Opinion
July 2, 1940.
Action of ejectment by Horton Gardner and others against the Town of Claverack. On stipulation of the parties, the trial of the action was . ordered referred to Honorable Harold J. Hinman, Official Referee, to hear and determine the issues therein.
Complaint dismissed.
Judgment affirmed in 259 App.Div. 1111, 22 N.Y.S.2d 200.
Coffin, Coffin Inman, of Hudson (George C. Invnan, of Hudson, of counsel), for plaintiff.
John L. Crandell, of Hudson, for defendant
The plaintiffs bring this action of ejectment claiming title to a small parcel of land in the unincorporated village or hamlet of Claverack, in the Town of Claverack, Columbia County, New York, known as the "park". The defendant denies that the plaintiffs own this park, which is located about in the center of the village and at the intersection of two state highways; that this park is not included in any conveyance to the plaintiffs or their predecessors in title; and that about 75 years ago the citizens of that community enclosed it with an ornamental fence made of turned posts and a chain running through the posts, planted trees there and have since called it the park. The defendant also claims record title to the park by virtue of a recent deed from the owners of property to the west of the park, the plaintiffs being the owners of the property to the east of it. The said deed to the defendant contains a provision that the said property is conveyed to defendant town to be held and maintained as a park.
The park is entirely surrounded by highways. The highway running north and south to the west of the park is an improved state highway. The highway running to the east of the park is an ancient public highway of dirt and gravel which brandies off at a slight angle from the said, state highway going north, passes to the right of the park and between the park and the apartment house owned by the plaintiffs, formerly known as the Columbia Hotel, and meets at right angles but does not cross another state highway which runs cast and west and borders the north side of the park, and which is crossed by the north and south state highway on a line to the immediate west of the park. The plaintiffs do not claim to own the dirt highway east of the park but claim only the park. The north and south highway leading from New York through this village to Albany is called, in the various conveyances running' back for over a hundred years, the "Post Road" or "Old Post Road" find the west boundary line of the plaintiffs' property has been uniformly described as such "Post Road" or "Old Post Road". Similarly the Post Road is utilized as a boundary line of oilier properties located at this intersection including that of the defendant's predecessors in title. The claim of the plaintiffs is that the "Old Post Road" always ran to the west of die park, while the defendant contends that the dirt road to the east of the park was the "Old Post Road" and that later the road to the west of the park was made by the owner of the southwest comer of the intersection, who was a predecessor in title of the defendant and who ran a hotel, on that corner, the Columbia Hotel on the cast of the park being the first hotel erected.
[1.2] The dispute in this case seems to be largely one of fact as to whether the "Old Post Road" passed to the cast or to the west of the park. The plaintiffs have the burden of proof and upon thoroughly settled principle in an action of ejectment must recover upon the strength of their own title and cannot rely on any supposed or actual weakness of their adversary's title. Otherwise they fail to show any cause of action and consequently any reason for requiring the defendant to defend its possession. Beers v. Hotchkiss, 256 N.Y. 41, 45, 175 N.E. 506; Chamberlain v. Taylor, 105 N.Y. 185, 189, 11 N.E. 625; Roberts v. Baumgarten, 110 N.Y. 380, 385, 18 N.E. 9(3. The plaintiffs concede that such is the law and that they must show possession in addition to paper title in them since title has not been traced back to the sovereign or to a common source, Aubuchon v. New York, N. H. H. R. R. Co., 137 App.Div. 834, 836, 122 N.Y.S. 581. Another controlling principle in ejectment is that before the plaintiffs can recover the evidence must clearly indicate that the property in question is included within the description. As stated in Jarvis v. Lynch, 157 N.Y. 445, 448, 52 N.E. 657, 658, "the evidence as to location must not be of that indefinite character which permits the court, or the jury, to reach a determination only by way of speculation".
Thus the burden is on plaintiff to show clearly that the parkis included in the description of land conveyed to the plaintiffs. The descriptions in the deeds in plaintiffs' chain of title bound the property on the west by "Old Post Road". Therefore if the "Old Post Road" ran on the easterly side of the park no part of the park is included, in the conveyance to plaintiffs.
