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PURCHASER OF A MARINA DEMONSTRATED THE PRIOR OWNER OBTAINED TITLE TO THE DISPUTED LAKE BOTTOM RIGHTS BY ADVERSE POSSESSION (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff, the purchaser of a marina, had demonstrated the prior owner of the marina had obtained ownership of the disputed lake bottom rights by adverse possession:

… [P]laintiff submitted, among other things, the affidavit of Donald Duso Jr., the grandson of [the prior owner]  and a current mechanic for plaintiff, the affidavit of Michael Damp, a member of plaintiff, and an aerial map depicting, among other things, the location of the moorings and floating dock within the claimed area. According to Donald Duso, he personally assisted with the installation of approximately 20 moorings and anchors in the claimed area between the early 1970s and 2005 … . From 1970 to 1975, six moorings were initially installed in the claimed area, which were specifically placed to create the “outer bounds or perimeter of the mooring field.”…  As the marina’s business grew, additional moorings were installed such that, by 2005, there were approximately 20 active moorings available for rent, with all but three or four of the moorings located within the claimed area. Each year, the marina seasonally rented the moorings to boat owners between April and October (hereinafter the boating season) and only those who paid the requisite rental fee were permitted to access or use the moorings. Since the early 1980s, the 14 to 20 active moorings in the claimed area were regularly maintained during the boating season, mooring anchors, ropes and balls were repaired as necessary, and the mooring field was kept clear of debris. Although the nature of this lake bottom property makes it inherently impractical to erect an enclosure (see RPAPL former 522), the perimeter of the mooring field and, in turn, the location of the claimed area were easily discernible based upon the visibility of the mooring balls attached to each mooring anchor, and became even more apparent when boats were actively moored thereto. LS Mar., LLC v Acme of Saranac, LLC, 2019 NY Slip Op 05617, Third Dept 7-11-19

 

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