Document 3 of 10.

PROLOGUE:

In 1912, Mary and William Lutz bought at auction 2 wooded lots in Yonkers, a suburb of New York, taking title in the husband's name. The lots, numbered 14 and 15 were situated high on a hill above Leroy Avenue, at the time an unimproved "paper" street. To the west was a wooded triangle tract - consisting of lots 19, 20, 21, and 22 - the ownership of which is at issue in this case. Instead of climbing the steep grade from Leroy Avenue to reach lots 14 and 15, the Lutzes found it easier to cross the triangular tract which they did not own; Lutz cleared a "traveled way" near the northern boundery of the tract to reach Gibson Place on the west.

With the help of his brother Charlie and his wife Mary, William Lutz cleared lots 14 and 15 and built a house for his family on them. The Lutzes also partially cleared the triangular tract and built for Charlie a one-room structure on lot 19. By 1920 the buildings were occupied. In 1921 Mary's fifth and last child was born to her in the main house.

In 1928 the city graded Leroy Avenue and broke the private water line leading to the main Lutz house. Lutz, who was working in New York City at the time, went home to repair it. As a result, he lost his job; thereafter Lutz stayed at home tending a garden on the triangular property, selling vegetables, and doing odd jobs for neighbors. The Lutz children grew up, and all except the youngest son, Eugene, moved away.

In 1937 Joseph and Marion Van Valkenburgh bought lots west of Gibson Place and built a new home there. Some nine years later, in 1946, bad blood developed between the Lutzes and the Van Valkenburghs. In April of that year Mary Lutz was annoyed by the presence of the Van Valkenburgh children in her garden, and she called her husband over. The Van Valkenburgh children ran home, Lutz behind them brandishing an iron pipe and crying "I'll kill you." Van Valkenburgh then appeared and began a heated argument with Lutz. He subsequently swore out a complaint of criminal assault, and Lutz was arrested, jailed, then released on bail.

A year later, in April 1947, the Van Valkenburghs bought lots 19, 20, 21, and 22 from the City of Yonkers at a foreclosure sale for nonpayment of taxes; no personal notice of the proceedings was given the Lutzes. The purchase price was $379.50. On the following July 6, Van Valkenburgh, accompanied by two policemen, visited the triangular tract and, in his words, "took possession" of it. He called Mrs. Lutz to come out of her home and told her that the Lutzes were to clear from the property all buildings that belonged to them. On July 8 the Van Valkenburghs' attorney sent Lutz a registered letter informing him that the triangular tract was now owned by the Van Valkenburghs and that he should remove any of his property from the land. A few days later Lutz went to see the attorney and told him he wanted proof of the Van Valkenburghs' ownership and time to harvest his vegetable crop. Then, on July 13, Lutz failed to appear for the trial on the charge of criminal assault, for which he had been arrested a year earlier. A bench warrant was issued, and Lutz was again arrested, jailed, and released on bail. Subsequently he was convicted of criminal assault.

In the meantime Van Valkenburgh had the property surveyed. In response to another letter from the Van Valkenburghs' attorney, Lutz returned to the attorney's office on July 21, this time accmpanied by his own lawyer. At this meeting Lutz agreed to remove his shed, junk, and garden within thirty days, but he claimed a prescriptive right to use the traveled way to reach his property. Lutz then removed the chicken coops and junk. Shortly thereafter the Van Valkenburghs invited legal action by erecting a fence across the traveled way that Lutz claimed a right to use. Lutz joined battle by bringing an action against the Van Valkenburghs to enjoin them from interfering with his right of way. In the suit Lutz alleged that Marion Van Valkenburgh was the owner of the property, but that Lutz had a right of way over it. In January 1948 the trial court handed down a judgement in Lutz' favor, awarding him a right of way over the traveled way; the judgement was affirmed in June 1948.

The action in this case was commenced against the Lutzes on April 8, 1948. Perhaps realizing the blunder made in the prior lawsuit (the admission that Marion Van Valkenburgh owned lots 19-22), Lutz fired his Yonkers lawyer and hired one from Wall Street. Not to be outdone, the Van valkenburghs also sought out and employed a Wall Street firm. In August 1948 William Lutz died, devising all his property to his wife Mary. The Van Valkenburghs' suit was tried in June 1950. The testimony in the case totaled some 250 pages, and in addition there were 56 exhibits consisting of deeds, surveys, and photgraphs. Several neighbors who had lived in the area a long time testified for the Lutzes. Not one testified for the Van Valkenburghs, who lost in the trial court and appealed.