[4-6] The location of the road may be established by tradition or parol evidence. Reputation or tradition is very generally held to be admissible in evidence to prove an ancient boundary, whether public or private. 22 C.J. 254. "That hearsay or reputation is admissible as evidence, upon questions of pedigree or family relationship, and also upon questions respecting the boundaries of lands, is a familiar doctrine. But there are, no doubt, other cases in which the same kind of evidence may be received, for the purpose of establishing a mere private right, when the fact to be proved is one of a quasi public nature, that is one which interests a multitude of people, or an entire community." McKinnon v. Bliss, 21 N.Y. 206, 217. "In most cases involving' questions of fact affecting particular localities, as towns, counties, manors or the like, it would be sufficient to show that the reputation or tradition offered in evidence was derived from persons inhabiting the particular town or district." Id., 21 N.Y. at page 219. .Parol evidence as to the location of a. street line has been held competent, in the absence of record evidence, since the line constituted an ancient boundary. Freer v. Arnold, 123 Misc. 619, 205 N.Y.S, 801. It seems to me that this case falls fairly within these principles. The location of such a main `Tost Road" is a question of a public nature as to which all residents of the community may be presumed conversant with the facts existing in their lifetime. There is no probable want of competent knowledge on the part of such residents, which is the reason generally assigned for rejecting evidence of reputation in matters of mere private right. McKinnon v. Bliss, supra, 21 N.Y. at page. 218.
The reputation or tradition in this community that the "Old Post Road" passed on the east side of the park immediately in front of the "old Columbia Hotel was testified to by a half dozen witnesses ranging from 77 to 90 years of age, most of whom had lived there practically all of their lives. Their personal knowledge ran back variously to a period between 1855 and 1876, during and since which time they testified that a highway ran on each side of the park, but they testified that they received their information from the speech of people in the community much older than they were, naming a number of them who had lived their lives in the immediate vicinity of this intersection and who were in a position to know the facts and who are now dead. The uniform information derived was in accordance with the tradition to which they testified. All but one of them testified to a tradition that, after meeting the present east and west state highway,, formerly known as the Columbia Turnpike, the "Old Post Road proceeded directly across the same to the cast of the present Burch store, now located on the northeast corner of the intersection, and running over a knoll alongside of such present store, it emerged upon the present north and south state highway a short distance behind the store and continued to the west of an old stone house known as the Bristol House. One of the witnesses said that his understanding of the tradition was that, after passing on the east side of the park, the "Old Post Road" turned left in front of the Burch store and then right and passed to the west of the Burch store. It is not necessary to settle the question as to where the old road went after passing to the cast of the park. It is sufficient to note that all of them agreed that the tradition was that the old road passed to the east of the park.
Moreover, there is some corroboration that the old road did pass over a knoll on a direct line with the easterly road. The knoll is there and there is some evidence of ancient wagon tracks in the rear of the Burch store, unearthed by Burch in building a storehouse and rock garden, the direction of which wagon tracks tended to show that the road of which they were a part went over the knoll to the east of the-Burch store.
The evidence also reveals some facts and circumstances tending to-show that the road to the west of the park was a later development. The 1790 map of the locality shows a single road north and south as did also the 1799 map. Neither shows a triangular parcel of land at the intersection. The 1790 map shows a building at the approximate location of plaintiffs' Columbia Hotel property and no building at the other comers of this intersection, indicating-that the Columbia Hotel was probably the first hotel. The likelihood is that it was built alongside of the road. That would have been more convenient for the old stage coach of those days. Two earlier hotels occupied the approximate site of the so-called Columbia Hotel which were destroyed by fire, but the only testimony is to the effect that the rebuilding was on the same site. The 1799 map shows buildings at the site of the Columbia Hotel property and also of the DuBois house on the southwest corner and none in the two northerly corners. There is proof that in 1924 John M. Shoemaker bought the DuBois property and other property in that vicinity and that he had a hotel on the site of the DuBois residence, referred to as "the public hotel commonly called the Shoemaker Stand" in a deed from his executors in 1854. He died in 1852. There is some tradition in the village that Shoemaker built the road in front of his hotel (the road to the west of the park), and that there was some agitation about it. The evidence as to such tradition is not too satisfying, standing alone, but it is undisputed and there is some corroboration in the fact that the map of 1858 shows an open triangle at the location of the property in dispute, instead of the single line shown in the maps of 1790 and 1799. There was incentive for Shoemaker to build it, so-as to have a road immediately in front of his hotel and he owned the land in front of bis hotel and west of the Old Post Road. There is some corroboration that it was done between 1824 and 1834 in the facts that in the chain of title of plaintiffs' property, the first three conveyances refer to the "road" leading from "Albany to New York" or from "Kinderhook to New York." These conveyances cover the period from 1804 to 1834. In 1834, for the first time, the westerly boundary of the plaintiffs' property is described as "Old Post Road",. in a deed given that year. This changed worthing at that time from "Road" to "Old Post Road" is significant of a changed condition rendering it necessary to designate the original road as the "Old Post Road" to distinguish it from a new road that had been built
I cannot avoid the conclusion that plaintiffs have failed to show that the conveyances to them or their predecessors in title included any lands westerly of the highway separating the old Columbia Hotel property from the park. They have failed to establish that the parcel of land known as the park was or is included in the conveyance to them. I find that the "Old Post Road" as referred to in the various deeds of conveyance in the plaintiffs' chain of title refers to the road on the easterly side of the park and that thus such conveyances do not include the park because they describe the plaintiffs' property as bounded on the west by the "Old Post Road".
