STATE OF NEW YORK
SUPREME COURT : COUNTY OF WYOMING
________________________________________

VILLAGE OF WARSAW, TOWN OF WARSAW and
WARSAW CEMETERY ASSOCIATION, INC.

Plaintiffs,

v.

INDEX NO. 23689


DONALD GOTT,

Defendant.

___________________________________________

Appearances: DAVID M. DIMATTEO, ESQ.
Attorney for Plaintiffs

PAUL E. FALLON, ESQ.
Attorney for Defendant

MEMORANDUM DECISION



MICHALEK, JOHN A., J.

This matter did proceed to a non-jury trial on June 19th 20th and 21, 2000. Counsel for both Plaintiff and Defendant did waive opening statements and agreed to submit written closing statements and legal memoranda, which were received at/or about July 21st. Plaintiffs did commence this action pursuant to RPAPL Article 15 to seek a determination as to ownership of a part of a parcel of real property. This case started with the service of a Summons and Complaint at/or about August 17, 1987. Thereafter Defendant did submit Answer along with Counterclaims as to adverse possession, ejectment and merger.

The Supreme Court previously granted Plaintiff Summary Judgment and the case did proceed before the Appellate Division Fourth Department, where the matter was restored with the exception of one (1) of the Defendant's Counterclaims, i.e. merger doctrine. It is noted, at trial, testimony and some evidence was had as to the position of the Defendant DONALD GOTT as to the Deed description herein. This information was put before the Court, not under the concept of merger but for the Defendant's asserted claim, and proof of the elements of adverse possession, i.e. color of title and/or claiming property hostile to owner.

The main issues before the Court are whether the real property or any part thereof in dispute was utilized during the period of time in discussion by a municipality for governmental purpose, in which case adverse possession would not apply and/or whether there is adverse possession involving the property and/or any part thereof.

Plaintiff, VILLAGE OF WARSAW acquired a parcel of land on Lot 28, Range 1, Bounding 232 feet on the east line of South Main Street in the VILLAGE by Quit Claim Deed dated January 9, 1959 recorded January 19, 1959 in Liber 319 of Deeds Page 296. The property on the east side of South Main Street, south of, and adjacent to the parcel in question is owned by a not-for-profit cemetery corporation, Plaintiff, WARSAW CEMETERY ASSOCIATION, INC. The WARSAW CEMETERY ASSOCIATION, INC., is a duly organized existing not for profit Cemetery Corporation and the owner of the immediately adjacent property to the South, and operates the land which is the subject of this action as a cemetery. It appears, the CEMETERY ASSOCIATION was created by the TOWN OF WARSAW to attend to the different cemetery properties located thereat.

By a Quit Claim Deed dated April 26, 1973, recorded May 1, 1973 in Liber 396 of Deeds at Page 63, the VILLAGE conveyed to the Defendant DONALD J. GOTT, a portion of the original parcel. The 1973 Deed described the conveyed parcel as being on Lot 28 Range 1 and containing 216.8 feet of frontage on the east line of South Main Street.

In this action, THE VILLAGE OF WARSAW contends, it retained ownership of the land from the original parcel described above, not conveyed by the Quit Claim Deed to Defendant, DONALD GOTT, i.e. for example, as to the strip of land immediately bordering the conveyed property to South Main Street, i.e. the width of the strip at the front and east line of South Main Street, that is the difference between two hundred thirty two (232) feet (course from original Deed) and two hundred sixteen point eight (216.8) feet (course from the 1973 Deed). The Defendant DONALD GOTT, contends he owns the strip, through adverse possession from the continuous period in excess of ten (10) years immediately preceding the commencement of this action.

Here the Defendant has asserted by way of Counterclaim and at trial, his assertion that his occupation of the disputed land has been exclusive and continuous and has in fact been actual. One of the questions here is whether it can be described as hostile and under a claim of right, i.e. though not by claim of right in the Deed perhaps by asserted understanding - but whose understanding. This is disputed by Plaintiffs since the Deed he received does not give him title to the property. Notwithstanding, he certainly claims ownership of it - the fact that he believes he did own it. Another question then is did he enter the land to remedy an eyesore (public service) or to promote the standing or position or enjoyment of his property. The public service version has been submitted here as an explanation by Plaintiffs.
It is important to understand, as to references to titles, descriptions and surveys, we are dealing, strictly speaking, with one parcel of real property abutting another single parcel of real property. However, as to the different issues and theories of adverse possession before the Court, these actually go to different parts of one parcel. In actuality there are two principal areas, one large square like parcel in the rear right side of the property, i.e. behind the cemetery and then a strip, i.e. a strip of land immediately bordering the WARSAW CEMETERY ASSOCIATIONS, INC'S. parcel running from the front on the east line of South Main Street and the difference between two hundred thirty two (232) feet as set out in the original Deed and two hundred sixteen point eight (216.8) feet in the 1973 Deed. Also included is the land connecting the two (2) parts, i.e. the piece of land along the boundary of the cemetery and the GOTT property, i.e. dissected parcel.The strip runs straight back from South Main Street for approximately three hundred thirty (330) feet, but does narrow, by most recent survey accounts, to approximately five point eight (5.8) feet. Once again, to be specific and complete, the claims of adverse possession run all along the border between the properties, i.e. the GOTT parcel and the cemetery.

