Brand v. Prince, 35 N.Y.2d 634 (1974)

Successive periods of adverse possession of property omitted from a deed description may be combined (“tacked”) to establish the statutory period for adverse possession, provided the adverse possessor intended to transfer possession of the undescribed part along with the deeded portion.

Summary

Brand and Prince owned adjacent farmland. A dispute arose over a 10-acre parcel lying between their properties. Brand sued to establish title by adverse possession. The County Court found neither party had title by deed and Brand failed to prove adverse possession. The Appellate Division reversed, finding Brand had established title by adverse possession. The Court of Appeals affirmed, holding that Brand could tack his period of possession onto that of his predecessors, even though the 10-acre parcel was not included in Brand’s deed, because there was evidence that Brand’s predecessors intended to transfer possession of the disputed parcel.

Facts

Brand and Prince owned adjoining farmlands in Delaware County. A 10-acre vacant parcel lay between their properties. From approximately 1945 or 1946 to 1961, Brand’s predecessors in title used the 10-acre parcel for farming in conjunction with their tenancy and later ownership of the adjoining parcel. When Brand’s predecessors purchased their parcel in 1956, the boundary lines pointed out to them included the disputed 10 acres. After Brand purchased the adjoining parcel in 1961, he posted the land, rented it to a hunting club, and leased part of it for pasturage and haying. There was evidence of fencing and substantial enclosure related to these uses.

Procedural History

Brand brought an action in County Court to establish title to the 10-acre parcel under Article 15 of the Real Property Actions and Proceedings Law. The County Court ruled against Brand, finding that neither party had established title by deed, and that Brand failed to establish title by adverse possession. The Appellate Division reversed, directing judgment for Brand based on adverse possession. Prince appealed to the Court of Appeals.

Issue(s)

Whether Brand, who possessed the property for less than the statutory period, could tack his adverse possession to that of his predecessors in title, even though the parcel was not within the description of the deed to Brand.

Holding

Yes, because successive adverse possessions of property omitted from a deed description, especially contiguous property, may be tacked if it appears that the adverse possessor intended to and actually turned over possession of the undescribed part with the portion of the land included in the deed.

Court’s Reasoning

The Court of Appeals affirmed the Appellate Division’s decision. The court noted that to acquire title by adverse possession, the possession must be “hostile and under claim of right, actual, open and notorious, exclusive and continuous.” This amounts to “possession in fact of a type that would give the owner a cause of action in ejectment against the occupier throughout the prescriptive period.” Since Brand was in possession for less than the statutory period, he needed to tack his possession to that of his predecessors. The court cited Belotti v. Bickhardt, 228 N.Y. 296 (1920), stating that successive adverse possessions of property omitted from a deed description may be tacked if it appears that the adverse possessor intended to and actually turned over possession of the undescribed part with the portion of the land included in the deed. The court reasoned, “Because the possessory title is entirely an incident of the adverse holder’s possession, transfer of that possession, even by parol, effects a transfer of the possessory interest.” The court found sufficient evidence to support the finding that Brand’s predecessors intended to and actually turned over their possessory interest in the 10-acre parcel, making tacking proper.