State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 16, 2014 517092 

________________________________

TERRENCE GIBBS,

Respondent,

v MEMORANDUM AND ORDER

RALPH PORATH et al.,

Appellants.

________________________________

Calendar Date: September 8, 2014

Before: McCarthy, J.P., Rose, Egan Jr., Devine and Clark, JJ.

__________

Thomas H. McCann, Malone, for appellants.

John A. Piasecki, Malone, for respondent.

__________

Egan Jr., J.

Appeal from a judgment of the Supreme Court (Demarest, J.),

entered April 25, 2013 in Franklin County, upon a decision of the

court in favor of plaintiff.

In 1975, plaintiff, Howard Gibbs (plaintiff's brother) and

Robert Laight (plaintiff's brother-in-law) acquired title to

approximately 20 acres of land located in the Town of Chateaugay,

Franklin County. The parcel in question was bounded on the north

by the Chateaugay River and bounded on the south by Healey Road. 

Shortly after acquiring the parcel, plaintiff and Laight

constructed residences thereon, with Laight's home lying

generally east of plaintiff's residence.1 Thereafter, in or

1 Although Gibbs spent time on the parcel over the years,

installing a driveway and building a shed thereon, he did not
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about 1981 or 1982, plaintiff and Laight constructed a shared

pond near the Healy Road border of their respective parcels

(hereinafter the upper pond). A few years later, plaintiff

constructed another pond on his property near his border with the

Chateaugay River (hereinafter the lower pond).

In 1997, the brothers and Laight decided to formally

subdivide the parcel. To that end, they retained a Canadian firm

to prepare a general map of the property, which, in turn, was

used to draft the respective deeds. The map, which was not a

formal survey, resulted in plaintiff obtaining what was depicted

as a generally rectangular parcel of land measuring roughly 5.1

acres; Gibbs's parcel, lying to the west of plaintiff's land,

measured approximately 5.94 acres, and Laight's parcel, lying to

the east of plaintiff's land, measured approximately 8.6 acres. 

Laight's parcel subsequently changed hands twice before being

conveyed to defendants in April 2009. According to plaintiff, he

and defendants' predecessors in title all understood the location

of the boundary line between the two relevant parcels – an

understanding that resulted in plaintiff's residence, fire pit,

bird houses, a portion of the upper pond and all of the lower

pond lying within plaintiff's parcel.

After defendants acquired the former Laight parcel, they

retained Kip Cassavaw, a licensed land surveyor, to prepare a

formal survey of their property. According to the Cassavaw

survey, the boundary line between plaintiff's and defendants'

respective parcels extended farther west than previously

believed, resulting in both ponds, plaintiff's garage and

residence and just shy of one acre of plaintiff's land being

depicted as lying entirely within the border of defendants'

property. Prior to and following the receipt of this survey,

defendants began making various changes to the upper and lower

ponds, which included installing certain four-inch pipes and

clearing a number of trees. Plaintiff then hired Timothy

Langdon, also a licensed land surveyor, who ultimately prepared a

survey map that essentially was consistent with plaintiff's

construct his residence upon the property until approximately

2000.
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understanding as to the location of his common boundary line with

defendants. The Langdon survey was recorded in the office of the

Franklin County Clerk in August 2010.

Plaintiff thereafter commenced this action against

defendants seeking, among other things, a declaration attesting

to the validity of the boundary line asserted by him and money

damages for wrongful trespass and the resulting loss of trees and

vegetation. Defendants answered and counterclaimed seeking,

among other things, a declaration that they are the rightful

owners of the disputed acreage. Following a nonjury trial,

Supreme Court – employing the doctrine of practical location –

determined the shared boundary line between plaintiff and

defendants to be as depicted on the Langdon survey and, further,

awarded plaintiff damages in excess of $40,000. This appeal by

defendants ensued.