A pragmatic matter, the Court feels critical to keep in mind, is the cemetery itself is an elevated parcel running to South Main Street which slopes sharply uphill, i.e. from the surrounding property at/or about the area between the two parcels. In fact, the borders of the CEMETERY ASSOCIATION'S land as it abuts the GOTT property, no matter where you may wish to place the boundary has an abrupt slope or as has been otherwise been described at trial, an outcropping, hill, incline, etc. The Defendant DONALD GOTT, claims adverse possession not only to the foot of the so called "outcropping", but two-third (2/3)of the distance up the hill. It bespeaks the obvious, to set out, it was necessary for the Court to have a personal on site inspection of the property and the claims between the parties.

It appears clear, the Defendant, by Deed and his actions thereon had a clear knowledge of the boundaries set forth thereon. Despite this, we know the Defendant did grade and improve the land in dispute. The Defendant paid taxes on his property and received receipts for these payments but not on the property in dispute. Defendant acknowledges under examination he did know he was not paying taxes for the property in dispute. While the failure to pay taxes is not conclusive evidence it is a significant circumstance which weakens the Defendant's claim that occupation of land was under a claim of title particularly when the failure continued for all those years (see 2 CJS, Adverse Possession, Section 211, Pages 937, 938).

Plaintiffs make much of one of their affirmative defenses of the adverse possession claims, that is real property owned by a municipality - no interest may pass by adverse possession prescription where the record owner of the property is a municipality and the property is held for public or governmental purposes or is made inalienable by grant or statute. However real property which is held only in a proprietary capacity and upon which there is no prohibition as to alienability is subject to claims of adverse possession or easement by prescription.

Before a claimant may acquire land by adverse possession, he or she must prove by
clear and convincing evidence, that his possession of the premises has been:

1. Hostile and/or under claim of right
2. Actual
3. Open and notorious
4. Exclusive
5. Continuous (VanValkenburgh v. Lutz, 34 N.Y.95, 98; Belotti v. Bickhardt, 228 N.Y. 296, 302 (1920)).

Defendant GOTT acquired the 1973 Parcel as a result of a successful bid which he submitted after the VILLAGE published a Legal Notice dated February 23, 1973. The perimeter description of the property to be sold which was set forth in the Legal Notice was significantly more general and abbreviated than the description ultimately set forth in the 1973 Deed. The description in the Legal Notice was preceded by this language:


There is no evidence before the Court that at any time between 1973 and 1983 Defendant GOTT, affirmatively requested the execution and delivery of a "corrective" Deed eliminating what he has characterized as a description discrepancy between the published Legal Notice and the 1973 Quit Claim Deed.

There is no doubt by the evidence, the Defendant DONALD GOTT, expected to buy the entire parcel. He very well indeed thought that is what he had bought. However, very simply, he did not get the whole parcel. This he knew very soon after the receipt of his Deed. It appears, in context, in his frustration, suspicion and stubbornness he decided to somehow try and correct this. In matter of fact he simply took matters into his own hands. Again he knew he didn't get what he wanted. MR. GOTT knew very well what he didn't get. He felt he should have gotten it, i.e. the parcel in dispute and proceeded thereafter to act in one form or another like he had indeed gotten it all.

PLAINTIFFS' CASE

Witnesses for the Plaintiffs were James F. Gillen, John Webb, Gerald R. Pfeifer, Kenneth Fuller, David Lanni, Ronald Glosser, John Beresh, Eugene Conklin, Clayton Carlson, and Larry Colton.

As already noted, Plaintiffs stress their affirmative defense, that is, the real property being claimed for adverse possession was owned by a Municipality and was being held for public or governmental purposes. It appears as to the South Main Street strip, there would be no practical way during the time period in question for the Municipality to show the property was used for a municipal purpose, i.e. former carriage path not utilized in the present day. In point of fact, counsel for Plaintiffs struggled with this and was in fact unable to establish a municipal purpose during the trial for the strip of land which supposedly was at least part of a carriage path.

Street strip, but around the back of the property following the ditch, i.e. and/or as described mill race established at some point, but also up the very steep hill which borders the cemetery, to a large square piece of property behind the cemetery. As already noted, the Defendant DONALD GOTT, claims title two-thirds (2/3) of the distance up the hill.

Practically speaking, it can be asserted, the slope, i.e. the hill is a necessary part of the CEMETERY ASSOCIATION's parcel, i.e. of the cemetery which is a municipal purpose herein and should be protected by the Court i.e. once more a prohibition to adverse possession cause of action against a municipality on properties being used for municipal purposes. Even if not directly argued or asserted, the evidence before the Court is ample and clear, the maintenance and protection of the slope is important and vital to the integrity of the cemetery, i.e. evidence, that Defendant DONALD GOTT'S working of the ditch at the bottom of the slope may have caused it to collapse and/or the moving of the tires may also have effected the integrity of the slope. Once more the Court's review appears to go to the importance the slope be maintained as a part of the Municipality's responsibility in maintaining the cemetery.