OPINIONBY: DYE

OPINION:  [*97]   [**28]  DYE, J. These consolidated actions were brought to compel the removal of certain encroachments  [**29]  upon plaintiffs' lands, for delivery of possession and incidental relief. The subject property consists of four unimproved building lots designated as 19, 20, 21 and 22 in block 54 on the official tax map of the city of Yonkers, N.Y. These lots together form a parcel somewhat triangular in shape with dimensions of approximately 150 by 126 by 170 feet fronting on Gibson Place, a street to be laid out within the subdivision running in a northeasterly direction from Leroy Avenue and now surfaced for automobile travel  [***7]  as far as lots 26, 27 and 28. The subject premises were purchased by the plaintiffs from the city of Yonkers by deed dated April 14, 1947. At that time the defendants were, and had been since 1912, owners of premises designated as lots 14 and 15 in block 54, as shown on the same map. The defendants' lots front on Leroy Avenue and adjoin lot 19 owned by the plaintiffs at the rear boundary line. All of these lots, though differently numbered, appear on a map of the subdivision of the Murray Estate opened prior to 1912 and numbering 479 lots. At that time that part of the Murray subdivision was covered with a natural wild growth of brush and small trees.

The defendants interposed an answer denying generally the allegations of the complaint and alleging as an affirmative defense, and as a counterclaim, that William Lutz had acquired title to the subject premises by virtue of having held and possessed the same adversely to plaintiffs and predecessors for upwards of thirty years.

 [*98]  The issue thus joined was tried before Hon. FREDERICK P. CLOSE, Official Referee, who found that title to said lots "was perfected in William Lutz by virtue of adverse possession by the year  [***8]  1935" and not thereafter disseized. The judgment entered thereon in favor of the defendants was affirmed in the Appellate Division, Second Department, without opinion, one Justice dissenting on the ground that the evidence was insufficient to establish title by adverse possession.

To acquire title to real property by adverse possession not founded upon a written instrument, it must be shown by clear and convincing proof that for at least fifteen years (formerly twenty years) there was an "actual" occupation under a claim of title, for it is only the premises so actually occupied "and no others" that are deemed to have been held adversely (Civ. Prac. Act, §§ 34, 38, 39). The essential elements of proof being either that the premises (1) are protected by a substantial inclosure, or are (2) usually cultivated or improved (Civ. Prac. Act, § 40).

Concededly, there is no proof here that the subject premises were "protected by a substantial inclosure" which leaves for consideration only whether there is evidence showing that the premises were cultivated or improved sufficiently to satisfy the statute.

We think not. The proof concededly fails to show that the cultivation incident  [***9]  to the garden utilized the whole of the premises claimed. Such lack may not be supplied by inference on the showing that the cultivation of a smaller area, whose boundaries are neither defined nor its location fixed with certainty, "must have been * * * substantial" as several neighbors were "supplied * * * with vegetables". This introduces an element of speculation and surmise which may not be considered since the statute clearly limits the premises adversely held to those "actually" occupied "and no others" (Civ. Prac. Act, § 39) which we have recently interpreted as requiring definition by clear and positive proof (St. William's Church v. People, 296 N.Y. 861, revg. 269 App. Div. 874, motion for reargument denied 296 N.Y. 1000).

Furthermore, on this record, the proof fails to show that the premises were improved (Civ. Prac. Act, § 40). According to the proof the small shed or shack (about 5 by 10 1/2 feet)  [*99]  which, as shown by survey map, was located on the subject premises about 14 feet from the Lutz boundary line.This was built in about the  [**30]  year 1923 and, as Lutz himself testified, he knew at the time it was not on his land and, his wife, a defendant  [***10]  here, also testified to the same effect.

