Board of Trustees of Vil. of Sackets Harbor v Sackets Harbor Leasing Co., LLC

[*1] Board of Trustees of the Vil. of Sackets Harbor v Sackets Harbor Leasing Co., LLC 2004 NY Slip Op 51920(U) [18 Misc 3d 1136(A)] Decided on December 17, 2004 Supreme Court, Jefferson County McGuire, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through February 27, 2008; it will not be published in the printed Official Reports.

Decided on December 17, 2004
Supreme Court, Jefferson County

The Board of Trustees of the Village of Sackets Harbor, Plaintiff,

against

Sackets Harbor Leasing Company, LLC, and Watertown Savings Bank, Defendants.



02-1865



Appearances of counsel are as follows:

Bond Shoeneck & King, PLLC, Syracuse (Jonathan B. Fellows of counsel), for Plaintiff

Hiscock & Barclay, Syracuse (Alan R. Peterman of counsel), for Defendant Sackets Harbor Leasing Co.

Kimpel, Gideon and Ventrone, PLLC, Syracuse (David S. Gideon of counsel), for Defendant Watertown Savings Bank

Joseph D. McGuire, J.

On or about September 20, 2002, Plaintiff filed a Summons and Complaint with two causes of action. The first cause of action was for a declaratory judgment as to real property in the Village. The second cause was a request for an injunction as to dock installation and usage. Contemporaneously with their complaint Plaintiff brought an Order to Show Cause seeking a preliminary injunction. Defendant Sackets Harbor Leasing Company, LLC (SHLC) opposed such relief, and cross-moved. After submissions and appearances, this Court denied Plaintiff's requested temporary relief, and granted SHLC partial summary judgment dismissing Plaintiff's second cause of action, as to the docks. The Appellate Division, Fourth Department, reversed this Court's Decision; and, upon reconsideration, this Court then granted Plaintiff's request for Temporary relief by Memorandum/Order dated April 30, 2004. Thereafter a trial was conducted on Plaintiff's First Cause of Action, seeking declaratory judgment.

FACTUAL BACKGROUND

Sackets Harbor is a picturesque Village situate on the shores of Lake Ontario. In January 2000 SHLC applied to the Sackets Harbor Village Planning Board (Planning Board) for site plan review in order to demolish existing buildings and construct a yacht club, hotel and meeting facility. Defendant also intended to remove existing non-conforming docks, and construct new ones with accompanying boat slips. Over the next two years there were several more submissions, Planning Board meetings, public hearings, and correspondence regarding the project, including both the buildings and the docks. The parties were also in negotiations over a 20-foot section of adjacent property (the property at issue here). The Village Planning Board approved the project, at least the land based portion, after public hearing. A building permit was [*2]issued on September 6, 2001. SHLC obtained the necessary permits from the required state agencies, and approval after review by the Army Corp of Engineers. In Spring 2002, certain objections were raised, entailing additional meetings, hearings, and correspondence. While negotiations were allegedly ongoing SHLC installed new docks in 2002. The Village then directed immediate removal of the docks, and instituted the present litigation.

This decision is the result of a two day non-jury trial. Pre-trial and post-trial submissions were received and considered by the Court, as well as numerous exhibits detailed in the trial record. Final arguments were received on October 18, 2004. Witnesses whose testimony was considered included an abstractor who traced title history from the public records; an archeologist who examined historical boundary data, literature, and provided an opinion about a boundary monument (building), and aging of another building on West Main Street; three surveyors who each detailed information about their work and the basis for their conclusions; the Mayor of the Village who addressed some historical concerns raised and provided information locating a street; Defendant, who addresses the issue of equitable estoppel, over objection.

DISCUSSION

Defendant SHLC was conveyed property known as 404-406 West Main Street in the Village of Sackets Harbor on July 31, 2000. The deed conveying the property was recorded in the Jefferson County Clerk's Office. The property was approximately .40 acres, and Defendant Watertown Savings Bank had a recorded mortgage interest.

Plaintiff's Position

Plaintiff claims the correct Village property line between 404-406 West Main Street and the Village's Market Square Park and the Village docks, "is the northwesterly street margin of Ray Street, established by the deed call, by a line to be drawn in continuation of the Northwesterly Side of a certain other road or street, leading along the Southeasterly end of the new house lately build by Frederick White and called Ray Street' as set forth in the deed between Thomas Ludlow Ogden et al. and the Trustees of the Village...." filed in 1818 (Plaintiff's Complaint ¶18). Plaintiff claims that property is used as a village park and boat launch currently.

