                             State of New York
                      Supreme Court, Appellate Division
                         Third Judicial Department
Decided and Entered: October 16, 2014                      517092
________________________________

TERRENCE GIBBS,
                       Respondent,
         v                                     MEMORANDUM AND ORDER

RALPH PORATH et al.,
                    Appellants.
________________________________


Calendar Date:     September 8, 2014

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

                                __________


         Thomas H. McCann, Malone, for appellants.

         John A. Piasecki, Malone, for respondent.

                                __________


Egan Jr., J.

      Appeal from a judgment of the Supreme Court (Demarest, J.),
entered April 25, 2013 in Franklin County, upon a decision of the
court in favor of plaintiff.

      In 1975, plaintiff, Howard Gibbs (plaintiff's brother) and
Robert Laight (plaintiff's brother-in-law) acquired title to
approximately 20 acres of land located in the Town of Chateaugay,
Franklin County. The parcel in question was bounded on the north
by the Chateaugay River and bounded on the south by Healey Road.
Shortly after acquiring the parcel, plaintiff and Laight
constructed residences thereon, with Laight's home lying
generally east of plaintiff's residence.1 Thereafter, in or


     1
        Although Gibbs spent time on the parcel over the years,
installing a driveway and building a shed thereon, he did not
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about 1981 or 1982, plaintiff and Laight constructed a shared
pond near the Healy Road border of their respective parcels
(hereinafter the upper pond). A few years later, plaintiff
constructed another pond on his property near his border with the
Chateaugay River (hereinafter the lower pond).

      In 1997, the brothers and Laight decided to formally
subdivide the parcel. To that end, they retained a Canadian firm
to prepare a general map of the property, which, in turn, was
used to draft the respective deeds. The map, which was not a
formal survey, resulted in plaintiff obtaining what was depicted
as a generally rectangular parcel of land measuring roughly 5.1
acres; Gibbs's parcel, lying to the west of plaintiff's land,
measured approximately 5.94 acres, and Laight's parcel, lying to
the east of plaintiff's land, measured approximately 8.6 acres.
Laight's parcel subsequently changed hands twice before being
conveyed to defendants in April 2009. According to plaintiff, he
and defendants' predecessors in title all understood the location
of the boundary line between the two relevant parcels – an
understanding that resulted in plaintiff's residence, fire pit,
bird houses, a portion of the upper pond and all of the lower
pond lying within plaintiff's parcel.

      After defendants acquired the former Laight parcel, they
retained Kip Cassavaw, a licensed land surveyor, to prepare a
formal survey of their property. According to the Cassavaw
survey, the boundary line between plaintiff's and defendants'
respective parcels extended farther west than previously
believed, resulting in both ponds, plaintiff's garage and
residence and just shy of one acre of plaintiff's land being
depicted as lying entirely within the border of defendants'
property. Prior to and following the receipt of this survey,
defendants began making various changes to the upper and lower
ponds, which included installing certain four-inch pipes and
clearing a number of trees. Plaintiff then hired Timothy
Langdon, also a licensed land surveyor, who ultimately prepared a
survey map that essentially was consistent with plaintiff's


construct his residence upon the property until approximately
2000.
                              -3-                517092

understanding as to the location of his common boundary line with
defendants. The Langdon survey was recorded in the office of the
Franklin County Clerk in August 2010.

      Plaintiff thereafter commenced this action against
defendants seeking, among other things, a declaration attesting
to the validity of the boundary line asserted by him and money
damages for wrongful trespass and the resulting loss of trees and
vegetation. Defendants answered and counterclaimed seeking,
among other things, a declaration that they are the rightful
owners of the disputed acreage. Following a nonjury trial,
Supreme Court – employing the doctrine of practical location –
determined the shared boundary line between plaintiff and
defendants to be as depicted on the Langdon survey and, further,
awarded plaintiff damages in excess of $40,000. This appeal by
defendants ensued.

