State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 22, 2015 520017 

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JOSEPH E. LAMM et al.,

Respondents,

v MEMORANDUM AND ORDER

MARGARET M. MAUSER et al.,

Appellants,

et al.,

Defendants.

________________________________

Calendar Date: September 8, 2015

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

__________

Corrigan McCoy and Bush, PLLC, Rensselaer (Scott W. Bush of

counsel), for appellants.

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Egan Jr., J.

Appeal from an order of the Supreme Court (Muller, J.),

entered December 18, 2013 in Essex County, which, among other

things, partially granted plaintiffs' motion for partial summary

judgment.

Plaintiffs commenced this action pursuant to RPAPL article

15 seeking to quiet title to a strip of land characterized as an

unimproved roadway – measuring 50 feet wide and approximately 900

feet long – located in the Town of Elizabethtown, Essex County. 

The land surrounding the roadway originally was owned by Herbert

Thomas and Marion Thomas. Over the course of several years, the

Thomases conveyed various parcels to Harold Lyons and Rita Lyons,

including those identified on the relevant survey map as Parcels

I, II, III and IV and a separate parcel denominated as the "Dr.
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Lyons Cottage Lot" (hereinafter the cottage lot).1 Rita Lyons,

in turn, conveyed the aforementioned parcels to defendants

Margaret M. Mauser and Kristen Smith (hereinafter collectively

referred to as defendants) in 2006. In addition to the noted

transfer, the Thomases also conveyed a parcel – identified as Lot

2 – to their daughter, defendant Marion Auidi who, in 2003,

transferred this lot to plaintiffs. According to the relevant

maps and deeds, the unimproved roadway in question is bordered by

Parcel I and the cottage lot to the east and Parcels II and III,

as well as Lot 2, to the west.

In 2011, plaintiffs commenced this action against, insofar

as is relevant here, defendants and Auidi seeking, among other

things, a declaration that plaintiffs are the owners of the

unimproved roadway. Following joinder of issue, Auidi moved to

dismiss the complaint for failure to state a cause of action, and

plaintiffs cross-moved for, among other things, partial summary

judgment as to their first cause of action and defendants' second

and third affirmative defenses – all of which pertained to

establishing the parties' ownership interests in the roadway. 

Insofar as is relevant here, Supreme Court partially granted

plaintiffs' cross motion, finding, among other things, that

plaintiffs owned "the entire roadbed that is [located] north of

the north[]west corner of the [cottage lot]" as depicted on

survey map No. 2416. As to that portion of the roadway bordering

the cottage lot itself, Supreme Court found that, pursuant to the

terms of the 1959 deed from the Thomases to the Lyonses (and the

map attached thereto), defendants' predecessors in title (and, by

implication, defendants) owned to the center line of the

unimproved roadway "to the north outlet of their semi[]circular

driveway." Hence, as to the portion of the roadway abutting the

cottage lot, Supreme Court concluded that plaintiffs owned only

"the western side of the [roadway] to the center line [there]of." 

1 The western boundary of the cottage lot – measuring

184.05 feet in length – is bisected by a semicircular driveway,

and approximately three quarters of the cottage lot's western

border lies between the northern and southern outlets of this

driveway. 
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Defendants now appeal.2

Although Supreme Court did not expressly accord defendants

any affirmative relief, the court nonetheless essentially

concluded that defendants owned to the center line of the

unimproved roadway from the southwest corner of the cottage lot

to the point where the northern outlet of their driveway

intersected the roadway – a distance encompassing, as noted

previously, approximately three quarters of the length of

defendants' western boundary line. Defendants argue on appeal

that Supreme Court erred in finding that their interest in the

unimproved roadway terminated at the northern outlet of their

driveway, contending instead that they own to the center line of

such roadway insofar as it abuts the entire 184.05 feet of their

western boundary line.3 We agree.

Consistent with the provisions of Real Property Law § 240

(3), "every instrument creating or transferring an estate in real

property must be construed in accordance with the parties'

intent, which is to be gathered from the instrument as a whole

and must be consistent with the rules of law" (Andersen v Mazza,

258 AD2d 726, 727 [1999]). Where, as here, the "lands described

in a conveyance are bounded by a street, highway or road, the

conveyance is deemed to pass title to the center of the abutting

roadway unless the conveyance reflects an intent of the grantor

to limit the grant to the edge of the road" (Town of Lake George

v Landry, 96 AD3d 1220, 1222 [2012] [internal quotation marks and

citation omitted]; accord Margolin v Gatto, 70 AD3d 1014, 1015

2 Plaintiffs did not file a brief or otherwise appear on

this appeal.

