Van Valkenburgh v. Lutz

Dye, J.

These consolidated actions were brought to compel the removal of certain encroachments upon plaintiffs’ lands, for delivery of possession and incidental relief. The subject property consists of four unimproved building lots designated as 19, 20, 21 and 22 in block 54 on the official tax map of the city of Yonkers, N. Y. These lots together form a parcel somewhat triangular in shape with dimensions of approximately 150 by 126 by 170 feet fronting on Gibson Place, a street to be laid out within the subdivision running in a northeasterly direction from Leroy Avenue and now surfaced for automobile travel as far as lots 26, 27 and 28. The subject premises were purchased by the plaintiffs from the city of Yonkers by deed dated April 14, 1947. At that time the defendants were, and had been since 1912, owners of premises designated as lots 14 and 15 in block 54, as shown on the same map. The defendants’ lots front on Leroy Avenue and adjoin lot 19 owned by the plaintiffs at the rear boundary line. All of these lots, though differently numbered, appear on a map of the subdivision of the Murray Estate opened prior to 1912 and numbering 479 lots. At that time that part of the Murray subdivision was covered with a natural wild growth of brush and small trees.

The defendants interposed an answer denying generally the allegations of the complaint and alleging as an affirmative defense, and as a counterclaim, that William Lutz had acquired title to the subject premises by virtue of having held and possessed the same adversely to plaintiffs and predecessors for upwards of thirty years.

The issue thus joined was tried before Hon. Frederick P. Close, Official Referee, who found that title to said lots 11 was perfected in William Lutz by virtue of adverse possession by the year 1935 ” and not thereafter disseized. The judgment entered thereon in favor of the defendants was affirmed in the Appellate Division, Second Department, without opinion, one Justice dissenting on the ground that the evidence was insufficient to establish title by adverse possession.

To acquire title to real property by adverse possession not founded upon a written instrument, it must be shown by clear and convincing proof that for at least fifteen years (formerly twenty years) there was -an “ actual ” occupation under a claim of title, for it is only the premises so actually occupied ‘1 and no others ” that are deemed to have been held adversely (Civ. Prac. Act, §§ 34, 38, 39). The essential elements of proof being either that the premises (1) are protected by a substantial inclosure, or are (2) usually cultivated or improved (Civ. Prac. Act, § 40).

Concededly, there is no proof here that the subject premises were “ protected by a substantial inclosure ” which leaves for consideration only whether there is evidence showing that the premises were cultivated or improved sufficiently to satisfy the statute.

We think not. The proof concededly fails to show that the cultivation incident to the garden utilized the whole of the premises claimed. Such lack may not be supplied by inference on the showing that the cultivation of a smaller area, whose boundaries are neither defined nor its location fixed with certainty, 1 ‘ must have been * * * substantial ’ ’ as several neighbors were “ supplied * * * with vegetables ”. This introduces an element of speculation and surmise which may not be considered since the statute clearly limits the premises adversely held to those “ actually ” occupied “ and no others ” (Civ. Prac. Act, § 39) which we have recently interpreted as requiring definition by clear and positive proof (St. William’s Church v. People, 296 N. Y. 861, revg. 269 App. Div. 874, motion for reargument denied 296 N. Y. 1000).

Furthermore, on this record, the proof fails to show that the premises were improved (Civ. Prac. Act, § 40). According to the proof the small shed or shack (about 5 by 10% feet) which, as shown by survey map, was located on the subject premises about 14 feet from the Lutz boundary line. This was built in about the year 1923 and, as Lutz himself testified, he knew at the time it was not on his land and, his wife, a defendant here, also testified to the same effect.

The statute requires as an essential element of proof, recognized as fundamental on the concept of adversity since ancient times, that the occupation of premises be “ under a claim of title ” (Civ. Prac. Act, § 39), in other words, hostile (Belotti v. Bickhardt, 228 N. Y. 296), and when lacking will not operate to bar the legal title (Doherty v. Matsell, 119 N. Y. 646), no matter how long the occupation may have continued (La Frombois v. Jackson, 8 Cow. 589; Colvin v. Burnet, 17 Wend. 564).

Similarly, the garage encroachment, extending a few inches over the boundary line, fails to supply proof of occupation by improvement. Lutz himself testified that when he built the garage he had no survey and thought he was getting it on his own property, which certainly falls short of establishing that he did it under a claim of title hostile to the true owner- The other acts committed by Lutz over the years, such as placing a portable chicken coop on the premises which he moved about, the cutting of brush and some of the trees, and the littering of the property with odds and ends of salvaged building materials, cast-off items of house furnishings and parts of automobiles which the defendants and their witnesses described as “ personal belongings ”, “ junk “ rubbish ” and “ debris ”, were acts which under no stretch of the imagination could be deemed an occupation by improvement within the meaning of the statute, and which, of course, are of no avail in establishing adverse possession.

We are also persuaded that the defendant’s subsequent words and conduct confirms the view that his occupation was not “ under a claim of title ”. When the defendant had the opportunity to declare his hostility and assert his rights against the true owner, he voluntarily chose to concede that the plaintiff's ’ legal title conferred actual ownership entitling them to the possession of these and other premises in order to provide a basis for establishing defendant’s right to an easement by adverse possession — the use of a well-defined “ traveled way ” that crossed the said premises. In that action (Lutz v. Van Valkenburgh, 274 App. Div. 813), William Lutz, a defendant here (now deceased), chose to litigate the issue of title and possession and, having succeeded in establishing his claim of easement by adverse possession, he may not now disavow the effect of his favorable judgment (Goebel v. Iffla, 111 N. Y. 170), or prevent its use as evidence to show his prior intent. Declarations against interest made by a prescriptive tenant are always available on the issue of his intent (6 Wigmore on Evidence, § 1778).

On this record we do not reach the question of disseisin by oral disclaimer, since the proof fails to establish actual occupation for such time or in such manner as to establish title. What we are saying is that the proof fails to establish actual occupation for such a time or in such a manner as to establish title hy adverse possession (Civ. Prac. Act, §§ 39, 40; St. William’s Church v. People, supra).

The judgments should be reversed, the counterclaim dismissed and judgment directed to be entered in favor of plaintiff Joseph D. Van Valkenburgh for the relief prayed for in the complaint subject to the existing easement (Lutz v. Van Valkenburg, 274 App. Div. 813), with costs in all courts.