The statute requires as an essential element of proof, recognized as fundamental on the concept of adversity since ancient times, that the occupation of premises be "under a claim of title" (Civ. Prac. Act, § 39), in other words, hostile (Belotti v. Bickhardt, 228 N.Y. 296), and when lacking will not operate to bar the legal title (Doherty v. Matsell, 119 N.Y. 646), no matter how long the occupation may have continued (La Frombois v. Jackson, 8 Cow. 589; Colvin v. Burnet, 17 Wend. 564).

Similarly, the garage encroachment, extending a few inches over the boundary line, fails to supply proof of occupation by improvement. Lutz himself testified that when he built the garage he had no survey and thought he was getting it on his own property, which certainly falls short of establishing that he did it under a claim of title hostile to the true owner. The other acts committed by Lutz over the years, such as placing a portable chicken coop on the premises which he moved about, the cutting of brush and some of the trees, and the littering of the property with odds and ends of salvaged building materials, cast-off  [***11]  items of house furnishings and parts of automobiles which the defendants and their witnesses described as "personal belongings", "junk", "rubbish" and "debris", were acts which under no stretch of the imagination could be deemed an occupation by improvement within the meaning of the statute, and which, of course, are of no avail in establishing adverse possession.

We are also persuaded that the defendant's subsequent words and conduct confirms the view that his occupation was not "under a claim of title". When the defendant had the opportunity to declare his hostility and assert his rights against the true owner, he voluntarily chose to concede that the plaintiffs' legal title conferred actual ownership entitling them to the possession of these and other premises in order to provide a basis for establishing defendant's right to an easement by adverse possession - the use of a well-defined "traveled way" that crossed the said premises. In that action (Lutz v. Van  [*100]  Valkenburgh, 274 App. Div. 813), William Lutz, a defendant here (now deceased), chose to litigate the issue of title and possession and, having succeeded in establishing his claim of easement by  [***12]  adverse possession, he may not now disavow the effect of his favorable judgment (Goebel v. Iffla, 111 N.Y. 170), or prevent its use as evidence to show his prior intent. Declarations against interest made by a prescriptive tenant are always available on the issue of his intent (6 Wigmore on Evidence, § 1778).

On this record we do not reach the question of disseisin by oral disclaimer, since the proof fails to establish actual occupation for such time or in such manner as to establish title. What we are saying is that the proof fails to establish actual occupation for such a time or in such a manner as to establish title by adverse possession (Civ. Prac. Act, §§ 39, 40; St. William's Church v. People, supra).

The judgments should be reversed, the counterclaim dismissed and judgment directed to be entered in favor of plaintiff Joseph D. Van Valkenburgh for the relief prayed for in the complaint subject to the existing easement (Lutz v. Van Valkenburg, 274 App. Div. 813), with costs in all courts.

DISSENTBY: FULD

DISSENT: FULD, J. (dissenting). In my judgment, the weight of evidence lies with the determination made by the court at Special Term and affirmed by  [***13]  the Appellate Division. But whether that is so or not, there can be no doubt whatsoever that the record contains some evidence that the premises here involved were occupied by William Lutz, defendant's late husband, for fifteen years under a claim of title - and that, of course, should compel an affirmance.

The four lots in suit, located in the city of Yonkers, comprise a fairly level parcel  [**31]  of land, triangular in shape, with approximate dimensions of 150 by 126 by 170 feet. It is bounded on the north by a "traveled way", on the west and south by Gibson Place, an unopened street, and on the southeast by a vacant lot. Immediately to the east of the parcel, the land descends sharply to Leroy Avenue, forming a steep hill; on the hill are situated two lots, purchased by Lutz in 1912, upon which his family's home has stood for over thirty years.

Wild and overgrown when the Lutzes first moved into the neighborhood, the property was cleared by defendant's husband  [*101]  and had been, by 1916, the referee found, developed into a truck farm "of substantial size". Lutz, together with his children, worked the farm continuously until his death in 1948; indeed, after 1928,  [***14]  he had no other employment. Each year, a new crop was planted and the harvest of vegetables was sold to neighbors. Lutz also raised chickens on the premises, and constructed coops or sheds for them. Fruit trees were planted, and timber was cut from that portion of the property not used for the farm. On one of the lots, Lutz in 1920 built a one-room dwelling, in which his brother Charles has lived ever since.

