[*1]
Knapp v Hughes
2011 NY Slip Op 51341(U) [32 Misc 3d 1216(A)]
Decided on July 8, 2011
Supreme Court, Broome County
Rumsey, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on July 8, 2011
Supreme Court, Broome County


James Knapp and LINDA KNAPP, Plaintiffs,

against

James R. Hughes, CHARLES AND CONCETTA BUELOW, MATTHEW E. and PATRICIA L. GOUKAS, PAUL and JOANNE C. HAUPTMAN, JAMES W. WALSH, JR. and PHYLLIS ANN WALSH and CVI, INC., Defendants.




2003-1479



Law of Patrick J. Kilker

By:Patrick J. Kilker, Esq.

Attorneys for Plaintiffs

136 Washington Street

Binghamton, New York 13901

Coughlin & Gerhart, LLP

By:Robert R. Jones, Esq.

Attorneys for Defendants Hauptman and Walsh

19 Chenango Street

P.O. Box 2039

Binghamton, New York 13902-2039

Phillip R. Rumsey, J.



Perch Pond is a pond which covers approximately 25 — 30 acres that is located in the Town of Colesville, Broome County. Alleging ownership of the westerly 12.1 acre portion of the pond, plaintiffs commenced this action pursuant to RPAPL article 15 against owners of several parcels which adjoin the westerly portion of the pond, whom plaintiffs allege were impermissibly using the pond for recreational pursuits. Defendants asserted various counterclaims alleging that they owned title to the land beneath the pond abutting their respective properties and, alternatively, that they had obtained the right to use the waters of, and the land beneath, the pond by adverse possession or prescription. The parties cross-moved for summary judgment and this court (Lebous, J.) granted summary judgment to all defendants, on the basis that each owned littoral rights to a center point of Perch Pond. On appeal, the Appellate Division, Third Department determined that plaintiffs own record title to the land beneath Perch Pond which abuts the properties owned by defendants Hauptmann and Walsh and, further, that the owners of the Hauptmann and Walsh parcels had presented sufficient evidence to withstand dismissal of their respective counterclaims for adverse possession and prescriptive easement (see Knapp v Hughes, 25 AD3d 886, 889 — 891 [2006], lv dismissed 7 NY3d 921 [2006]).[FN1] The Hauptmann and Walsh counterclaims were tried without a jury.

HAUPTMANN

The Hauptmann family first acquired ownership of a parcel with frontage on the westerly end of Perch Pond in 1985, which is now owned by defendants Paul Hauptmann, Jr. and Joanne Hauptmann.[FN2] Hauptmanns purchased an adjacent parcel in late 2001 or early 2002 which extended their shoreline on Perch Pond by 100 feet. Hauptmanns believed that both parcels [*2]included the right to access the pond and use it for recreational purposes. Their testimony and the nature of the properties — with their apparent access to Perch Pond — show that their primary purpose in acquiring them was to be able to use the pond for recreational purposes (see Carlino v Barton, 76 Misc 2d 240, 246 [1973]). The proof at trial further establishes that Hauptmanns used Perch Pond continuously from their original parcel since 1986 — when they first constructed a dock — for recreational pursuits such as fishing, swimming and boating as the weather permitted, in common with others whom they perceived also had the right to use the pond for such purposes. Paul Hauptmann also testified that he possessed and improved the land under Perch Pond immediately adjacent to the shore by removing stones from the time the Hauptmanns acquired the property until the time of trial and putting sand in to make for easier access to the pond (herein the improved shoreline area) — such improvement being consistent with the nature of the property (see Kitchen v Village of Sherburne, 266 AD2d 786, 787 [1999]).