3 Although defendants did not cross-move for summary

judgment, they did request that Supreme Court search the record

and determine their ownership interest in the disputed roadway. 

In any event, given that the parties clearly charted a summary

judgment course, this Court may "search the record and grant such

judgment where, as here, the nonmoving party is entitled to

relief as a matter of law" (Johnson v Zelanis, 113 AD3d 899, 901-

902 [2014]).
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[2010]).4 Should the language of the deed evidence "an intent on

the part of the grantor to exclude from his [or her] conveyance

title to the bed of an abutting street, and to limit such title

to the exterior lines thereof," the general presumption "must

yield" (Town of Lake George v Landry, 96 AD3d at 1222 [internal

quotation marks and citation omitted]; see Environmental Props.,

Inc. v SPM Tech, Inc., 48 AD3d 408, 409 [2008]). Here, inasmuch

as the 1959 deed transferring the cottage lot to defendants'

predecessors-in-title conveyed "all right, title and interest 

. . . in and to any streets and roads abutting the . . .

described premises to the center lines thereof," there is no

question that defendants do in fact own to the center line of the

unimproved roadway at issue. The question remaining is whether,

as defendants argue, they own to the center line of the roadway

along the entire 184.05 feet of their western property line or,

as Supreme Court found, only up to the point where the northern

outlet of their driveway intersects that roadway.

Supreme Court based its conclusions in this regard upon the

description of defendants' western boundary line as embodied in

the 1959 cottage lot deed from the Thomases to the Lyonses and

the map attached thereto. This deed describes the western border

of the cottage lot as beginning "at a point in the easterly

bounds of the gravel road known as the Cobble Hill Road near its

northerly extremity where maintenance by the Town Highway

Department ends; said point being marked by a [three-quarterinch] iron reinforcing rod driven into the ground and said point

being the southwest corner of the parcel herein described." 

According to the deed, the property line then runs northeast

"along the easterly bounds of said road and continuing in an 

extension of said bounds and crossing the so-called Deep Hollow

Pond Brook to a point marked by another [three-quarter-inch] iron

rod driven into the ground." The deed then establishes the

northern, eastern and southern boundaries of the cottage lot – as

depicted on the attached map – back "to the point or place of

beginning." The map in question also shows the semicircular

driveway on the parcel; the southern terminus of the driveway

4 The fact that the unimproved roadway is a paper road does

not change this analysis (see Margolin v Gatto, 70 AD3d at 1015).
-5- 520017 

coincides with the southwest corner of the cottage lot, and the

northern terminus, lying approximately three quarters of the

distance along the 184.05 feet comprising the western border of

the cottage lot, coincides with the point at which the Town's

maintenance of Cobble Hill Road apparently ended.

Upon reviewing the language of the deed and the attached

map, we are satisfied that the deed's reference to the point at

which the Town's maintenance of Cobble Hill Road ended is

descriptive rather than restrictive; in other words, the deed's

reference to this point, as well as its recitation regarding the

subsequent extension of "said bounds" across the Deep Hollow Pond

Brook, simply provides landmarks or descriptive reference points

for the 184.05 feet contained between the two iron pins forming

the western border of the cottage lot. To our analysis and

reading, nothing on the face of the deed suggests that

defendants' "right, title and interest . . . in and to any

streets and roads abutting the . . . described premises to the

center lines thereof" is limited in the manner found by Supreme

Court. As it is clear from the record that defendants own to the

center line of the unimproved roadway along the entire 184.05

feet of the western border of their property, they are entitled

to a determination to that effect.

McCarthy, J.P., Rose and Clark, JJ., concur.
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ORDERED that the order is modified, on the law, without

costs, by reversing so much thereof as limited defendants

Margaret M. Mauser and Kristen Smith's ownership interest in an

unimproved roadway to the eastern half of said roadway up to the

northern outlet of the semicircular driveway located on the Dr.

Lyons Cottage Lot; said defendants are granted an ownership

interest in the eastern half of said roadway along the entire

184.05 feet of the western border of the Dr. Lyons Cottage Lot;

and, as so modified, affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court