Opinion
March 8, 1991
Appeal from the Supreme Court, Jefferson County, Gilbert, J.
Present — Dillon, P.J., Denman, Balio, Lawton and Lowery, JJ.
Order unanimously modified on the law and facts and as modified affirmed without costs, in accordance with the following Memorandum: This case presents a dispute concerning the location of the boundary line between the parties' properties. The trial court, despite having three opportunities to do so, declined to delineate such boundary line. Upon review of the record before us, we find that it contains sufficient facts for us to make the findings necessary to delineate the boundary line (see generally, Northern Westchester Professional Park Assocs. v Town of Bedford, 60 N.Y.2d 492, 499; Matter of Fasano v State of New York, 113 A.D.2d 885, 887-888; Buisch v State of New York, 98 A.D.2d 967). The uncontradicted testimony established that, at least between 1974 and 1985, the owners of the respective properties considered their boundary line to be a line parallel to and three feet from the west side of the church and perpendicular to Washington Street. That testimony shows the practical location of the boundary and acquiescence thereto by the respective property owners for at least 11 years. Practical location and acquiescence for the statutory period is conclusive as to the location of the boundary line (see, Katz v Kaiser, 154 N.Y. 294; Sherman v Kane, 86 N.Y. 57, 71-74; Wentworth v Braun, 78 App. Div. 634, affd 175 N.Y. 515; Van Dusen v Lomonaco, 24 Misc.2d 878). Thus, we find that the boundary line between the parties' properties is as follows: a line parallel to and three feet from the west side of the church and perpendicular to Washington Street, extending from the point that the parallel line intersects with plaintiffs' easterly boundary as defined in the Huntley survey to defendant church's rear property line.
We also find that plaintiffs have established, by clear and convincing evidence, that they have title by adverse possession to a triangular parcel of defendant church's land, bounded by the afore-described parallel line, the rear line of the parties' properties and plaintiffs' easterly boundary line as defined in the Huntley survey. The proof at trial shows that, between 1974 and 1988, plaintiffs cultivated and maintained the subject parcel, mowed it, planted a garden and trees on it, and erected a garage, swimming pool, storage shed and clothes line on it. We find that these facts established that plaintiffs have possessed the parcel hostilely and under claim of right, actually, openly and notoriously, exclusively and continuously for the statutory period (see, Belotti v Bickhardt, 228 N.Y. 296, 302; Doherty v Matsell, 119 N.Y. 646; City of Tonawanda v Ellicott Cr. Homeowners Assn., 86 A.D.2d 118, 120).