Although disputing the referee's finding that the dimensions of Lutz's farm were substantial, the court's opinion fails to remark the plentiful evidence in support thereof. For instance, there is credible testimony in the record that "nearly all" of the property comprised by the four lots was cultivated during the period to which the referee's finding relates. A survey introduced in evidence indicates the very considerable extent to which the property was cultivated in 1950, and many witnesses testified that the farm was no larger at that time than it had ever been. There is evidence, moreover, that the cultivated area extended from the "traveled way" on one side of the property to a row of logs and brush - placed by Lutz for the express purpose of marking the farm's  [***15]  boundary - at the opposite end of the premises.

According to defendant's testimony, she and her husband, knowing that they did not have record title to the premises, intended from the first nevertheless to occupy the property as their own. Bearing this out is the fact that Lutz put down the row of logs and brush, which was over 100 feet in length, to mark the southwestern boundary of his farm; this marker, only roughly approximating the lot lines, extended beyond them into the bed of Gibson Place. The property was, moreover, known in the neighborhood as "Mr. Lutz's gardens", and the one-room dwelling on it as "Charlie's house"; the evidence clearly indicates that people living in the vicinity believed the property to be owned by Lutz. And it is undisputed that for upwards of thirty-five years - until 1947, when plaintiffs became the record owners - no other person ever asserted title to the parcel.  [*102] 

With evidence such as that in the record, I am at a loss to understand how this court can say that support is lacking for the finding that the premises had been occupied by Lutz under a claim of title. The referee was fully justified in concluding that the character  [***16]  of Lutz's possession was akin to that of a true owner and indicated, more dramatically and effectively than could words, an intent to claim the property as his own. Recognizing that "A claim of title may be made by acts alone, quite as effectively as by the most emphatic assertions" (Barnes v. Light, 116 N.Y. 34, 39), we have often sustained findings based on evidence of actual occupation and improvement of the property in the manner that "owners are accustomed to possess and improve their estates".

That Lutz knew that he did not have the record title to the property - a circumstance  [**32]  relied upon by the court - is of no consequence, so long as he intended, notwithstanding that fact, to acquire and use the property as  [***17]  his own. As we stated in Ramapo Mfg. Co. v. Mapes (216 N.Y. 362, 370-371), "the bona fides of the claim of the occupant is not essential and it will not excuse the negligence of the owner in forbearing to bring his action until after the time in the Statute of Limitations shall have run against him to show that the defendant knew all along that he was in the wrong. (Humbert v. Rector, etc., of Trinity Church, 24 Wend. 587.)"

Quite obviously, the fact that Lutz alleged in the 1947 easement action - twelve years after title had, according to the referee, vested in him through adverse possession - that one of the plaintiffs was the owner of three of the lots, simply constituted evidence pointing the other way, to be weighed with the other proof by the courts below. While it is true that a disclaimer of title by the occupant of property, made before the statutory period has run, indelibly stamps his possession as non-adverse and prevents title from vesting in him a disclaimer made after the statute has run carries with it totally different legal consequences. Once title has vested by virtue of adverse possession, it is elementary that it may be divested, not by an oral disclaimer, but only by a transfer complying with the formalities prescribed by law.

Hence, an oral acknowledgment of title in another, made after the statutory period is alleged to have run, "is only evidence tending to show the character of the previous possession." (Smith v. Vermont Marble Co., supra, 99 Vt. 384, 394).

Here, Official Referee CLOSE, of the opinion that the 1947 admission was made by Lutz under the erroneous advice of his attorney (cf. Shirey v. Whitlow, 80 Ark. 444, 446-447), chose to rest his decision rather on evidence of Lutz's numerous and continual acts of dominion over the property - proof of a most persuasive character. Even if we were to feel that the referee was mistaken in so weighing the evidence, we would be powerless to change the determination, where, as we have seen, there is some evidence in the record to support his conclusion.

