Ader v. Pollman

259 A.D. 760, 18 N.Y.S.2d 27, 1940 N.Y. App. Div. LEXIS 6560

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 6, 1940
• Status: Published

Opinion

Appeal from a judgment and decree of the Supreme Court, entered and filed in the office of the clerk of Sullivan county on January 3, 1939, against the defendants and in favor of the plaintiff above named. The plaintiff was the owner in fee simple of certain premises situated on the easterly shore of White Lake in the town of Bethel, county of Sullivan. The defendants were the owners in fee simple of certain premises situated on the same lake. The defendants’ premises included twenty feet of shore line of high-water mark for boat landings, the landings being known as “ number twenty-three and twenty-four * * * and also access thereto.” The defendants had built certain encroachments upon the property which the plaintiff claimed and permitted their guests from their hotel to trespass upon the plaintiff’s property and the plaintiff instituted this action for an injunction and for damages. A trial was held before the court without a jury and the court made findings of fact and conclusions of law upholding the claim of the plaintiff, which findings of fact and conclusions of law also protected the defendants in all of their rights. The evidence supports the judgment appealed from which is affirmed, with costs. Judgment affirmed, with costs. Grapser, Heffernan and Schenck, JJ., concur; Hill, P. J., and Bliss, J., dissent and vote for a modification of the judgment on the ground that the deeds of the upland lots to the defendant made reference to the 1895 map filed in the Sullivan county clerk’s office which shows that Lake Street extended from the waters of White Lake to Liberty Turnpike. A portion of this has now been built over by plaintiff.