In its Complaint Plaintiff "seeks judgement declaring it owns the property on the east side of the line established in the 1817 deed from Ogden, et al. to the Village and holds such property in trust as park land for the public use; that The Village recover possession of all property east of the correct property line...; that the Defendant remove all docks, bulkheads and other structures encroaching over the property line."(Plaintiff's Complaint ¶25).

The Plaintiff alleges that the Ogden Deed of 1818, by reference to a fixed artificial monument (the Frederick White House), establishes the true boundary line along Ray Street. That building is still in existence and is known as the historic Union Hotel. It is Plaintiff's opinion that the subsequent surveys relied upon by Defendants are incorrect in that they failed to accurately mark the Ray Street boundary from the Ogden Deed. The current configuration of Ray Street is a paved road whose paved portion is several feet from the southeasterly end of the Union Hotel. It is Plaintiff's position that when the deed was executed Ray Street abutted the Union Hotel, and thus the boundary would be approximately 13 feet from where Defendant claims it to be. Plaintiff claims that historical maps, and trial testimony of its expert archeologist, prove that Ray Street historically ran directly along the wall of the Union Hotel.

Plaintiff also argues the deed SHLC received contains legal descriptions of two parcels, one 30 feet wide, and the second, 70 feet wide, for a total conveyance of 100 feet. [*3]

Plaintiff argues that the Patsy A. Storino survey of July 12, 2000, on which Defendant relies, was incorrectly done, as that survey depicted Defendants' property as 113.11 feet. That survey also depicted property lines running through different structures. A Cooper Map' was filed with the Jefferson County Clerk in 1962. Surveyor Storino admitted he relied on the Cooper Map showing an iron pipe near the corner of Main and Ray Street as the proper boundary line, as opposed to a dashed line on that map reflecting a projection of the Union Hotel wall, the difference between the two points being 13 feet. Storino admitted the Cooper Survey was one of "occupation", reflecting land as occupied, not legal boundaries. Storino also admitted he had done a survey in 1999 on property directly adjoining the Union Hotel, and found an iron pipe and bolt in a line projecting from the Union Hotel wall up Ray Street.

Plaintiff also claims a survey by Robert Huntley in 1982, conducted at the request of Defendants' grantor, supported a conveyance of 100 feet, not 113 feet, and the appropriate property line as an extension of the east wall of the Union Hotel.

Defendants' Position

Defendant SHLC disagrees with Plaintiff's position, as does Watertown Savings. Defendants claim the Ray Street description in the Ogden Deed is ambiguous, they should be legally entitled to rely upon surveys conducted and properly filed. Further, Defendants claim the Plaintiff's are estopped from denying the validity of the subsequent surveys which were filed, and which the Plaintiff relied upon for transfer of other Village properties.

Defendants claim Plaintiff was on notice from Daniel Cooper in 1959 that even as far back as 1848 there existed the same potential problems as to property lines. Further, the Village itself relied on the 1933 Cooper Survey as to transfer and development of property around and in the Market Square area in the 1970s. Defendants argue the Village should be estopped from disputing the property lines established in the 1933 Cooper Map. Not only did the Village utilize the Cooper survey, Defendants have done so as well and would be prejudiced and harmed by a modification of the property lines presented in that survey. As to the Huntley survey, Huntley admitted the existence of a 12 foot discrepancy when the properties are located east to west and then west to east.

Defendants claim Plaintiffs have failed to carry their burden of establishing the boundary line with a fair degree of certainty. Defendants argue that their property was not conveyed by the Ogden Deed of 1817 but by an earlier deed from Augustus Sacket in 1804, another deed in 1809, and another in 1815. Rather, the Ogden Deed defined the westerly boundary of the public market square, not the property transferred previously. That deed also contained references to existing structures, which demonstrated the drafters could have referenced the Union Hotel specifically as a monument had they so desired. Defendants also claimed Plaintiff's archeologist only presented speculation as to nineteenth century construction and could not explain the discrepancy between her claimed dimensions of Ray Street and its current configuration. Further, Plaintiff's expert also admitted there could have been a sidewalk allowing people to enter the Union Hotel from the street as opposed to directly from carriages at the door. Defendant argues "[t]here is no evidence in the record that established Thomas Ogden intended to use the Union Hotel as a monument in his 1817 deed."

