12 N.Y.S. 693 | N.Y. Sup. Ct. | 1891
The action was for an injunction to restrain the defendant from tearing down a fence claimed by the plaintiff as marking the west line of premises owned and occupied by her on the south side of Court street in the city of Rochester, and from erecting any building or other structure on a strip of land lying east of such fence. The question involved was of the title to the strip of land mentioned. Judgment was for the plaintiff, adjudging her to be the owner of the strip of land in question, and requiring the defendant forthwith to remove therefrom that portion of the building (erected by him after the commencement of the action) which encroached upon the plaintiff’s premises, and to rebuild the fence which had been removed ór destroyed by him. The judgment, and the conclusion of law upon which it was based, necessarily resulted from the facts found by the court; and those, in turn, seem to have been well supported by the evidence. They were to the effect that more than 40 years before the commencement of the action the plaintiff’s father purchased by warranty deed from the common source of title of the parties to this action, and went into possession of lot No. 48 and the east half of the adjoining lot No. 4, of a certain tract in the city of Rochester; that immediately after taking such conveyance and possession he proceeded to inclose his purchase by a substantial board fence, but that by mistake in respect to the true location of the lines of those lots the fence on the west side of the premises so inclosed was placed so far west of the true center line of lot 4 as to include between it and such true line the strip of land in question, being one foot and a half in width on Court street, and two feet and a quarter wide on an alley in the rear; that from the time of the erection of such fence down to the time of the defendant’s interference therewith complained of “the said strip of land so inclosed continued to be in the actual, exclusive, adverse,