41 Barb. 181 | N.Y. Sup. Ct. | 1863
From the facts elicited upon the trial I incline to the opinion that there was some evidence that the plaintiff claimed to hold the premises in question adversely. Although there is no proof that he claimed title, in so many words, to third parties, yet there are circumstances attending the possession from which it may he fairly inferred that such a claim was actually made by him. He was in possession by himself and by his tenants, keeping up the fences, cutting brush, and mowing the grass. I think these are open and notorious acts, and an unequivocal assertion of title which apprised the world of the nature of his claim, within the principle of adjudicated cases. (See Lane v. Gould, 10 Barb. 254.)
As the plaintiff’s claim to hold the premises adversely for a period of twenty years and upwards, was not founded upon a written instrument, or a judgment or decree, he was bound in addition to establish, for the purpose of constituting an adverse possession; First. That the land upon which the alleged trespasses were committed had been protected by a substantial inclosure; or, Secondly. That it had been usually cultivated and improved. (Code, § 85.)
As to the first proposition, the evidence shows that prior to 1851 the land was only fenced on three sides, with rails, brush and poles, and there was no fence on the line between this lot and the Cudney farm. The Oudney farm was, however, inclosed with these premises, and it is insisted that this was in fact a “substantial inclosure” of them. The provision of the code referred to was intended to provide that a party claiming
As to the second proposition, it was proved that the plaintiff had kept up a fence of brush, rails and poles, which had been previously, erected. He had also cut brush (although the na
Although there was some evidence of adverse possession, yet the plaintiff failing to make out a case in other essential particulars, there was no error in the rulings of the judge; and a new trial must be denied, with costs.
Gould, Hogeboom and Miller, Justices.]