SERIES: Seventeen VOLUME: Two DATED: February, 2002

~ COURT REFUSES TO APPLY DOCTRINE OF PRACTICAL LOCATION TO SETTLE RESOLVE BOUNDARY LINE DISPUTE ~

In a recently decided Appellate Division decision, Riggs et al v. Benning (Appellate Division, Third Department, decided January 10, 2002) the Appellate Court refused to disturb a lower court decision which rejected the application of the long standing doctrine of "Practical Location" to resolve a boundary line dispute. The memorandum of the Court in the Riggs decision is as follows:

"In this action commenced pursuant to RPAPL article 15, plaintiffs sought, inter alia, a declaration that they are the owners in fee simple of 14.05 acres of land situated in the Town of Russell, St. Lawrence County (hereinafter the disputed portion) which adjoin the lands of defendant and form a disputed north-south boundary line between the parties' respective premises. Defendant acquired his property in 1974 by deed from Hubert Carpenter who acquired the property in 1965 from Michael Warren. Plaintiff H.D. Lodge acquired its property in 1992 pursuant to a three-year land contract with plaintiff Mark Brackett and his wife who acquired their interest in 1980 by deed from Herbert Hatch and Diana Hatch. Asserted as affirmative defenses in this action were the doctrines of adverse possession and practical location. After a trial, it was determined that plaintiffs had title to the disputed portion. A judgment was thereafter entered, prompting this appeal.

In this nonjury case, we independently review the weight of the evidence presented and grant judgment warranted by the record . . ., giving due deference to the trial court's determinations regarding witness credibility . . . Upon such review, we find no basis upon which we would reverse the determination rendered.

More than 70 years ago, we articulated the requirements of the doctrine of practical location as well as its derivation. [It] was originally derived from a long acquiescence by the parties in a line known and understood between them * * *. [T]o be effectual, [it] 'must be an act of the parties, either express or implied; and it must be mutual, so that both parties are equally affected by it. It must be definitely and equally known, understood and settled. * * *' Where land is unimproved and uncultivated, the mere running of a line through the woods, ex parte, by one of the owners, so long as such line is not settled upon and mutually adopted by the adjoining owners as a division line, is an immaterial fact. In such a case, until the adjoining owner shows his assent to it, it would amount to a mere expression of the individual opinion of the owner who ran the line . . .

Here, plaintiffs demonstrated that they possessed title to the whole of the property claimed, including the disputed portion, as outlined in their deed and the survey prepared by a licensed surveyor. Defendant contended that when he purchased his property, a line of trees marked with paint delineated what he believed to be the boundary line between their respective parcels. Throughout the years, defendant remarked those trees and posted signs, and for more than 20 years, he and others observed that line as the boundary line between the parties' properties. In support, he offered the testimony of Neil Sheridan, a neighboring landowner and relative of Warren, defendant's predecessor-in-interest. Sheridan testified that in the 1960's, he and others cut a six-foot wide path through the woods between the parties' properties and marked trees along that path with paint so that he could hunt on the disputed portion. According to Sheridan, the line that he cut and painted is consistent with the line subsequently marked by defendant.

Brackett acknowledged that when he purchased the property, he observed a faintly painted line along the disputed border but stated that it was not straight and was 'hard to follow'. He further observed occasional postings on trees bearing the name 'H. Carpenter', testifying that along the entire 2,500-foot border, there were less than a dozen signs. This lack of definitive markings was confirmed by other witness testimony.

Notwithstanding efforts made by Brackett in 1995 and thereafter to amicably settle the boundary line, including a February 1999 letter sent by Brackett to defendant which defendant sough to use at trial to demonstrate plaintiffs' acquiescence in defendant's ownership of the disputed portion, the testimony failed, in our view, to establish that the border was sufficiently known, understood and settled among the parties and their predecessors-in-interest to have been established by practical location . . . With the success of such theory premised upon a 'long standing acquiescence in the * * * boundary lines as the dividing boundary between the two [properties] * * * notwithstanding any survey determination' . . . we agree that the deeds and the confirmatory survey should control . . .

ORDERED that the judgment is affirmed, with costs."

A footnote to this decision pointed out that the defendants abandoned their affirmative defense of adverse possession and therefore it was not considered on appeal.

~ TIRSA RATE MANUAL AMENDED ~

The New York State Insurance Department has approved new Leasehold Endorsement forms for both owner's and loan policies and the amendment of the TIRSA Environmental Protection Lien Endorsement forms for both New York City and Governmental Agencies and the TIRSA Revolving Credit Endorsement form for residential properties, and also a modification of the TIRSA Rate Manual text to clarify the definition of the word "residential" as used in the TIRSA Rate Manual.

The TIRSA 8.1 Environmental Protection Lien Endorsement issued in connection with mortgages made to U.S. government agencies and the State of New York or its public benefit corporations has been amended to allow that endorsement to be used in any governmental mortgage transaction. The former limitation of this endorsement to residential hospital and nursing home mortgage transactions only has been eliminated. Also, the TIRSA 8.1 Environmental Protection Lien Endorsement for transactions in New York City has been amended to delete a former exception for environmental protection liens arising under Chapter 6, Section 24-601 of the Administrative Code of the City of New York.

The TIRSA Revolving Credit Endorsement (RCE-1) issued in mortgage transactions involving residential property has been amended to add the language "OWNER OCCUPIED ONE TO SIX FAMILY" to the title of the endorsement to clarify that the type of property for which the endorsement may be used is residential property as defined in New York State Tax Law Section 253-b.

Also approved were new TIRSA Leasehold Endorsement forms for both loan and owner's policies. These new Leasehold Endorsement forms expand and clarify the leasehold policy coverages and, in particular, the method of compensating the insured lessee or its mortgagee for losses relating to leasehold improvements.

Finally, Section 1(A) the TIRSA Rate Manual has been amended to clarify the definition of the word "residential" as used in the rate manual. The TIRSA Rate Manual now provides that "Unless specifically stated otherwise in this manual, or in a policy, endorsement or other form, residential real property means: (i) a one to four family dwelling; (ii) an individual condominium used as a dwelling; or (iii) an individual cooperative apartment / unit used as a dwelling."

All of the above referenced revised endorsement forms are currently being forwarded to all Monroe offices and agents and may be utilized immediately upon receipt. Additionally, all Monroe office production and agent production materials are being modified to include these Rate Manual revisions.