Opinion
No. 8740–08.
2012-03-2
Lloyd MACKLOWE and Barbara Macklowe, Plaintiffs, v. The TRUSTEES OF the FREEHOLDERS AND COMMONALITY OF the TOWN OF EAST HAMPTON, Defendant.
Esseks, Hefter & Angel, LLP, Riverhead, for plaintiffs. Anthony B. Tohill, PC, Riverhead, for defendant.
Esseks, Hefter & Angel, LLP, Riverhead, for plaintiffs. Anthony B. Tohill, PC, Riverhead, for defendant.
THOMAS F. WHELAN, J.
On March 17, 1900, the defendants, The Trustees of the Freeholders and Commonalty of the Town of East Hampton (“the Trustees”), in order to resolve existing boundary disputes that then existed along the beachfront of what was know as South Beach, offered, for a six month period and upon the payment of twenty five dollars, quitclaim deeds to adjoining landowners along the beach which conformed the boundary line to the general line of grass growing along the banks or dunes of the Atlantic Ocean. Shortly thereafter, on June 29, 1900, Laura B. James, plaintiffs' predecessor in interest, took advantage of that offer and the Trustees conveyed by deed a portion of the beach banks which delineated the new boundary line. Now, more than one hundred years later, the Trustees challenge plaintiffs' recently revived claim to the disputed lands and do so by focusing not on the historical record, but on the discrete legal issue of whether a natural object set forth in a deed description must be fixed and permanent or can it be ambulatory, as alleged by plaintiffs.
On the trial record before this Court and guided by the law that an interest in real property must be construed according to the intent of the parties who created the instrument, the Court finds that plaintiffs' southerly boundary line must be “the average southerly line of beach grass on the beach of the Atlantic Ocean.” By so finding, the Court preserves the original intention of the Trustees to permit the use of such lands for residential purposes and to forever afford the inhabitants of the town a beach free from claims by adjoining land owners.
The above entitled action was tried before the Court as a non-jury trial on November 30 and December 1 and 2, 2011. Additionally, the parties stipulated to allow the Court to view the property in question, to put its findings of this viewing into evidence and to use those findings in its decision. This viewing occurred on September 14, 2011, accompanied by counsel for both parties. Post-trial memoranda of law were submitted on January 30, 2012. At the conclusion of the trial, the Court decided to render a written decision, in keeping with CPLR 4213, in order to more fully set forth in its findings of fact and conclusions of law.
The Court was called upon to judge the credibility of the witnesses who testified and the Court's determination in assessing the evidence is entitled to deference ( see Northern Westchester Professional Park Assocs. v. Town of Bedford, 60 N.Y.2d 492, 470 N.Y.S.2d 350 [1983] ). A trial court's determination will not be disturbed unless its conclusions could not be reached under a fair interpretation of the evidence ( see BGW Dev. Corp. v. Mount Kisco Lodge No. 1552, 247 A.D.2d 565, 567, 669 N.Y.S.2d 56 [2d Dept 1998] ). In this case, the resolution of various issues turned upon questions of credibility. The Second Department has repeatedly held that credibility is a matter within the trial court's special competence ( see Healy v. Williams, 30 AD3d 466, 818 N.Y.S.2d 121 [2d Dept 2006]; Fisher v. Fisher, 87 A.D.2d 808, 448 N.Y.S.2d 781 [2d Dept 1982]; Kurtish v. Iskokovic, 204 A.D.2d 847, 612 N.Y.S.2d 263 [2d Dept 1994] ). What follows is a summary of the testimony that influenced the Court.
This action was commenced by filing a complaint on March 5, 2008 and issue was joined by service of a verified answer dated April 30, 2008. The second affirmative defense was dismissed by order of this Court dated August 8, 2008. A motion by plaintiffs for leave to amend the complaint on the eve of trial was denied by the order of the Hon. Paul J. Baisley, Jr., dated September 16, 2011.
Plaintiffs commenced this action pursuant to RPAPL Article 15 to compel the determination of the boundary line dividing their property and defendants' property and to declare the rights of the parties to the ownership, use, possession or enjoyment of the disputed beachfront land. The property in question is currently covered with beach grass and fronts the Atlantic Ocean in the Town of East Hampton, in the vicinity of Georgica Pond. The defendants have not counterclaimed for judgment that they are the sole owners of the contested property, but simply seek the dismissal of the complaint.