Paul Hauptmann (Jr.) and Joanne Hauptmann acquired the second parcel from Joan Mastronardi and Thomas Stank by deed dated August 14, 2001 and recorded January 16, 2002 (herein the Mastronardi parcel). With respect to this second parcel, Hauptmanns argue that they are entitled to tack on the adverse use of Perch Pond by Mastronardi prior to their acquisition.[FN3] The only proof of prior adverse use by Mastronardi comes from non-party witness Cathy White, who testified that she accessed the pond for recreational purposes from the Mastronardi property with permission from Joe and Joan Mastronardi every year from 1982 until she became acquainted with defendants Walshes and began accessing the pond from their property with their permission beginning in 1989. She further testified that her access to Perch Pond after 1989 was entirely via the Walsh parcel — and not from the Mastronardi parcel. Inasmuch as possession must be continuous to establish a claim by adverse possession or by prescription, White's use of the pond via the Mastronardi parcel for only seven years — a use which ended more than ten years prior to Hauptmanns' purchase of that parcel — does not constitute a period of possession which may be tacked onto Hauptmanns' for purposes of satisfying the ten year period (see Kitchen, 266 AD2d at 787 — 788 [testimony that the adverse possessor's predecessors in title may have logged the property to some vague extent thirty years prior to the beginning of his own claimed possession was insufficient to show continuous possession for purposes of tacking]; see also Brand v Prince, 35 NY2d 634, 637 [1974] [successive adverse possessions of property may be tacked only where a prior adverse possessor actually turned over possession to a later owner]).

Accordingly, Hauptmanns have established by clear and convincing evidence that their improvement of the shoreline area adjacent to, and their recreational use of the pond from, their original parcel was (1) under claim of right; (2) actual; (3) open and notorious; and (4) continuous for a sufficient period. Their testimony that they controlled access to their property and to the pond shows that their use of the shoreline area was exclusive, a required element of their claim to title of the improved shoreline area by adverse possession. With respect to their use of the pond for recreational purposes, however, they failed to establish that their use was [*3]exclusive, as required to establish title by adverse possession. They concede that their use of Perch Pond was in common with others whom they believed also had the right to use the pond for recreational purposes. Such common use is not sufficient to establish ownership of the bed of the pond by adverse possession, but is consistent with their claim to have established a prescriptive easement, which does not require exclusive use (see Carlino, 76 Misc 2d 240 [adverse possessor acquired title to alluvial land actually possessed and occupied, but use of the lake for recreational purposes in common with others entitled them only to the prescriptive right to continue such uses]).[FN4]

Where, as here, all of the other elements of title by adverse possession — or of a prescriptive easement — are established, hostility will be presumed, thereby shifting the burden to plaintiffs to show that Hauptmanns' use of the pond was permissive (see Gorman v Hess, 301 AD2d 683 [2003] [adverse possession and prescriptive easement]; Solimini v Pytlovany, 144 AD2d 801 [1988] [prescriptive easement]). Plaintiffs' evidence entirely fails to meet that burden. The court does not find plaintiffs' trial testimony to be as credible as that of Hauptmanns. As noted by defendants, plaintiffs initial theory of the case — as expressed in the complaint, their bill of particulars, and their testimony at their examinations before trial — was that Hauptmanns did not have permission to use Perch Pond. In addition, Linda Knapp specifically testified at her examination before trial that Hughes was the only property owner on the westerly end of Perch Pond to whom plaintiffs had given permission to use the pond. In contrast, at trial James Knapp testified that permission to maintain a dock was given to Hauptmanns by a letter sent to Paul Hauptmann, Sr. from plaintiffs' attorney, Edward Gartell, in August 1994. However, that letter merely advised Mr. Hauptmann that Knapps had acquired ownership of the 12.1 acre parcel beneath the pond — to the low water mark — and invited him to contact James Knapp "in order to [*4]discuss a consensual arrangement that would allow [Hauptmanns'] dock to remain in place." James Knapp testified that after the letter was sent, he received a telephone call from Joanne Hauptmann, who indicated her knowledge of the letter and suggested that he speak with her mother-in-law, Ruth Hauptmann. Knapp testified that he then called Ruth Hauptmann and gave her verbal permission to use the dock.