As to the large square potion of the property, behind the cemetery, Plaintiffs' case not very forcibly submits this real property is necessary to the Municipality for some sort of flood control or access for flood control protection about the nearby bordering stream, Oatka Creek, i.e. again municipal purpose and a prohibition to adverse possession cause of action against a Municipality.

Plaintiffs' witnesses were all straight forward and direct in their testimony - to the extent of them all trying to recollect things that occurred some sixteen (16) to twenty-seven (27) years ago. Fortunately, their recall was assisted or refreshed by surveys, minutes of TOWN and VILLAGE board meetings and records of the CEMETERY ASSOCIATION. Not a single individual begrudged the Defendant DONALD GOTT, the work and cleanup he accomplished in the area including the property in dispute. As opposed to the Defendant DONALD GOTT, and Paul Getty, these witnesses portrayed no apparent hard feelings or hostility. This went even so far as to disagreement with Mr. GOTT as far as his declarations as to the property being his or as to their inattention or their mismanagement.

Perhaps the most important Plaintiffs' witness was James F. Gillen. Mr. Gillen was the original surveyor, i.e. when the property was purchased by MR. GOTT, i.e. 1973. His recollection, i.e. being told by the Defendant to go two hundred sixteen feet (216) per the sketch provided by MR. GOTT, i.e. in evidence was a pivotal part of Plaintiffs' case . Also interesting is his recollection, being directed by Defendant as to the survey line to the brush pile, i.e. pile created by MR. GOTT working on property before purchase in between two marker trees, i.e. alienation of the real property in which MR. GOTT was working - and also and probably on the property he was not working on, i.e. large square like piece of property behind cemetery.

Again, Defendant pursuant to this discussion, knew he was getting two hundred sixteen feet (216), not two hundred thirty two (232). In all this, it is particularly interesting to note the circumstances of the survey, i.e. Defendant GOTT buying the property knowing he would not get a survey or an abstract. According to Mr. Gillen he was retained and paid by the Defendant. No one, not even MR. GOTT disputes he paid Mr. Gillen. However, the Defendant insists the surveyor was hired by the TOWN to do the survey. According to Mr. Gillen, when he checked with TOWN representatives as to the boundaries, he was told to go to the Defendant, because he knew where the boundary lines should be. Defendant does not dispute he did provide a sketch to Gillen as to the boundaries although the particular circumstances differ. It was Mr. Gillen's distinct impression everyone knew, that is the Municipality and MR. GOTT, this was a split, i.e. a division of property owned. Although Defendant contradicts this, in context, as to the fact he never complained thereafter seems to lend support to the argument there was knowledge, on his part, at least initially, he was getting only a portion of the original property.

James Gillen also took issue with a major GOTT assertion, i.e. that the only issue on the property line demarcation, is that it would not hit or cross graves in the cemetery. It seems geographically and topagraphically not a valid claim for the Defendant GOTT.

Again note, Mr. Gillen stresses, he was told to go two hundred sixteen feet (216) by the Defendant GOTT. Notwithstanding, he would not specifically dispute, MR. GOTT'S assertion that Gillen was told by him to go two hundred sixteen (216) feet if necessary. However, in any event, this is what occurred. It is worth keeping in mind, the difference between the 1973 survey and the 1982 survey, i.e. both by Gillen, i.e. the strip to South Main Street goes from approximately sixteen feet (16) in width at South Main Street to approximately five feet (5) in width at the end of the strip on the new survey. Mr. Gillen also mentioned, the difference between the two hundred sixteen (216) and two hundred thirty two (232) feet was the carriage path. Mr. Gillen was contacted by the TOWN OF WARSAW and told to re-stake the southerly line pursuant to the Deed at/or about October 1, 1982. The survey was revised at/or about December 9, 1982 and does note the existence of the Defendant, DONALD GOTT's pasture fence.

Another informative witness for the Plaintiffs was Gerald Pfeifer, being a member of WARSAW CEMETERY ASSOCIATION from 1972 to the present and was President from 1979 to 1983 and from 1983 to the present. It appears the Association met approximately twice a year with one being an annual inspection. However between 1972 and 1980 there were several special meetings. The Association has nine (9) board members. One special meeting was held in 1982 as to the chief of police's confrontation with Mr. GOTT as to trespassing and the cutting of the infamous tree. Also pointed up during his testimony were notes in the CEMETERY ASSOCIATION's records as to the placement of the sign by Mr. GOTT as to the Pine Hill Cemetery at or about 1982. Another special meeting in 1983 was the result of a letter from the Cattaraugus County District Attorney for the review of records for the CEMETERY ASSOCIATION - an action instigated according to Mr. Pfeifer by the Defendant DONALD GOTT.