Plaintiffs acquired the property located at 51 West End Avenue in the Village of East Hampton by deed dated February 11, 1992 from Martin Revson ( see Pl.Ex.12). That deed describes the property as follows:
BEGINNING at a point which is the northeasterly corner of the premises herein described on the center line of a private roadway 33 feet wide; said point being situate westerly along said center line of a private roadway from its intersection with the westerly side of Apaquogue Road, a public highway, 1862 feet more or less;
RUNNING THENCE from the point of beginning along the premises of Michael Cimino, South 20 degrees 24 minutes 00 seconds East 264.26 feet to a point on the average southerly line of beach grass on the beach of the Atlantic Ocean;
THENCE along said average southerly line of beach grass, South 71 degrees 19 minutes 00 seconds West 163.07 feet to a point and premises of J.R. Consultant Corp. and Lehrich and Lehrich;
THENCE along said other premises of J.R. Consultant Corp. and Lehrich and Lehrich North 20 degrees 24 minutes 00 seconds West 240.62 feet to a point on said center line of a private roadway;
THENCE along said center line of a private roadway the following two courses and distances:
(1) North 66 degrees 57 minutes 00 seconds East 106.15 feet to a point;
(2) North 55 degrees 55 minutes 50 seconds East 58.62 feet to the point or place of BEGINNING. (Emphasis added)
The deed contains two additional paragraphs. The first, following the description, is as follows:
The grantor is the grantee in deed dated September 17, 1965, recorded September 21, 1965 in Liber 5825 cp 303, from Bernard W. Aginsky and Ethel G. Aginsky, his wife.
The second paragraph is the appurtenance clause:
TOGETHER with the appurtenances and all the estate and rights of the party of the first part in and to said premises.
The evidence at trial revealed that the stated southerly distance to the beach grass line boundary, as set forth in the 1992 deed was incorrect. Moreover, in 1992, based upon the measurements set forth in the deed, the southerly boundary call of “... along said average southerly line of beach grass” was also not a true call. It was admitted at trial by the surveyor called by the Trustees as their expert that the beach grass line was over 140 feet farther south than the distance set forth in the 1992 deed ( see Transcript pp 423–425, David Saskas).
The undisputed testimony at trial was that this mistake in the deed calls was first noticed by the plaintiff, Barbara Macklowe, who, after acquiring title, walked the property and found discrepancies with the survey of the premises dated January 22, 1992 ( see Pl.Ex. 63), which was prepared by George Walbridge Surveyors, P.C., just prior to the conveyance ( see Transcript pp 135–136 and 145–146; see also pp 22–26, testimony of David Weaver). Ms. Macklowe's complaints to the surveyor lead to a revision of the survey on October 15, 1992 which indicated that in 1992 the beach grass line was located 141.39 feet farther south along the easterly boundary of the property and 144.29 feet farther south along the westerly boundary of the property ( see Pl.Ex. 63).
The discrepancy in the description of the southerly boundary arises from the substitution of the property description from the nearly identical deed of the predecessor, that is, from the deed dated September 17, 1965, from grantors Bernard W. Aginsky and Ethel G. Aginsky, his wife. With the exception of names of adjoining property owners, the Aginsky deed ( see Pl.Ex. 11) contains the exact same metes and bounds description as set forth above. The Aginsky deed also contains the following paragraph, which the Trustees believe to be significant:
... and comprise an area of 0.931 acres according to computations based on survey of Melville G. Wood, Land Surveyor, East Hampton, New York, dated August 24, 1965.
Although plaintiffs' deed does not contain an area description, the Trustees stress the fact that the linear dimensions called in both the Macklowe deed and the Aginsky deed equal 0.931 acres. However, the Aginsky deed into Martin Revson, plaintiffs' predecessor in title, contains the following additional paragraph:
TOGETHER WITH all right, title and interest, if any, in and to the beach lying between the southerly line of beach grass as above described and the mean high water of the Atlantic Ocean.
While such certainly does not create any right or interest to the beach area between the line of beach grass and the mean high water line, it is a recognition that the southerly boundary of the parcel is in reference to the southerly line of beach grass and not just a metes and bounds description.
The discrepancy in the description of the southerly boundary, as acknowledged as existing in 1992 and continuing to today ( see Transcript pp 423–425, David Saskas), coupled with the need to ascertain the intent of the parties who created the instrument, leads this Court to an examination of plaintiffs' chain of title. Plaintiffs offered the parol evidence of a Resolution of the Trustees adopted unanimously on March 17, 1900, which is the underpinning of their claim before the Court. The resolution states as follows (Pl.Ex.55):
1900.
March 17
At a meeting of the Board of Trustees of the Freeholders and Commonalty of the Town of East Hampton, held on the 17th day of March 1900, pursuant to call of the Clerk of th Board, at the Town House in said Town, there were present George A. Miller, John Mulligan, David G. Mulford, John B. Strong, Jeremiah P. Conklin, Charles H. Mayes, Oliver S. Osborne, Frank H.H. Tillinghast and Joseph S. Oborne.
The day being cold and no arrangements for fire at Town House, on motion, the Board adjourned to Town Clerk's office.
