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Home > Underwriting > Title News > Nineteen Volume Two

SERIES: Nineteen VOLUME: Two DATED: February, 2004


A recently decided case has distinguished between property held by municipalities in a governmental capacity and property held by a municipality in a proprietary capacity and has allowed adverse possession by an individual to occur in connection with property owned by a city only in a proprietary capacity (Albany Parking Services, Inc. v. City of Albany, Appellate Division, Third Department, decided January 15, 2004). The memorandum and order of the Court is as follows:

"This is a dispute over ownership and title to a parcel of real property located in the City of Albany on the north side of Spruce Street. Defendant Justine Fuller claims an ownership interest in the disputed area and several adjoining lots, which were together developed and used as a commercial parking lot by her father, Charles Hebert Sr.. Hebert obtained his title to the adjoining lots by various deeds and, allegedly, to the disputed area by adverse possession between 1940 and 1982. When defendant City of Albany later asserted that the disputed area was held as part of the public street in the City's governmental capacity, Fuller moved for summary judgment on the grounds that the City abandoned its governmental interest in the disputed area in 1911 by adopting an ordinance excluding it from Spruce Street and her father later obtained title to the disputed area by adverse possession. Supreme Court granted Fuller's motion, prompting this appeal by the City.

Title to the disputed area turns upon whether the City owned it in a governmental capacity, which would make it immune to adverse possession, or in a proprietary capacity, which would not protect it . . . As framed by the parties, the issue is whether the disputed area retained or lost its governmental character in 1911 when the City passed an ordinance changing Spruce Street's northern boundary line. Although this ordinance was initially passed and then recalled, it is clear that ultimately, on March 20, 1911, the City Common Council duly adopted a resolution enacting the ordinance setting a new northern boundary line for Spruce Street and expressly recognizing the closure of a portion of the north side of the street, which is the disputed area here. A second ordinance to close and discontinue use of the same area vetoed in 1931 was unnecessary because, we conclude, the 1911 ordinance had already done so.

We find no merit in the City's argument that the 1911 ordinance was nonetheless ineffective to convert its interest in the dispuly dedicated the property to any other public use . . . or actually used it for any public purpose . . . Fuller, on the other hand, provided evidence through her affidavit that Hebert had exclusive use and control of the disputed area as a private parking lot from 1947 to 1982. Inasmuch as use of the disputed area for street purposes was discontinued and the area was thereafter neither rededicated nor used for any other public purpose, Supreme Court properly found it to be held in the City's proprietary capacity and, thus, subject to Hebert's adverse possession . . .

Finally, our review of the record reveals that Fuller presented facts of which she had personal knowledge sufficient to establish Hebert's adverse possession of the disputed area for the requisite period of time, and the City has not challenged this aspect of Supreme Court's decision . . .

ORDERED that the order is affirmed, with costs."


In a recently decided appeal of a quiet title action, County of Rockland v. EklecCo (Appellate Division, Second Department, decided December 15, 2003), the Appellate Court upheld a lower court decision that the Town of Clarkstown rather than the County of Rockland had acquired fee ownership of the roadway in question. The decision in the County of Rockland case is as follows:

"This dispute concerns the ownership of Old Route 59A. This roadway apparently was originally a dirt path used by Native Americans and early settlers, and was taken over in the early 1800's by the Rockland Turnpike Company and developed as a toll road. In 1894, the roadway was adopted by the County of Rockland. Jurisdiction was transferred to the State of New York in 1912 where it remained until 1960. A realignment of the state highway in 1960 resulted in the discontinuance of the disputed roadway. From 1960 until 1996, the roadway was maintained by the Town of Clarkstown. Most recently, in 1997, the Town, by quit claim deed, conveyed its interest in the abandoned roadway to the defendant EklecCo, which has since improved and incorporated the roadway into the system of roads accessing the Palisades Shopping Center. The County claims that the Town was not the rightful owner and that, upon abandonment, the roadway reverted to the County.

The Supreme Court correctly concluded that the County did not become the fee owner of the disputed roadway, formerly a county road, when the State abandoned the roadway . . . The record shows that neither the County nor its predecessor, the Rockland Turnpike Company, acquired a fee interest in the disputed roadway. A title search did not reveal any grant of fee interest by any owner to the Rockland Turnpike Company or any grant of fee interest from the Rockland Turnpike Company to the County with regard to the disputed roadway. The County's claim of ownership rests solely on the fact that in 1894 the Rockland County Board of Supervisors 'adopted' the roadway as a county road. However, merely 'adopting' the road did not mean that it acquired a fee interest in the roadway. The County's claim of a fee interest in the public roadway is inconsistent with the initial 1809 legislation authorizing the creation of the Rockland Turnpike Company which gave the company only a limited authority to purchase and hold real property as 'shall be necessary to fulfill the end and intent of the corporation hereby created and made, and to no other use, intent or purpose whatsoever' . . . The County's claim is also inconsistent with the general rule that the public acquires only an easement in highways and the fee remains in the landowner . .."

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