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TALMAGE v. RONALD ALTMAN TRUST

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK


December 30, 1994

ALBERT H. TALMAGE, Plaintiff, against RONALD ALTMAN TRUST, et al., Defendants.

The opinion of the court was delivered by: LEONARD D. WEXLER

MEMORANDUM AND ORDER

 WEXLER, District Judge

 Plaintiff Albert H. Talmage brings this diversity action to determine, pursuant to Article 15 of New York's Real Property Actions and Proceedings Law ("RPAPL"), his claim to certain real property located in the Hamlet of Bridgehampton, Town of Southampton, Suffolk County, New York (the "Subject Property"). *fn1" The answering defendants claim to be owners or mortgagees of certain lots and common areas comprising the Subject Property. Presently before the Court are motions by various of the answering defendants for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, to dismiss the amended complaint and to determine that these defendants have lawful titles and interests in the Subject Property based on adverse possession. *fn2" For the reasons below, the motions are granted.

 I. BACKGROUND

 In his amended complaint and in opposition to defendants' motions, plaintiff claims he derived title to property situated at the location of the Subject Property *fn3" through Charles A. Pierson ("Pierson"), an alleged former owner of the property. Defendants maintain that the property to which plaintiff claims title (the "Pierson Property") bordered but did not overlap the Subject Property, and, therefore, neither plaintiff nor those he claims are his predecessors in interest ever held title to any part or portion of the Subject Property. Defendants maintain further that Pierson conveyed the Pierson Property prior to his death, and, therefore, plaintiff could not have inherited that property. Alternatively, the defendant owners assert adverse possession as an affirmative defense and counterclaim claiming that they acquired titles to their respective lots in the Subject Property through adverse possession; as a result, defendants claim the titles and interests of the defendant owners and mortgagees in the Subject Property are free of any claim by plaintiff.

 According to plaintiff, Pierson acquired title to the Pierson Property as grantee of a deed from Edward Hildreth (also referred to as "Edward A. Hildreth") and Harriet Hildreth in 1883. The deed from Edward Hildreth and Harriet Hildreth to Pierson described the property as follows:

 

All that tract and parcel of land situate in said Bridge Hampton, Town of Southampton, containing by estimation twenty-seven acres be the same more or less and bounded North by lands of Oliver Halsey and E. Jones Ludlow, East by lands of said Ludlow and John A. Sandford and James L. Sandford, South by the highway and lands formerly of Lodowick H. Cook and West by lands formerly of said Cook and coming to a point at a large hole of open water in Kellis Pond swamp.

 Amended Complaint P 105; Affidavit of Richard Pellicane in Opposition to Defendants' Motion for Summary Judgment ("Pellicane Aff."), App. A, at 2. According to plaintiff, Edward Hildreth acquired the property from James L. Haines (also referred to as "Haynes") by deed in 1878; Haines had acquired the property from Sarah Ludlow and Albert Ludlow by deed in 1856. As plaintiff claims, the descriptions of the property in the 1883 deed to Pierson, the 1878 deed to Hildreth, and the 1856 deed to Haines are substantially identical. The 1878 deed described the property as follows:

 

North by lands of Oliver Halsey and E. Jones Ludlow East by lands of said Ludlow of John A. Sandford and James L. Sandford, South by the highway and lands formerly of Lodowick H. Cook, and West by lands formerly of said Cook and coming to a point at a large hole of open water in the Killis Pond Swamp . . . .

 Pellicane Aff., App. A, at 1-2 (emphasis omitted). Similarly, the 1856 deed described the property as:

 

Parcel of land situated in Mecox . . . containing Twenty-Seven Acres . . . and bounded . . . North by Lands of Oliver Halsey and Lands formerly of Alvah Halsey deceased and Lands of the said parties of the first part East by Land of said parties of the first part and Lands now or formerly of James Sandford South by the highway and Land of Lodowick H. Cook and West by the Land of Lodowick H. Cook and coming to a point at a large open hole of water in Killis Pond Swamp . . . .

 Id. App. A, at 1 (emphasis omitted).

