Higginson v. Philipstown-Highland Co.

245 A.D. 818

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 15, 1935
• Status: Published

Opinion

Action for declaratory judgment to determine the ownership and interests of the parties prior to May 21, 1932, in a strip of land taken on that date in condemnation proceedings instituted by the county of Putnam. Judgment modified by striking from the second adjudging paragraph thereof the words “ defendant, the Philipstown-Highland Co., Inc.,” and by inserting in place thereof the word “ plaintiff.” As so modified, the judgment is unanimously affirmed, with costs to the plaintiff. The uncontradicted testimony showed that the trees in question were planted by plaintiff’s ancestor. The fact that the naked fee was not owned by that ancestor does not prevent the value of these trees inuring to the benefit of the plaintiff in view of their having been planted by plaintiff’s ancestor and utilized for ornamental and shade purposes for the benefit of the abutting land of the plaintiff, which planting and maintenance of the trees were with the acquiescence of the fee owner. (Lane v. Lamke, 53 App. Div. 395; Donahue v. Keystone Gas Co., 181 N. Y. 313.) Findings of fact and conclusions of law will be modified accordingly. Present — Lazansky, P. J., Young, Carswell, Tompkins and Johnston, JJ. Settle order on notice.