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SUPREME COURT ERRONEOUSLY IGNORED AN ARTIFICIAL MONUMENT DESCRIBED IN A DEED WHEN ATTEMPTING TO RESOLVE A BOUNDARY DISPUTE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the court, when attempting to resolve a boundary dispute, erred in ignoring an artificial monument, a railroad right-of-way, which was described in a deed:

Here, plaintiffs’ deed includes the only deed call to a natural landmark, as it places the southeast corner of plaintiffs’ property at “a willow tree on the bank of the creek.” Haley and Glasser [the parties’ surveyors] agreed that neither the willow tree nor its former location could be ascertained; similarly, the stake and stones called for in the deed at that location could not be found. Glasser also posited that, as creeks meander over time, the modern location of “the bank of the creek” provided no information as to the appropriate location of the southeast corner, so he disregarded that deed call. Glasser then opted to draw plaintiffs’ property to comport with the exact metes and bounds called for in plaintiffs’ deed, and Supreme Court adopted such methodology and accepted the resulting boundary. Even crediting Glasser’s methodology and his assertions about the meandering creek, as Supreme Court did here, Glasser also admitted that the deed call to the former railroad right-of-way reflects an artificial monument, and that he disregarded such deed call. In adopting Glasser’s methodology and accepting the resulting boundary, the court erred as a matter of law, as it focused on the courses and distances in the deed, in contravention of the long-established hierarchy giving preference to deed calls to artificial monuments … . As Supreme Court failed to consider the railroad right-of-way, we exercise our broad powers to review the record on appeal and make the appropriate determinations. Zwack v Hunt, 2024 NY Slip Op 05926, Third Dept 11-27-24

Practice Point: If an artificial monument, here a railroad right-of-way, is described in a deed, it cannot be ignored in attempting to locate boundaries.

 

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