An application was made by Jeremiah H. Mulford for a quit claim deed to perfect a title to a piece of land at the South end of his lot at Mill Plain, next the South Beach, where he had bargained to sell an acre of land to Wm. Strom. After full discussion and careful investigation of the rights and interests of the Town and of adjoining land owners along said Beach, the following action was taken by unanimous vote of th Board:
Whereas above application has been made, and in order to correct any misunderstanding concerning the title to property along and adjoining the South Beach, and to remove obstructions and perfect title for those who may wish to use the Banks or Dunes for residence purposes, and believing that the best interests of the inhabitants of this Town will be advanced thereby it is
Resolved, That the clerk of this Board of Trustees of the Freeholders and Commonalty of the Town of East Hampton, be and is hereby directed and authorized to execute a quit-claim deed in the name of said Trustees, to any owner of land adjoining said South Beach from Georgica Pond on the West to old Egypt Lane highway on the East, who may apply for such deed within six months from date hereof, on payment of Twenty five Dollars for each deed, the boundary line to conform to the general line of grass growing along the South-east side of said Banks or Dunes, provided that those lots adjoining a highway shall be deeded subject to a reservation that boats and seines may be allowed to lie upon the Banks or grass, for a distance of Fifty feet on either side of such highway. (Emphasis added)
This resolution by the Trustees was premised upon the following three factors: (1) “to correct any misunderstanding concerning the title to property along and adjoining the South Beach,” (2) “to remove obstructions and perfect title for those who may wish to use the Banks or Dunes for residence purposes,” and (3) to advance “the best interests of the inhabitants of this Town.” The solution offered was a quit-claim deed, for a price, that established the boundary line along South Beach “ to conform to the general line of grass growing along the South-east side of said Banks or Dunes.” An additional proviso was created for lots adjoining a highway, apparently in keeping with the fishing culture existing along the shoreline in the Town of East Hampton at that time, that the deed would be subject to the additional reservation “that boats and seines may be allowed to lie upon the Banks or grass, for a distance of Fifty feet on either side of such highway.”
In keeping with that Resolution, on June 29, 1900, the Trustees conveyed by deed a portion of the beach banks which delineated the new boundary line to Laura B. James, plaintiffs predecessor in interest
( see Pl.Ex. 4). Such relocated the southerly extent of the James parcel as follows:
All that certain parcel or strip of land known as the Beach Banks at the South Beach in said Town of East Hampton, bounded northwesterly by land of the party of the second part, northeasterly by land of Virginia H. Butler, southeasterly by the general line of grass growing along the southeast side of said Banks, and southwesterly by land of R. Hebert Newton. With the appurtenances and all the estate, right, title and interest of the parties of the first part therein to have and to hold the above mentioned and described premises with the appurtenances unto the said party of the second part her heirs and assigns forever.
The general line of grass growing along the southeast side of the Bank now became the southerly line of the James property. The public record deed history was placed before the Court. Upon the passing of Laura B. James ( see Pl.Ex. 5), the next conveyance in the chain of title occurred on August 12, 1930, with a partition deed between Ellery S. James and Louise R. James, his wife, and Dorothy James Haven, wherein Ellery S. James acquired one-half of the existing parcel with a southerly boundary described, in pertinent part, as follows ( see Pl.Ex. 6):
... running thence along the westerly line of lands now or formerly of Frank L. Cheek south 22 50' 20? 385.50 feet to a point at the foot of the banks and grass on the beach of the Atlantic Ocean; running thence along the foot of the banks and grass line on the beach of the Atlantic Ocean ...
At this moment in time, the grass line was 385.50 feet on the easterly boundary of the newly partitioned parcel. Although the overall dimensions change, the same exact language describing the southerly boundary as set forth above is found in the October 9, 1931 deed from Ellery S. James to Louise R. James ( see Pl.Ex. 7) and the March 8, 1945 deed from Louise R. James to Joseph C. Hoagland ( see Pl.Ex. 8).
A review of the subsequent deeds in the chain of title, that is, the October 21, 1952 deed from Joseph C. Hoagland to Jean W. Maxwell and the October 13, 1959 deed from Jean W. Maxwell to Bernard W. Aginsky and Ethel G. Aginsky discloses ever-changing overall dimensions but nearly identical language in describing the southerly boundary ( see Pl.Ex. 9 [“along the average of edge of beach grass”]; Pl.Ex. 10 [“... South 20 24' 00? East, 264.26 feet to a point on the average line of beach grass and top of bank of beach of Atlantic Ocean; thence along said average line of beach grass and top of bank of beach of Atlantic Ocean the following two (2) courses and distances ...”] ).