Of particular interest was Gerald Pfeifer's testimony in reference to the brief period in 1983 when DONALD GOTT was President of the CEMETERY ASSOCIATION. While President he did direct repairs to the hill surrounding the cemetery. Also while in office he erected barriers at the end of the road, i.e. the road running through the cemetery to the beginning of the hill. Further, DONALD GOTT, as President, directed continuation of the digging of a ditch. Records note this ditch was started in 1982 at the toe of the slope and continued while he was President. Specifically DONALD GOTT was President of the Association from April, 1983 to August 1983. At that time he resigned.

The witness Pfeifer added, that as a result of the Getty / removal of the tree on the hill controversy at or about 1983, and the contact by the Cattaraugus District Attorney, the Board requested the Municipality determine where the proper property lines were, i.e. letters to Mayor. Cemetery records listed no response. It is respectfully pointed up, it was his understanding the property line is the toe of the slope. When viewing photographs of the area Mr. Pfeifer also indicated his understanding of the carriage path, i.e. behind the toll road. It was noted, it was the recommendation of the CEMETERY ASSOCIATION, the carriage road be restored to be utilized for the maintenance of the hill. However, this did not occur and he himself never saw anyone using the carriage road for any purpose.

The Plaintiffs' other witnesses for the most part added bits and pieces to the picture of events and contacts between the principals. David Lanni, TOWN OF WARSAW Highway Superintendent, since 1988 and having been employed by the Highway Department since September, 1976 remembers doing work at the cemetery in 1983. This work consisted of delivering fill from the Highway Department to the cemetery. He recalls the rear hill being depressed four to five feet. His recollection also included information as to removal by the Defendant DONALD GOTT, of dirt from the toe of the hill in approximately 1981-1982.

Plaintiffs' witness, Ronald Glosser was the President of the WARSAW CEMETERY ASSOCIATION 1973 to 1975. He recalls no apparent problem at that time from Mr. GOTT or any claims as to real property from same. Mr. Glosser does note confrontation between MR. GOTT and representatives of the WARSAW CEMETERY ASSOCIATION at our about 1982 as to the cutting of trees by MR. GOTT. That is to say the Defendant DONALD GOTT, claimed he owned the property in which the trees were located and he was informed by representatives of the CEMETERY ASSOCIATION that he did not. He recollects there was some prior clean up of tires at the rear hill portion of the property at or about 1982. Mr. Glosser left the Board in 1983.

John Webb has been the caretaker of the cemetery from 1979 to the present. His recollection included the events of the spring of 1982 when there was had a confrontation between Paul Getty over the clearing of the rear bank. At or about that time, it is asserted Paul Getty was cutting a tree at the top of a hill. In context, it does not appear Mr. Getty or MR. GOTT dispute that the top of the hill was not their property, but that Mr. Getty was cutting the tree down as a public service and that no one ever gave him a hard time about it. Mr. Webb does give credit for the cleaning of the brush and tress from the hill to Mr. Getty and MR. GOTT. It is his recollection the tires were removed from the hillside in the early 80's. Mr. Webb does point up, that the collapse of the rear hill, was possibly due to MR. GOTT'S work, i.e. trench at the toe of the hill and/or due to the removal of the tires by the TOWN and MR. GOTT from said hill.

Larry Colton and Clay Carlson were also called as witnesses by the Plaintiffs. It appears their testimony was intended to contradict DONALD GOTT. In effect, this really did not happen at least not at any great moment. Mr. Colton did some bulldozing for Mr. GOTT. At the time he did so he did not believe the drop inlet was there but it could have been. Around the same time he acknowledged possibly doing some grading for GOTT in the 1970's. At least Mr. Colton did dispute Mr. Getty's dispute as to the dead zone which occurred in the 1970's along the strip up to South Main Street. Once more again, he did acknowledge ditching or ditch work for GOTT around his property in 1974. Mr. Carlson the photographer, disputes Mr. Getty's position of the photographs that were submitted for exhibits were from two (2) different areas.

Plaintiffs' witness JohnBeresh of Wyoming County Probation Department was Mayor of the TOWN from 1987 through 1989 and initiated the lawsuit in 1987. He indicated he never gave permission for the Defendant DONALD GOTT to be on the property.

It is worth noting, that part of Plaintiffs' affirmative defense to adverse possession is the fact that Defendant DONALD GOTT was President of the CEMETERY ASSOCIATION in 1983. It is set out that the actions taken by GOTT during the time of his presidency was through and as President of the CEMETERY ASSOCIATION. The Defendant acknowledges that while President he did pursue some work to the cemetery, but he asserts this was to the top one-third (1/3) of the bank of the hill, which he concedes belongs to the cemetery.



DEFENDANT'S CASE

Witnesses for the Defendant were Paul Getty and the Defendant himself.

