47 Barb. 287 | N.Y. Sup. Ct. | 1866
When the testimony on the trial of this action was closed, there were certain undisputed facts in the case, or facts which must be assumed to be uncontroverted. These Uncontroverted facts are, 1st. That the lands in question are part of lot number four of the
At the close of the case, the plaintiff’s counsel requested the court to instruct the jury, that the plaintiff was entitled to a verdict for the amount of the wood taken by the defendant from the land lying between the McCollum line and. the Robbins line. The Robbins line being supposed to be the defendant’s west line, according to his deed. The court declined so to instruct the jury, and the plaintiff excepted thereto. To understand the legal force and effect of this ruling, it must be understood, that the- quantity of land lying between the McCollum line and the Robbins line was the undisputed surplus land contained in great lot number
Starting with this state of facts before us, it is clear that the fee of the lands between the McCollum line and the Bobbing line, is in the plaintiff, and that it is not included within the description, nor covered by the deed of the defendant. And if the plaintiff has lost his right to it, or is barred of his action to recover for injuries to it, it is by reason of his assent to a location, express or implied, or to an acquiescence in an established line between him and the defendant, for such a period of years that the law will not permit it now to be disturbed. It is not claimed that the -defendant has acquired the title to the locus in quo, by any grant, assignment, surrender or declaration thereof, by deed or conveyance reduced to writing; nor that any consideration has been paid by him therefor, in accordance with the provisions of the statute of frauds. The plaintiff, on the trial, having established the legal title or fee in the property to be in himself, has another statute provision coming to his relief, to wit, “that he shall be presumed to have been possessed thereof within the time required by law; and that occupation of such premises by any other person, shall be deemed to have been under and in subordination to'the legal title, unless it appear that such premises have been held and possessed adversely to such legal title, for twenty years before the commencement of such action.” (Oode, § 81.)
As it is not claimed that the defendant’s possession or claim of title is founded on a written instrument, adverse possession can only be set up, and. the land deemed to be adversely possessed, in the following cases : 1st. Where it
But the defendant still claims that there has been a “ practical location” of the boundary line between him and the plaintiff, acquiesced in for over twenty years; and that such acquiescence precludes the plaintiff from disputing the correctness of such boundary. This is now, as it was before the learned judge who tried the cause, the only question to be examined. In the view I have taken, I have found myself unable to concur in the opinion expressed on the trial. I have supposed that ever since the decision of Adams v. Rockwell, in the Court of Errors, reported in 16 Wend. 285, there had been a uniform current of authority from the courts, confirming the doctrine there enunciated, only varied and explained according to the varying circumstances of subsequent cases, as to points in which they differ, and I am unable, in my review of any modern case, to find the general rule, as laid down in Adams v. Rockwell, to be overruled or shaken. But before we proceed to review the cases which are supposed to have varied this doctrine, let us look, for a moment, at what is assumed in this case to be “ practical location,” a thing of such potency in its effect upon the statutes. How, and by whom, was such practical location made, and under what circumstances P 1st. The McCollum line was run by the plaintiff alone, without the presence and approbation, at the time, of the defendent, and in ignorance, by the plaintiff, of the fact that there was a surplus of land in the tract. This is also a clear and undisputed fact in the case. 2d. The defendant, when told, a few weeks afterwards,
The case of Jackson v. Vedder, (3 John. 8,) was a question between monuments and actual location, and posession by all the parties for forty years, on the one side, and a survey showing an error in the monuments, on the other side. The court said “ that the proprietors having made a survey, and taken possession and held for forty years, ought to be concluded from contesting, with each other, the correctness of the actual locations. This term, actual locations, is identical with practical location, subsequently adopted, including adverse holdings. In Jackson v. Dieffendorf, (Id. 269,) Judge Van Hess said: “A location made in 1765, and probably in exact conformity to a survey made on partition in 1744, and quietly suffered to be continued by the proprietors of the adjoining lot until 1803, is, and ought to be, final and conclusive. This evidence of right should be taken to be conclusive.” Here, it is seen, the case is put bn the evidence of right. Following this, is the case of Jackson v. McCall, (10 John. 377,) which was also settled upon the question of
