Inter-County Farmers Cooperative Ass'n v. Lekowitz

267 A.D. 1009, 47 N.Y.S.2d 865

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 3, 1944
• Status: Published

Opinion

Appeal by plaintiff from two judgments of the Supreme Court, entered in the Sullivan County clerk’s office upon a decision of the court dismissing the complaint, with costs to each defendant respectively. The complaint sought judgment directing the defendants to remove certain buildings and fences which encroached on plaintiff’s lands and to restrain their continued maintenance and further trespasses. The action was tried by the court and the parties as one in equity. A jury was empanelled and two questions submitted to it. Its verdict was considered as advisory only and the court made its own findings and decision upon which judgments were entered in favor of defendants. The issues involved the title to lands situated in the .village of Woodridge, Sullivan County. Plaintiff relied principally upon the testimony of two surveyors, by each of whom it was proved that a portion of defendants’ chicken house and certain fences encroached upon plaintiff’s lands. The surveys were based upon monuments such as a stone wall, the base of another stone wall and a right of way fence along the lands of the New York, Ontario & Western Railroad. The defendants relied upon adverse possession and a claimed lack of certainty in the surveys. The surveys are entitled to great weight. It was undisputed that some of the fences erected by defendants stood on the plaintiff’s land and were considerable distances from the correct boundary lines. The chicken house, which extended over the line, had not existed for the statutory period of fifteen years. The evidence of defendants as to cultivation was indefinite and uncertain. It was undisputed that some of the fences had been erected by the defendants and extended onto plaintiff’s land even after this action was started. The great weight of credible evidence sustains the contentions of plaintiff. Judgments reversed on the law and facts, with costs, and judgment granted in favor of plaintiff against both defendants, with one bill of costs. The court makes findings of fact 4, 5, 6, 7, 9, 10 and 11, and approves the conclusions of law A, B and G, contained in plaintiff’s proposed findings of fact and conclusions of law. The court reverses the findings of fact contained in the decision dated January 7, 1943, and rejects the verdict and answers of the jury to the questions submitted. All concur.