Defendant DONALD GOTT is a very intelligent, intense individual who seems to believe he had been socially ostracized and vilified by what has occurred at/or about the real property in question. Despite the high emotions on both sides, no one disputes the amount of work and development DONALD GOTT did with the parcel he purchased as well as the land in dispute. That is to say, everyone who testified, former public officials, surveyors, etc., agreed the parcel purchased by MR. GOTT was a piece of land in extreme disrepair, i.e. overgrown, brush, swamp, wet, filled with insects, abandoned debris, etc. Further no one disputed MR. GOTT's efforts benefitted the surrounding properties and the Municipality, i.e. as to the Oatka Creek, danger of flooding, the formerly swampy areas of land, etc. Nevertheless, all these acknowledgments have apparently, only contributed to MR. GOTT's frustration, i.e. claiming in effect decades of being stymied and ignored in attempting to resolve his property claim with municipal officials. However, the Defendant is also obviously a very irascible individual and is someone who tends to be suspicious of authority, paranoid and down right nasty to anyone opposing what he wishes to be the case, i.e. his way.

Defendant DONALD GOTT, did testify before the Court in a direct if not somewhat disjointed manner. It became apparent, almost from the beginning of his testimony he had made himself aware as much as possible as to the elements of adverse possession. That is to say, his testimony was often carefully colored as to dates, i.e. ten (10) year requirement times, i.e. activity dates and activities, i.e. proactive action on the affected properties that occurred or did not occur and whether he could pin point them, etc. He was quick to defend prior apparent contradictions by him to his claims, i.e. as far as dates through documents, letters and/or from newspaper accounts as simple misunderstandings, mistakes, etc.

As already noted above, DONALD GOTT describes the whole situation as far as Mr. Gillen and the two hundred sixteen (216) versus two hundred thirty two (232) feet as a misunderstanding - that is Mr. Gillen's misunderstanding. This in fact, indeed may be the case. There is a very obvious dispute, as to what was the background to the initiation of the survey, i.e. what maps was Gillen shown, were sketches provided, etc. Notwithstanding, to the issues before the Court, this is really irrelevant in that DONALD GOTT acknowledges very clearly, once he received the Deed, i.e. he did specifically measure the lines set out thereon and knew very shortly after the receipt of the Deed what he had in fact received. There is no dispute he did not bring any proceeding or make any objection to anyone, as to Deed description or attempts to get it changed or corrected. Once more the merger doctrine is not relevant here. The facts on the issue of title is whether Defendant GOTT, held title to the property hostile to its true owners.

DONALD GOTT went on to testify, very soon after he received the Deed, he along with Mr. Getty did research for where property lines, in fact, should be according to him. He asserts the two did research at the County Clerk's Office and elsewhere looking for Deeds and descriptions dating back as far as 1840. Using these references and distances he measured exactly, once more according to him, where the boundary lines were supposed to be. In fact, he asserts at some point in time he did stake the "proper boundary line". When and how these stakes were placed is open to question and some contradiction.
Two hundred sixteen (216) feet was not picked out of the air by Gillen or GOTT. MR. GOTT makes specific reference to a 1920 map and the two hundred sixteen (216) feet figure set out thereon. GOTT was quick to submit that this is the basis for his number and the basis for which he believed, he was getting all the property in between the cemetery and the other parcel. However, the 1920 map is vague as to where the cemetery is, where the hillside is and where exactly two hundred sixteen (216) feet goes to. This map is very big and general and does not make notation of fences or significant markings or slopes of the cemetery or where it ends. In effect, the two hundred sixteen (216) feet may indeed end before the much described "carriage path".

The Defendant DONALD GOTT, eagerly confronted but still had difficulty with many contradictions in his various positions. This is to say, for example, he knew the Deed he had did not give him the property he claimed and for which he never paid taxes thereon. Further, he never specifically informed anyone, outside of Mr. Getty, about his new measurements. He argues he did indeed go to other surveyors without success but has no specific proof. MR. GOTT was also asked by the Court whether he took his new information back to Mr. Gillen. His answer was no. Claims or statements attributed to him in letters, i.e. to where he talks about staking in 1985 he calls a mistake. Opposing counsel in cross-examination, made reference to news articles where at different points he has been quoted as talking about staking the property and making claims thereto all in the 1980's. Also pointed out to him on cross, was the fact that the supposed fence installed in 1979, was not much of a boundary, i.e. a single strand of wire attached to some pieces of wood and trees approximately along the line of the foot of the hill to the cemetery.

On cross-examination, MR. GOTT was questioned as to a news articles from September, 1982, as to ownership of the property, as well as statements made by him in a deposition in 1994 attributing much of the work he had did at or about the hill and cemetery as a public service. Also pointed up, was a statement by him in an interrogatory referring to penetrating the Southeast quadrant in 1986. Also in prior statements, brought to his attention was the 1982 erosion problem, wherein he alluded to, that they built it - it was their problem.

DONALD GOTT was asked by the Court whether he made any attempt to show his stakes, i.e. setting out his new boundary line to anyone from the VILLAGE OF WARSAW, TOWN OF WARSAW, or THE TOWN OF WARSAW CEMETERY ASSOCIATION. His answer to these questions seemed intentionally vague. The Defendant inferred circumstances and events that occurred in the years following his purchase of property made the stakes apparent to certain individuals from the CEMETERY ASSOCIATION, etc. However, at the same time DONALD GOTT acknowledged, one of his major complaints over all the decades throughout this whole time about the different Municipalities is that this property had been neglected by the different municipalities and its agents. That is to say, they never took the time to be aware either directly or indirectly, i.e. through its employees or even through members of the CEMETERY ASSOCIATION as to the status of property, i.e. as far as junk in the back, tires, former caretakers involvement in placing tires, refrigerator and the condition of the quagmire as he describes it in the area between the Oatka Creek and the cemetery.

