                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 22, 2015                   520017
________________________________

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.

                             __________


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.
                              -2-                520017

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.
                               -3-                520017

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]).
                              -4-                520017

[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-quarter-
inch] 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.
                              -6-                  520017

      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
