10 Barb. 333 | N.Y. Sup. Ct. | 1851
The court charged the jury upon the trial of this action, “ that an old fence becomes a land mark, and would, if acquiesced in for a length of time, determine the line, even though it should not accord with the true line; but if the owners desire to change it and make it straight, when it
It is worthy of recollection that the main issue made by the pleadings in the cause, was upon the title to the piece of ground 18 or 20 inches in width, and 583 feet in length, lying between the lines of the old and new fences, and not upon the right of the defendant to enter upon it -under a license from the true owner, for a given purpose. A license seeks to justify the defendant’s entry, not by a claim of title to the locus in quo in hostility to the plaintiff’s right; but it admits his title and pleads his authority and permission, as a justification for whatever may have been done. Chancellor Kent, in his commentaries, (vol. 3, 452,) notices briefly the distinction between interests in lands, which the statute of frauds requires should be in writing, and a license to enter thereon, which may be by parol. The distinction is also given by Chief Justice Parker, in Cook v. Stearns, (11 Mass. Rep. 537,) in language better suited to my present purpose, and I therefore quote it: “A license is technically an authority given to do some one act, or a series of acts on the land of another, without passing any estate in the land. Such as a license to hunt in another’s land, or to cut down a certain number of trees. These are held to be revocable when executory, unless a definite term is fixed, but irrevocable when executed.” “ But licenses, which in their nature amount to the granting of an estate, for ever so short a time, are not good without deed, and are considered as leases and must always be pleaded as such. The distinction is obvious, licenses to do a particular act do not in any degree trench upon the policy of the law which requires that bargains respecting the title or interest in real estate, shall be by deed or in writing. They amount to nothing more than an excuse for the act, which would otherwise be a trespass. But a permanent right to hold another’s land for a particular purpose, and to enter upon it at all times without his consent, is an important interest which ought not to pass without writing, and is the very object provided for by our statute.
No deeds or other written evidences of title were produced by either party, upon the trial; yet I think the plaintiff’s title, as it appeared, was too clear to admit of any dispute. He was the admitted owner of the farm adjoining the lands of the defendant, the exterior fences of which enclosed the premises in dispute, and his title to these very premises consisted of an occupation within a substantial enclosure, accompanied by a claim of title, and the actual cultivation close up to the old fence for the space of thirty years. Until some five or six years before the trial, no question seems ever to have been raised between the proprietors, in respect to this line. It had been settled and established by the ancient fence ; the parties had claimed up to it, and the plaintiff had certainly cultivated up to it for a-period of time sufficient to bar an entry. It was, therefore, not an
Disputed lines and indefinite and uncertain boundaries are incidents which attend upon the titles to land whenever it is appropriated to private use, and becomes the subject of private property. They have their origin in the impossibility of measuring out large tracts of wild uncultivated land with mathematical precision; in the inattention and indifference of the first settlers; in the errors unavoidably made in the original surveys ; in the practice—not unfrequent—of marking out and locating lots upon paper, and making grants without running the lines or measuring the ground; and in the decay and destruction of marked trees and other monuments. They become, in process of time, fruitful sources of legal controversies, perplexed with so much doubt and uncertainty that neither the learning and experience of the judges, nor the intelligence and good sense of juries, are in all cases, a guaranty that they will be adjusted upon the basis of truth and right. Hence, amongst other reasons, we have the rule to which the courts
The plaintiff’s title to the locus in quo was established by the evidence upon the trial, and he was, therefore, in my judgment, entitled to a verdict in his favor. I also think the learned justice erred when he charged the jury that the statute of frauds did not apply, and that “if the parties verbally agreed to straighten the line, the party who acted upon such agreement would not be liable to the other in an action of this kind.
There should be a new trial, with costs to abide the event.
Morse, J. concurred.
McCoun,'J. dissented.
New trial granted.