60 A.D. 382 | N.Y. App. Div. | 1901
The plaintiff claimed that he was the owner of certain premises on and running down to the ordinary high-water mark at Great South Bay, Long Island, upon which he had built a fence, and that the defendant, without his consent, took down and removed a portion of such fence, thus disturbing him in the use of his land to his damage.
The defendant answered, denying the plaintiff’s ownership, and alleged that she was the owner of the strand in front of the plaintiff’s premises and of a right of way, two rods wide, above the strand; that the fence was built across the strip over which she had the right of way, and that it was removed for the purpose of permitting her to use her right of way.
The trial turned upon the question whether the predecessor in title of the plaintiff and defendant had made a practical location of the northern boundary of the strip over which the right of way ran, and the question being submitted to the jury a verdict was rendered for the defendant, and the plaintiff appeals.
I cannot state the facts out of which the controversy arose and the question at issue any more clearly or concisely than was done by the learned justice in his charge, and, therefore, quote at length from it, premising that the plaintiff takes title through William B. Arthur to what I shall term the upland, north of a fence which ran nearly parallel to the shore; and the defendant, to what is called the strand, south of such fence, through her mother, Mary Louisa Mills: “ Mary Louisa Mills, William B. Arthur and Thomas O. Arthur owned a piece of land which bordered on the South Bay and extended some distance into the interior. They divided that land between themselves by deeds, from each to the others, Mrs. Mills taking the western, Mr. William B. Arthur the middle and Mr. Thomas O. Arthur the eastern third. In describing these three parcels they made the south boundary 1 The strand; ’ só that the three parcels as carved out did not go to the bay, but went to the strand. And in this description there was reserved in front of each
The plaintiff excepted to the last paragraph, and we are thus brought to the main question argued upon the appeal. The plaintiff contends that the rule as to “ practical location ” will prevail .against the apparent description contained in a deed only, first, by proof of some positive act in which both owners concur, done •for the purpose of making such location, followed by mutual and . -continued acquiescence for not less than twenty years; second, where there is ambiguity in the words of the deed, or monuments therein named have been obliterated, whereby a dispute as to the boundary has arisen and been settled by the owners; third, where .a boundary has been agreed upon between parties and in reliance thereon one has made improvements, in which case the rule of •estoppel in pais might apply.
I need not discuss the third ground, as I am of opinion that evidence as to the practical location was admissible on the other two grounds.
The counsel cites Corning v. Troy Iron & Nail Factory (44 N. Y. 577), where the court said (p. 595) : “ In order to establish a line by what is called practical location, it must actually be located, ;and must be acquiesced in for a long time, probably, at least, twenty years, unless there is an element of estoppel in the case. (Citing cases.) To constitute a practical location of a line or a lot requires the mutual act and acquiescence of the parties. Here there is no evidence whatever that the plaintiffs ever partiei■pated or acquiesced in the location of the one-acre lot, so as to include the piece awarded to them, or that they ever knew that it was so located. There can be no claim that any line was practically established before the dock was built, and when that was built, the plaintiffs objected, and there is no proof that they ever acquiesced in it. On the contrary, they objected, and within thirteen years commenced this action.” It will be observed that the court •says, that the dock referred to was built by the defendant and that the plaintiff did not participate or acquiesce therein, and that the .action was begun within thirteen years thereafter.
In the case at bar the facts. are very different. Evidence was
In addition to this there was evidence of declarations as to his rights by the common predecessor in title of both parties, "William B. Arthur, while he owned and was in possession of the upland and before its conveyance to the plaintiff. This declaration corroborated the location and use of the right-of-way strip in the place claimed by the defendant.
It is erroneous to suppose that practical location may be proved only in cases where there is ambiguity in the description of a deed. In Sherman v. Kane (86 N. Y. 57) the court said (p. 73): “ The doctrine as to the practical location of a boundary line is well settled in the courts. It was adopted as a rule of repose with a view of quieting titles, and rests upon the same ground as the statute in reference to adverse possession which has continued for a period of twenty years. (Baldwin v. Brown, 16 N. Y. 359; Adams v. Rockwell, 16 Wend. 285.) It applies not only to cases of disputed boundary, but to those about which there can be no real question. (See cases last cited ; also Vosburgh v. Teator, 32 N. Y. 561.) ”
But if it were necessary to resort to ambiguity in the descriptions
In Katz v. Kaiser (154 N. Y. 294) it was declared to be the “ settled rule in this state, resting upon public policy, that a practical location of boundaries, which has been acquiesced in for a long series of years, will not be disturbed.” In that case there was no evidence of a mutual location. One party built a wall which encroached upon the adjoining premises and remained so for thirty years without objection. The court held that there was a practical location of the boundary line.
Avery v. Empire Woolen Co. (82 N. Y. 582) confirms this view, that there need not be proof that there was originally any mutual agreement between the parties. The case turned upon the existence of a fence between property of different owners. “ There was no evidence,” said the court (p. 588), “ showing when this division line was first established. The first we know anything about it prior to 1830, there was a fence upon that line, and the great preponderance of the evidence is that the fence has never been changed. It has been reconstructed and repaired always, as I think, upon this same line. In 1859 the fences between these lands were divided, and the portion assigned to each owner, which he was
In addition to this, an uninterrupted use and enjoyment of a right of private way over the land of another for twenty years, with the knowledge and acquiescence of the owner, amounts to an adverse enjoyment sufficient to raise a presumption of a grant, and the use of such an easement for twenty years will be presumed to be under a claim and assertion of right and not by the leave or favor of the owner, and such a use will not only give a title by prescription, but will authorize the presumption of a grant. (Miller v. Garlock, 8 Barb. 153.) The doctrine of this case was declared ¡also in Crounse v. Wemple (29 N. Y. 540).
In Townsend v. Bissell (4 Hun, 297) the court said (p. 301): “ Where the owners of adjoining lots make a way between them, each setting off an equal portion of land for that purpose, and they and their grantees continue to use it in common as a way for a period of twenty years, we think the reasonable inference is that such use was under a claim of right, and adverse. It is not necessary to assert stich right in words, or by any particular acts or formula of conduct, or to show that the exercise of the right did any actual damage to the party against whom it is claimed, provided it was an invasion of his right. Where there has been a use of an easement for twenty years, under such circumstances, it will, in the absence of contradictory or explanatory evidence, authorize the presumption of a grant.”
I have not deemed it necessary to discuss other points raised by the learned counsel for the plaintiff in his very able brief, and I am clearly of opinion that the- fencing of the northerly line of the rightofway strip, and the common use of the road by all the owners for more than forty years, constituted a practical location of the right of way which may not be disturbed. ;
The judgment and order should be affirmed.
All concurred.
- Judgment and order affirmed, with costs.