It should also be pointed up, while the Defendant DONALD GOTT, claims the property to two-third (2/3) the distance up the hill bordering the cemetery, pursuant to the news articles mentioned above and other references, he is often quoted as claiming the property to the foot of the hill or outcropping as variously described. DONALD GOTT does not even dispute, his initial statement, he wished frontage to the toe of the slope, i.e. to two hundred sixteen (216) feet, if necessary.

Finally, what must be mentioned in weighing MR. GOTT'S testimony is his obvious hard feelings against just about everyone involved in this matter. He did attempt on more than one occasion to institute disciplinary proceedings against Mr. Gillen. Although he became President of the CEMETERY ASSOCIATION, he resigned it appears based on responsive criticism of his actions. There appears no doubt he did initiate complaints to the District Attorney about the records and finances of the CEMETERY ASSOCIATION, etc.

The only other witness for the defense was Paul Getty. He is truly a colorful individual who has been an employee of the Defendant GOTT, for over thirty (30) years. It should be noted Mr. Getty is pretty sure that he is going to inherit that property from Mr. GOTT at some point in time. The problems with his testimony is that he often tended to speak in the royal we, i.e. referring to discussion that either he or Mr. GOTT had with other individuals whether he was present or not and or whether Mr. GOTT was present with him or not. Another peculiar area, is Mr. Getty, who throughout his testimony prided himself on his specific recollection as to what occurred, was vague and tentative as to the notion of whether Mr. GOTT or himself did work on the property before its purchase.

Mr. Getty was specific as to information about work on the property, i.e. recollection as to fill being added to the property along South Main Street in 1973 - 1974 - that is to say his memory that fill two hundred eight (280) feet of fill deep and two hundred sixteen (216) feet across was placed on top of the property. He specifically remembers work done on the area of the so called strip and carriage path. Mr. Getty puts forth, this land now considered the old carriage path is actually a part of a drainage swale, which is part of the work done and fill added in 1974. Another area of Mr. Getty's testimony was the ditch which according to some reports was put in at or about 1982. However, Mr. Getty points up, there was a great deal of ditch related work in 1973 which crossed the sixteen (16) foot strip in the front on South Main Street. In addition, he claims fill was put on the property especially along South Main Street and along the ditch or swale in the back of the strip from South Main Street in 1974. According to Mr Getty the real carriage path was on the hillside itself. Although the placement of the fill was gradual, Mr. Getty indicated all the property involved had been touched by the end of 1974.

As to the meetings and/or discussions between the surveyor, Mr. Gillen and MR. GOTT, Mr. Getty obviously supports MR. GOTT'S position although it is not clear whether he was in fact present for much of what went on between MR. GOTT and Mr. Gillen.

Paul Getty testified as to work being done by MR. GOTT and himself on the North side of the parcel purchased before 1973, i.e. cutting brush and tress and bringing in fill. It was pointed up, through Mr. Getty's testimony, that in May, 1973 Mr. Seth, the then caretaker of the cemetery, complained to Mr. Getty that they were not cleaning to the property line. According to Mr. Getty, Mr. Seth told them to clean all the way up the hill. It is a matter of dispute, and stressed under cross examination, whether this was an indication of MR. GOTT's property and/or his request for a public service for the benefit of the TOWN and the cemetery. As already noted, the whole matter of GOTT's actions as a sign of his ownership of the property and/or as a public service occurred several times throughout the proof. Another example was the signs he set out in front of the older part of the cemetery noting its historical significance, i.e. the Pioneer Cemetery - 1984 -1985. Later, MR. GOTT and Mr. Getty made no small mention of their service to the community in mapping out the Pioneer Cemetery.

Mr. Getty indicates the drop inlet was put in the rear behind the cemetery in 1974 which he noted was over the prescribed Deed line. The existence of the drop inlet, i.e. when it was installed is a source of some controversy. According to the testimony of others, bulldozing which occurred thereafter in the vicinity would have or could have crushed any drop inlet. It is asserted, from the perspective of other claims, statements set out in news articles, the drop inlet as described, where indicated, did not exist until at or about 1982. A further area of controversy were certain pictures shown to Mr. Getty. The witness described these pictures from at or about 1976 wherein it appears the photographs are dated at or about 1982-1983. The pictures do show the presence of tires. He also recalls removing tires from the slope on the north end of the property in 1973 and work on the rear of cemetery east of 1975 survey line in 1975-1976.

Also interesting according to Getty - was that the stakes put in, i.e. first set in 1974, another set in 1975, 1976 were six feet down slope. He also describes the cleaning up of the back of the lot, i.e. back of the cemetery, tons of brush 1975, 1976. To this he notes they did work on the other side of the parcel purchase, i.e. bordering property formerly known as the B&O Railroad but returned to work on the portions in question in 1977 - 1980. The wire fence, which still exists, according to Mr. Getty was installed in 1978, 1979 and 1980. He also notes the fence was extended, to be put around the entire property, i.e. around the back in 1983 and 1984. He indicates he installed a second drainage tile two hundred (200) feet south of the drop inlet in 1982 and 1983. All the tires were removed in 1983 and also at or about that same time the slopes behind the cemetery were seeded.

