Summary
In Morris v DeSantis, 178 AD2d 515 [2nd Dept 1991], the court held that when the possessor relies on substantial enclosure, only the area within the enclosure can be adversely possessed, and if the possessor relied on the usual cultivation or improvement element, no enclosure is needed.
Summary of this case from CSC Acquisition-Ny, Inc. v. 404 Cty. Rd. 39AOpinion
December 16, 1991
Appeal from the Supreme Court, Nassau County (Wager, J.).
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that the respondent is awarded one bill of costs.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).
In 1972 the plaintiff William H. Morris erected a six foot high chain link fence on his property with which he also unknowingly enclosed a portion of his neighbors' property. For more than 17 years the fence stood in the same location. In 1989 the defendants Eugene and Helen DeSantis, who, in 1987, some 15 years after the fence was erected, had purchased the neighboring parcel from its prior owner and resident, removed the entire length of Morris's fence which encroached upon their property and erected a split rail wooden fence along the correct property line.
Morris commenced this action, inter alia, to be declared the owner by virtue of adverse possession of that portion of the DeSantis's property which was enclosed by his fence prior to its removal. Morris then successfully moved for summary judgment on this issue. Ultimately a judgment was entered determining the legal boundaries to the disputed parcel of land which Morris acquired by adverse possession.
Under RPAPL 522, a party seeking to obtain title by adverse possession on a claim not based upon a written instrument must show that the parcel was either "usually cultivated or improved" (RPAPL 522) or "protected by a substantial inclosure" (RPAPL 522; see, Manhattan School of Music v Solow, 175 A.D.2d 106; City of Tonawanda v Ellicott Cr. Homeowners Assn., 86 A.D.2d 118; see also, Birnbaum v Brody, 156 A.D.2d 408). In addition, a party must satisfy the common-law requirement of demonstrating that the possession of the parcel was hostile, under claim of right, open and notorious, exclusive and continuous for a period of 10 years or more (see, Belotti v Bickhardt, 228 N.Y. 296, 302; Manhattan School of Music v Solow, supra; City of Tonawanda v Ellicott Cr. Homeowners Assn., supra; see also, Van Gorder v Master-planned, Inc., 78 N.Y.2d 1106).
In the present case the Supreme Court properly concluded that Morris sustained his burden of proving by clear and convincing evidence (see, 643 Coster St. Realty v Acsun Realty Co., 174 A.D.2d 473; Van Valkenburgh v Lutz, 304 N.Y. 95; Orlando v Ege, 167 A.D.2d 336; Rusoff v Engel, 89 A.D.2d 587; Mastin v Village of Lima, 86 A.D.2d 777) that no issues of fact existed (see, Capelin Assocs. v Globe Mfg. Corp., 34 N.Y.2d 338, 341; Computer Strategies v Commodore Business Machs., 105 A.D.2d 167, 175; Zuckerman v City of New York, 49 N.Y.2d 557) with regard to his adverse possession of the disputed strip of land. Thompson, J.P., Bracken, Harwood and Copertino, JJ., concur.