15 Wend. 642 | N.Y. Sup. Ct. | 1836
By the Court,
The only question in this case-is, whether the defendant is concluded, by the practical location and occupation, from moving his fence and placing it upon the true boundary line between him and the plaintiff, under the facts and circumstances of the case.
The entire line between the two farms is about 206 rods in length ; and beginning at the east line and tracing it west,
The defendant has the paper title. As to the 43 rods where the old fence was bounded on the north by the wood land of the plaintiff, there seems to be no good reason forbidding the assertion of that title to the true line. The plaintiff having no permanent or visible occupation upon the opposite side over this line, it cannot with much force be said that the fence had been fixed upon by both parties as the boundary, nor that the defendant had acquiesced in an occupation of his land by the plaintiff for any length of time whatever. He had a right to leave a strip of woods between his fence and the line; and even if it was left by mistake, as it probably was, he did not thereby lose his title to it, nor did the plaintiff acquire it. The only portion of the 206 rods, in respect to which it can be said with any plausibility that the defendant has acquiesced in a way to prelude his assertion of title to the true line, is the 38 rods: the rest of the distance is either occupied up to the true line, or in a manner not to prejudice the rights of the defendant. In the case of Stuyvesant v. Dunham, 9 Johns.R. 61, 11 id. 569, S. C. in error, this court refused to straighten a boundary line according to the courses in the deed ,* but
New trial denied.