 Pierson died in 1903. Plaintiff claims that Pierson left the Pierson Property to his widow Ellen C. Pierson and his sister Caroline A. Hildreth, pursuant to a residuary clause in his will, dated January 10, 1885 and admitted to probate in Suffolk County. Amended Complaint P 109. The residuary clause described the property vaguely as:

 

All the rest, residue and remainder of my estate both real and personal, I give devise and bequeath to my Executor hereinafter named in trust to retain the same for a period of four years from and after my decease, and during said period my said executor is to pay to my widow if living the sum of seventy-five dollars per month out of the rents, issues, income and profits thereof, . . . and after the expiration of said period of four years, I hereby direct my said executor to pay over and convey to my said wife if she then be living, one equal half of my said residuary estate and the remaining half to my sister Caroline A. Hildreth . . . .

 Pellicane Aff. P 17 and App. B, at 2 (emphasis omitted). In July 1909, pursuant to Pierson's will, the executor of Pierson's estate, Samuel P. Hildreth, conveyed to Ellen C. Pierson and Caroline A. Hildreth:

 

ALL the land owned by Charles A. Pierson at the time of his decease situate either in the Town of Easthampton or in the town of Southampton, Suffolk County New York which was devised to his Executor in trust by the fifth paragraph of his said will.

 Id. PP 19-20 and App. B, at 1-2. Immediately thereafter, Pierson's widow and Pierson's sister conveyed their interests in this property to George H. Hildreth, Charles A. Hildreth and Samuel P. Hildreth, using the same description of the property as was used in the deed by Samuel P. Hildreth, as executor, to them. Id. P 21 and App. B, at 2; Amended Complaint P 110. By deed recorded in December 1917, Charles A. Hildreth conveyed his interest in the real property to George H. Hildreth. Pellicane Aff. App. B, at 2; Amended Complaint P 111. *fn4" Similarly, by deed recorded in February 1927, Samuel P. Hildreth conveyed his interest in the real property to George H. Hildreth. Pellicane Aff. App. B, at 2; Amended Complaint P 111. *fn5" George H. Hildreth died intestate in 1955, *fn6" and the real property passed in equal shares to his son Samuel Pierson Hildreth and daughters Edna Hildreth Osborne and Hazel Talmage, plaintiff's mother. Pellicane Aff. App. B, at 2; Amended Complaint P 112. Samuel Pierson Hildreth died testate in 1968 and left his interest in the real property to his sister Edna Hildreth Osborne. Pellicane Aff. App. B, at 3; Amended Complaint P 113. Hazel Talmage died testate in 1979 and left her interest in the real property to her husband Albert M. Talmage, plaintiff's father. Pellicane Aff. App. B, at 3; Amended Complaint P 114. Edna Hildreth Osborne died in 1981, and her interests in the real property passed through intestacy to plaintiff. Pellicane Aff. App. B, at 3; Amended Complaint PP 116-18. Albert M. Talmage died testate in 1989, passing his interest in the real property to plaintiff. Pellicane Aff. App. B, at 3; Amended Complaint PP 115. By that point, plaintiff owned the entire interest in the real property traced to Pierson.

 Thereafter, on May 1, 1992, plaintiff commenced this action claiming that the Pierson Property is situated in the location of the Subject Property and claiming title to the Subject Property based on the above chain of title.

 In support of their motions, defendants present voluminous documentary evidence demonstrating that title to the Subject Property, which was a portion of a parcel of real property formerly known as "Cook Farm," *fn7" passed to defendant Ellen C. Hirt, f/k/a Ellen Elizabeth Cook ("Hirt"), in 1965 through wills and probate proceedings originating from Paul Halsey, the alleged owner of Cook Farm as of June 8, 1829. In short, defendants claim that title to Cook Farm passed from Paul Halsey to his son Sylvester Halsey in 1829; from Sylvester Halsey to his nephew Lodowick H. Cook in 1847; from Lodowick H. Cook to his sons Augustus L. Cook and Samuel L. Cook in equal shares in 1876; from Augustus L. Cook and Samuel L. Cook to Augustus L. Cook in 1921; from Augustus L. Cook to his wife Katharine M. Cook in 1931; and from Katharine M. Cook to her daughter Hirt in 1965.

 Documents submitted by defendants show that in 1921 Augustus L. Cook acquired his brother Samuel L. Cook's one-half interest in Cook Farm pursuant to the latter's will, dated June 16, 1919 and admitted to probate in Suffolk County on December 14, 1921. Samuel L. Cook's will provided in relevant part: "I bequeath to my Brother Augustus [L.] Cook, my one-half interest in the farm and homestead which we jointly own at Mecox in the Town of Southampton County of Suffolk State of New York. . . ." Wagner Aff. Exh. 17. According to these records, Samuel P. Hildreth, the executor of Pierson's estate, was the attorney to probate Samuel L. Cook's will. In that proceeding, Samuel P. Hildreth, inter alia, filed the petition for the appointment of an appraiser of Samuel L. Cook's property in the Surrogate's Court, Suffolk County, for estate tax purposes. Id. Exh. 18. Appraisals of Samuel L. Cook's one-half interest in Cook Farm filed in the Surrogate's Court in February 1922, described the property as:

 

An undivided one-half part of farm of fifty acres at Bridgehampton, Suffolk County, New York, bounded northerly by land now or formerly of Oscar Edwards, easterly by Halsey Lane, south by Paul's Lane and westerly by the Pond.

