                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 10, 2014                     517707
________________________________

MOHONK PRESERVE, INC.,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

CHRISTOPHER E. ULLRICH et al.,
                    Appellants.
________________________________


Calendar Date:   June 5, 2014

Before:   Lahtinen, J.P., McCarthy, Rose, Lynch and Devine, JJ.

                             __________


      Graff Law, LLC, Kingston (Sharon A. Graff of counsel), for
appellants.

      Kellar Kellar & Jaiven, Kingston (Paul T. Kellar of
counsel), for respondent.

                             __________


McCarthy, J.

      Appeals (1) from an order of the Supreme Court (Cahill,
J.), entered April 18, 2013 in Ulster County, upon a decision of
the court in favor of plaintiff, and (2) from the judgment
entered thereon.

      Plaintiff is a not-for-profit organization, founded in 1963
as the Mohonk Trust, that exists primarily to protect and manage
land in the Shawangunk Mountains that it holds in trust for the
public. In 1981, defendant Thomas E. Marks and his former wife
purchased a parcel adjoining plaintiff's property. In 2005,
Marks and his current wife, defendant Helen G. Ullrich, who was
by then a co-owner of the parcel, sold that same parcel to
defendants Christopher E. Ullrich and Sarah C. Emond (hereinafter
collectively referred to as the current owners). That same year,
                              -2-                517707

a dispute arose when plaintiff's employees observed that signs
had been removed and trees had been cut near the current owners'
southern and plaintiff's northern boundary. In 2009, plaintiff
commenced this action, pursuant to RPAPL article 15, to, among
other things, establish the boundary line in accordance with a
survey it had commissioned and to obtain a preliminary injunction
prohibiting defendants from trespassing or despoiling its land.
Defendants answered and thereafter presented their own survey.
Although the survey was in substantial agreement with plaintiff's
survey regarding the originally disputed boundary line, it also
depicted that the current owners owned a substantial portion of
property that is northwest of their property as depicted in
plaintiff's survey. According to plaintiff's survey, that
disputed area was on a parcel of land that plaintiff purchased in
2010. Soon after that purchase, an additional conflict arose
surrounding allegations that the current owners had also removed
timber from this disputed portion of land. Thereafter, plaintiff
filed an amended complaint seeking to additionally establish the
boundary lines for its newly-acquired parcel in accordance with
its surveys and to obtain a preliminary injunction to prevent
defendants from entering that parcel. Defendants counterclaimed,
seeking, among other things, to establish the disputed boundary
lines in accordance with their survey. After a nonjury trial,
Supreme Court entered an order and judgment finding that, among
other things, plaintiff's survey was controlling as to the
disputed boundary lines and awarding plaintiff damages for 49
trees cut from its property.1 Defendants now appeal.

      Supreme Court did not err in crediting plaintiff's survey
as establishing the relevant boundary lines. Upon review of a
verdict following a nonjury trial, this Court, while granting
deference to Supreme Court's credibility assessments, has the
authority to independently review the evidence and grant the
judgment that such evidence warrants (see Henshaw v Younes, 101
AD3d 1557, 1560 [2012]; Krol v Eckman, 305 AD2d 709, 710 [2003]).


    1
        Although the order specifies that Supreme Court awarded
damages for 31 trees, the monetary award, as confirmed in the
judgment, indicates that the court actually provided damages for
49 trees.
                              -3-                517707

In an action to quiet title, the plaintiff bears the burden of
proving his or her claim by a preponderance of the evidence (see
Glenn Acres Tree Farm, Inc. v Town of Hartwick Historical Socy.,
Inc., 84 AD3d 1529, 1529-1530 [2011]). In the context of a
boundary dispute, deeds must be construed in accordance with the
parties' intent and extrinsic evidence is admissible to clarify
any ambiguities (see Henshaw v Younes, 101 AD3d at 1559;
Schweitzer v Heppner, 212 AD2d 835, 838 [1995]). Further,
references to "'natural landmarks and artificial monuments take
precedence over mere metes and bounds descriptions'" (Brown v
Ames, 290 AD2d 693, 694 [2002], quoting Zelnik Realty v York, 170
AD2d 926, 928 [1991]).

      Initially, we agree with both parties' concessions at trial
that, despite consideration of over 150 deeds, some stretching
back into the 1700s, independent documentary evidence does not
conclusively establish the disputed boundary lines. Accordingly,
the record before us illustrates that each parties' expert
witnesses necessarily relied on incomplete, ambiguous and
sometimes even self-contradictory descriptions of relevant
parcels when they drafted surveys showing the alleged placement
of the disputed boundary lines. Considering this imperfect
documentary evidence, the resolution of the dispute, in large
part, turned on the credibility of each parties' expert
witnesses' testimony in regard to the proposed surveys (see e.g.
Levy v Braley, 176 AD2d 1030, 1032 [1991]).

      Supreme Court made numerous findings that testimony
regarding the production of plaintiff's survey was more credible
than the testimony regarding the production of defendants'
survey. Plaintiff's surveyor, Richard Brooks, testified that the
survey he produced was certified as being in accordance with the
standards of the New York State Licensed Professional Land
Surveyors, and he noted that the most recent draft of the survey
contained notations describing the changes made in each of the
six revisions that he had made to incorporate newly-acquired
information since his original draft in 2006. In contrast, the
surveyor who produced defendants' survey, Rodney Knowlton, did
not testify that his survey was certified to any professional
standards. Even more strikingly, Knowlton acknowledged that he
had created earlier survey drafts, but that he had discarded each
                              -4-                517707

upon Christopher Ullrich's disapproval of the results of those
surveys. Notably, defendants did not provide any additional
evidence that could be reasonably interpreted as clarifying what
revisions were made to defendants' survey or whether they would
generally be accepted as permissible within the professional
surveying community.

