N.Y.A.D. 3 Dept.,2012.
McKeag v. Finley
93 A.D.3d 925, 939 N.Y.S.2d 644, 2012 N.Y. Slip Op. 01539
Background: Owner of lakefront property sued owner of adjoining parcel to establish adverse possession of swim-
ming beach. Defendant counterclaimed to quiet title to the beach. The Supreme Court, Warren County, Hall Jr., J.,
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
mately 40 years, that she prevented adjoining owner and others from using it and that she stored large wooden float
405 Water Law
405X Prescriptive Rights in Water or for Use or Access to Waters
405k1770 Elements of Prescription
405k1777 k. Hostile character of use and possession in general. Most Cited Cases
possession; inference of permission could be drawn from owner’s acknowledgment that she and her father began
using beach in context of friendly relationship, and she had remained silent instead of protesting defendant’s repeat-
ed claims of ownership.
[5] Adverse Possession 20 60(4)
20k60 In General
20k60(4) k. Possession becoming adverse. Most Cited Cases
When it is established that initial use was permissive, adverse possession does not commence until such permis-
sion or authority has been repudiated and renounced and possessor thereafter has assumed attitude of hostility to any
right in real owner.
20k59 Possession Consistent with That of Another, and Possession Becoming Adverse After Amicable
Entry
20k60 In General
20k60(2) k. Permissive entry and occupation, and license. Most Cited Cases
Permissive use, precluding adverse possession, may be inferred from history of neighborly cooperation and ac–
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
with any member of the Finley family until defendant took over its affairs after Gardner Finley’s death. An inference
of permission that rebuts the presumption of hostility may be drawn from this acknowledgment that plaintiff and
McKeag began using the beach in the context of a friendly relationship (see Chaner v. Calarco, 77 A.D.3d at 1218,
910 N.Y.S.2d 227). “[I]f the first possession is by permission it is presumed to so continue until the contrary ap–
pears” (Longshore v. Hoel Pond Landing, 284 A.D.2d at 816, 727 N.Y.S.2d 518 [internal quotation marks and cita-
tions omitted] ). In this regard, plaintiff acknowledged that defendant “had discussed his ownership” of the beach
with her several times “over the past 20 years” and that he had once pointed out to her a marker he had placed to
identify the boundary line between their properties. She stated that she never disputed these claims at any time, but
instead made no response, “ignored him [and] walked away.” These allegations are inconsistent with plaintiff’s
claim of hostile and adverse use; by remaining silent instead of protesting defendant’s repeated claims of ownership,
she “tacitly acknowledged [his] superior right to the disputed lot,” thus “defeat[ing] the claim of adverse possession”
LAHTINEN, J.P., SPAIN and STEIN, JJ., concur.
N.Y.A.D. 3 Dept.,2012.
McKeag v. Finley
93 A.D.3d 925, 939 N.Y.S.2d 644, 2012 N.Y. Slip Op. 01539
END OF DOCUMENT
mately 40 years, that she prevented adjoining owner and others from using it and that she stored large wooden float
405 Water Law
405X Prescriptive Rights in Water or for Use or Access to Waters
405k1770 Elements of Prescription
405k1777 k. Hostile character of use and possession in general. Most Cited Cases
possession; inference of permission could be drawn from owner’s acknowledgment that she and her father began
using beach in context of friendly relationship, and she had remained silent instead of protesting defendant’s repeat-
ed claims of ownership.
[5] Adverse Possession 20 60(4)
20k60 In General
20k60(4) k. Possession becoming adverse. Most Cited Cases
When it is established that initial use was permissive, adverse possession does not commence until such permis-
sion or authority has been repudiated and renounced and possessor thereafter has assumed attitude of hostility to any
right in real owner.
20k59 Possession Consistent with That of Another, and Possession Becoming Adverse After Amicable
Entry
20k60 In General
20k60(2) k. Permissive entry and occupation, and license. Most Cited Cases
Permissive use, precluding adverse possession, may be inferred from history of neighborly cooperation and ac–
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
with any member of the Finley family until defendant took over its affairs after Gardner Finley’s death. An inference
of permission that rebuts the presumption of hostility may be drawn from this acknowledgment that plaintiff and
McKeag began using the beach in the context of a friendly relationship (see Chaner v. Calarco, 77 A.D.3d at 1218,
910 N.Y.S.2d 227). “[I]f the first possession is by permission it is presumed to so continue until the contrary ap–
pears” (Longshore v. Hoel Pond Landing, 284 A.D.2d at 816, 727 N.Y.S.2d 518 [internal quotation marks and cita-
tions omitted] ). In this regard, plaintiff acknowledged that defendant “had discussed his ownership” of the beach
with her several times “over the past 20 years” and that he had once pointed out to her a marker he had placed to
identify the boundary line between their properties. She stated that she never disputed these claims at any time, but
instead made no response, “ignored him [and] walked away.” These allegations are inconsistent with plaintiff’s
claim of hostile and adverse use; by remaining silent instead of protesting defendant’s repeated claims of ownership,
she “tacitly acknowledged [his] superior right to the disputed lot,” thus “defeat[ing] the claim of adverse possession”
LAHTINEN, J.P., SPAIN and STEIN, JJ., concur.
N.Y.A.D. 3 Dept.,2012.
McKeag v. Finley
93 A.D.3d 925, 939 N.Y.S.2d 644, 2012 N.Y. Slip Op. 01539
END OF DOCUMENT