Case Law Summaries

The Trust Under Article Sixth of the Will of Sigmund Sommer v. Reliance Associates

• Opinion Date: February 28, 2001
• Real Property Law
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ADVERSE POSSESSION—Where property is located in an area where people tolerate occasional trespassing and cutting up of fallen trees, such use can be considered permissive and contrary to what is needed to shown ownership by adverse possession.

The owner of a large tract of land surrounding a hockey-stick-shaped parcel asserted a claim to the hockey stick parcel by adverse possession. It claimed that it had thirty years’ actual possession of the land under color of title. In the alternative, it claimed that it had twenty years’ actual possession of the parcel that was adverse to the true owner, exclusive, open, notorious, continuous, and uninterrupted. The lower court found that the owner’s deed of conveyance excepted the hockey-stick parcel. In fact, every deed after 1912 excepted out the hockey-stick parcel. In addition to receiving the deed that excepted the hockey-stick parcel at closing, the owner also received a quitclaim deed to the same property without an exception to the parcel. That quitclaim deed was accompanied by a second quitclaim deed from the previous grantor into the party that sold the land to the large tract owner. It was based on those quitclaim deeds that the claim of “color of title” was made. The lower court rejected those deeds as evidence of “color of title,” holding that each quitclaim deed was “no more than a wild deed.” The Appellate Division had no need to review that conclusion because the claim was filed only twenty-four years after any of the deeds had been received. With respect to whether the large tract owner could show twenty years’ possession adverse to the true owner, six activities were presented to the Court as satisfying the requirements of adverse possession: “daily use of the dirt road that crossed through the hockey stick, the farming of several fields that encroached into the hockey stick, collection of firewood from the hockey stick, payment of taxes on Lot 24, an encroaching wood pile and the posting of two signs—‘Do not enter’ and ‘No hunting, keep off.’” It appeared that the large tract owner used a dirt extension of a public road that crossed the handle of the hockey stick and maintained that road, permitting mail, trash, and recycling trucks, in addition to all other visitors to access the property via the dirt road. There was testimony that the large tract owner began farming its property when it took possession, but when the work became too difficult, it rented the property out for farming purposes. Some of that farming encroached lightly onto the hockey-stick. However, the large tract owner was unable to account for a number of years during which it was uncertain as to whether the land was being farmed. After trial, the lower court found that, “based in part on the character of the area, none of these activities rose to the level of being open, notorious, continuos and uninterrupted, adverse and exclusive, as required to establish adverse possession.” Specifically, the lower court found “[m]any of the lots in this area are large ... in such areas, people tolerate more because the occasional trespass or cutting up of a fallen tree really doesn’t interfere with the adjacent owner’s use of his, her, its property and thus, we have this presumption of permissive use under such circumstances, as opposed to adverse use ... .” The lower court also rejected the assertion by the large tract owner that it consistently paid taxes for the hockey-stick parcel. That claim was based upon tax bills showing an acreage measurement that included the hockey-stick parcel for twelve years after the large tract owner took title to its land until the bill was adjusted to show the actual acreage of the land. In that regard, the lower court found, and the Appellate Division agreed, “the mere fact that the tax bill said he was being taxed for more doesn’t give him more property. The tax bill was simply in error and it’s something he should have corrected ... .” As a result, the claim of adverse possession failed, but the Court held that the large tract owner had a right to a twelve-foot wide area which he used as a driveway onto his property.

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