209 A.D. 394 | N.Y. App. Div. | 1924
This action was brought by Hyatt Adams, the plaintiff, for wrongful entry upon the plaintiff’s premises by the defendant Walter Warner and his employees and for cutting down and otherwise injuring some of the timber thereon. The defendant Warner claims to have had a lease covering the premises in dispute, obtained from the owner of premises immediately adjoining, with the right under that lease to cut and remove timber. The real issue is that of a disputed boundary line. The lands in question were unimproved timber lands which were uninclosed by fence or otherwise. The plaintiff failed to prove a chain of paper title, even for thirty years, now sufficient to show a presumptive title to such unoccupied lands. (Civ. Prac. Act, § 335.) The plaintiff also failed to show title founded upon actual possession. “A person cannot acquire title to an uninclosed, unoccupied, unimproved parcel of land by taking a deed thereof from one not the owner, and then merely going upon the land and there asserting his ownership; nor can he acquire the title by taking such a deed and then making an occasional foray upon the land for grass or sand, and thus committing trespass against the real owner.” (Price v. Brown, 101 N. Y. 669, 671.) It is not the law that one can take a deed of uninclosed woodland from one not shown to own it and then enter and take wood from the land once or occasionally and thus acquire a suffi
The evidence given by the defendants, however, as to the title of their lessor is at least equally significant. The parties both agree as to the starting point mentioned in the description of plaintiff’s lands in plaintiff’s deed. The northeast corner of the plaintiff’s lands as so described was as certain as a mathematical problem. It was eighteen chains and fifty-nine links along a given line from the conceded starting point. It had only to be measured. The evidence of the plaintiff and his witnesses on this point was most unsatisfactory and involved damaging admissions as to his
The plaintiff has failed to meet the burden of proof unless there is proof enough in the case to permit the jury to find a practical location of the disputed boundary line in conformity with the plaintiff’s contention, and long acquiescence in that line. The court charged the jury as follows: “ I charge you so as a matter of law, that if there had been a practical location of the line between the plaintiff and the premises leased by Warner, and that the owners and occupants of said lots and lands had respectively occupied the same and recognized the boundary line for a period of over 20 year's, and in this case it appears to be over 50 years, before the commission of the alleged trespass, the jury must find a verdict for the plaintiff.”
The doctrine of practical location was originally derived from a long acquiescence by the parties in a line known and understood between them, for such a period of time as to be identical with “ time immemorial ” or “ time out of memory.” Practical location of a boundary line, to be effectual, “ must be an act of the parties, either express or implied; and it must be mutual, so that both parties are equally affected by it. It must be definitely and equally known, understood and settled. If unknown, uncertain, or disputed, it cannot be a line practically located.” (Hubbell v. McCulloch, 47 Barb. 287, 299.) Where land is unimproved and uncultivated, the mere running of a line through the woods, ex parte, by one of the owners, so long as such fine is not settled upon and mutually adopted by the adjoining owners as a division line, is an immaterial fact. In such a case, until the adjoining owner shows his assent to it, it would amount to a mere expression of the individual opinion of the owner who ran the line. (Hubbell v. McCulloch, supra.) “ To constitute a practical location of a line or a lot requires the mutual act and acquiescence of the parties.” (Corning v. Troy Iron & Nail Factory, 44 N. Y. 577, 595.) The law has been well settled as to what constitutes practical location and acquiescence therein since the early case of Adams v. Rockwell (16 Wend. 285). There the court said that in the absence
The principles of practical location cannot be invoked by the plaintiff under the evidence in this case. There was no claim that there ever was a dispute as to this boundary line until the'beginning of this action. The reverse is conceded. The survey made in 1868 is an immaterial fact so far as establishing practical location is concerned. It was made for a person who was not privy to either of the parties to this suit. There is not the slightest proof that the defendant or his privies ever assented expressly or impliedly to any practical location. In 1911 the owner of the lands leased by defendant Warner was present during a portion of the time when the plaintiff had his survey made, but he had
The judgment and order should be reversed and a new trial granted, with costs to appellants to abide the event.
All concur.
Judgment and order reversed on the law and facts and new trial granted, with costs to the appellants to abide the event.