As noted above, Bernard W. Aginsky and Ethel G. Aginsky conveyed title to Martin Revson, by deed dated September 17, 1965 ( see Pl.Ex. 11), which contained a southerly boundary description similar to the 1959 deed ( see Pl.Ex. 10) from which they received title ( see Pl.Ex. 11 [“... South 20 degrees 24 minutes 00 seconds east, 264.26 feet to a point on the average southerly line of beach grass on the beach of Atlantic Ocean; THENCE along said average southerly line of beach grass south ...”] ). Also as set forth above, the deed, dated February 11, 1992, from Martin Revson into the plaintiffs ( see Pl.Ex.12), contains an identical description of the southerly boundary as that set forth in the Aginsky deed of 1965 ( compare Pl.Ex. 11). Therefore, as shown from the above discussion, the southerly boundary measurements remained the same in the deed descriptions from 1959 to 1992.
Aside from an examination of the chain of title, plaintiffs offered additional parol evidence consisting of various deeds issued by the Trustees that established southerly boundary lines along the general line of beach grass. The proof included 16 deeds dated in the year 1900 (some are recorded years later) within the time-frame of the Trustee Resolution of that year ( see Pl. Exs. 21–37, except Ex. 33; Ex. 28 being the Laura B. James deed) and 18 additional deeds issued by the Trustees after the year 1900 that similarly established southerly boundary lines along the general line of beach grass or ocean beach land ( see Pl.Ex. 33 and Exs. 38–54), the most recent conveyance occurring on October 31, 1964 ( see Pl.Ex. 52).
The Trustees seek to hold the plaintiffs to the exact linear distance set forth in their February 11, 1992 deed ( see Pl.Ex.12), that is, “ South 20 degrees 24 minutes 00 seconds East 264 .26 feet to a point on the average southerly line of beach grass on the beach of the Atlantic Ocean.” However, they fail to acknowledge the significance of the next call, that is, “ THENCE along said average southerly line of beach grass,” when seeking to close the metes and bounds dimensions. This Court's review of the various deeds in plaintiffs' chain of title demonstrates that as time passes, the “ the average southerly line of beach grass on the beach of the Atlantic Ocean ” is ambulatory. Such is conceded by plaintiffs. The Trustees insist upon enforcement of the courses and distances of the deed since the reference to ambulatory natural objects cannot be enforced with certitude.
In applying the rules of deed construction, Real Property Law § 240(3) provides that:
Every instrument creating, transferring ... real property must be construed according to the intent of the parties, so far as such intent can be gathered from the whole instrument, and is consistent with the rules of law.
Where language used in a deed is susceptible of more than one interpretation, the courts will look beyond the written instrument to the surrounding circumstances ( see Loche Sheldrake Assocs. v. Evans, 306 N.Y. 297, 304 [1954] ). Parol evidence is admissible to resolve ambiguities in a deed ( see Blangiardo v. Horstmann, 32 A.D.2d 876, 822 N.Y.S.2d 545 [2d Dept 2006] ) and to show the intent of the parties ( see Cordua v. Guggenheim, 274 N.Y. 51, 57 [1937] ) or where the evidence as to the parties' actual intent is equivocal ( see Pauquette v. Ray, 58 A.D.2d 950, 951–952, 397 N.Y.S.2d 442 [3d Dept 1977] [“it is agreed on both sides that discrepancies exist between the deed description and ground features. The court properly held that such inconsistencies are to be reconciled by inquiring into the intention of the parties which existed at the time of conveyance”] ). Parol evidence may not be used to vary a boundary description or call set forth in a deed ( see Cordua v. Guggenheim, 274 N.Y. at 57,supra ).
Additionally, where there is a discrepancy in deed calls, the rules of construction require that resort be had first to natural objects, second to artificial objects, third to adjacent boundaries, fourth to courses and distances and last to quantity ( see Thomas v.. Brown, 145 A.D.2d 849, 535 N.Y.S.2d 836 [3d Dept 1988] ). Plaintiffs offer the Second Department case of Trustees of Freeholders & Commonality of Town of Southampton v. Buoninfante, 303 A.D.2d 579, 756 N.Y.S.2d 629 (2d Dept 2003) as controlling authority. This Court must agree. In Buoninfante, a discrepancy existed internally in the deeds by using both linear distances and the water line of Moriches Bay. The court concluded as follows:
The water line of Moriches Bay is obviously a natural object, and as such it should take precedence over either of the linear distances in the two deeds. In addition, deeds further back in the chain of title indicate that the property at issue had traditionally been described in one way or another as extending to the shore of Moriches Bay or to the high water line of Moriches Bay and running along the shore. It was not until 1973 that linear distances were added. But even after this, the property was still described as extending to the mean high water mark of Moriches Bay. Thus, there is nothing in the chain of title to suggest that it was the intention of any grantor to bound the property along the north side in any way other than by reference to the shoreline of Moriches Bay.
