57 N.Y.S. 1061 | N.Y. App. Div. | 1899
The action is brought to compel the defendant to remove his building from land belonging to the plaintiff and adjacent to his-own, and was tried on an agreed-statement of facts reading as follows : “ That the plaintiff has a deed of the premises described in paragraph one of the complaint. That the defendant has a deed of' the premises on the easterly side of the plaintiff’s premises, as-described in paragraph two of the complaint. That both parties-have record title to such premises respectively. That the building-erected on the defendant’s premises is. a frame building with a brick foundation, and has been standing thereon since the year 1855, the: said foundation extending about five' feet below the surface and about two feet above the surface. That when so erected by the defendant’s grantor - the westerly wall of defendant’s said building-was so erected by mistake and upon the assumption by defendant’s-grantor that it was upon defendant’s ground. That the same
“ The question to be determined herein upon these facts is : The plaintiff, claiming that while the old wall stood the defendant had an easement only to the land encroached upon, but the defendant claiming that he had a title in fee to said land by adverse possession. This action was commenced July 10, 1895. That findings of fact .and conclusions of law are to be submitted by the respective parties, and the action to be determined as if triéd at Special Term. If the question of law herein submitted is decided in favor of the plaintiff, he shall be entitled to such relief as the court may deem him to be entitled to. If the question is decided in favor of the defendant, there shall be a judgment for defendant upon the merits.” Ho other evidence was introduced.
The court subsequently rendered its decision as follows: “ That the defendant has acquired title in fee simple by adverse possession to the land shown by the survey in evidence to have been occupied by the encroachment of the westerly wall of the building erected by defendant in the year 1855 to the extent .of a foot and a half, and the land inclosed by the fence in the rear of said westerly wall erected by defendant more than twenty years ago, as shown on said survey to the extent of a foot, and that plaintiff has acquiesced in
“■ That the complaint should be dismissed upon the merits and the lis pendens cancelled, with costs.”
■ This decision is in accord with Chary v. Goodman (22 IST. Y. 170) where the court, Selden, J., writing, reviewed the authorities' and announced its conclusion as follows: “ The doctrine of the courts, therefore, evidently is that where a grantee, iii taking possession under his deed, goes unintentionally and by mistake beyond his proper boundaries and enters upon and actually occupies and improves lands not included in the deed, claiming and supposing it to be his, this occupation is to be deemed adverse within the meaning of the Statute of Limitations, .and if continued for twenty years will bar the right of the true owner. It cannot be denied that this .doctrine is in accordance with the strict letter bf the statute, and it may perhaps be equally within its spirit and intent.”'
It is unnecessary to cite other authorities for our conclusion that the judgment should be affirmed
All concurred.
Judgment affirmed, with costs.