These cases were all reviewed in the Court of Appeals, in Baldwin v. Brown, (16 N. Y. Rep. 359,) by Selden, J. and cited with approbation, as cases of “practical location,” although those terms do not occur therein, except as actual location, which is really identical in meaning. As I understand the case of Baldwin v. Brown, it lays down the rule exactly the opposite of that of this case, at the circuit. I adopt Baldwin v. Brown, as I understand it, as conclusive of the case before us. How, let us see how exactly that case follows the reasons for the decisions made in the cases above cited. That case was to recover a strip of land, six rods wide, lying between the farms of the parties, who derived title from the same source. The surveyor who originally ran this line between the parties, made a ■ mistake of one chain-against the grantor of the plaintiff, which mistake made the exact quantity of land in controversy. After the survey, and in 1808 or 1809, the parties built a division fence on this erroneous line, and they, and their respective grantees, occupied and cultivated the land up to this fence, each claiming to own up to the fence till, 1852, a period of forty-one or forty-two years. This division fence, had, by consent of the parties, been moved from time to time, in portions, for the purpose of enabling the parties to clean up the hedges,
“It seems impossible,” (say the court,) “to hold that a mere parol agreement, adopting a line different from that described in the deed, is obligatory, without violating the statute of frauds, both in its letter and spirit,” “ In all cases in which practical locations have been confirmed, upon evidence of-this kind, the acquiescence has heen continued for a long period; rarely less than twenty years.” “ There may be cases in which an express agreement, recognizing an erroneous boundary line, will conclude a party; as where the other, acting upon the faith of such agreement, has made expensive improvements, the benefit of which will be lost to him if the line be disturbed.” “ Such cases, if they exist at all, rest upon a different principle, viz: that of estoppel in
. to see if it can be supported, alone, upon this view. There is nothing in the case of Hunt v. Johnson, (19 N. Y. Rep. 279,) that I can perceive, at all changing the rule as appli-' cable to this case. ’ And there is nothing in any decided case, that I am aware of, overruling the doctrine on this subject in Adams v. Rockwell, but on the contrary, it is reaffirmed in very recent cases, and as I understand it, distinctly, in both cases cited by the learned judge in his opinion.
How, to my mind, the case before us presents neither an act of practical location, nor evidence of long acquiescence; and it must do both, according to Baldwin v. Brown, before .■ this supposed power of acquiescence can be rendered sufficiently effective to override the statute of frauds. Practical location must be an act of the parties, either express or implied ; and it must be mutual, so that both parties are equally affected by it. It must be definitely and equally known, understood and settled. If unknown, uncertain, or disputed, it can not be a line practically located. The evidence in this case is undisputed, that the- parties did not jointly, or at joint expense, or by a concurrence of minds necessary to constitute a valid settlement, make a line ; but the plaintiff alone, at his own expense, and by his sole direction, after having measured off to Wilson one hundred and. five acres on the west side, to correspond with his purchase, ordered the surveyor to measure off another lot of one hundred and five acres adjoining, and fix the corners and run a straight line through, between these monuments. And this was done. In ignorance of a surplus of land, the plaintiff, as a logical conclusion, or as a solution of a mathematical .
At the trial, the judge charged the jury, “that if-they were satisfied that the line of marked trees was made at the time of the survey, and that when the deed to Ephraim Wethey was executed, such line was established by the parties, at the time of the execution of the deed, as the boundary between them; that possession was taken accordingly ; that the plaintiff had acquiesced in that line as the boundary, and the defendant and his ancestor had made improvements to the line, with the knowledge and acquiescence of the plaintiff, the defendant had made a good defense.” The possession, in that case, was short of twenty-five years, (commencing before the Eevised Statutes.) The jury found for the defendant. The Supreme Court reversed the judgment, and said : “ Taking the title to the defendant's farm to cover no more than what is confessedly included in the written boundaries, in the deed given by the plaintiff to Ephraim Wethey, and under which the defendant claims there can be no dispute,' that his defense is an utter failure.” “ That deed goes round the farm by specific courses and distances, and if these be followed, the deed clearly comes short of the locus in quo. It belongs to the plaintiff.” So, too, down to the case of Terry v. Chandler, (16 N. Y. Rep. 357, 358,) the rules laid down in Adams v. Rockmell, Clark v. Wethey, and Clark v. Baird, (5 Seld. supra,) are again cited with approbation, and the rule repeated, that no acquiescence will be sufficient, unless such adverse possession be shown as is, in itself, a bar to an ejectment.. In the case before us, there has been no adverse possession whatever, and so held on the trial. No matter if it be admitted that the acquiescence began at the survey of the plaintiff; it does not help the defendant. Taking the facts found by the jury to be true, the justice erred in not ordering a verdict for the plaintiff, for the admitted value of the timber, as requested by the plaintiff's counsel, on the trial. After the finding of
James, Potter and Rosekrans, Justices.]