The Battle of the Photos: Adverse Possession, Photographs and Business Records
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Sometimes cases and legal issues that superficially seem like “inside baseball” to our non-lawyer readers actually contain practical insights that property and business owners would find fairly interesting - - once an appropriate translation is made from the “legalese.”
A case in point: recently an appellate case in New York provided valuable insights into adverse possession. As a bonus, the case also provided lessons on an important evidentiary rule, the business records exception to the hearsay rule. The case is Corsi v. town of Bedford, 2008 NY Slip Op 09344 (2d Dep’t).
We’ve commented on adverse possession before, for example, here and here. At first adverse possession seems like an arcane subject – can neighbors really claim land that is legally not theirs and actually win? Yes, they can. And. it’s not arcane; cases come up all the time in our practice and certainly in the court system.
The plaintiffs, in this case, purchased a home in Bedford, NY. The town purchased the land next to the plaintiff’s property to preserve open space. The plaintiffs claimed a portion of that land on the principle of adverse possession – that they had openly, notoriously and continuously possessed it for 10 years under a claim of right. And, a unique statutory requirement in New York, the claimed land was “usually cultivated or improved” or “protected by a substantial enclosure.” Had the case come up in Connecticut, where we also practice, the time requirement would have been 15 years and there would be other, more subtle differences in the rules.
Lesson number one: adverse possession cannot be claimed against a municipality that owns land for governmental purposes (such as open space preservation). But, lesson number two also applies: if the town bought the land after the 10-year period had already expired, adverse possession would apply. Specifically in this case, the town bought the land in 2004 so if the plaintiffs can prove – by clear and convincing evidence – that they already possessed the portion that they claimed for 10 years in 2004, that portion is theirs.
Incidentally, for our non-lawyer readers, “clear and convincing” evidence is the highest level of proof for civil (meaning non-criminal) litigation. It’s a greater burden of proof than required in most civil matters. And, the burden of proof is on the plaintiffs; the defendant, the town, did not have to prove anything, they merely had to show the plaintiffs’ proof was insufficient.
Both sides used photographs as evidence. The bulk of the published decision really concerned whether certain aerial photographs, along with expert analysis, that the town submitted would be admissible. If the town’s photographs were not admissible, then the plaintiff’s photographs would not be contradicted and the plaintiffs would have the land.
The trial court had ruled that the town’s photographs were admissible. The plaintiffs appealed.
The appellate court’s decision included a very clear, detailed explanation of the rule that would apply in this case. First, the court reviewed the well-established definition of hearsay: a statement made out of court, offered for its truth. For our non-lawyer readers: hearsay is not admissible because, among other reasons, having been made out of court, it was not made under oath and is unreliable. There are many exceptions to the hearsay rule and trial courts have a lot of discretion in how they apply this rule.
An exception to the hearsay rule that applied in this case was the business records exception. Thus, lesson number three: records kept in the normal course of business are considered reliable (and, therefore, admissible) because they are not made for the purpose of the litigation. But, there has to be proof (a reliable and credible witness) to establish that the records are authentic and were, in fact, maintained in the normal course of business.
Image: A diagram of the major roads of northwestern Bedford, NY, traces on USGS aerial photo; Wikipedia Commons.
In this case, the town’s photographs were taken by a contractor in the normal course of the town’s business because the town periodically contracted to take aerial photographs. The appellate court ruled that one set of photographs taken in 1995 were admissible; it did not matter that the witness did not take the photographs (normally, photographs are authenticated by a photographer); they were part of a series taken routinely and in the course of business. Another set of photographs, taken in 1996, were not admissible because the witness was vague about its origin and authenticity.
The 1995 photographs were enough. They did not show the plaintiff’s claimed improvements (or did not show all of them). If the improvements were not there in 1995, they could not have been there for 10 years in 2004. The one set of photographs was enough to contradict testimony by neighbors and the plaintiffs’ own photographs. Remember: the defendant did not have to “prove” its case; it only had to show the plaintiffs had not proven their case.
The plaintiffs did not get the land.
Adverse possession is not intended to be a pretense to “steal” property (although it has arguably been misused in that way); rather, it is a way to settle ownership of property when it has legitimately been used and improved over many years. But, for the would-be claimant, there is an important “takeaway,” here: understand the importance of documentary evidence to sustain that high burden of proof.
There are other “takeaways” from this case. For attorneys, there are subtle distinctions in the business records exception. For property owners, the same point we have made many times before, watch your property line and be attentive to encroachments. For business owners involved in any kind of litigation, the reliability of business records but also the standards necessary for those records to be accepted as reliable.
