New York Appellate Divison, Second Dept.
Bouandary Line Dispute/Curb, Hedge and Fence/”Doctrine of Practical Location”: Plaintiff and defendant share a common boundary line. Defendant’s driveway curb encroaches onto Plainiff’s property along with a hedge and a fence. Plaintiff moved for summary judgment to establish the boundary as set forth in the deeds and for an injunction. Defendant opposed arguing that the “Doctrine of Practical Location” established the boundary line along the line of encroachments. The Supreme Court, Westchester County, denied vs. plaintiff and the Second Dept. sustained… “Pursuant to the doctrine of practical location, ‘[a] practical location of a boundary line and an acquiescence therein for more than the statutory period is conclusive of the location of such boundary . . . although such line may not in fact be the true line according to the calls of the deeds of the adjoining owners’ (McMahon v Thornton, 69 AD3d 1157, 1160 [internal quotation marks omitted]; see Katz v Kaiser, 154 NY 294, 298; Baldwin v Brown, 16 NY 359, 362-364; Kaneb v Lamay, 58 AD3d 1097, 1098). ‘[A]pplication of the doctrine requires a clear demarcation of a boundary line and proof that there is mutual acquiescence to the boundary by the parties such that [*2]it is definitely and equally known, understood and settled” (McMahon v Thornton, 69 AD3d at 1160, quoting Robert v Shaul, 62 AD3d 1127, 1128; see Tesone v Hoffman, 84 AD3d 1219, 1220).” The Court stated that there is a question of fact as to whether plaintiff’s predecessor acquiesced to the use for a period of more than 10 years. Jakubowicz v Solomon, Appellate Division, Second Department, 2013 NY Slip Op 04578,June 19, 2013