Real Property Law

Summary Judgment Denied on Claim of Title to Bulkhead

Gowanus Industrial Park, Inc. v. Amerada Hess Corp.

NYLJ 9/16/03, p. 29, col. 5

U.S.District Court, E.D.N.Y.

(Glasser J.)

In an action by Gowanus Industrial Park (GIP) for a declaration that it owns a portion of the Henry Street Basin on which Amerada Hess (Hess) has maintained a bulkhead, both parties moved for summary judgment. The court held that GIP had established no title to the disputed portion of the Henry Street basin, that Hess placed the bulkhead on the wrong side of the property line, and that Hess was not entitled to summary judgment on its claim that it had established a right to use the bulkhead through the doctrine of acquiescence.

In 1942, a company that has since become a wholly owned subsidiary of Hess acquired land along the eastern side of the Henry Street Basin. Title extended to the bulkhead line. The Henry Street basin, on the other side of the bulkhead line, was then owned by the State of New York. Two years later, however, the state legislature transferred title to the Port Authority of New York, subject to a restriction prohibiting conveyance of title to any person or legal entity other than the state, and providing that if the Port Authority violated the condition, then, at the option of the state, the pier properties would revert to the state. In 1997, the Port Authority sold the Henry Street basin to GIP by quitclaim deed after obtaining a letter from an official at the state Department of Transportation (DOT) waiving the state's option to have the property revert to the state.

The disputed bulkhead has been used and maintained by Hess for decades, but the bulkhead lies beyond the bulkhead line adjacent to the Hess parcel, and squarely within the Henry Street Basin. Nevertheless, Hess renovated the bulkhead in the 1980s after the Army Corps of Engineers notified Hess of deterioration and recommended repairs. The Corps issued a permit for the repairs. In this action, however, GIP sought to establish an exclusive right to use the bulkhead.

In denying summary judgment to GIP, the court held that the 1997 transfer was ineffective to transfer title to GIP because of the terms of the 1944 grant from the state legislature to the Port Authority. The court held that the DOT did not have authority to release the state's reversionary interest, and that in any event, even if the release of the state's interest were valid, the state's conveyance independently denied the Port Authority power to convey title to any entity other than the state. At the same time, the court denied summary judgment to Hess on its claim that it had acquired title to the bulkhead through application of the doctrine of acquiescence. The court noted that the doctrine requires proof that both neighboring owners acquiesced to a particular boundary line, and in this case, there was no indication that the Port Authority had acquiesced.

COMMENT

When adjoining property owners demonstrate by an extended pattern of behavior that they have changed the boundary between their lots, the doctrine of acquiescence, or “practical location,” precludes either owner from asserting the original boundary. The aim of this doctrine is one of repose; a determination not to disturb established and agreed-upon boundaries serves a strong societal interest in stability of property ownership.

When both parties have consented to a boundary with knowledge of the fact that it is not the original boundary, courts hold that the parties' acquiescence establishes a new boundary. Thus, in Sarfaty v. Evangelist, 142 A.D.2d 995, Sarfaty had filed permit applications describing the boundary line exactly where his neighbor Evangelist claimed it should be, and when Evangelist's predecessor had directed Sarfaty to be sure he built his garage on his side of that line, Sarfaty complied. When Sarfaty later contended that the boundary was elsewhere, the court held that the parties' bilateral behavior provided “conclusive evidence” of the true boundary. In Baldwin v. Brown, 16 N.Y. 359, the court held that strong evidence of assent even overcomes mutual mistake. The parties had built a fence along a line, occupied and cultivated their land up to that line, and even jointly moved parts of the fence over the years for the purpose of cleaning up hedges. Yet both parties' belief that this line represented the original boundary was incorrect, because a surveyor had located it in the wrong place. The court viewed their behavior over more than forty years as conclusive that the new boundary was the “true” boundary, making evidence of the original immaterial.

When the mistaken boundary is set by unilateral action of one of the parties, courts are much less likely to invoke the doctrine of acquiescence, even if no one has objected to the mistake for a long period of time. Thus, in Mazzucco v. Eastman, 36 Misc.2d 648, the court held that awareness of a fence traversing the new boundary is not sufficient to show acquiescence. The court acknowledged that Mazzucco had seen the fence constructed by Eastman, but focused on the absence of evidence that Mazzucco knew the fence was improperly located, or knew that there was a dispute as to the property line. The holding presumes that no landowner will have notice of the exact size of his property from a mere visual inspection, which is perhaps particularly true when there is a fence that he will assume represents the proper boundary. See also Hadix v. Schmelzer, 186 A.D.2d 239 (plaintiffs' destruction of defendants' fence clearly showed lack of assent).