Both Paul Hauptmann, Jr. and Joanne Hauptmann testified that they never received the letter. Joanne Hauptmann denies speaking with James Knapp by telephone. Both testified that they never sought, nor were they ever granted, permission to use the pond by anyone, including plaintiffs. Paul Hauptmann, Jr. testified that he was not aware that his mother had ever spoken with James Knapp, and Joanne Hauptmann testified specifically that Ruth Hauptmann never told her that Knapp had granted permission for them to continue to use the pond. Ruth Hauptmann was unable to testify at trial, and the transcript of her deposition testimony was admitted on stipulation of the parties. Notably, it does not reflect that plaintiffs' attorney asked her about a telephone conversation with James Knapp, nor does it contain any testimony showing that plaintiffs ever granted Hauptmanns permission to use Perch Pond. It also bears noting that plaintiffs evidence regarding whether Hauptmanns' possession or use of the pond was permissive was limited to the use of their dock — plaintiffs did not submit any evidence related directly to whether Hauptmanns' possession and improvement of the shoreline area prior to 2002, or their use of the pond for recreational purposes, was permissive. Based on the foregoing, plaintiffs have failed to meet their burden of establishing that Hauptmanns' possession of the shoreline area and their use of the pond was permissive. Accordingly, Hauptmanns are entitled to judgment that they have established ownership of the improved shoreline area lying beneath the waters of Perch Pond adjacent to their original parcel by adverse possession and a prescriptive easement — appurtenant to their original parcel only — for use of the lake for ordinary recreational purposes, including fishing, swimming, boating and the right to construct, maintain and use a dock.

WALSH

The proof at trial similarly shows that Walshes used Perch Pond for dog training and for usual recreational purposes without plaintiffs' permission for more than ten years prior to the commencement of this action, beginning shortly after their acquisition of the property in 1988, including giving permission to others to use Perch Pond for recreational purposes — such as White and Felix Petrosky, who testified that he stored a boat on the Walsh property and that he used Perch Pond with their permission nearly every weekend from the late 1980s through 2002. Thus, like Hauptmanns, they have established by clear and convincing evidence that their use of the pond — as required to prove their claim of a prescriptive easement — was (1) under claim of right; (2) actual; (3) open and notorious; and (4) continuous for a sufficient period.[FN5]

As noted above, where, as here, all of the other elements of a prescriptive easement are established, hostility will be presumed, thereby shifting the burden to plaintiffs to show that use of the pond by Walshes was permissive. The court does not find plaintiffs' trial testimony to be as credible as that of Walshes, largely based on the fact that prior to trial plaintiffs claimed that [*5]Walshes use of the pond was not permissive. By contrast, at trial James Knapp testified that permission was given to Walshes to use Perch Pond by letters sent from plaintiffs' attorney, Edward Gartell, to Walshes' attorney, Joseph Nestor, advising of plaintiffs' claim of ownership to the bed of Perch Pond and offering permission for continued use of the pond. Walshes acknowledge that they reviewed the Gartell letters with Nestor, who reassured them that they owned title to the low-water mark and that they had the right to use the waters of Perch Pond without plaintiffs' permission.

Both parties report a meeting at plaintiffs' house in 1994, when James Knapp stated to James Walsh that he could continue to use the pond if he was a good neighbor. Knapp points to this conversation as evidence of permissive use. By contrast, Walsh — who describes Knapp as aggressive on that occasion — states that he simply left plaintiffs' home without comment to avoid an escalating confrontation. Walshes both testified that they rejected Knapps' attempt to offer permission, and that they continued their use of Perch Pond as a matter of right, founded upon the advice of counsel.

Plaintiffs also claim that defendant James Walsh made an offer to purchase plaintiffs' property at that meeting which would negate the necessary element of hostility. Both plaintiffs specifically testified that James Walsh asked whether plaintiffs would consider swapping the westerly portion of Perch Pond for the easterly portion, should Walsh be able to acquire ownership of the easterly portion. Walshes have not contradicted this testimony in any fashion; neither denied that James Walsh made the offer to acquire ownership of the westerly portion of Perch Pond and the issue was not explored on cross-examination of plaintiffs.

