30 N.Y.S. 167 | N.Y. Sup. Ct. | 1894
This action was in ejectment for' a small tract of land in the town of Islip, Suffolk county. The answer admitted possession, denied the plaintiffs’ title, and alleged that defendant and her grantors had been in uninterrupted, adverse possession for more than 20 years prior to the commencement of the action. In January, 1875, defendant purchased about 100 acres of land from Mary H. Cordts, and at that date took possession of the lands in dispute. The plaintiffs were the owners of several hundred acres lying east of the defendant’s land, and it was their claim that the disputed land was a part of their tract. It was conceded that the westerly boundary of the plaintiffs’ lands and the easterly boundary of the lands described in the deed from Cordts to defendant was the east line of the Mowbray patent, and the location of that line was the main question of fact litigated upon the trial. Under a charge to which, in this respect, no exception was taken, the jury determined the line of the Mowbray patent to be as claimed by the plaintiffs, and, consequently, that the land in dispute was not included in the conveyance to the defendant. The question presented upon this appeal is whether evidence offered by defendant, and which she claims tended to establish possession adverse to the plaintiffs, was improperly excluded.
Lorenzo Reich, the defendant’s husband, testified that, in company with his wife, he visited the property in 1871; that he also saw it in 1874. And he was asked whether, at those visits, the premises were cultivated, and, if so, by whom. These questions were objected to, and excluded, to which defendant excepted. Similar questions were asked of the defendant and of William Boland, and excluded, over the defendant’s objection and exception. Boland testified that he saw the premises in 1867, and nearly every summer thereafter. The defendant’s title did not rest upon a written instrument, and hence it was necessary for her to show actual, continued occupation of the premises under a claim of title exclusive of any other right. Pope v. Hanmer, 74 N. Y. 240; Code Civ. Proc. § 371. Under such circumstances, land is deemed to be held ad