In view of the extensive cultivation of the parcel in suit, there is no substance to the argument that the requirements of sections 39 and 40 of the Civil Practice Act were not met. Under those provisions, only the premises "actually occupied" in the manner prescribed - that is, "protected by a substantial inclosure" or "usually cultivated or improved" - are deemed to have been held adversely. The object of the statute, we have recognized, "is that the real owner may, by unequivocal acts of the usurper, have notice of the hostile claim and be  [***20]  thereby called upon to assert his legal title." (Monnot v. Murphy,  [*104]  supra, 207 N.Y. 240, 245; see, also, Trustees of Town of East Hampton v. Kirk, 84 N.Y. 215, 220.) Since the character of the acts sufficient to afford such notice "depends upon the nature and situation of the property and the uses to which it can be applied", it is settled that the provisions of sections 39 and 40 are to be construed, not in a narrow or technical sense, but with reference to  [**33]  the nature, character, condition, and location of the property under consideration.

Judge DYE considers it significant that the proof "fails to show that the cultivation incident to the garden utilized the whole of the premises claimed" (opinion, p. 98). There surely is no requirement in either statute or decision that proof of adverse possession depends upon cultivation of "the whole" plot or of  [***21]  every foot of the property in question. And, indeed, the statute - which, as noted, reads "usually cultivated or improved" - has been construed to mean only that the claimant's occupation must "consist of acts such as are usual in the ordinary cultivation and improvement of similar lands by thrifty owners." (Ramapo Mfg. Co. v. Mapes, supra, 216 N.Y. 362, 373.) The evidence demonstrates that by far the greater part of the four lots was regularly and continuously used for farming, and, that being so, the fact that a portion of the property was not cleared should not affect the claimant's ability to acquire title by adverse possession: any frugal person, owning and occupying lands similar to those here involved, would have permitted, as Lutz did, some of the trees to stand - while clearing the bulk of the property - in order to provide a source of lumber and other tree products for his usual needs. The portion of the property held subservient to the part actively cultivated is as much "occupied" as the portion actually tilled. The nature of the cultivation engaged in by Lutz was more than adequate, as his neighbors' testimony establishes, to give the owner notice of  [***22]  an adverse claim and to delimit the property to which the claim related. The limits of the parcel in suit were indicated in a general way by boundaries natural as well as man-made: the declivity to Leroy  [*105]  Avenue, the "traveled way", and Gibson Place. Apart from that, however, the evidence discloses that the bulk of each of the four lots was cultivated, and - even putting to one side the fact that the cottage, called "Charlie's house", had been actually occupied and lived in for upwards of thirty years - such substantial use was enough to put the owner on notice that his whole lot was claimed.

In short, there is ample evidence to sustain the finding that William Lutz actually occupied the property in suit for over fifteen years under a claim of title. Since, then, title vested in Lutz by 1935, the judgment must be affirmed. To rule otherwise, on the ground that the weight of evidence is against that finding - a view which I do not, in any event, hold - is to ignore the constitutional provision that limits our jurisdiction to the review of questions of law (N.Y. Const., art. VI, § 7; see, also, Civ. Prac. Act, § 605).

I would affirm the judgment reached by both  [***23]  of the courts below.

EPILOGUE:

Litigation between the Van Valkenburghs and the Lutzes did not end with the principle case. The Van Valkenburghs' judgement included costs and disbursements, and an execution was issued directing the sale of lots 14 and 15 (the Lutz home) to pay the judgement. In the meantime Mary Lutz had transferred all her interest in her home to her son Eugene, who resided there with his mother, his wife, and his child. Eugene moved to set aside the execution, and the motion was granted; the Van Valkenburghs moved for a rehearing, and this was denied. The Van Valkenurghs then appealed the order denying the rehearing instead of appealing, as they should have, the order granting Eugene's motion. They lost. By a lawyer's procedural error, the Lutz home was saved for Mary and Eugene.

William Lutz's brother Charlie was mentally incompetent; after the principal case, Eugene was appointed as his guardian. Charlie had not been a party to the prior proceedings, so he was in position to contest them. Through his guardian he brought an action against the Van Valkenburghs to enjoin removal of "his" house from lot 19. Charlie claimed that he and his brother William had constructed the house over twenty years earlier and that when this house was being constructed he believed he was building it on William's land. He further claimed that, since 1917, he had been in possession of the house as the tenant of William, the owner, and that he paid rent to William for the house. This lawsuit wound its way up and down the courts until 1968, when the Court of Appeals unanimously ruled for the Van Valkenburghs on the ground that Charlie's occupation was not under a claim of title. By this time, Charlie was well into his eighties.


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