In re Mayor of New York — 44 N.Y. St. Rep. 189

Majority

p. 189

In the Matter of The Mayor of the City of New York to acquire lands. In re Mary A. Blizzard.

(Supreme Court, General Term, First Department,

Filed February 18, 1892.)

Headnote

Adverse possession—Title of squatter.

Petitioner finding an island vacant went in and took possession without. claim of title, erected buildings and remained in possession for over twenty years. Held, that as her occupation was that of a squatter, she could not obtain title by adverse possession.

Motion to confirm referee’s report upon claim of moneys' awarded to unknown owners.

W. R. Lambertson, for motion ; C. D. Olendorf, opposed.

The commissioners of estimate by their report in this proceeding awarded the sum of $13,350 to unknown owners for parcel 691 in Pelham Bay Park; of this $5,000 was made for the land and the balance, $8,350. for the buildings. The petitioner claims to have been the owner of parcel 691 at the time-of the confirmation and of the report of the commissioners in said proceedings, and the referee has so found.

Her claim of ownership is not based upon any record title to-said.premises, but is founded wholly upon possession and occupancy of said property for a period of more than twenty years.

p. 190

The parcel stands in an island in Westchester Creek, and is divided into two parts, which may be described as the northerly and southerly parts of the island, the dividing line being a public highway extending the whole length of the island, upon each side of which highway there is and was at the time the claimant went into possession a substantial stone wall or fence. The petitioner went into possession of the southerly portion of the island more than twenty years prior to the confirmation of the report, and erected a hotel and buildings connected therewith, and has ever since remained in possession thereof. Her entry does not seem to have been under any claim of title, and her occupation has been that of a squatter.

It is true that upon her examination she stated that she took possession of this property, claiming title thereto. But it is apparent from her cross-examination that she made no claim of title at the time of her entry, but to use her own language, she “ just squatted there, as it were.”

It further appeared that she had no record title to said premises either by way of deed, grant, devise or writing of any kind.

Her only acts of ownership in respect to the northerly portion’ of the island consisted in building a boat house and planting oysters and clams in the waters adjacent to the island.

Upon'these facts the referee reported that the petitioner was •entitled to the award made for the island in. question. In this we think he clearly erred. It is plain that whatever the possession of the petitioner was, it was not under any claim of title. She found this island vacant, and went in and took possession and remained for a long period of time. But such entry was not in pursuance of any claim of title, nor does it appear that she ever-asserted ownership except by being in possession. Under the definition of adverse possession, such possession to be adverse must be under claim of title, and the naked possession unaccompanied by such claim can never ripen into a good title.

It necessarily follows that where possession is under a claim of title it must’ be made under some distinct claim of title, and not by a mere general assertion of ownership, without reference- to any source from which such ownership can arise. In other words, a mere squatter can never obtain title by adverse possession.

In order that possession of land shall be adverse, it must be shown that the land is held in hostility to the true owner’s claim of title thereto. It appears from the evidence taken in this proceeding that the taking of possession by the petitioner was not in its commencement hostile to the true title, and it does not appear when the petitioner commenced to claim title to the premises exclusive of any other right, if she ever did so, and as under no circumstances can possession be deemed adverse until this condition of affairs is made to appear, it is not in proof that there was any adverse possession of the petitioner for twenty years.

In view of the conclusion at which we have arrived in regard , to the main question involved, it is not necessary to discuss the distinction between the nature of the possession of the northerly and southerly half of the island.

p. 191

Upon the whole case we think that the claim of the petitioner is defective in establishing a right to the moneys which have been, awarded for the taking of the premises in question.

Motion denied.

Barrett, J., concurs.