 Id. Exhs. 19, 20.

 These records further show that Samuel P. Hildreth was also the attorney to probate Augustus L. Cook's will in the Surrogate's Court, Suffolk County, following the latter's death in 1931. Pursuant to his will, Augustus L. Cook left his wife "all of the Real Estate of which I shall die possessed to be hers absolutely and forever." Id. Exh. 11. In that proceeding, Edwin H. Pierson and Edwin J. Hildreth filed appraisals in 1932 describing Augustus L. Cook's real property as:

 

All that certain farm situate, lying and being at Bridgehampton, in the Town of Southampton, Suffolk County, New York, bounded northerly by and of Tweyford and Kellis Pond, on the west by land of Harold Rogers, on the south by Pauls Lane and on the east by Halsey Lane, containing fifty-four (54) acres.

 Id. Exh. 13.

 Katharine M. Cook died testate in 1965, and pursuant to a residuary clause in her will, dated November 16, 1943 and admitted to probate in Suffolk County on January 13, 1965, Cook Farm passed to her daughter Hirt. In an affidavit submitted by Hirt, she states that after her father, Augustus L. Cook, died in 1931, her mother "began to give away and sell off portions of the farm," as evidenced by certain of those deeds attached to her affidavit, "because it became difficult for her to pay the taxes on the entire farm." Affidavit of Ellen C. Hirt in Support of Motion for Summary Judgment ("Hirt Aff.") P 7. Consequently, Hirt inherited only those portions of Cook Farm not given away or sold by Katharine M. Cook.

 After she acquired what remained of Cook Farm, Hirt filed two minor subdivision maps for the property and continued to convey to others portions of the property. Id. P 9. The first minor subdivision map, entitled "Minor Subdivision of Property of Ellen C. Hirt," was filed in the Southampton Town Clerk's Office on December 10, 1980 as Minor Subdivision Map No. 500; the second such map entitled, "Revised Minor Subdivision Map of Property of Ellen C. Hirt," was filed in the Southampton Town Clerk's Office on April 1, 1982 as Minor Subdivision Map No. 620. By deed dated March 31, 1982, recorded in the Office of the Suffolk County Clerk on May 4, 1982, Hirt conveyed her remaining interest in the farm to Halsey Lane Investments.

 In December 1983, Halsey Lane Investments filed a major subdivision map for the property entitled "Map of Cook Estates." Thereafter, Halsey Lane Investments developed the Subject Property to residential housing. Defendants submit documents evidencing that the defendant owners derived their titles to certain lots and common areas in the Subject Property through deeds originating from Ellen C. Hirt; and that the defendant mortgagees hold mortgages executed by the defendant owners.

 Hirt states that she was born in 1917 in a house located on Cook Farm at the northwest corner of Paul's Lane and Halsey Lane, where she lived until 1938. Hirt Aff. P 3. After that time, she claims she continued to visit the property on weekends, during vacations, and during visits to relatives. Id. She states that from 1921 to approximately 1982 or 1983, Cook Farm was continuously farmed for potatoes by her father Augustus L. Cook, her uncle Samuel L. Cook, and other farmers who leased it from her father, mother or herself. Id. P 15. Defendants submit a map prepared by John J. Raynor ("Raynor"), a licensed professional engineer and land surveyor, which they claim depicts the outer limits of the agricultural areas appearing on aerial photographs of Cook Farm taken in 1955, 1963, 1972, 1978 and 1984, and demonstrates that substantially all of the Subject Property was in agricultural use (the "Raynor map"). Affidavit of John J. Raynor in Support of Motion for Summary Judgment PP 2-3, 6. Hirt confirms that the limits of the agricultural areas on the Raynor map is consistent with her recollection of the areas of Cook Farm that were farmed during the years in question. Hirt Aff. P 16. She also confirms that she was assessed and paid the taxes on Cook Farm during the period she owned it, i.e. from 1965 to 1982. Id. P 18. Hirt maintains that, to her knowledge, neither plaintiff nor any of his predecessors ever asserted any claim or title to Cook Farm prior to this action; and that neither she nor her predecessors in interest ever sought permission from plaintiff or his predecessors to use the Subject Property. Id. P 19. Hirt claims that she and/or other members of her family are the current owners of several of the lots on the Subject Property. Id. PP 12-14.