Another source of contradiction and controversy between the sides are when the tires were removed from the properties. Mr. Getty asserts some tires were cleaned in 1973 although elsewhere through notations, news articles, etc., this did not occur until at/or about 1982. Mr. Getty and even MR. GOTT acknowledged that most of the tires were cleaned in 1982, but in fact, some were removed in 1973 and 1974.
COURT'S DECISION

Turning to the issue of adverse possession (and assuming for the moment, that title may be acquired from a Municipality by adverse possession) the Court notes that this method of acquisition is not favored (Gallea v. Hess Realty Corp., 128 AD2d 274 (4th Dept 1987) affd 71 NY2d 999) (1988). On the adverse possession claim, the burden of proof is upon Defendant GOTT (Mastin v. Village of Lima, 86 AD2d 777 (4th Dept 1982); Gerwitz v. Gelsomin, 69 AD2d 992 (4th Dept 1979)). Moreover, proof of adverse possession must be "clear and convincing", as a "mere preponderance of the evidence" is not sufficient (1 Warren's Weed, New York Real Property, Adverse Possession, Section 13.02).

As one treatise has observed:

Title by adverse possession... cannot be made out or established by mere inference or conjecture. It is said that such title must be established by clear and positive proof or by clear and cogent evidence (2 NYJur2d, Adverse Possession, Section 8, p. 312).


As the Plaintiffs have correctly emphasized, it is incumbent upon Defendant GOTT to show that continuously throughout the requisite ten year period, he has possessed the disputed parcel in a manner which has been


Adverse possession to be considered serious or effective must be nothing less than actual possession in fact, i.e. of the type that would give the owner a cause of action and ejectment of the occupier throughout the prescriptive period. (See Generally 3 American Law of Property Section 15.3) See Brand v. Prince, 35 NY 2d 634 (1974). This is certainly the case here.

Further this actual occupation requires the property to be usually cultivated or improved
and/or to have been protected by substantial enclosure (RPAPL 521, 522); the type of cultivation or improvement required need only be consistent with the nature of the property so as to indicate exclusive ownership. Once more, for the most part, the Defendant DONALD GOTT, has complied therewith. See also, City of Tonawanda v. Ellicott Creek Homeowners Association, 86 Ad 2d 118 (4th Dept 1982). As to the strip we also have an inclosure of sorts. This fence - described in many fashions but as seen by the Court represented barbed wire from fence post to tree to fence post extending back from South Main Street to the rear extent portion of the property.
As the Court believes is obvious and apparent the Defendant's claim and causes of action are weighty and serious. The claims to the parcel, or to the different parts of the parcel have matured at different rates over the many years. The basic claim originated at or about 1973 with the action commencing almost thirteen (13) years later at or about 1986 - 1987 and not coming to trial until almost thirteen (13) years later after that in the year 2000.

As hopefully, adequately explained below, this Court concludes the Defendant DONALD GOTT's adverse possession claims do succeed in part and fail in part. First, the Court concludes, that as to the strip in dispute, i.e. to South Main Street, excluding the hill, i.e. to the foot of the hill and the property to the rear of the cemetery, again excluding the hill, has been held by the VILLAGE OF WARSAW in a proprietary capacity, not in a Governmental or sovereign capacity. The Court further concludes, on the same basis, that the remaining property, i.e. from the foot of the hill up to the cemetery, has been held by the VILLAGE not in a proprietary capacity, but in a Governmental or "sovereign" capacity, again specifically for use as a cemetery. Following up on this, it is the Court's determination, the Defendant DONALD GOTT, has proved, sufficient to meet his burden, as to the strip to South Main Street, the elements of adverse possession thereon, i.e. that is again to the foot of the hill. The Defendant's claim from the foot of the hill to two- thirds (2/3) up the hill to the cemetery all around the boundary of the cemetery does fail, i.e. again the property held for governmental or sovereign capacity, i.e. the Defendant has failed to meet his burden. Finally, as to the large rear portion, even though the property was not held by the VILLAGE in a governmental or a sovereign capacity, it is the Court's Decision, that the adverse possession claim fails due to Defendant's inability to sustain his burden of proof.

Now as to the matter of explanation, let us firth look to the South Main Street strip. The Plaintiffs failed to establish a municipal purpose for the sixteen foot strip, i.e. the supposed carriage path. It is not really clear where the carriage path ever was and/or whether the carriage path did indeed exist further up the hill. No one recalls when the property was used as such, i.e. carriage path, In any event, it is clear, the Defendant DONALD GOTT, addressed this property almost from the outset of his purchase, i.e. with one drainage area as well as the eventual ditch and also the fill placed thereon. The Defendant GOTT, has shown throughout requisite ten (10) year period he occupied and encroached upon the strip in a manner which would have been manifest to a viewer upon casual inspection. At least to this portion, i.e. South Main Street strip, the Defendant GOTT'S actions were open and hostile to everyone and anyone who drove up and down this main thoroughfare at or about the VILLAGE OF WARSAW, TOWN OF WARSAW, Wyoming County could see. This obviously would go to his fence and/or rehabilitation of the property, ditch, pathway, etc.

