the said Luther Bullard to keep the same fenced."

This property dispute arose between the plaintiff and defendant when the plaintiff, believing that his west property line was defined by the brook made improvements to a portion of the property near and east of the brook. The defendant, taking the position that the plaintiff's boundary was marked by a stone wall just east of the brook, erected a wire fence east of the brook which blocked the plaintiff's access to all property west of that fence and east of the brook. The plaintiff then commenced this action seeking a declaration that they were the owners of the disputed property between the fence and the brook. The defendants counter-claimed for damages resulting from the plaintiff's trespass on to the disputed property and that the right-of-way to the three watering places was personal to the original grantee and therefore had terminated.

The Court untangled the ambiguities in the plaintiff's deed as follows:

"Initially, we are not persuaded to disturb Supreme Court's finding that the parties' common boundary line runs along the east edge of the brook and not the 'stone wall fence' (as defendants characterize it) that is situated somewhat to the east of the brook. The primary objective in construing a boundary description is to arrive at the intent of the parties... As previously set forth, the description defining plaintiffs' western boundary provides that the line shall proceed (from the brook) '[s]outherly along the Brook following the fence along the Brook as it now runs to the centre of highway'. Since the references to the fence and the brook create an apparent ambiguity, an effort should be made to read the calls in such a way as to confirm with one another if that can be done without giving an inauspicious meaning or construction to the particular description...

Based upon the construction of the boundary descriptions and the language in the 1867 deed, we agree with Supreme Court's conclusion that it was the intent of the parties to designate the brook as the common boundary. Specifically, the description 'to the Brook' indicates that plaintiffs' boundary line was to reach the brook and not some other designated point. Although there was conflicting testimony as to whether the brook or the stone wall marked the boundary line, since the brook is a natural object, under the rules of construction for discrepancies in deed calls, the brook would designate the boundary line... Further, had the parties intended that the fence, rather than the brook, be the boundary line, the deed would have likely provided for such a description. As such, it appears that the phrase 'following the fence along the Brook as it now runs' acts as a directional aid rather than a boundary line. In addition, even if we were to assume that the fence referred to in the deed descriptions was intended to constitute the common boundary line, since the 1867 deed differentiates between a stone wall and a fence, we can assume that they are not one and the same, and the existing stone wall could not in any event be considered the fence designating such boundary unless there was evidence indicating that it was in existence in 1867. In the absence of any competent evidence that the stone wall was in existence in 1867 or that it was the fence referred to in the deed, we cannot conclude that the stone wall was the boundary line to the subject parcels of property.

Having determined that the brook marks plaintiffs' western boundary, it remains to determine whether the line follows the centerline or the east edge of the brook. Generally, when lands are conveyed with a brook or watercourse described as a boundary, it is presumed that the grantor intended that the boundary be located in the middle of such brook or watercourse unless there is an express intent to restrict the property to the edge or shore of the watercourse... Further, while a boundary description to the edge or bank of a stream or watercourse is generally construed as excluding the stream itself..., where a boundary line reaches a watercourse and is described as 'along the same', such description will be interpreted as including the lands to the middle of the watercourse...

In the 1867 deed, the north boundary line of the property extends 'to the Brook' and the west boundary line proceeds 'thence Southerly along the Brook following the fence along the Brook as it now runs to the centre of the highway'. Although the language 'to the Brook, thence Southerly along the Brook' would otherwise be construed as granting title to the center of the brook..., the express conveyance of a right-of-way to the three watering places in the brook rebuts the presumption that title is carried to the center of a watercourse. Obviously, if Bullard had been granted title to the center of the brook, there would have been no need for a right-of-way to the watering places... Based upon the foregoing, we conclude that establishing the boundary line at the east edge of the brook would not only conform with the other particular boundary descriptions contained in the 1867 deed, but it would comply with the intent of the parties that the boundary line go to the brook, but not include it.

Turning now to the cross appeal, we agree with plaintiffs that Supreme Court erred in its determination that the right-of-way to the three watering places in the brook was personal to Bullard and, thus, extinguished. Rather, we conclude that plaintiffs are correct in their contention that the 1867 deed's grant of a right-of-way to the three watering places created an easement appurtenant rather than a license... The language contained in the deed included words, such as 'grant', 'convey' and 'forever', and phrases, such as 'his heirs and assigns', which demonstrate that an easement was intended... In addition, the deed did not contain any language reserving the right-of-way to Bullard (the original grantee) personally nor did it purport to retain any rights of revocation..."

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