      As a general proposition, "[d]eeds and surveys indicate
boundary lines by various descriptive elements or 'calls' which
consist mainly of monuments, courses and distances, adjacent
lands and area or quantity" (Thomas v Brown, 145 AD2d 849, 850
[1998]). Here, however, Langdon testified – and our review
confirms – that the subject deeds contain no specific bearings or
directional calls and set forth only the vaguest description of
the intended boundary line between the land originally conveyed
to plaintiff and Laight. Indeed, Langdon opined that the deeds
in question were "so bad" that a boundary line could not be
established absent either a boundary line agreement, which the
parties apparently were unable to forge, or judicial
intervention.2 To that end, where a dispute exists as to the
location of a boundary line, "the intent of the parties existing
at the time of the original conveyance of the disputed property
controls" (Markowski v Ferrari, 174 AD2d 793, 794 [1991], appeal
dismissed 78 NY2d 1061 [1991]; see Thomas v Brown, 145 AD2d at
850). Pursuant to the doctrine of practical location, "the
practical location of a boundary line and an acquiescence of the


    2
        At some point following the completion of Langdon's
survey, plaintiff and Gibbs apparently entered into a boundary
line agreement as to their common border.
                               -4-                517092

parties therein for a period of more than [the statutory period
governing adverse possession] is conclusive of the location of
the boundary line" (Kaneb v Lamay, 58 AD3d 1097, 1098 [2009], lv
denied 12 NY3d 709 [2009] [internal quotation marks and citation
omitted]; accord Robert v Shaul, 62 AD3d 1127, 1128 [2009]; see
McMahon v Thornton, 69 AD3d 1157, 1160 [2010]). "[A]pplication
of the doctrine requires a clear demarcation of a boundary line
and proof that there is mutual acquiescence to the boundary by
the parties such that it is definitely and equally known,
understood and settled" (Jakubowicz v Solomon, 107 AD3d 852, 853
[2013] [internal quotation marks and citations omitted]).

      Here, plaintiff testified that he built his residence on
the now disputed portion of his property in the late 1970s, with
both the assistance and acquiescence of Gibbs and Laight, and has
occupied the home on a weekend basis ever since that time.
Additionally, plaintiff testified that he dug the shared upper
pond with Laight in the early 1980s and thereafter constructed
the lower pond on what he understood to be his property.3
Plaintiff further testified that, when the original parcel was
formally subdivided in 1997, "[e]verybody knew where their
property boundaries were. . . . [A]nd even after the Laights sold
their property, it was the same deal with the new people that
moved in."4 As a result of this mutual understanding, plaintiff
testified, his residence, bird houses, fire pit, lower pond and
one half of the upper pond all were located upon his property.

      Although the Cassavaw survey relied upon by defendants
purports to locate both ponds and plaintiff's residence within
the western border of defendants' property, defendant Ralph
Porath testified that his immediate predecessor in title, Elwood
Hodge, advised him – prior to purchasing the former Laight parcel
– that the common boundary line with plaintiff ran "somewhere
through the [upper] pond." Additionally, shortly after


     3
        Notably, Gibbs confirmed that the upper pond divided the
parcels occupied by plaintiff and Laight.
     4
        The term "new people" is an apparent reference to
defendants' predecessors in title.
                              -5-                517092

purchasing the parcel, Porath had two conversations with
plaintiff, wherein either their common boundary line or the
ownership of the respective ponds was discussed. Porath first
testified that approximately two weeks after he purchased his
property, he and plaintiff were standing near the upper pond –
facing toward the river – when he asked plaintiff where the
property line was located. As described by Porath, plaintiff
"stretched [out] his arm" and said, "Right down the middle . . .
[a]ll the way down the middle to the river." After moving in,
Porath again approached plaintiff, this time inquiring as to
plaintiff's willingness to share the cost of reviving the upper
pond (arguably a tacit admission of the shared ownership), which
had fallen into disrepair. According to Porath, plaintiff was
not interested in expending funds to fix the upper pond, but he
did offer to repair the lower pond, which plaintiff indicated
belonged to him, if Porath wanted to repair the upper pond. In
response, Porath hired a contractor and rebuilt the upper pond.
At some point thereafter, Porath obtained the Cassavaw survey and
began clearing the area around the lower pond.

