Opinion
May 1, 1975
Appeal from a judgment of the Supreme Court in favor of defendants, entered April 17, 1974 in Schuyler County, upon a decision of the court at a Trial Term, without a jury. The instant dispute between the litigants, adjoining landowners, followed a 1971 survey which defendants had made prior to the purchase of their cottage property. The trial court concluded that the boundary line had not previously been the subject of "concern or controversy" and that the controlling instruments and the survey indicated defendants' ownership of the disputed area. Plaintiffs urge the boundary line was established as they contend by acquiescence over a long period of time in its practical location (Baldwin v Brown, 16 N.Y. 359; Konchar v Leichtman, 35 A.D.2d 890). However, the element of acquiescence is lacking in the instant case in that there was not only no settlement of a boundary line but no indication, as the trial court noted, of there ever having been any dispute as to the line location (Adams v Warner, 209 App. Div. 394; Mazzucco v Eastman, 36 Misc.2d 648, affd 17 A.D.2d 889). Moreover, as the trial court again noted, there are no equitable considerations which would require a different result. Plaintiffs are deprived of nothing they ever openly claimed or were granted by deed and the defendants are receiving only what they, in fact, were conveyed and no more. We, therefore, find no basis to disturb the trial court's factual findings and legal determinations, and thus its judgment must be affirmed. Judgment affirmed, with costs. Herlihy, P.J., Greenblott, Sweeney, Kane and Reynolds, JJ., concur.