The fact that the water line along Moriches Bay was ambulatory did not change the holding in Buoninfante, and the matter was remitted “for a trial to determine the actual present location of that ambulatory boundary line.” Here, the Court finds the parol evidence offered by the plaintiffs to be convincing and clear. Moreover, in determining the location of property boundaries, “natural landmarks and artificial monuments take precedence over mere metes and bounds descriptions” (Zelnik Realty v. York, 170 A.D.2d 926, 928, 566 N.Y.S.2d 752 [3d Dept 1991]; see also Brown v. Ames, 290 A.D.2d 693, 735 N.Y.S.2d 664 [3d Dept 2002] ). The Trustees' reliance upon the area of the parcel set forth in the deed dated February 11, 1992 from Martin Revson (0.931 acres) must fail since area has the lowest preference as a call and must yield to the natural object call ( see1 NYJur2d, Adjoining Landowners, § 126, at 619).
Just as the water line of Moriches Bay is a natural object, so is “ the average southerly line of beach grass on the beach of the Atlantic Ocean ” in the instant case. Similarly, the reference to a brook, a natural object, in Henry v. Malen, 263 A.D.2d 698, 692 N.Y.S.2d 841 (3d Dept 1999), was utilized to designate a boundary line. Just as the water line is ambulatory, so is the beach grass line and the brook. A conveyance is to be construed in reference to its visible locative calls, as marked or appearing on the land, in preference to quantity, course, or distance ( see 1 N.Y. Law & Practice of Real Property § 24:47 [2d ed.] ). The stipulated viewing by this Court demonstrated that on this property, “ the average southerly line of beach grass on the beach of the Atlantic Ocean ” was visible and easy to locate. Plaintiffs' expert explained the observable pattern of the beach grass line ( see Transcript pp 265–257, Arum Terchunian).
The Court acknowledges the caselaw that holds that the above rule as to the hierarchy of priorities for interpreting deed descriptions is not inflexible and need not be followed when the intention is clearly revealed in the instrument. For instance, in People ex rel. Burnham v. Jones, 112 NY597, (1889) an issue arose as to the metes and bounds description and the following reference: “thence northerly along said street two hundred and ten feet to the beach of Lake Ontario; thence westerly at right angles one hundred feet ...” Viewing the instrument as a whole, the court concluded that the parties' intention was not to follow the shore or beach but to follow a straight line (112 N.Y. at 605):
Not only is the north line described to be a straight line, not following the natural sinuosities of a shore or water front, but runs to a fixed point in the line of Husband's land, forming a mathematical parallelogram plainly opposed to the theory of a diversion to accommodate the irregularities of a varying line (citations omitted).
In the instant case, a straight line for the southerly boundary is not set forth, but, instead, is describes as, “ THENCE along said average southerly line of beach grass.” Here, as set forth above, the Trustees had the absolute right, as an owner in 1900, to impose such terms and conditions upon their grant as they may have deemed necessary or proper. When questioned about the Resolution of 1900, the current President of the Trustees refused to comment ( see Transcript p. 433). Whatever may have been the motive, the only inquiry here is deed construction. The Court does note the uncertainty in the controlling caselaw at that time concerning the grant of land and bounding it by or along a “beach.” In The Trustees, etc. v. Kirk, 68 NY459 (1877), the court stated:
Ordinarily in a grant of lands under the name of a “beach” or a boundary of lands upon or by, or along a “beach,” the word would be held synonymous with the shore or strand, and as having reference to and including only the lands washed by the sea, and between high-water-mark and low-water-mark.
But the court went on to further state:
In a grant of a “beach,” and perhaps, when a “beach” is made the boundary of lands, other clauses of the deed, and the situation of the lands granted or other circumstances may authorize a different interpretation and effect may be given to the word as meaning flats, or sandy land between the upland and the actual shore line.
The high court in Kirk, supra, held that the Trustees made a prima facie case of proof of title in the disputed lands for the common use of the town for, among other things, the gathering and storing of seaweed for manure. As noted above, in 1889, the high court in People ex rel. Burnham v. Jones, 112 NY597, supra, revisited the use of the term “beach” as a boundary description. The Resolution by the Trustees in 1900 clearly states the intention “to remove obstructions and perfect title for those who may wish to use the Banks or Dunes for residence purposes, and believing that the best interests of the inhabitants of this Town will be advanced thereby.” One such interest of the inhabitants of the Town is set forth as “a reservation that boats and seines may be allowed to lie upon the Banks or grass, for a distance of Fifty feet on either side of such highway.” The extensive shore rights enjoyed by the freeholders of the Town were detailed shortly thereafter by the Second Department in Weeks v. Dominy, 161 AD 414, 146 NYS 624 (2d Dept 1914). Moreover, by retaining the lands between the high water mark and “ the average southerly line of beach grass on the beach of the Atlantic Ocean,” as held in People ex rel. Burnham v. Jones, 112 N.Y. at 607, supra, “all accretions to the shore enured to the benefit of that person who owned the land adjacent to the water,” in this case, the Trustees.