      The foregoing testimony, in our view, is more than
sufficient to demonstrate a mutual understanding and acquiescence
as to the practical location of the boundary line existing
between plaintiff's and defendants' respective parcels.
Accordingly, we have no quarrel with Supreme Court's decision to
fix the location of such boundary as set forth on the Langdon
survey map. Although the practical location of that boundary
line indeed results in defendants obtaining less – and plaintiff
obtaining more – land than described in their respective deeds
(approximately .87 acres), "quantity is [t]he least reliable of
all descriptive particulars" (Lougaris v Spilio, 204 AD2d 775,
776 [1994] [internal quotation marks and citation omitted]) and,
in this particular case, this discrepancy is insufficient to
overcome the uncontroverted evidence in the record relative to
the intent of the parties at the time of the original conveyance.
In light of this conclusion, we need not address plaintiff's
alternative claim sounding in adverse possession.

      Of the remaining arguments raised by defendants, only
Supreme Court's award of damages merits discussion. Plaintiff
offered the testimony of Aaron Stark, an excavation contractor,
                              -6-                517092

and Herbert Boyce, a consulting forester, to establish the damage
done or remediation required with respect to the subject ponds
and surrounding property. Stark testified that, upon his
inspection, both ponds were essentially stagnant and that
approximately 175 feet of the roadway connecting the upper and
lower ponds was eroded and in need of repair. Specifically, with
respect to the ponds, Stark testified that the four-inch pipes
previously installed would need to be plugged or removed, that a
spillway would need to installed for each pond and that a certain
amount of backfill would be required. When combined with the
estimated repairs to the roadway, the total cost of the required
remediation would be $8,621.16. Stark's trial testimony,
however, fails to allocate or break down the cost of the repairs,
and the Langdon survey – as adopted by Supreme Court in fixing
the practical location of the parties' common boundary – depicts
a large portion of the upper pond and the roadway in question as
belonging to defendants. As defendants surely cannot be held
accountable for damaging property that they actually own,
awarding the entire cost of the foregoing repairs to plaintiff as
damages is inappropriate.

      As for the tree removal performed by defendants' contractor
in the vicinity of the lower pond, Boyce calculated the "acreage
of rehabilitation" to be approximately .13 acres and estimated
the cost of reforesting that area to be $31,680.40. However, it
appears from both Boyce's trial testimony and his written report
that the acreage of rehabilitation includes the pond itself.
Indeed, Boyce's report sets forth the estimated cost "[t]o
reforest the area that was harvested and turned into a cleared
area and pond" (emphasis added), and he acknowledged at trial
that, if there was a preexisting pond at that location, he would
have to reduce the overall acreage calculation by the area of the
pond itself, the latter of which he did not measure. As there is
no question that the lower pond – although subsequently overgrown
– indeed previously existed, Boyce's reforestation estimate
appears to be inaccurate – particularly in light of plaintiff's
acknowledgment that, when defendants' contractor cleared trees
and vegetation from that area, he cleared to roughly the same
point that plaintiff had cleared when the lower pond was first
constructed in the late 1970s.
                              -7-                  517092

      Beyond the apparent inaccuracies and/or lack of specificity
in the estimates provided by Stark and Boyce, it strikes us that
plaintiff, who testified that he did not use the lower pond after
it "blew out" in the late 1980s or early 1990s, is entitled to
either the cost of restoring that pond to a sustainable body of
water or the cost of having the area surrounding the lower pond,
which was cleared by defendants' contractor, reforested.
Defendants should not, however, have to bear the cost of
rebuilding the pond and reforesting the very area that plaintiff
himself cleared when constructing the lower pond in the first
instance. Accordingly, Supreme Court's judgment is modified, and
this matter is remitted for a redetermination as to damages.
Defendants' remaining contentions, to the extent not specifically
addressed, have been examined and found to be lacking in merit.

     McCarthy, J.P., Rose, Devine and Clark, JJ., concur.



      ORDERED that the judgment is modified, on the law, without
costs, by reversing so much thereof as awarded plaintiff damages
in the amount of $40,301.56; matter remitted to the Supreme Court
for further proceedings not inconsistent with this Court's
decision; and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
