139 N.Y.S. 339 | N.Y. App. Div. | 1912
■ The calls of the patents cannot with great confidence be placed upon the ground. The starting point was a rock marked “ W. F.,” situated upon, a rocky point. The marks cannot be found and it difficult to tell from what particular rock the survey started. The controversy arises from the plaintiff’s locating the starting point in the survey some 200 or 250 feet south of the point where the defendant starts. The defendant has the advantage in the line which she claims of finding blazed and marked trees, the blazes and marks apparently having been made about the time the original survey was made.- The plaintiff takes a starting point which. will coincide with a line of marked trees, but it is conceded that the marks are of quite recent origin. It seems pretty well established that the elder Barnett, who occupied the premises on the lake immediately north of the patents in question, maintained a fence on his southerly line and that his premises had been cleared up to the line; that about twenty-nine years ago he had a survey made and removed the fence 200 or 250 feet to the south and marked trees 'along the new line,, and immediately he and his sons cut the valuable timber from the land which had thus been acquired, and apparently the new fence built by them is what is now called the old fence near the line which the plaintiff claims as the proper line. The finding of the old marked trees along the lines as claimed by the defendant is convincing evidence in her favor. The marks upon the trees and the monuments found by the plaintiff are not convincing, as they were made long after the original patent, and the circumstances under which they were made are not shown. Some of them were evidently made by-the Barnetts when they attempted to change the line; some
The findings of fact that the plaintiff is the owner and entitled to the possession of the premises in dispute and that the defendant is wrongfully in possession, are disapproved of as against the evidence. - The court properly excluded the testimony of the witnesses Clifton. The judgment should, therefore, be reversed upon the law and the facts and a new trial granted, with costs to the appellant to abide the event.
All concurred; Lyon, J., in result.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.