      Further, although Knowlton acknowledged that a survey
should depict improvements made to land, he also admitted that
his survey did not contain improvements on portions of the
contested land, such as a driveway, a septic tank, a wellhead and
power utility poles, all of which were noted on plaintiff's
survey.2 In addition, defendants' survey failed to depict
conflicting boundaries as depicted in senior surveys, failed to
depict numerous pieces of hardware and markings left by previous
surveyors and failed to clearly label parcels by their current
owners, all of which, according to various testimony by expert
witnesses for plaintiff, departed from generally accepted
professional practices.

      In addition, Knowlton's credibility was drawn further into
question based on the introduction of certain highly reliable
documentary evidence that contradicted certain of his
conclusions. Multiple witnesses, including Knowlton on cross-
examination, agreed that defendants' survey had omitted a certain
lot by doubling the width of a different lot, a decision that
directly contradicted uncontroverted evidence from a field book
and map dating back to 1793. In addition, despite the fact that
at least 12 deeds in the chain of title for one nearby parcel
called for a boundary line as a ledge of rocks, Knowlton instead
used a stone wall that was never mentioned in any deed for the
parcel as marking that boundary line. Not only did Knowlton
ignore the repeatedly noted landmark for this boundary line, but
he did so despite the fact that use of the ledge boundary line
was relatively consistent with the purported acreage of the


    2
        Although not germane to the instant discussion, the
visibility of improvements was relevant to the issue at trial of
whether plaintiff, in any event, had established ownership of
disputed portions of land by adverse possession.
                              -5-                517707

parcel contained in various deeds, whereas use of the stone wall
decreased the acreage of the parcel by over a quarter from such
purported acreage.

      Moreover, defendants failed to provide an adequate account
of how evidence relating to the current owners' chain of title
fit into Knowlton's depiction of their property. Although
acreage is not necessarily a compelling factor on its own, none
of defendants' expert witnesses provided a reasonable explanation
for the significant discrepancy between the acreage provided for
in the current owners' deed and the acreage that defendants'
survey attributed to the current owners, which was over four
times greater than that described in the deed. Given the
additional evidence that defendants' survey depicted multiple
parcels as also significantly departing from the acreage
described in respective deeds, it is appropriate to consider the
failure of defense witnesses to adequately explain how such
widespread errors would have remained uncorrected in later deeds
and surveys (see Levy v Braley, 176 AD2d at 1033).

      Finally, Supreme Court properly rejected defendants'
central contention that a defect in plaintiff's survey caused it
to place various parcels approximately 660 feet too far to the
south. As to this point, both parties opined as to the location
of the Benjamin Freer lot, a parcel of land eventually acquired
by plaintiff and which bordered the current owners' parcel to the
north. An 1837 deed describing the lot provides for an eastern
boundary along a road that, as it travels north, bends eastward.
While plaintiff's survey places the Freer parcel's eastern
boundary along a point in the road that contains a bend
substantially similar to the 1837 description, defendants' survey
placed the Freer lot further north along the same road at a point
that, as Knowlton conceded, does not match the described
curvature. In light of this evidence, and providing deference to
Supreme Court's assessments of the various experts' credibility,
the court's finding that plaintiff's survey established the
disputed boundary lines was warranted (see Leitch v Jackson, 243
AD2d 873, 874 [1997]; Schweitzer v Heppner, 212 AD2d at 839;
Stratton v Keefe, 191 AD2d 871, 873 [1993]; Fletcher v Flacke, 97
AD2d 623, 623-624 [1983]).
                                -6-                517707

      However, Supreme Court erred in awarding damages to
plaintiffs for trees cut by Christopher Ullrich in 2005. Under
RPAPL 861, an owner may recover treble the stumpage value of a
tree, $250 per tree or both when, without the owner's consent,
any person cuts or removes a tree from the owner's land. CPLR
214 (4) provides that an action to recover damages for injury to
property is subject to a three-year statute of limitations (see
Mandel v Estate of Frank L. Tiffany, 263 AD2d 827, 829 [1999]).3
Here, evidence was presented that Christopher Ullrich admitted to
cutting 31 trees in 2005, all later determined to be within
plaintiff's parcel. As this case was commenced in 2009, the
cause of action with respect to the 31 trees was time-barred. On
the other hand, the cause of action seeking damages for the trees
that were cut in 2010 is not time-barred. Considering the
testimony from an employee of plaintiff that he determined that
the 18 trees were cut after plaintiff acquired ownership of the
parcel in 2010 and that Christopher Ullrich had admitted to
cutting those trees, we see no reason to disturb that portion of
Supreme Court's determination.

      Defendants' remaining contentions are rendered academic by
this decision.

        Lahtinen, J.P., Rose, Lynch and Devine, JJ., concur.




    3
        To the extent that Ton-Da-Lay, Ltd. v Friedman (75 AD2d
976, 977 [1980]) asserts that RPAPL 861 claims are subject to a
six-year statute of limitations, it should not be followed.
                              -7-                  517707

      ORDERED that the order and judgment are modified, on the
law, without costs, by reducing the damages that defendants owe
to plaintiff for cut trees to $4,500, and, as so modified,
affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
