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Estate of Robert E. Becker v. Owen J. Murtagh

April 3, 2012


The opinion of the court was delivered by: Jones, J.

This opinion is uncorrected and subject to revision before publication in the New York Reports.

The primary question before the Court is whether plaintiff Estate of Robert E. Becker ("plaintiff estate") established that its decedent acquired title to a certain parcel of land by adverse possession. We hold that it has.


This appeal stems from a dispute over the ownership of the land upon which a boardwalk and dock--constructed by Robert E. Becker (now deceased) on Oak Beach in the Town of Babylon (the "Town"), Suffolk County--sit. Plaintiff estate is the lessee of a beachfront lot (Lot 29) on Oak Beach. Defendants are the lessees of Lot 30, an adjacent beachfront lot. Plaintiffs Christopher K. O'Hara, Edward J. O'Hara and Douglas C. Koelsch lease neighboring lots (Lots 14 and 15) which are situated north of (behind) Lots 29 and 30, not on the beachfront. Messrs. O'Hara are lessees of Lot 14, and Mr. Koelsch is the lessee of Lot 15. Lots 14 and 15 are separated from the beach by the homes of plaintiff estate and defendants. The homes on all of the lots involved are privately owned, but the lots are owned by the Town, which leases the real property to the occupants pursuant to long-term leases set to expire in 2050.*fn1

In the early 1960's (around 1963), the homeowners on the beachfront lots, at the Town's behest and at their own cost and expense, had wooden jetties constructed on said lots to inhibit beach erosion. The jetties appeared to be built on the lot boundary lines. Shortly after the construction of the jetty that purportedly marked the boundary line between Lots 29 and 30 (within the next two years), Robert E. Becker erected a four-foot dock using the jetty for support. He later added an extension to an existing boardwalk to reach the dock.

The evidence establishes that from around 1963 until 1984, Mr. Becker exercised exclusive dominion and control over the land upon which the dock and boardwalk extension are located. In addition, during that period, Mr. Becker and defendants' predecessor Nancie Gordon, as well as other neighbors, believed those structures were located on Lot 29. Throughout this period, Mr. Becker alone maintained (e.g., repaired and painted) the dock and boardwalk. Further, starting in the early to mid 1960's, Mr. Becker impliedly permitted several neighbors, including the Gordons, the O'Haras and Mr. Koelsch, and their families and friends, to freely use the dock and boardwalk. However, Mr. Becker did not allow strangers access to or use of these structures. The record also shows that since the early 1960's, Nancie Gordon permitted several neighbors, including the plaintiffs' predecessors, to use her family's beach on Lot 30.

Mr. Becker's boardwalk was used to access the Gordon beach on Lot 30.

In 1984, Nancie Gordon had her property surveyed. The survey indicated that the jetties were misaligned by approximately five feet. She averred in an affidavit that "[a]s a result of that survey, I learned, among other things, that a portion of the boardwalk and the entire dock that Mr. Becker had constructed some years earlier, were actually located on my property. . . . I showed the survey to Mr. Becker, and he and I had a good laugh about it." Nancie Gordon further stated that "[a]s a neighborly accommodation and because I was friendly with the Beckers, I allowed them to continue to use the boardwalk and dock as they always had, even though everybody knew that those structures were located on my property."

In 2004, Nancie Gordon sold her house on lot 30 to defendants and assigned her leasehold interest in that property to them. Defendants subsequently advised plaintiffs (Mr. Becker, Messrs. O'Hara and Mr. Koelsch) they were no longer allowed to use the boardwalk, dock or beach (on lot 30).

In March 2005, plaintiffs commenced this declaratory judgment action. Mr. Becker sought, inter alia, a judgment declaring that he established title by adverse possession to the property on which the boardwalk and dock are located. Mr. Koelsch and Messrs. O'Hara sought, inter alia, a judgment declaring that they acquired an easement by prescription for use of the boardwalk, dock and beach.

In January 2006, Supreme Court issued a preliminary injunction enjoining defendants from interfering with plaintiffs' use of the subject boardwalk, dock and beach. A few months later, in May 2006, Mr. Becker recorded two easements with the Suffolk County Clerk by which he purported to grant to the other plaintiffs the right to use the boardwalk and dock in order to access the beach on lot 30. In or around August 2006, defendants answered plaintiffs' complaint and interposed counterclaims seeking a judgment declaring that plaintiffs have no interest in the disputed property, a judgment voiding the easements, and damages.*fn2

In March 2009, defendants moved for, among other things, summary judgment on their counterclaims. Defendants relied in part on Nancie Gordon's affidavit in which she states that before the 1984 survey, "Becker's use of the dock and boardwalk could not have been hostile to [her] interests because [she] did not even know that those structures were located on [her] property." Plaintiffs cross-moved for summary judgment on their respective adverse possession and prescriptive easement claims.

Supreme Court granted plaintiffs summary judgment. The Appellate Division, Second Department reversed, granted summary judgment to the defendants and declared that the plaintiffs had no rights in the disputed property (75 AD3d 575 [2d Dept 2010]).

With respect to plaintiff estate's claims, the court held that Mr. Becker's possession was neither hostile nor exclusive because defendants' predecessors freely used the boardwalk and dock during the period of time plaintiff estate asserts its adverse possession claim ripened into title. The court, stating that there was no proof of a clear demarcation of a boundary line, also rejected plaintiff estate's claim that the doctrine of practical location of a boundary line was applicable. This Court granted ...

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