However, even were the court to fully credit plaintiffs' testimony in this regard, the offer to acquire the westerly portion of Perch Pond by exchange would not be sufficient to defeat Walshes' prescriptive easement claim. An offer to purchase prior to the running of the statutory period defeats an adverse possession claim because it negates the element of hostility by undermining notice to the owner that another is possessing his land under claim of title (see Larsen v Hanson, 58 AD3d 1003 [2009]; Albright v Beesimer, 288 AD2d 577, 579 [2001]). However, an offer to purchase does not defeat a claim to easement by prescription, which is based on hostile use rather than upon a claim of outright ownership (see Solimini, 144 AD2d 802 — 803; City of Tonowanda v Ellicott Homeowners Assn., 86 AD2d 118, 124 [1982], lv dismissed 58 NY2d 824 [1983]). Accordingly, plaintiffs have failed to meet the burden of proving that Walshes' use of Perch Pond was permissive; therefore, Walshes are entitled to judgment that they have established a prescriptive easement, appurtenant to their parcel, for use of the pond for dog training and for ordinary recreational purposes, including fishing, swimming, boating and and the right to construct, maintain and use a dock.[FN6]

LOCATION OF BOUNDARY LINES

In light of the determinations that neither Hauptmann — with respect to the Mastronardi parcel — nor Walsh established title to property located beneath Perch Pond by adverse possession, it is necessary to fix the definite location of the boundary lines between those [*6]properties and plaintiffs' property beneath Perch Pond. The Appellate Division held that a description setting the boundary at the edge of the pond when the properties now owned by defendants were severed from a common title with the property now owned by plaintiff by the conveyance from Furlano to Hall and Mallery, doing business as Robil, in 1973, did not operate to convey title to land beneath the pond to the grantees. However, it did not address the specific location of the edge of the pond. It has been long-settled that grants of land along a nonnavigable body of water carry fee ownership to the low-water mark (see Carlino, 76 Misc 2d at 242 — 243; see also Wheeler v Spinola, 54 NY 377, 385 [1873]; Halsey v McCormick, 13 NY 296 [1855]; see generally White v Knickerbocker Ice Co., 254 NY 152, 159[1930]). Accordingly, the edge of Perch Pond is fixed at the low-water mark.

ORDER AND JUDGMENT

Based on the foregoing, it is

ORDERED AND ADJUDGED that Hauptmanns have established title to that portion of the improved shoreline lying underneath the waters of Perch Pond which is adjacent to their original parcel, as described in deeds recorded in Book 1474 of Deeds at page 80 and Book 1976 of Deeds at page 7, by adverse possession; and it is further

ORDERED AND ADJUDGED that the boundary between plaintiffs' property, as described in paragraph 2 of the complaint, and that of the Mastronardi parcel, now owned by Hauptmanns, as described in Book 1984 of Deeds at page 534, is at the edge of Perch Pond, which is the low-water mark of Perch Pond; and it is further

ORDERED AND ADJUDGED that the boundary between plaintiffs' property, as described in paragraph 2 of the complaint, and that of the property owned by Walshes, as described in a deed recorded in Book 1700 of Deeds at page 94, is at the edge of Perch Pond, which is the low-water mark of Perch Pond; and it is further

ORDERED AND ADJUDGED that Hauptmanns have established a prescriptive easement to use Perch Pond for ordinary recreational uses — including fishing, swimming, boating and the right to construct, maintain and use a dock — which easement is appurtenant only to the parcel described in Book 1474 of Deeds at page 80 and Book 1976 of Deeds at page 7, but not to the Mastronardi parcel, as described in Book 1984 of Deeds at page 534; and it is further

ORDERED AND ADJUDGED that Walshes have established a prescriptive easement to use Perch Pond for dog training and for ordinary recreational uses — including fishing, swimming, boating and the right to construct, maintain and use a dock — which easement is appurtenant to the parcel owned by them described in a deed recorded in Book 1700 of Deeds at page 94; and it is further

ORDERED AND ADJUDGED that — to the extent not specifically herein granted — plaintiffs' complaint and the counterclaims asserted by Hauptmann and Walsh in their amended answer dated September 7, 2007 are dismissed.

