                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: October 16, 2014                     517600
________________________________

ROBERT E. KENNEDY,
                      Appellant,
     v                                        MEMORANDUM AND ORDER

JOHN M. NIMONS et al.,
                    Respondents.
________________________________


Calendar Date:   September 4, 2014

Before:   Peters, P.J., Stein, Garry, Lynch and Devine, JJ.

                               __________


      Murphy, Burns, Barber & Murphy, Albany (Peter G. Barber of
counsel), for appellant.

     Douglas J. Rose, Pittsfield, Massachusetts, for respondent.

                               __________


Lynch, J.

      Appeal from an order of the Supreme Court (Zwack, J.),
entered July 3, 2013 in Rensselaer County, which, among other
things, denied plaintiff's cross motion for summary judgment.

      Plaintiff commenced this action pursuant to RPAPL article
15 seeking to establish the western boundary line of his property
pursuant to a 2010 survey prepared by a licensed surveyor, Henry
Whitbeck, as subsequently amended in 2012. Defendants answered
and counterclaimed asserting that plaintiff had encroached on
their property, as reflected in the 2008 survey of Rodney
Michael, also a licensed surveyor. Defendants moved for partial
summary judgment on the issue of the location of the boundary
line, and plaintiff opposed and cross-moved for summary judgment
seeking a declaration as to the location of the boundary line.
Finding that defendants established the boundary line pursuant to
                              -2-                517600

the 2008 Michael survey, Supreme Court nonetheless denied both
motions, finding that plaintiff raised questions of fact as to
whether the boundary line had been changed through adverse
possession. Plaintiff now appeals.

      We affirm, although for reasons other than as stated by
Supreme Court. In a boundary line dispute, "deeds must be
construed in accordance with the parties' intent and extrinsic
evidence is admissible to clarify any ambiguities. Further,
references to natural landmarks and artificial monuments take
precedence over metes and bounds descriptions" (Mohonk Preserve,
Inc. v Ullrich, 119 AD3d 1130, 1131 [2014] [internal quotation
marks and citations omitted]). As the moving party, defendants
bore the initial burden of presenting competent admissible
evidence demonstrating the absence of any triable issue of fact
as to the location of the boundary line (see Quinn v Depew, 63
AD3d 1425, 1428 [2009]). To do so, defendants relied upon the
2008 survey and supporting affidavits of Michael delineating the
western boundary line. Interestingly, Michael first identified
the boundaries of plaintiff's property in 1981, at the request of
plaintiff's father and predecessor in title, who passed away in
1996. Although he did not prepare an actual survey in 1981,
Michael stated that he performed a field survey and set the four
corners of plaintiff's property following the description in a
1794 deed. Michael maintained that his location of the western
boundary line was consistent with a 1944 survey prepared by A.F.
King for a parcel now owned by defendants along plaintiff's
western border and a 2002 survey prepared for plaintiff by
another licensed surveyor, David Dickinson. Michael also
explained that he performed work for defendants' predecessors in
title in 1984 and 1995, reaffirming his findings from 1981. This
proof was sufficient to demonstrate that the western boundary
line of plaintiff's property was as delineated in Michael's 2008
survey map, thereby shifting the burden of proof to plaintiff to
show otherwise (id. at 1428-1429).

      In opposition to defendants' motion and in support of his
cross motion for summary judgment, plaintiff submitted the
affidavits and survey of Whitbeck. After performing a deed
search and field survey, Whitbeck located plaintiff's property
further west than Michael to the Pennroyal Lane bridge culvert in
                              -3-                517600

the northwest corner and to a pipe in a stone pile in the
southwest corner, adding more than two acres to the parcel than
included in the Michael survey. Whitbeck challenged the accuracy
of the Michael survey by pointing to Michael's own 1981 letter
explaining that there was a "mathematical, lineal error of
closure of 63.71 feet" and that there was "an apparent hiatus" in
the northwest corner of plaintiff's property. Whitbeck asserted
that Michael relied on an erroneous deed description that
transposed the western boundary line from "twenty four chains and
eighty links" to "twenty four chains and eight links," a
difference of 34.21 feet. Whitbeck also maintained that Michael
failed to account for field evidence, including angled rock walls
and a wire sheep fence in the northwest corner, and a stone wall
south of and perpendicular to Pennroyal Lane that ends at the
property line shown on Whitbeck's survey. Moreover, as Whitbeck
points out, Michael disregarded the fact that Dickinson amended
his 2002 survey in 2006 by adding what Dickinson certified as an
"area in question" of 2.03 acres along the western boundary.
Neither party submitted an affidavit from Dickinson.

      Through this expert evidence, plaintiff met his burden of
raising a question of fact as to the location of the boundary
line between his property and defendants' property (compare
Lavine v Town of Lake Luzerne, 296 AD2d 793 [2002], lv denied 99
NY2d 501 [2002]; City of Binghamton v T & K Communications Sys.,
290 AD2d 797, 799 [2002], lv dismissed 98 NY2d 685 [2002]).
However, since Michael countered that Whitbeck's survey was
fundamentally flawed, neither party established a basis for
summary judgment. Michael explained that the "pipe in the stone
pile" is not an identified monument in plaintiff's deed and
actually marked the northwest corner of property adjacent to and
south of plaintiff's property, not the southwest corner of
plaintiff's property. Michael further countered that his survey
comported with a "compilation of deeds" survey and accurately
accounted for the evidence in the field. Given this divergent
expert evidence, factual issues have been presented as to the
location of the western boundary that necessitate resolution at
trial.

      We also reject plaintiff's contention that Supreme Court
should have granted his cross motion for summary judgment based
                                -4-                517600

on the doctrine of practical location.1 By this doctrine, "'[a]
practical location of a boundary line and an acquiescence therein
for more than the statutory period is conclusive of the location
of such boundary . . . although such line may not in fact be the
true line according to the calls of the deeds of the adjoining
owners'" (Hazen v Hazen, 26 AD3d 696, 697-698 [2006], quoting
Fisher v MacVean, 25 AD2d 575, 575 [1966]). For the doctrine to
apply, there must be "a clear demarcation of a boundary line and
proof that there is a mutual acquiescence to the boundary by the
parties such that it is 'definitely and equally known, understood
and settled'" (McMahon v Thornton, 69 AD3d 1157, 1160 [2010],
quoting Robert v Shaul, 62 AD3d 1127, 1128 [2009]). Although
plaintiff submitted proof that his family used the disputed area
for decades as part of their goat farm, the evidence falls short
in establishing as a matter of law that the parties mutually
agreed upon a defined boundary line (compare Kaneb v Lamay, 58
AD3d 1097 [2009], lv denied 12 NY3d 709 [2009]). The fact that
defendants' caretaker agreed that Whitbeck's boundary line was
accurate does not establish that defendants' predecessors in
title mutually agreed to that boundary. For the reasons set
forth above, plaintiff's cross motion was properly denied.

        Peters, P.J., Stein, Garry and Devine, JJ., concur.




    1
        While defendants failed to preserve the argument that
plaintiff was precluded from asserting inconsistent positions on
his cross motion, given that plaintiff cross-moved for summary
judgment declaring the location of the boundary line and that the
boundary line may also be determined via the practical location
doctrine, plaintiff did not pursue inconsistent theories of
recovery.
                        -5-                  517600

ORDERED that the order is affirmed, with costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
