Van Valkenburgh v. Lutz

304 N.Y. 95, 106 N.E.2d 28 (1952)



To acquire title to real property by adverse possession, it must be shown by clear and convincing proof that for at least 15 years there was an "actual" occupation under a claim of title. The essential elements of proof being either that the premises (1) are protected by a substantial inclosure, or are (2) usually cultivated or improved


Plaintiff landowners purchased property from the city of Yonkers, New York in 1947. Defendant neighbors, a husband and wife, owned lots adjoining plaintiffs' lot. Plaintiffs brought actions against defendants to compel the removal of encroachment upon plaintiffs' lands, for delivery of possession, and for incidental relief. The actions were consolidated and a referee found that title to the disputed lots was perfected in defendant husband by adverse possession. The appellate court affirmed. On further appeal, the court reversed, concluding that there was no proof that the subject premises were protected by a substantial inclosure. The court reasoned that the proof failed to show that cultivation incident to a garden utilized the whole premises claimed, or that the premises were improved, or that there was hostile intent where defendants' garage unintentionally encroached only a few inches over the boundary line. Littering the property could not be deemed improvements.


Is there sufficient evidence showing that the premises were cultivated or improved sufficiently to satisfy the statute?




Lutz himself testified that when he built the garage he had no survey and thought he was getting it on his own property, which certainly falls short of establishing that he did it under a claim of title hostile to the true owner. The other acts committed by Lutz over the years, such as placing a portable chicken coop on the premises which he moved about, the cutting of brush and some of the trees, and the littering of the property with odds and ends of salvaged building materials, cast-off items of house furnishings and parts of automobiles which the defendants and their witnesses described as "personal belongings", "junk", "rubbish" and "debris", were acts which under no stretch of the imagination could be deemed an occupation by improvement within the meaning of the statute, and which, of course, are of no avail in establishing adverse possession.

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