The Trustees go to great lengths seeking to convince this Court that a natural object must be a fixed object in order to be deemed a monument. The Court agrees that a monument must be a tangible landmark in order to indicate a boundary, having visibility, a pronounced level of permanence and stability, and a definite location. Here, as noted, the line of beach grass is visible and is found at a definite location. Moreover, the ambulatory nature of the beach grass line, similar to the ambulatory nature of the water line in Buoninfante, does not render it unstable as a boundary line.
The case of Earl v. Smithler, 195 A.D.2d 969, 600 N.Y.S.2d 596 (4th Dept 1993) is not to the contrary. Therein, the call “to the center of the open ditch” was disregarded because, over time, the ditch was no longer ascertainable and could not be located. The court found that as a boundary, it was not a fixed monument that was readily ascertainable, even to a trained surveyor. Here, the ambulatory nature of the beach grass line is readily ascertainable and surveyors testified to same during the trial. The ease at which a surveyor can locate the boundary line supports this Court's conclusion that the average beach grass line maintains the degree of definiteness and visibility necessary for the designation as a call to a monument ( see Transcript p. 20, David Weaver). It is visible, ascertainable, and as such retains a definite level of stability that satisfies the necessity for a tangible landmark ( see generally Dolphin Lane Assoc. v. Town of Southampton, 37 N.Y.2d 292, 372 N.Y.S.2d 52 [1975];see also Achter v. Maw, 27 Utah 2d 149, 493 P.2d 989 [Sup Ct Utah 1972] [the top of the south rim of a canyon held to be adequate as boundary monument] ).
Although the overall area dimensions of the parcels in the chain of title differ and while no linear dimensions were noted in the 1900 deed ( see Pl.Ex. 4) from the Trustees to James, the Trustees point to the fact that in the August 12, 1930 deed ( see Pl.Ex. 6), for the first time a specific distance of 385.50 feet to the grass line boundary is shown. The accompanying survey ( see Pl.Ex. 61), shows a solid line as a boundary along the “Foot of the Banks and Grass Line.” The subsequent deeds set forth similar dimensions ( see Pl.Ex. 7 [the 1931 deed] and Pl.Ex. 8 [the 1945 deed] ). Thereafter, the 1952 deed ( see Pl.Ex. 9), notes a southerly distance of 352 feet, based upon a March 5, 1945 survey. The 1959 deed into Aginsky ( see Pl.Ex. 10), sets forth a southerly distance of 264.26 to the grass line ( see also Pl.Ex. 62, August 19, 1963 survey showing “average line of beach grass, October 5, 1959”). This dimension is continued in the 1965 deed into Revson ( see Pl.Ex. 11) and then the 1992 deed into plaintiffs ( see Pl.Ex. 12). Additionally, aside from the usual accretion or erosion of littoral properties, the testimony revealed that the area in question was also bracketed by two groins, known as the Georgica Pond Groins, constructed by the governments of the United States, New York State, and Suffolk County in or about 1968 ( see Transcript p. 57, David Weaver), to the west and east of plaintiffs' premises. The Trustees point to these various changes as evidence of an unstable monument.
Yet, a re-survey of plaintiffs' parcel by George Walbridge Surveyors, P. C., dated November 23, 2010 ( see Pl.Ex. 64), reveals that the beach grass line has remained remarkably stable, when compared to the October 15, 1992 revised survey ( see Pl.Ex. 63), which was conducted eight months after the purchase of the property by the plaintiffs and which survey was directed at the instigation of the plaintiff, Barbara Macklowe. Just as a calculation of mean high water mark can be considered reliable only if based on observations made over a reasonable period of time ( see Dolphin Lane Assoc. v. Town of Southampton, 72 Misc.2d 868, 339 N.Y.S.2d 966 [Sup Ct Suffolk County 1971], affd43 A.D.2d 727, 350 N.Y.S.2d 451 [2d Dept 1973], mod. on other grounds37 N.Y.2d 292, 372 N.Y.S.2d 52 [1975] ), here, since at least October 15, 1992, “ the average southerly line of beach grass on the beach of the Atlantic Ocean,” has remained a reliable monument.
The testimony of the coastal geologist expert, Aram Terchunian, detailed the qualities of the beach grass line as a natural object ( see Transcript pp 252–253; see also pp19–20 and 40, testimony of David Weaver). Finally, considering the evidence as a whole, what is shown is a movement from a distance of 385.50 feet to the grass line boundary in 1930 to 405.68 feet in 2010 ( see Pl.Ex. 64). In light of the expert testimony concerning the Storm of 1962 ( see Transcript p. 250–251, Arum Terchunian) and the affects of the Georgica Pond Groins ( see Transcript p. 57, David Weaver; p.271, Aram Terchunian), the 80 years of recorded measurements demonstrates certainty and reliability over a reasonable period of time.
