31 N.Y.S. 100 | N.Y. Sup. Ct. | 1894
The parties to this action own adjoining lots in the city of Borne. The defendant undertook to build her portion of the division fence, and claims that she has placed it along the line equally on the lands of each owner. The plaintiff claims— First, that the defendant had nó right to place any part of it on his land; and, second, that, if she had such right, she has not placed it equally on the land of each, but has by it improperly taken into her own possession the strip here sought to be recovered.
The first position of plaintiff is based upon a judgment between
Was the fence properly built? Posts about four inches in diameter were set about fifteen feet apart along the line. The posts •were connected with rails which were set into the westerly or plaintiff’s side of the posts, and flush with that side. Then upon the westerly side of the posts and rails a wire netting about a quarter of an inch thick, and about five feet high, was placed, along the whole distance. The posts, with the wire netting on, were four inches thick; two inches of the posts being on defendant’s land, and the balance of the posts, together with the netting and rails, being on plaintiff’s land. The netting operated to exclude from the possession of plaintiff, and include upon the defendant’s side of the fence, two inches in width of plaintiff’s land the whole distance, except as occupied by the posts. This is the space that plaintiff seeks to recover. There is no doubt of the rule that a division fence should be made equally upon the lands of each. Warren v. Sabin, 1 Lans. 79; Ferris v. Van Buskirk, supra; Carpenter v. Halsey, 60 Barb. 47; Newell v. Hill, 2 Metc. (Mass.) 180; Pettigrew v. Lancy, 48 Mo. 380. If more than half is built upon the land of one party without his consent, he is entitled to relief. Sparhawk v. Twichell, 1 Allen, 450; Leprell v. Kleinschmidt, 112 N. Y. 364, 19 N. E. 812. In this case the trial court has held that the fence was built equally on the lands of each. There is no evidence of any custom to build a division fence in the manner this
Judgment reversed, and new trial ordered; costs to abide event.