Opinion
December 5, 1975
Appeal from the Niagara Supreme Court.
Present — Moule, J.P., Cardamone, Simons, Mahoney and Del Vecchio, JJ.
Judgment unanimously affirmed, with costs. Memorandum: Plaintiffs-appellants, Margaret and James Duggan, commenced an action against defendants-respondents, Charles and Marjorie Hyland, for the removal of an encroaching structure, to wit, defendants' driveway, pursuant to article 8 of the Real Property Actions and Proceedings Law. Plaintiffs demanded a judgment directing the removal of an asphalt driveway so far as the same encroaches upon plaintiffs' premises and for the sum of $500 damages to plaintiffs' hedge. The trial court dismissed plaintiffs' complaint for failure of proof. We agree. The burden of showing ownership in this driveway dispute is upon the plaintiffs. "He must prevail upon the strength of his own title, not upon the weakness of his adversary's" (Judd v Chilson, 177 App. Div. 121, 122; Sheridan v Cardwell, 141 App. Div. 854, 857). The only evidence in this case was a number of surveys. There is no proof, however, that the starting point used in the said surveys was the same starting point set forth in plaintiffs' deed which established point determines the true location of plaintiffs' property (White's Bank of Buffalo v Nichols, 64 N.Y. 65; Lee v Lee, 27 Hun 1, 4; Tietjen v Palmer, 121 App. Div. 233, 236). The Graf survey, introduced into evidence by plaintiffs, reveals that plaintiffs have the precise footage (32.46 feet) along Keil Street and the exact lot dimensions specified in their deed. Mr. Graf, the only expert to be called as a witness at the trial, also testified that defendants' driveway did not encroach upon plaintiffs' land, thus plaintiffs failed to prove on the strength of their own title any encroachment by defendants.