LEGAL ANALYSIS

Defendants are correct as to Plaintiff's burden: In an action to determine a boundary line, a plaintiff must locate the boundary with a fair degree of certainty (cites omitted)(Trinkle v [*4]Cordisco, 228 AD2d 433 [1996]). In support of its decision the Trinkle court cited a 1988 Fourth Department case, Sarfaty v Evangelist (142 AD2d 995 [1988]): " The primary consideration in the construction of deeds is the intent of the parties (internal cites omitted) and rules of construction have developed as a means for determining the parties' intent. Where the language in a deed is inconclusive as to the location of a boundary, all of the attending circumstances must be considered to ascertain the parties' intent." Such circumstances may include parol evidence, and if parol evidence is unavailable, "...the alternate theory of acquiescence may be employed (cites omitted). Acquiescence in the boundary line for the statutory period required for adverse possession is sufficient to establish ownership marked by that line. Where the statutory period has not been established, acquiescence for "a considerable period of time provides conclusive evidence as to the true location of the boundary" (Markowski v Ferrari, 174 AD2d 793 [1991]).

In support of its claim Plaintiff relies upon language from the Ogden Deed describing as boundary a line in continuation "...along the southeasterly end of the new house lately erected by Frederick White and called Ray Street..." . According to Plaintiff that means the boundary line ran along the wall of the White house/Union Hotel. Defendant disagrees with that interpretation.

In determining the order for establishing a boundary, or in resolving deed discrepancies, there is a general order of preference to be followed, that is natural objects first, then artificial monuments, then adjacent boundaries, then courses and distances, and last, quantity of land (see 1 NYJur2d, Adjoining Landowners §111; Szaksz v Hermanson, Sup Ct, Jefferson County, Index No. 01-0980). A monument recited in a deed takes precedence over courses and distances (see Towner v Jamison, 98 AD2d 90 [4th Dept 1983]). Monuments control courses and distances, and take precedence over linear measurements if discrepancy exists between them (see County of Erie v Bourne, 59 AD2d 1008 [4th Dept 1977], appeal dismissed 43 NY2d 947[1978]; Harrison v NY Central Railroad, 255 AD 183 [4th Dept 1939]). "This comports with the rule of construction for conveyances of real property that actual physical references and monuments, such as an existing roadway, take precedence (see 1 Warren's Weed, New York Real Property §§ 1.03, 2.01, 2.03, 6.01 [4th ed]), and with the presumption that conveyances are made with reference to an actual view of the premises" (Oldham v Eliopoulos, 191 AD2d 847 [1993]).Plaintiff has presented testimony and evidence via the archeological expert to support the claim that the boundary may in fact have been the southeasterly end of the White house/Union Hotel. Plaintiff's expert testimony is the type of "attending circumstances" to be examined in determining a grantor's intent. Supportive of Plaintiff's position is that the original deeds to the SHLC property clearly define the dimensions as 100 feet, two parcels, one of 70 feet and the other of 30 feet. The 100 feet description has continued for nearly two centuries.

Plaintiff's witness Michael Yonkoving, in his review of the applicable deeds, abstracts, surveys and other public records, supported the description of SHLC property with a 100 foot dimension. Mr. Yonkoving also opined that the Cooper Survey did not follow the deed calls of the Ogden Deed and subsequent deeds. The witness found the same problems with the Storino Survey. Among the problems is the fact that his boundary lines dissect three separate structures (see Gillette v Howe, 171 AD2d 1014 [4th Dept 1991]). Mr. Storino's own testimony was that he relied upon the Cooper Survey, and had not reviewed the source deeds. Storino also opined that it was clear the Cooper Survey did not follow the Ogden Deed calls. According to Storino the boundary line appeared to be along the White house/Union Hotel and a boundary marked on the Cooper Survey with a dashed line. The evidence presented is that the dimensions of Ray Street [*5]were assumed in the Cooper Survey (boundary of old slip assumed). If the location of a road is uncertain references to other boundaries are acceptable (Ausable Co. v Hargraves, 1 NYS 42 [1888], affd 121 NY 695 [1890]). If Daniel Cooper was claiming the dimensions of Ray Street as unknown, then the most logical, and reasonable boundary was that of the White house/Union Hotel, or those of the Dodge storehouse referenced in the Ogden Deed. Cooper chose otherwise, and the proof presented does not support those choices.

