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Home > Underwriting > Title News > Fourteen Volume One

SERIES: Fourteen VOLUME: One DATED: January, 1999


A recent Appellate Division decision contains an interesting discussion between the majority and dissent concerning the required elements of proof in an adverse possession action involving the changed course of a river which was the boundary between the plaintiff and defendant. In MAG Associates, Inc. v. SDR Realty, Inc. (Supreme Court Appellate Division Second Department, decided February 17, 1998), the Appellate Court held that triable issues of facts existed whether the adverse landowner possessed the land at issue under a claim of right as required to establish adverse possession and concluded that a lower court summary judgment for adverse possession was improperly granted.

In its majority opinion the Court reviewed the elements of adverse possession and found the defendant's adverse claim was lacking. The facts in this action as recited by the majority of the Court were as follows:

"On July 21, 1994, the defendant SDR Realty, Inc... purchased certain real property... from Cross County Steel and Rock Bit Co., the rear portion of which abutted the land which is the subject of this action. SDR alleged that from as early as 1949 until its purchase in 1994, its predecessors in interest had occupied the entire subject property. In particular, the predecessors of SDR had erected a chain-link fence around the entire property, and constructed several buildings on it. The property, however, was actually part of a railroad right-of-way which had been purchased by the plaintiff MAG Associates, Inc... in 1993, after being abandoned by Consolidated Rail...

In 1994, MAG conducted a survey of the spur and determined that SDR and several other adjoining landowners were encroaching... MAG commenced the instant action... SDR submitted an affidavit of the treasurer of Cross County, which asserted that in accordance with its interpretation of the deed, Cross County had 'always occupied and used [the subject parcel] understanding the property was owned by [it]'... On the basis of the foregoing, the Supreme Court... granted summary judgment to SDR.

We conclude that summary judgment was improperly granted.

The law of adverse possession is well settled. An effective claim of adverse possession has five elements: 'First, the possession must be hostile and under a claim of right; second, it must be actual; third, it must be open and notorious; fourth, it must exclusive; and fifth, it must be continuous'... Further, these elements must be established by clear and convincing evidence... Furthermore, 'the mere possession of land without a claim of right no matter how it may be continued gives no title...' .

At bar, although SDR established four of the elements of adverse possession by clear and convincing evidence, a question of fact remains as to whether it possessed the property under a claim of right. SDR's claim of right to the subject property is based on a claim of its immediate predecessor in interest, Cross County. Standing in direct contradiction to both the affidavit of the treasurer of Cross County and the assertion that the subject property was occupied under a mistaken interpretation of the deed, is the 1953 map submitted by SDR in opposition to the motion of MAG. The map clearly depicts that the subject property is excluded from the property then owned by Cross County. Given the fact that the map was drawn before the end of the applicable limitations period, which was 15 years at the time..., a triable issue of fact exists."

In a strongly worded dissent, the dissenting justice stated: "In my view the defendant conclusively established its claim of adverse possession. Therefore a trial is unnecessary, and the Supreme Court's order should be affirmed.

The present controversy arose because the Saw Mill River, which was relied upon as a natural boundary in the relevant deeds, changed course. The river... historically formed the boundary between the property now owned by the defendant, SDR Realty, Inc.... and a railroad right-of-way. Although there is no conclusive evidence in the record as to when the river changed course, a map made in 1897 shows that the river formerly curved westward along the boundary of the SDR property before continuing in its general north south direction. From the early 1900's, a railroad right-of-way has existed along the east side of the river opposite the SDR property. Eventually, the river's course straightened eliminating the curve. Although the boundary of the railroad's right-of-way still followed the river's historic course, the river was actually located further east, and approximately 9,000 square feet of the right-of-way became contiguous with the SDR property...

SDR's predecessor in title was Cross County... which purchased the property in 1947 and owned it continuously until its sale to SDR in 1994. Although the... description of the property in Cross County's deed was based on the river's course as shown on the 1897 map, the deed also used the center line of the river as a boundary. According to the uncontradicted statements of Cross County's treasurer, Walter Thalman, in 1949 the river was essentially in its present position... in other words, in 1949, if the center line of the river was considered the boundary line of Cross County's property, the disputed portion of the railroad right-of-way would have been included.

According to Thalman, when Cross County purchased the property, a concrete blacksmith's shop was already partially situated on the disputed portion of the property and the entire property was surrounded by a chain link fence which ran along the bank of the river. Cross County subsequently constructed additional buildings on the property, including a concrete shed and a cinder-block building which encroached on the disputed portion. The area now claimed by MAG was used continuously for storage of coal, steel plates and for planting a vegetable garden, and it was enclosed by a chain link fence... SDR's deed carried forward the same description of the property as was contained in the 1949 deed. SDR's President admitted that he did not obtain a survey of the property prior to the purchase, but relied on information provided by the seller and the description in the deed that the property extended to the middle of the river.

MAG has failed to offer any facts that dispute the evidence provided by SDR that Cross County enclosed the disputed portion of the right-of-way with a chain link fence, that it cultivated the property, that it constructed permanent structures on the property, and that it continuously used the property in this manner for over 40 years. Such evidence was sufficient to establish that possession was actual, open and notorious, exclusive and continuous... .

Where the use is actual, open and notorious, exclusive and continuous for the full 10 year period, a presumption of hostility arises, and the burden shifts to the record owner to produce evidence rebutting the presumption... A showing of enmity or specific acts of hostility is not required; rather, hostility may be found even though the possession occurred inadvertently or by mistake... here, MAG has offered no proof to rebut evidence that Cross County used the disputed property under the mistaken belief that its property line extended to the middle of the river as it existed in 1949 not as it existed in 1897...

I cannot conceive of a clearer case of adverse possession than exists here, where the disputed land was openly enclosed, built upon, and used for over 40 years, based on a deed which any owner would reasonably believe included property to the middle of a river which had remained in essentially the same position for those 40 years... I would grant summary judgment to SDR and declare it to be the owner of the disputed area by adverse possession."

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