Again as to elements of adverse possession, i.e. hostile, under a claim of right, the Court again would note, the Defendant has certainly made a case for consideration as to hostile, actual, open and notorious, exclusive and continuous as well as the ten (10) year period. (Brand v. Prince, 35 NY 2d 634 (1974), Sinicropi v. Town of Indian Lake, 148 AD 2d 799 (3d Dept 1989)). DONALD GOTT certainly met his burden in showing possession constituted an actual invasion of and/or infringement upon the owner's rights (Weil v. Snyder, 25 AD 2d 605 (4th Dept 1966)). His use was open and notorious and continued for the full ten (10) year statutory period. The showing here by the Defendant constituted clear and convincing evidence sufficient to warrant the Court to direct judgment in his favor. Belotti v. Bickhardt, 228 NY 296 (1920); Wildove v. Papa, 223 App Div 211(1928))

As to the matter of the hill, it is the Court's specific finding that whatever other adverse possession claims were discussed and/or disputed here and/or eventually decided by the Court, no adverse possession by the Defendant shall exceed the foot of the hill.

As has already been noted elsewhere and by just about everyone at trial, there is no dispute as to the great efforts and work done upon the different parts of the hill by Mr. GOTT and his representatives. However, as any physical inspection of the property immediately impresses - this abrupt elevation is an important and necessary part of the cemetery and CEMETERY ASSOCIATION. It must and has to be maintained to continue the integrity of the cemeteries located on top thereof. One may reasonably conclude it was the intention of the Municipality and/or CEMETERY ASSOCIATION this property, i.e. be kept apart from the parcel sold. It is this Court's finding this hillside is connected to the cemetery and cannot be separated therefrom and therefore is part of the municipal purpose of the WARSAW CEMETERY ASSOCIATION, etc. Therefore no cause of action of adverse possession will lie as to the hillside, outcropping or however one wishes to describe same. Real property held by a Municipality for public purpose cannot be lost by adverse possession (1 Warren's Weed, New York Real Property, Adverse Possession, Section 9.03); (City of Tonawanda v. Ellicott Creek Homeowners Associations, Inc. 86 AD 2d 118 (4th Dept 1982).)

In support of the Court's finding herein, there is also the proof, of the existence of the fence, again at the foot of the hill and the ditch, placed in 1973-74 at the foot of the hill. Further, the work on the hill as set out by Mr. Getty and MR. GOTT was limited and spotty and questioned and often with some contradiction. Also, the work done, is measured in the context of MR. GOTT's presidency of the CEMETERY ASSOCIATION and the work done at his direction while President and/or perhaps as a public service, i.e. pursuant to discussions and/or meetings with the caretaker.

Even if it is assumed, arguendo, that the hill is not being held in a governmental capacity (Lewis v. Village of Lyons, 54 AD2d 488, 490 (4th Dept 1976), the Court concludes that Defendant GOTT has failed to show, by clear and compelling proof, all of the requisite statutory elements have been met (Belotti v. Bickhardt, 228 NY 296(1920); RPAPL Section 501 and 522; see also, City of Tonawanda v. Ellicott Creek Homeowners Assoc. Inc., 86 AD2d 118, 120 (4th Dept 1982)).

Lastly, the Defendant, DONALD GOTT's claim of adverse possession to the rear portion, i.e. square like part of the property behind the cemetery, fails due to Defendant's inability to sustain his burden of proof, i.e. elements necessary to adverse possession and particularly the ten (10) year duration.

Once more, as to this part of the parcel, it is the Court's finding there is not adequate proof by the Defendant, his actions on the real property beyond the boundary line in that area to satisfy all the necessary elements of adverse possession. There is no doubt, there is a good deal of testimony and evidence by Paul Getty and DONALD GOTT there was work done by them, beyond the prescribed boundary line. Unfortunately for the Defendant's case, the specifics mostly refer to the either the hillside, the drop inlet or the ditch - at least again to this section of the parcel. It is not clear, at least to the concept of continuous presence and/or sufficient to meet MR. GOTT'S burden as to when and how these were over the boundary line - once more to this part of the parcel. Neither the Defendant GOTT, nor Paul Getty adequately allude to all the necessary prerequisites, i.e. for example, continuous presence, ten (10) year period; as to where the Deed line was and where they acted with specific examples on the rear parcel. Perhaps, this could be attributed to the absolute disregard or distaste these parties had for the established property lines of the Deed. No matter, once more, the claim of adverse possession to the rear square parcel fails.

This Court makes no award for costs as requested by Plaintiffs per RPAPL.

________________________
HON. JOHN A. MICHALEK
Supreme Court Justice

Dated: August 15, 2000
Buffalo, New York