it did not collect taxes, it could not establish a claim of right to that property. Conversely, in Hair v. Norman, 389 P.2d 634 (Okla. 1963), the court found that the city's removal of property from the tax rolls evidenced its claim of right to that land.
None of these cases, however, is entirely convincing. In Hamilton, for example, payment of taxes was an express requirement for an adverse possession claim. In Idaho, failure to pay property taxes alone defeats a person's adverse possession action. No such statutory requirement exists under New York law. Further, the fact that removal of a property from the tax rolls, while certainly highly significant to the issue of the city's claim of right in Hair v. Norman, does not mean that tax collection is determinative in all cases.
In their briefs and during oral argument, defendants conceded that taxes were collected on the full acreage owned by the plaintiff. The parcel of land involved in this case comprises 77 acres, of which the landfill occupies approximately 5.5 acres. The Town argued that the continuing collection of taxes was simply "a ministerial, clerical, often automatic function which cannot necessarily be regarded as a knowing admission that someone else has title." Def. Brief at 6. They also argue that the cases cited by plaintiff involve states whose statutes have made payment of taxes an express requirement for an adverse possession claim, not the present situation. More importantly, defendants contend that tax collection is not necessarily determinative but simply one factor to consider, particularly when other circumstances establish a town's adverse possession.
We have discovered no cases in New York which directly address the issue of whether a town's assessment and collection of property taxes necessarily defeats its adverse possession claim to a portion of that property. In 1901, the New York Court of Appeals in Consolidated Ice Co. v. Mayor of New York, 166 N.Y. 92, 59 N.E. 713 (1901), held that evidence of a city's levying of taxes and assessments on a property is not evidence of actual or constructive possession. Id. at 101. This does not mean that a city's tax assessments are not evidence of its claim of right (or lack thereof) to the taxed property. Consolidated Ice simply says that possession is not proven by tax assessments.
After surveying the relevant law in other jurisdictions, we conclude that the payment of taxes by plaintiff is clearly material evidence to the issue of adverse possession. But we do not hold, as plaintiff argues, that it is necessarily determinative as a matter of law. In Lilly v. Palmer, 495 So.2d 522 (Ala. 1986), the Alabama Supreme Court held that "proof of the payment of taxes by either the [adverse possession] claimant or the legal title holder is evidence to be considered in evaluating an adverse possession claim; but, it simply is not determinative on the question of adverse possession." Id. at 527. While noting that payment of taxes in connection with visible acts of ownership may be evidence tending to show claim of ownership, the court stated that "the legal title holder may use proof of his payments of the property taxes to controvert an element of the claimant's prima facie case of adverse possession." Id. at 527 n. 2.
Other courts have similarly held that the payment of property taxes alone is not sufficient to defeat an adverse possession claim. See, e.g., Terry v. City of Independence, 388 S.W.2d 769, 773-74 (Mo. 1965); Northwoods Development Corp. v. Klement, 24 Wisc.2d 387, 394, 129 N.W.2d 121 (1964); Downing v. Bird, 100 So.2d 57, 61 (Fla. 1958); Metropolitan St. Louis Sewer Dist. v. Holloran, 756 S.W.2d 604, 605 (Mo. Ct. App. 1988).
There is no doubt that who pays the property taxes is at least a significant indicator of who owns the property by claim of right. This fact was recognized in such cases as Superior Oil Co. v. Harsh, 126 F.2d 572 (7th Cir. 1942), where the court emphasized that the record title owner of a property on which a school house had been built had always paid the taxes on the whole property, without exception for the land used for the school. Id. at 574. As a result, the court held that defendants could establish no claim of adverse possession. Id.
Plaintiff indisputably paid taxes on his entire property-- all 104 acres--including the land occupied by the Town's dump. Each year the Town accepted his payments, without ever removing any portion of the land from the property tax rolls. It may be that the Town's right hand, its tax collectors, did not know what its left hand, the highway maintenance crews, were doing regarding plaintiff's land. The question is whether these facts alone defeat its adverse possession claim. Under what appears to be the general consensus of other jurisdictions, we think not. Because the adverse possession claimant in the case at bar is the very same entity that levied and collected the taxes on plaintiff's property for some twenty years, the tax payments may take on added evidentiary weight undercutting the defendants' claim of right. However, since payment of taxes is usually treated as only one factual element of an adverse possession claim, we shall not attempt to resolve the adverse possession issue as a matter of law. Plaintiff's motion for summary judgment is denied.
To conclude, we deny the Town's motion for summary judgment in all respect except insofar as plaintiff's are seeking injunctive relief under CERCLA or remediation costs under RCRA. In addition, the Town's motion in limine, the defendants' motion to strike, defendants' motion to dismiss plaintiff's claim of zoning violations, and plaintiff's summary judgment motion are also denied. A conference will be held on March 11, 1993 at 5:15 p.m. to make final arrangements for adding this case to the trial calendar.
Dated: White Plains, New York.
February 9, 1993.
GERARD L. GOETTEL