Does a claimant establish title by adverse possession of unenclosed land where he cannot show, by clear and positive proof, that the whole premises claimed were actually cultivated or improved under a claim of title hostile to the true owner?

Plaintiffs purchased four unimproved, roughly triangular building lots (19-22, block 54, Yonkers) from the city of Yonkers by deed dated April 14, 1947. Defendants William Lutz and his wife had owned adjoining lots 14 and 15, fronting on Leroy Avenue, since 1912; their lots bounded plaintiffs' lot 19 at the rear. The subdivision land had been covered with wild brush and small trees. Lutz claimed title to the four lots by adverse possession for over thirty years. There was no substantial inclosure. Lutz had cultivated a garden and supplied neighbors with vegetables, but the proof did not show the garden used the whole premises, and the location and boundaries of the cultivated area were undefined. He built a small shed (about 5 by 10 1/2 feet) around 1923 on the premises, about 14 feet from his boundary line, knowing it was not on his land. He built a garage extending a few inches over the boundary, believing he was building on his own property. He also placed a portable chicken coop, cut brush and some trees, and littered the property with salvage, junk and debris. In a separate easement action, Lutz v. Van Valkenburgh, 274 App. Div. 813, Lutz litigated and won an easement by adverse possession over a traveled way crossing the premises, in the course of which he conceded plaintiffs' legal title to the premises.

Plaintiffs brought consolidated actions to compel removal of encroachments, for possession, and incidental relief. Defendants answered with a general denial and pleaded adverse possession as an affirmative defense and counterclaim. The case was tried before an Official Referee, who found that title was perfected in William Lutz by adverse possession by 1935 and entered judgment for defendants. The Appellate Division, Second Department, affirmed without opinion, with one Justice dissenting on the ground that the evidence was insufficient to establish adverse possession. The Court of Appeals granted review.

(Dye, J.)

No. The proof failed to establish adverse possession.

Title by adverse possession not founded on a written instrument requires clear and convincing proof of actual occupation under a claim of title for the statutory period (formerly twenty years, then fifteen). Only premises actually occupied, and no others, are deemed held adversely (Civ. Prac. Act, §§ 34, 38, 39). Actual occupation requires either a substantial inclosure or premises usually cultivated or improved (Civ. Prac. Act, § 40). Concededly there was no inclosure, so the question is cultivation or improvement.

The proof did not show that the garden used the whole of the premises claimed. That gap cannot be filled by inferring that cultivation of a smaller area with undefined boundaries and an uncertain location must have been substantial because neighbors were supplied with vegetables. That inference is speculation. The statute limits adverse holding to premises actually occupied, which requires definition by clear and positive proof (St. William's Church v. People, 296 N. Y. 861).

Improvement was not shown either. The occupation must be under a claim of title, meaning hostile (Belotti v. Bickhardt, 228 N. Y. 296); without hostility, no length of occupation bars the legal title (Doherty v. Matsell, 119 N. Y. 646; La Frombois v. Jackson, 8 Cow. 589; Colvin v. Burnet, 17 Wend. 564). Lutz knew the shed was not on his land and thought the garage was on his own property, so neither was built under a hostile claim of title. The portable coop, brush cutting, and accumulated junk and debris cannot be an occupation by improvement.

Lutz's later conduct confirms the absence of a claim of title. In the earlier easement action he conceded plaintiffs' legal title to establish his easement by adverse possession, won that judgment, and cannot now disavow it. Declarations against interest by a prescriptive tenant are admissible on his intent (6 Wigmore on Evidence, § 1778). The disseisin-by-oral-disclaimer question is not reached because actual occupation sufficient to establish title was not proven. The judgments are reversed, the counterclaim dismissed, and judgment directed for plaintiff Van Valkenburgh, subject to the existing easement.

Dissent (Fuld, J., joined by Loughran, Ch. J., and Desmond, J.) The weight of evidence supports the Referee's finding, and in any event some evidence shows Lutz occupied the premises for fifteen years under a claim of title, which compels affirmance; the Court's review is limited to questions of law (N. Y. Const., art. VI, § 7). Lutz cleared the wild land, ran a truck farm of substantial size from 1916 until his death in 1948, planted crops yearly, raised chickens and built coops, planted fruit trees, cut timber, and built a dwelling in 1920 where his brother lived. Witnesses testified that nearly all of the four lots was cultivated, and Lutz marked the boundary with a row of logs and brush; neighbors knew it as 'Mr. Lutz's gardens.' A claim of title may be made by acts alone (Barnes v. Light, 116 N. Y. 34). Knowledge that record title lies elsewhere is irrelevant if the occupant intends to hold as owner (Ramapo Mfg. Co. v. Mapes, 216 N. Y. 362). The statute does not require cultivation of every foot; it requires acts usual in the ordinary cultivation of similar lands by thrifty owners. A 1947 admission made after title vested in 1935 is merely evidence of the character of earlier possession, not a divestiture, since title once vested can pass only by a formal transfer. The Referee permissibly weighed it against the proof of Lutz's continual acts of dominion.