Additionally, this Court is persuaded by the caselaw that holds that record title may be affected by the actions of parties to a boundary dispute, that is, where adjoining owners locate and fix a line and thereafter acquiesce and adhere to the existence of the line. The bilateral action of parties to resolve or compromise differences by an agreement upon a boundary line establishes the requisite acquiescence in fixing the monument ( see generally Markowski v. Ferrari, 174 A.D.2d 793, 570 N.Y.S.2d 735 [3d Dept 1991]; Allen v. Cross, 64 A.D.2d 288, 409 N.Y.S.2d 865 [4th Dept 1978]; Mazzucco v. Eastman, 36 Misc.2d 648, 236 N.Y.S.2d 986 [Sup Ct Schenectady County 1960], affd17 A.D.2d 889, 239 N.Y.S.2d 535 [2d Dept 1962] ).
The Trustees benefit from the holding of an ambulatory boundary. As noted in Town of Brookhaven v. Dyett Sand–Lime Brick Co., 75 Misc. 310, 135 NYS 165 (Sup Ct Suffolk County 1912), the creation of a movable freehold ensures that title will not be lost by erosion. “I think there can be no doubt that the right so reserved would have been ambulatory in its character and would have advanced or receded as the shore was affected by accretion or erosion” (135 NYS at 316 supra ). The Court finds the reference to “ the average southerly line of beach grass on the beach of the Atlantic Ocean,” not to be merely descriptive or incidental but for the intended purpose of location of the southerly boundary. It is a boundary that protects the beach land of the Trustees from the land of the upland owners ( see Transcript pp. 42–44, David Weaver] ).
The Court finds the holdings in Poster v. Strough, 299 A.D.2d 127, 752 N.Y.S.2d 326 (2d Dept 2002) and Allen v. Strough, 301 A.D.2d 11, 752 N.Y.S.2d 339 (2d Dept 2002) to be of little value since the central issue in those proceedings was not focused on the crest of the “primary dune” as a monument but as the limit of an agency's permit-issuing jurisdiction, in light of the disappearance of extensive portions of the dune itself. Here, the average southerly line of beach grass has not disappeared.
The Trustees have failed to assert proof of ownership of the area between the easterly and westerly bounds of plaintiffs' property, north of “ the average southerly line of beach grass on the beach of the Atlantic Ocean,” as it currently exists and the metes and bounds linear distance set forth in plaintiffs' February 11, 1992 deed ( see Pl.Ex.12), that is, “ South 20 degrees 24 minutes 00 seconds East 264.26 feet .... ” from the point of beginning, that is, the center line of the 33 feet wide private roadway. As noted above, that dimension originates from the 1959 deed description ( see Pl.Ex. 10). The parallelogram created between the width of 264.26 feet in 1959 and the 405.68 feet shown in the survey dated November 23, 2010 ( see Pl.Ex. 64), is nowhere claimed to be owned by the Trustees in their answer.
While during the trial the Trustees claimed ownership of that area of the parallelogram ( see Transcript p. 371, Diane McNally), which includes areas of mowed lawn and rear yard amenities of the plaintiffs ( see Transcript p. 442, Diane McNally), the Trustees cannot obtain a judgment in their favor without proving their own title ( see Best Renting Co. v. City of New York, 248 N.Y. 491 [1928] ). Where both the plaintiff and the defendant assert conflicting claims of title to the same land, the burden rests upon each of them to establish such claims other than by relying on defects in the title of the other ( see O'Brien v. Town of Huntington, 66 AD3d 160, 884 N.Y.S.2d 446 [2d Dept 2009]; LaSala v. Terstiege, 276 A.D.2d 529, 713 N.Y.S.2d 76 [2d Dept 2000] ). Thus, where a defendant asserts title to the same land as that claimed by the plaintiff, the defendant should be held to the same burden of proof with respect to title as is the plaintiff, even though the defendant has not asserted a technical counterclaim under RPAPL Article 15 ( see Bistrian Land Corp. v. Pleasants, 10/8/2008 N.Y.L.J. 28, col. 3, 28, col. 3 [Sup.Ct. Suffolk County 2008] ). Moreover, the Trustees testified that they did not take a position on whether the boundary line is fixed or ambulatory ( see Transcript p. 434, Diane McNally).
As viewed by this Court, the argument advanced by the Trustees creates the condition for a missing party, that is, when Jean W. Maxwell conveyed the parcel to Bernard W. Aginsky and Ethel G. Aginsky by deed dated October 13, 1959 ( see Pl.Ex. 10), according to the reasoning of the Trustees, less land was conveyed that originally conveyed into Jean W. Maxwell ( see Pl.Ex. 10). Such would necessarily have to be the result if one is to believe that the southerly boundary is only 264.26 feet from the point of beginning instead of the 352 feet noted in the deed into Jean W. Maxwell ( see Pl.Ex. 9). No evidence was offered at trial that on October 21, 1952, Joseph C. Hoagland intended to retain any of the lands outside of the conveyance to Jean W. Maxwell ( see Pl.Ex. 9). In fact, no deed in the chain of title contains such a reservation.