 To demonstrate that the Subject Property was the property in defendants' chain of title, not plaintiff's purported chain of title, defendants submit, inter alia, tax records of the Town of Southampton, ancient maps and surveys of the relevant area, a "Boundary Line Agreement," dated November 7, 1979, between Ellen C. Hirt and the owners of the land north of the Subject Property, and documents reflecting the chains of title to properties abutting Cook Farm and/or the Subject Property. These records, according to defendants, uniformly locate Cook Farm in the area of the Subject Property and confirm the ownership of Cook Farm by those in defendants' chain of title, i.e., the Cook and Halsey families. For example, the tax records show that for tax years 1926, 1927, 1929, and 1930 taxes to the Subject Property were assessed to "Augustus L. Cook" or "Aug L. Cook"; for tax years "1937-38" taxes were assessed to "Augustus L. Cook Heirs"; for tax years "1953-54" to "1955-56," "1960-61," "1961-62," and "1963-64" taxes were assessed to "Katherine Cook"; for tax years "1965-66" to "1967-68" and "1969-70" to "1976-77" taxes were assessed (with minor variations in spelling, punctuation or abbreviation) to "Katherine Cook to Ellen C. Hirt"; and for tax years "1977-78" to "1981-82" taxes were assessed to "Hirt, Ellen C."

 In addition, defendants note that the deed to Pierson in 1883 described the borders of the Pierson Property with reference to "lands formerly of Lodowick H. Cook":

 

North by lands of Oliver Halsey and E. Jones Ludlow East by lands of said Ludlow of John A. Sandford and James L. Sandford, South by the highway and lands formerly of Lodowick H. Cook, and West by lands formerly of said Cook and coming to a point at a large hole of open water in the Kill is Pond Swamp . . . .

 Pellicane Aff., App. A, at 2 (emphasis added). The "lands formerly of Lodowick H. Cook," according to defendants, is a reference to Cook Farm, which, in 1876, had been devised by Lodowick H. Cook to his sons, Augustus L. Cook and Samuel L. Cook. The 1856 deed from Sarah Ludlow and Albert Ludlow to Haines similarly referenced the southern and western borders as "Land of Lodowick H. Cook":

 

Parcel of land situated in Mecox . . . containing Twenty-Seven Acres . . . and bounded . . . South by the highway and Land of Lodowick H. Cook and West by the Land of Lodowick H. Cook and coming to a point at a large open hole of water in Killis Pond Swamp . . . .

 Id. App. A, at 1 (emphasis added). Similarly, and consistent with Lodowick H. Cook's devise of Cook Farm to his sons in 1876, the 1878 deed from Haines to Edward Hildreth described those borders as "lands formerly of Lodowick H. Cook":

 

South by the highway and lands formerly of Lodowick H. Cook, and West by lands formerly of said Cook and coming to a point at a large hole of open water in the Killis Pond Swamp . . . .

 Id. App. A, at 1-2 (emphasis added).

 Moreover, defendants urge that it is inconceivable that Samuel P. Hildreth would have acted as attorney to probate Samuel L. Cook's will, which transferred a one-half interest in Cook Farm to the other one-half owner [i.e., Augustus L. Cook], if he and George H. Hildreth were the sole owners of the Subject Property as plaintiff maintains, see Amended Complaint PP 110-11; Wagner Aff. Exh. 95, at 2. Plaintiff offers no explanation for this circumstance. As for conveyances by Pierson prior to his death, defendants attach certified copies of pages from the deed libers for Suffolk County demonstrating that Pierson deeded 26.93 acres of property from October 1886 to January 1891. See Wagner Aff. Exhs. 59, 60, 82, 83, 84 and 92. The dates, grantees and acreage of these deeds were as follows: Date Grantee Acreage October 4, 1886 Mary D. Edwards 3.75 October 4, 1886 Oscar D. Edwards 3.75 August 15, 1987 Edward H. Foster 6 December 20, 1887 George M. King 2 January 9, 1889 George King 4 January 7, 1891 George M. King 7.43

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