Opinion
February 4, 1999
Appeal from the County Court of Delaware County (Estes, J.).
By this action commenced pursuant to RPAPL article 15, plaintiffs seek, among other things, a declaration as to the ownership of approximately 8.1 acres of land in the Town of Hancock, Delaware County. The disputed area is located between plaintiffs' premises described as Lot 18 and an adjoining parcel owned by defendants and referred to as the west half of Lot 17. County Court granted defendants' motion for judgment as a matter of law and declared defendants fee owners; the court concluded that no reasonable view of the evidence supported plaintiffs' claim of ownership. Plaintiffs' posttrial motion to set aside the decision and order directing judgment in defendants' favor was also denied. This appeal followed.
Plaintiffs maintain that County Court failed to recognize that the testimony of Norman Van Valkenburgh, their surveyor, established a prima facie case supporting their claim, Van Valkenburgh testified that he discovered a boundary consisting of two stone piles — approximately 150 years old — which placed the disputed land within plaintiffs' Lot 18. Plaintiffs' reliance on Van Valkenburgh's testimony is, however, misplaced for, as he acknowledged, this boundary is not referred to in any deed.
Real Property Law § 240 (3) declares that every instrument creating or transferring an estate in real property must be construed in accordance with the parties' intent, which is to be gathered from the instrument as a whole and must be consistent with the rules of law ( see, Iulucci v. James H. Maloy, Inc., 199 A.D.2d 720, 721). Where a deed description is ambiguous, extrinsic evidence may be considered in ascertaining the parties' intent ( see, Cordua v. Guggenheim, 274 N.Y. 51, 57; Schweitzer v. Heppner, 212 A.D.2d 835, 838). Though parol evidence is admissible to explain a deed's latent ambiguities, "it may not be used to vary a boundary description or call set forth in a deed" ( Schweitzer v. Heppner, supra, at 838; see, 2 Warren's Weed, New York Real Property, Boundaries, § 2.03 [4th ed]).
Consequently, unless plaintiffs established ambiguities in the deed itself, recourse could not be had to extrinsic evidence, namely, Van Valkenburgh's testimony and the stone pile boundary. In this regard, the proof adduced at trial discloses that originally the record owner of Lots 17 and 18 was Renee De Russey, that a survey commissioned by him reveals that Lot 17 in its entirety was comprised of 101 1/2 acres, that in 1872, De Russey conveyed the east half of Lot 17 and all of Lot 18 to another party, that the deed reflected this acreage call, and that in transferring the east half of lot 17, De Russey conveyed 50 3/4 acres and reserved to himself the remaining 50 3/4 acres. That acreage representing the west half of Lot 17 — now defendants' lot — having been recited in the chain of title from 1866 to the present, resort to extrinsic evidence to establish a boundary different from that set out in the deed was proscribed.
Alternatively, plaintiffs contend that they obtained title to the land through adverse possession. Given our conclusion that the deeds at issue are to be accepted as written, and the description calls therein as controlling, plaintiffs may not succeed on their claim of adverse possession under a written instrument ( see, RPAPL 511 Real Prop. Acts.). To prevail, plaintiffs were obliged to establish adverse possession via a claim of title not written ( see, RPAPL 521 Real Prop. Acts.). To do so by this method plaintiffs had to prove by clear and convincing evidence that their "possession [was] 'hostile and under a claim of right, actual, open and notorious, exclusive, and continuous'" for the statutory period ( Ray v. Beacon Hudson Mtn. Corp., 88 N.Y.2d 154, 159, quoting Brand v. Prince, 35 N.Y.2d 634, 636) and that the property was "usually cultivated or improved" or "protected by a substantial inclosure" (RPAPL 522 Real Prop. Acts. [1], [2]; see, Krol v. Eckman, 256 A.D.2d 945). Plaintiffs did neither. The fact that they managed the land for maple syrup production, occasionally cut timber from the property and posted some no trespassing signs does not, as County Court found, constitute adverse possession within the meaning of RPAPL 522 Real Prop. Acts. ( see, Winchell v. Middleton, 226 A.D.2d 1009, 1010; Voight v. Meyer, 42 App. Div. 350; see also, Weinstein Enters. v. Cappelletti, 217 A.D.2d 616, 618; cf., Camfield v. Luther Forest Corp., 75 A.D.2d 671).
And not having asserted it in their pleadings, plaintiffs waived their affirmative defense that the boundary was established by practical location ( see, CPLR 3018 N.Y.C.P.L.R. [b]; Apex Two v. Terwilliger, 211 A.D.2d 856, 857-858). But, even if this defense had been properly raised, it would be unavailing, for plaintiffs have not shown that the former adjoining landowner acquiesced in the change of the boundary location as the doctrine demands ( see, Fisher v. Mac Vean, 25 A.D.2d 575; see also, Hadix v. Schmelzer, 186 A.D.2d 239). We have considered plaintiffs' remaining arguments and find them to be without merit.
Mikoll, J. P., Crew III, Spain and Carpinello, JJ., concur.
Ordered that the order is affirmed, with costs.