47 N.Y.S. 280 | N.Y. App. Div. | 1897
The action is ejectment, brought to recover . the possession of a small parcel of land, near Great South Bay, in the county of Suffolk. The plaintiffs claim title through a warranty deed, made in November, 1849, by Lydia Maria Chichester to Joseph Avery, of three acres of land, bounded southerly-by the bay. The grantee in the deed was the ancestor of the plaintiffs, and through the devise by his will to their mother. the plaintiffs inherited the land from her.
The evidence tends to prove that ever since and under such conveyance the grantee and his successors in interest, who at the time of the commencement of this action were the plaintiffs, have been in the possession of the premises, and that in such premises is included the land in controversy. Although the entire premises were not inclosed or cultivated by them, those persons in -actual occupation of a párt of the premises had, by virtue of the conveyance, the constructive possession of the residue of the land which the deed purported to convey, and the evidence permitted the conclusion that such possession, under claim of title founded upon such conveyance, had been continuous for more than twenty years prior to the commencement of this action, and that, therefore, presumptively the plaintiffs had title. (Code Civ. Proc. §§ 369, 370; Edwards v. Noyes et al., 65 N. Y. 125; Northport Real Estate & Imp. Co. v. Hendrickson, 139 id. 440.)
The defendant, in July, 1890, took, from Jennie Asmus a conveyance by warranty deed of one rod of strand on the north shore of the Great South Bay, bounded on the west by ■ strand of Mary E. Fagan, and on the east by other' strand of his grantor. The defendant erected a bathing house upon what he deemed the land conveyed to him. While the plaintiffs do not question the title of the defendant to the rod of strand described in the deed to him, they do insist that the defendant located his bath' house farther inland than 'the northerly line of such rod of strand, and upon the land of the plaintiffs'. Hence arises the controversy between the parties.
This parcel of the strand conveyed to the defendant was in front of the plaintiffs’ premises; and, in view of ' the fact which the jury were permitted by the evidence to find, it may be assumed that the northerly line of the former was the southerly line
A witness, who had resided in that neighborhood for upwards of fifty years, was permitted to state that a strand, as there understood, was the space between ordinary high-water mark and low-water mark. If the term were in itself, or in its application, local and technical, the evidence would have been admissible as such. (1 Greenl. on Ev. § 295.) This is not the nature of the term “ strand.” It is of universal use, and, therefore, did not come within the rule of
' The judgment and order should, therefore, he affirmed..
All concurred, except Bartlett, J., not sitting.
. Judgment and order affirmed, with costs.