Summary Judgment Denied on Claim of Title to Bulkhead

Gowanus Industrial Park, Inc. v. Amerada Hess Corp.

NYLJ 9/16/03, p. 29, col. 5

U.S.District Court, E.D.N.Y.

(Glasser J.)

In an action by Gowanus Industrial Park (GIP) for a declaration that it owns a portion of the Henry Street Basin on which Amerada Hess (Hess) has maintained a bulkhead, both parties moved for summary judgment. The court held that GIP had established no title to the disputed portion of the Henry Street basin, that Hess placed the bulkhead on the wrong side of the property line, and that Hess was not entitled to summary judgment on its claim that it had established a right to use the bulkhead through the doctrine of acquiescence.

In 1942, a company that has since become a wholly owned subsidiary of Hess acquired land along the eastern side of the Henry Street Basin. Title extended to the bulkhead line. The Henry Street basin, on the other side of the bulkhead line, was then owned by the State of New York. Two years later, however, the state legislature transferred title to the Port Authority of New York, subject to a restriction prohibiting conveyance of title to any person or legal entity other than the state, and providing that if the Port Authority violated the condition, then, at the option of the state, the pier properties would revert to the state. In 1997, the Port Authority sold the Henry Street basin to GIP by quitclaim deed after obtaining a letter from an official at the state Department of Transportation (DOT) waiving the state's option to have the property revert to the state.

The disputed bulkhead has been used and maintained by Hess for decades, but the bulkhead lies beyond the bulkhead line adjacent to the Hess parcel, and squarely within the Henry Street Basin. Nevertheless, Hess renovated the bulkhead in the 1980s after the Army Corps of Engineers notified Hess of deterioration and recommended repairs. The Corps issued a permit for the repairs. In this action, however, GIP sought to establish an exclusive right to use the bulkhead.

In denying summary judgment to GIP, the court held that the 1997 transfer was ineffective to transfer title to GIP because of the terms of the 1944 grant from the state legislature to the Port Authority. The court held that the DOT did not have authority to release the state's reversionary interest, and that in any event, even if the release of the state's interest were valid, the state's conveyance independently denied the Port Authority power to convey title to any entity other than the state. At the same time, the court denied summary judgment to Hess on its claim that it had acquired title to the bulkhead through application of the doctrine of acquiescence. The court noted that the doctrine requires proof that both neighboring owners acquiesced to a particular boundary line, and in this case, there was no indication that the Port Authority had acquiesced.

COMMENT

When adjoining property owners demonstrate by an extended pattern of behavior that they have changed the boundary between their lots, the doctrine of acquiescence, or “practical location,” precludes either owner from asserting the original boundary. The aim of this doctrine is one of repose; a determination not to disturb established and agreed-upon boundaries serves a strong societal interest in stability of property ownership.

When both parties have consented to a boundary with knowledge of the fact that it is not the original boundary, courts hold that the parties' acquiescence establishes a new boundary. Thus, in Sarfaty v. Evangelist, 142 A.D.2d 995, Sarfaty had filed permit applications describing the boundary line exactly where his neighbor Evangelist claimed it should be, and when Evangelist's predecessor had directed Sarfaty to be sure he built his garage on his side of that line, Sarfaty complied. When Sarfaty later contended that the boundary was elsewhere, the court held that the parties' bilateral behavior provided “conclusive evidence” of the true boundary. In Baldwin v. Brown, 16 N.Y. 359, the court held that strong evidence of assent even overcomes mutual mistake. The parties had built a fence along a line, occupied and cultivated their land up to that line, and even jointly moved parts of the fence over the years for the purpose of cleaning up hedges. Yet both parties' belief that this line represented the original boundary was incorrect, because a surveyor had located it in the wrong place. The court viewed their behavior over more than forty years as conclusive that the new boundary was the “true” boundary, making evidence of the original immaterial.

When the mistaken boundary is set by unilateral action of one of the parties, courts are much less likely to invoke the doctrine of acquiescence, even if no one has objected to the mistake for a long period of time. Thus, in Mazzucco v. Eastman, 36 Misc.2d 648, the court held that awareness of a fence traversing the new boundary is not sufficient to show acquiescence. The court acknowledged that Mazzucco had seen the fence constructed by Eastman, but focused on the absence of evidence that Mazzucco knew the fence was improperly located, or knew that there was a dispute as to the property line. The holding presumes that no landowner will have notice of the exact size of his property from a mere visual inspection, which is perhaps particularly true when there is a fence that he will assume represents the proper boundary. See also Hadix v. Schmelzer, 186 A.D.2d 239 (plaintiffs' destruction of defendants' fence clearly showed lack of assent).