As a general proposition, "[d]eeds and surveys indicate

boundary lines by various descriptive elements or 'calls' which

consist mainly of monuments, courses and distances, adjacent

lands and area or quantity" (Thomas v Brown, 145 AD2d 849, 850

[1998]). Here, however, Langdon testified – and our review

confirms – that the subject deeds contain no specific bearings or

directional calls and set forth only the vaguest description of

the intended boundary line between the land originally conveyed

to plaintiff and Laight. Indeed, Langdon opined that the deeds

in question were "so bad" that a boundary line could not be

established absent either a boundary line agreement, which the

parties apparently were unable to forge, or judicial

intervention.2 To that end, where a dispute exists as to the

location of a boundary line, "the intent of the parties existing

at the time of the original conveyance of the disputed property

controls" (Markowski v Ferrari, 174 AD2d 793, 794 [1991], appeal

dismissed 78 NY2d 1061 [1991]; see Thomas v Brown, 145 AD2d at

850). Pursuant to the doctrine of practical location, "the

practical location of a boundary line and an acquiescence of the

2 At some point following the completion of Langdon's

survey, plaintiff and Gibbs apparently entered into a boundary

line agreement as to their common border.
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parties therein for a period of more than [the statutory period

governing adverse possession] is conclusive of the location of

the boundary line" (Kaneb v Lamay, 58 AD3d 1097, 1098 [2009], lv

denied 12 NY3d 709 [2009] [internal quotation marks and citation

omitted]; accord Robert v Shaul, 62 AD3d 1127, 1128 [2009]; see

McMahon v Thornton, 69 AD3d 1157, 1160 [2010]). "[A]pplication

of the doctrine requires a clear demarcation of a boundary line

and proof that there is mutual acquiescence to the boundary by

the parties such that it is definitely and equally known,

understood and settled" (Jakubowicz v Solomon, 107 AD3d 852, 853

[2013] [internal quotation marks and citations omitted]).

Here, plaintiff testified that he built his residence on

the now disputed portion of his property in the late 1970s, with

both the assistance and acquiescence of Gibbs and Laight, and has

occupied the home on a weekend basis ever since that time. 

Additionally, plaintiff testified that he dug the shared upper

pond with Laight in the early 1980s and thereafter constructed

the lower pond on what he understood to be his property.3 

Plaintiff further testified that, when the original parcel was

formally subdivided in 1997, "[e]verybody knew where their

property boundaries were. . . . [A]nd even after the Laights sold

their property, it was the same deal with the new people that

moved in."4 As a result of this mutual understanding, plaintiff

testified, his residence, bird houses, fire pit, lower pond and

one half of the upper pond all were located upon his property.

Although the Cassavaw survey relied upon by defendants

purports to locate both ponds and plaintiff's residence within

the western border of defendants' property, defendant Ralph

Porath testified that his immediate predecessor in title, Elwood

Hodge, advised him – prior to purchasing the former Laight parcel

– that the common boundary line with plaintiff ran "somewhere

through the [upper] pond." Additionally, shortly after

3 Notably, Gibbs confirmed that the upper pond divided the

parcels occupied by plaintiff and Laight.

4 The term "new people" is an apparent reference to

defendants' predecessors in title.
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purchasing the parcel, Porath had two conversations with

plaintiff, wherein either their common boundary line or the

ownership of the respective ponds was discussed. Porath first

testified that approximately two weeks after he purchased his

property, he and plaintiff were standing near the upper pond –

facing toward the river – when he asked plaintiff where the

property line was located. As described by Porath, plaintiff

"stretched [out] his arm" and said, "Right down the middle . . .

[a]ll the way down the middle to the river." After moving in,

Porath again approached plaintiff, this time inquiring as to

plaintiff's willingness to share the cost of reviving the upper

pond (arguably a tacit admission of the shared ownership), which

had fallen into disrepair. According to Porath, plaintiff was

not interested in expending funds to fix the upper pond, but he

did offer to repair the lower pond, which plaintiff indicated

belonged to him, if Porath wanted to repair the upper pond. In

response, Porath hired a contractor and rebuilt the upper pond. 

At some point thereafter, Porath obtained the Cassavaw survey and

began clearing the area around the lower pond.