In April, 1936, John S. DuBois and others gave a deed of the park to the defendant Town of Claverack upon condition that the land shall be maintained as a park. Under that deed the town authorities took possession, which gave rise to this litigation. The plaintiffs claimed possession by them and their predecessors in title from 1899 to that time. The proof is that some time between 1860 and 1864 citizens of the hamlet of Claverack, including one Van Tassel, the then owner of the Columbia Hotel, procured cedar trees from a mountain, had posts turned, set the posts about the plot, and ran an iron chain through the posts, entirely enclosing-the park with a substantial enclosure. Trees were planted by the citizens of Claverack in the plot of ground so enclosed, to beautify it, and since that time it has been commonly known as the "park". A bandstand was erected thereon and the Claverack band, composed of citizens of Claverack, gave public concerts there. It was called the village park, according to old residents. It continued to remain a park, enclosed by this same fence. The grass was kept mowed and flowers were placed there and occasionally a post was repaired by the owners or occupants of the Columbia Hotel property beginning about 1899; and about 1919 the owner of such property, no longer used as a hotel, started storing lumber there which he used in his manufacturing business. On at least one occasion between 1899 and 1906, the tenant of the hotel conducted a public hog killing in the park. No other use or occupancy of the park by the plaintiffs or their predecessors was shown except that the plaintiffs, after they obtained title in 1932 permitted some signs to be erected in the park and there is some disputed testimony chat in the earlier years horses were occasionally tied to the fence on the side in front of the hotel. Bearing in mind that the plaintiffs have no deed covering the park and that the proofs show that the citizens of the community enclosed this as a park and called it the village park, the entry upon it so occasionally to cut grass and place flowers there and repair posts a few times is not sufficient to confer a title by adverse possession. Roberts v. Baumgarten, 110 N.Y. 380, 385, 18 N.E. 96; Wheeler v. Spinola, 54 N.Y. 377 The piling of lumber on the park after 1919 and the erection of signs thereon after 1932 are immaterial. The plaintiffs have not shown that they or their predecessors in title enclosed the park. The most that has been shown is that their predecessor Van Tassel helped other citizens to make the enclosure.
[9-11] If there was an adverse possession by the public, through some agency, or if there is any presumption of a lost grant to some public agency (Baker v. Oakwood, 123 N.Y. 16, 25 N.E. 312, 10 L.R.A. 387; Kellum v. Corr, 149 App.Div. 200, 208, 133 N.Y.S. 784) as suggested by the defendant town, it is speculative to hold that the town is the agency having such title. If there was any other party holding paper title to the park it was the predecessors in title of Du Bois, whose title originally ran to the west side of the "Old Post Road". The deed to the town from DuBois in 1936, however, cannot convey more than was then owned and an examination of the DuBois chain of title shows that in deeds of 1862 and 1864, the property deeded is described as bounded on the east by the "Old Post Road", but these deeds also contain a detailed surveyor's description. According to the undisputed testimony of a surveyor, that old surveyor's description does not include the park premises. And the later deeds in the DuBois chain refer to the said deeds containing that surveyor's description. This weakness of the defendant's title cannot help the plaintiff. It simply prevents me from finding that the defendant town has title to the park by virtue of the Dubois deed. There is a significance, however, to be attached to the fact that in 1862 a surveyor ran the line of the DuBois title to the westerly side of the. park for the deed then given, it would seem likely that this was deliberately done because at anoutt that time the park was enclosed by the citizens of Claverack. If a deed to the park was given it has been lost. If no deed was given it does not help the defendant. It has no paper title through the DuBois deed and I am unable to find on the proofs before me, as requested by the defendant, that the town as such is the public agency entitled to the park by adverse possession or upon theory of a lost grant. Moreover, in this action the defendant is not required to defend its present possession of the property as against the plaintiffs, who have failed to establish their right to the possession of the property in question.
The complaint should be dismissed.