Based on all of the above, the court dismisses the first and third causes of action which seeks a declaration that the south boundary of plaintiffs' property is the high water mark of the Atlantic Ocean and that their property retains its littoral rights. The deeds in question do not describe the boundary as the high water mark and the claim was abandoned by plaintiffs during the trial. Moreover, while the plaintiffs continue to argue a claim of rights as littoral proprietors, the Court rejects same. Any accreted sand that extends the beach seaward is being added to the Trustee beach lands between the high water mark and “ the average southerly line of beach grass on the beach of the Atlantic Ocean.” Since to be a riparian owner one must be an owner with a boundary on the ocean ( see generally Thury v. Britannia Acquisition Corp., 292 A.D.2d 373, 374, 738 N.Y.S.2d 82 [2d Dept 2002] ), plaintiffs cannot claim to possess littoral rights. However, as inhabitants of the Town of East Hampton, the plaintiffs' possess the right of access to the waters of the Atlantic Ocean and the beach land owned by the Trustees.
The Court does grant the second cause of action which references the beach grass line as a movable boundary. The relief sought in the complaint is that their south boundary is on the beach of the Atlantic Ocean. As noted above, a belated motion to amend the complaint to clarify the title issues was denied by the short form order of the Hon. Paul J. Baisley, Jr. dated September 16, 2011. Based upon that holding, this Court refused to consider various exhibits offered by plaintiffs as being in conflict with that order ( see Pl. Exs.1, 2, 3, 16, 17, 18, 19 and 20 for identification).
However, the evidence at trial demonstrated that the boundary is “always identifiable and susceptible of location and hence not indefinite ...” (Board of Educ. of Town of Hempstead v. Nyquist, 28 A.D.2d 936, 281 N.Y.S.2d 486, 490 [3d Dept 1967] ) and in reliance upon the controlling caselaw noted above, plaintiffs are entitled to a judgment declaring their ownership of all lands lying within the east and west bounds of their property and north of the average southerly line of beach grass on the beach of the Atlantic Ocean, or, in other words, a declaration that their premises are bounded on the south by “ the average southerly line of beach grass on the beach of the Atlantic Ocean, ” and a further declaration that the Trustees have no title to lands lying north of the beach grass line, as that ambulatory line may be located from time to time, within the east and west bounds of the plaintiffs' premises. To the extent necessary, the Court grants plaintiffs' motion, pursuant to CPLR 3025(c), to conform the pleadings to the proof, since the Trustees were on notice as to the facts surrounding the second cause of action and cannot claim surprise or prejudice at the time of trial.
The Court declines the invitation offered by the Trustees to once again view the parcel, in light of their claim that beach grass has been planted by the plaintiffs to extend their southerly boundary. The Trustees offered no proof of such actual planting and the plaintiffs adamantly denied the allegation ( see Transcript pp 110 and 124; 139). The plaintiffs explained that the sprinklers were for the replacement bushes that had died on the bank of their property ( see Transcript pp 125; 139). The uniformity of the grass line noted by the Court upon the site visit was noticeable toward the entire westerly direction from the nearby groin. The staged photographs, with the rubber bands surrounding the clumps of grasses ( see Def. Ex. U, V, W, X, Y, Z, AA, BB, CC, DD, EE, FF, GG, HH and II) do not detract from the testimony offered by plaintiffs' expert coastal geologist who explained that in his opinion the beach grasses appeared to be naturally growing in appearance ( see Transcript pp 263; 451–452). The photographs and the testimony from the Trustees do not address the distinction between plugs of beach grass and the rhizome root system ( see Transcript pp 439–440, Diane McNally), The Court will defer to the opinion of the expert, who testified to years of experience on matters concerning the dunes and beach grass. Moreover, if the Trustees believe that the plaintiffs are encroaching upon the Trustees beach by extending the beach grass line seaward, they have the right to seek removal of the encroachments in a separate action.
The Court agreed with the Trustees at trial that plaintiffs' self-serving deeds that were filed with the Suffolk County Clerk immediately prior to trial should not be considered by the Court as evidence. Here, Pl. Exs.16, 17, 18, 19 and 20 for identification were created solely for the purpose of trial. They were filed with the County Clerk after the denial of the motion to amend the complaint and were not considered by the Court. Yet, without an affirmative pleading seeking the requested relief, the Court declines the request by the Trustees to declare these newly filed deeds invalid and have such stricken from the public record.
This constitutes the decision of the Court. Submit judgment on notice.