The foregoing testimony, in our view, is more than

sufficient to demonstrate a mutual understanding and acquiescence

as to the practical location of the boundary line existing

between plaintiff's and defendants' respective parcels. 

Accordingly, we have no quarrel with Supreme Court's decision to

fix the location of such boundary as set forth on the Langdon

survey map. Although the practical location of that boundary

line indeed results in defendants obtaining less – and plaintiff

obtaining more – land than described in their respective deeds

(approximately .87 acres), "quantity is [t]he least reliable of

all descriptive particulars" (Lougaris v Spilio, 204 AD2d 775,

776 [1994] [internal quotation marks and citation omitted]) and,

in this particular case, this discrepancy is insufficient to

overcome the uncontroverted evidence in the record relative to

the intent of the parties at the time of the original conveyance. 

In light of this conclusion, we need not address plaintiff's

alternative claim sounding in adverse possession.

Of the remaining arguments raised by defendants, only

Supreme Court's award of damages merits discussion. Plaintiff

offered the testimony of Aaron Stark, an excavation contractor,
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and Herbert Boyce, a consulting forester, to establish the damage

done or remediation required with respect to the subject ponds

and surrounding property. Stark testified that, upon his

inspection, both ponds were essentially stagnant and that

approximately 175 feet of the roadway connecting the upper and

lower ponds was eroded and in need of repair. Specifically, with

respect to the ponds, Stark testified that the four-inch pipes

previously installed would need to be plugged or removed, that a

spillway would need to installed for each pond and that a certain

amount of backfill would be required. When combined with the

estimated repairs to the roadway, the total cost of the required

remediation would be $8,621.16. Stark's trial testimony,

however, fails to allocate or break down the cost of the repairs,

and the Langdon survey – as adopted by Supreme Court in fixing

the practical location of the parties' common boundary – depicts

a large portion of the upper pond and the roadway in question as

belonging to defendants. As defendants surely cannot be held

accountable for damaging property that they actually own,

awarding the entire cost of the foregoing repairs to plaintiff as

damages is inappropriate.

As for the tree removal performed by defendants' contractor

in the vicinity of the lower pond, Boyce calculated the "acreage

of rehabilitation" to be approximately .13 acres and estimated

the cost of reforesting that area to be $31,680.40. However, it

appears from both Boyce's trial testimony and his written report

that the acreage of rehabilitation includes the pond itself. 

Indeed, Boyce's report sets forth the estimated cost "[t]o

reforest the area that was harvested and turned into a cleared

area and pond" (emphasis added), and he acknowledged at trial

that, if there was a preexisting pond at that location, he would

have to reduce the overall acreage calculation by the area of the

pond itself, the latter of which he did not measure. As there is

no question that the lower pond – although subsequently overgrown

– indeed previously existed, Boyce's reforestation estimate

appears to be inaccurate – particularly in light of plaintiff's

acknowledgment that, when defendants' contractor cleared trees

and vegetation from that area, he cleared to roughly the same

point that plaintiff had cleared when the lower pond was first

constructed in the late 1970s.
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Beyond the apparent inaccuracies and/or lack of specificity

in the estimates provided by Stark and Boyce, it strikes us that

plaintiff, who testified that he did not use the lower pond after

it "blew out" in the late 1980s or early 1990s, is entitled to

either the cost of restoring that pond to a sustainable body of

water or the cost of having the area surrounding the lower pond,

which was cleared by defendants' contractor, reforested. 

Defendants should not, however, have to bear the cost of

rebuilding the pond and reforesting the very area that plaintiff

himself cleared when constructing the lower pond in the first

instance. Accordingly, Supreme Court's judgment is modified, and

this matter is remitted for a redetermination as to damages. 

Defendants' remaining contentions, to the extent not specifically

addressed, have been examined and found to be lacking in merit.

McCarthy, J.P., Rose, Devine and Clark, JJ., concur.

ORDERED that the judgment is modified, on the law, without

costs, by reversing so much thereof as awarded plaintiff damages

in the amount of $40,301.56; matter remitted to the Supreme Court

for further proceedings not inconsistent with this Court's

decision; and, as so modified, affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court