This decision constitutes the order and judgment of the court. The transmittal of copies of this decision, order and judgment by the court shall not constitute notice of entry.

Dated: July 8, 2011

Cortland, New York [*7]

_______________________________

HON. PHILLIP R. RUMSEY

Supreme Court Justice

Footnotes


Footnote 1: The Appellate Division resolved the disputes between plaintiffs and the remaining defendants by concluding that Goukases have littoral rights appurtenant to ownership of a 30 acre parcel of land, which derives from a separate chain of title than the remaining properties owned by defendants; that the adverse claims asserted by Goukases with respect to other properties which they own (Lots 13 and 14) and Buelows failed as a matter of law because they did not prove adverse use of a sufficient duration; and that the adverse claims asserted by Hughes failed because he admitted that he does not own the land beneath the pond and that he used the pond with plaintiffs' permission.

Footnote 2: Title was conveyed to Paul Hauptmann, Ruth Hauptmann, and Joanne Hauptmann, each holding a one-third interest as tenants in common (see Book 1474 of Deeds at page 80). It appears that the Paul Hauptmann who took title in 1985 was Paul Hauptmann, Sr., the now deceased father of defendant Paul Hauptmann, Jr., and that Paul Hauptmann, Jr. first acquired record ownership interest in this parcel in September 2001(see Book 1976 of Deeds at page 7; see also Book 1851 of Deeds at page 757 [executor's deed conveying interest of Paul Hauptmann, Sr. to Ruth Hauptmann and Joanne Hauptmann]). Nonetheless, defendant Paul Hauptmann, Jr. can tack on to the use of the pond established by his predecessors in title, Paul Hauptmann, Sr., Ruth Hauptmann (his mother), and Joanne Hauptmann (his wife), which acts, in this case, actually include his own use of the pond for recreational purposes as a guest or invitee of other family members.

Footnote 3: Inasmuch as Hauptmanns acquired the Mastronardi parcel less than two years prior to commencement of the action on June 10, 2003, their own acts of possession — including any improvement of the shoreline area adjacent thereto — were not of sufficient duration to create any adverse rights.

Footnote 4: Brant Lake Shores v Barton, 61 Misc 2d 902 (1970) is strikingly similar to the Carlino case, inasmuch as it involved the same lake and a common defendant, and was decided by the same Justice; however, a different result was reached due to a dispositive difference in the chains of title to the respective plaintiffs' properties. In Brant Lake Shores, the court held that plaintiff established title to the lake bed by adverse possession of the upland parcel, pursuant to RPAPL 511, which provides that possession of a portion of any premises described in a deed is deemed to constitute possession of all of the property described in the deed, because plaintiffs' deed erroneously included title to the land beneath the lake. In Carlino, by contrast, the court held — as the Appellate Division did in this case — that the description of the property conveyed to plaintiffs along the shore of the lake excluded title to lands under the lake bed; therefore, possession of the upland parcel was not sufficient to establish title to the land beneath the lake, and plaintiffs acquired title by adverse possession only to alluvial land actually possessed. In both cases, the court held that plaintiffs' use of the surface of the lake in common with others for recreational pursuits entitled them only to a prescriptive right to continue such uses. Accordingly, defendants' claim of ownership to the land beneath Perch Pond by adverse possession fails, to the extent that it is based upon use of the pond for recreational purposes. Finally, it also bears noting that Pirman v Confer 273 NY 357, 363 (1937), which plaintiff cites as authority for the proposition that use need not be exclusive to establish adverse possession, involves a claim seeking to establish an easement by prescription.

Footnote 5: Unlike Hauptmanns, Walshes did not introduce any evidence showing that they made any improvements to the shoreline beyond the low-water mark prior to 2002; accordingly, they have not stated a prima facie claim of title to any land beneath the pond by adverse possession.

Footnote 6: Inasmuch as installation of a dock is a reasonable use incidental to the uses which Walshes have made of the pond, the prescriptive easement to which they are entitled may include the right to construct, maintain and use a dock (see generally Hush v Taylor, 84 AD3d 1532 [2011]).