The Cooper Survey was filed in 1962, more than 10 years prior to this action, and is presumed to be correct, and is prima facie evidence of its content in the absence of contradictory evidence (CPLR 4522; Skaneateles v Lang, 179 AD2d 1032 [4th Dept 1992]; see Commissioner of Social Services v Philip De G., 59 NY2d 137 [1983]). Three of Plaintiff's witnesses, all licensed surveyors, opined that the boundary line projected along the wall of the Union Hotel. Plaintiff here has presented contradictory evidence as to the accuracy of the Cooper Survey, and such evidence is sufficient to rebut the prima facie presumptions of that document.

Defendants have argued that they must own the 13 feet because it was used and referenced to settle the boundary dispute between SHLC's predecessor in title and an adjoining landowner to the west. Defendants claim does not appear supported by the evidence presented. A recent boundary settlement does not overcome erroneous presumptions contained in that agreement, nor does it serve to overcome historical evidence establishing a contrary distance.

There is no dispute that adverse possession is unavailable against a municipality holding the property in its governmental capacity (Litwin v Town of Huntington, 208 AD2d 905 [1994]). Defendant disputes that it is seeking possession by an adverse claim, but rather they claim same by title. This is not accurate, however. The proof presented by Plaintiff through historical analysis is that Defendants title consisted of 100 feet of property, not 113 feet. There has been no evidence that the Ogden Deed or any other deeds conveying the property in question were inaccurate. Thus there is no conflict between the deeds and the subsequent surveys. Rather there has been sufficient evidence that the 1933 survey of Cooper (which was the basis for the Storino Survey) was inaccurate and did not follow the deed calls. The Huntley survey of 1981 did follow the Deed calls, as did the Gerald A. Kostyk survey of 2002. Both those surveys found problems with the Cooper Survey's failure to abide the boundary along the White House/Union Hotel. The Court notes that its holding that the older Cooper Survey should not prevail, or that the Cooper Survey should prevail over the prior deeds, goes against traditional holdings (see Fletcher v Flacke, 97 AD2D 623 [1983]; Mazzucco v Eastman, 36 Misc 2d 648 [1960], affd 17 AD2d 889 [1962]).

Alternatively, Defendants have claimed Plaintiff, having relied upon the 1933 Cooper Survey for its own land conveyances and land development programs, is now barred by equitable estoppel from denying the validity of that same survey (Bender v New York City Health & Hospitals Corp., 38 NY2d 662 [1976]; La Porto v Philmont, 39 NY2d 7 [1976]). "An estoppel rests upon the word or deed of one party upon which another rightfully relies and so relying changes his position to his injury"(Nassau Trust Co. v Montrose Concrete Products Corp., 56 NY2d 175 [1982]). There has been no proof that the Plaintiff was responsible for the Cooper Survey, or that the Village vouched for its accuracy. The cases cited by Defendant for support of equitable estoppel against a municipality are not applicable to the facts herein. Defendants have failed to demonstrate that they reasonably relied upon the Plaintiff's actions to their detriment. Defendant moved to amend to allow introduction of proof on the equitable estoppel theory. The [*6]amendment is allowed under liberal amendment policy, but having allowed the amendment, the Court nonetheless does not find the argument factually persuasive and does not find the Plaintiff's claim barred by the theory of equitable estoppel even if the amendment were disallowed (see Higgins v Village of Orchard Park, 277 AD2d 989 [4th Dept 2000]).

Defendant has claimed title to property based solely upon the 1933 Cooper Survey. That survey is in conflict with applicable deeds. Defendant has failed to present sufficient proof that they are entitled to the claimed property by historical title. Having reviewed the evidence presented, and gauged the credibility of the witnesses presented, the Court feels Plaintiff has properly demonstrated its possession of the disputed property as the rightful title holder.

CONCLUSION

In accord with the foregoing, it is

ADJUDGED, Plaintiff's request for a declaratory judgment as to their rightful possession of the disputed property is hereby Granted.

Order to be submitted by Plaintiff on notice to Defendants.

Dated: December 17, 2004

Lowville, NY

Joseph D. McGuire , J.S.C.