Barnes v. Light

• Decision Date: 08 October 1889
• Citation: 22 N.E. 441,116 N.Y. 34
• Parties: BARNES v. LIGHT.
• Court: New York Court of Appeals Court of Appeals

116 N.Y. 34

22 N.E. 441

BARNES

v.LIGHT.¹

Court of Appeals of New York,

Second Division.

Oct. 8, 1889.

Appeal from supreme court, general term, fifth department.

This is an action of ejectment, brought by Edwin A. Barnes against Harvey E. Light to recover the possession of certain premises in the town of Pittsford, county of Monroe. The answer is in substance a general denial. The defendant's farm, of about 68 acres, lies directly east of a portion of plaintiff's farm, of 100 acres. The land in controversy, embracing about one-third of an acre, is a triangular strip running from a point at the north end of the boundary line between the parties to a base 48 links in length at the south end of said line. The origin of plaintiff's title, as proved upon the trial, was a deed from Oliver Culver to Isaac Barnes, dated January 3, 1823, in which the land conveyed is described by metes and bounds. The origin of defendant's title, according to the evidence, was a deed from William N. to Sylvester Shepard, dated April 30, 1840, which conveyed certain lands bounded as follows: ‘Beginning in the center of the road leading from Pittsford to Rochester, in the south line of Erastus Williams' land; from thence running west, in said south line, 40 chains, to Isaac Barnes' land; thence running south, in the east line of Barnes' land, 15 chains and 12 links; thence running south, 86 degrees east, 44 chains, to the Blake tract, so called; thence running north, in the west line of said Blake tract, 10 chains and 82 links, to the center of the Rochester road; thence northwardly, in said road, to the place of beginning.’ The several conveyances in the two chains of title from the original grantors down to the respective parties contain like descriptions, except that the north and west lines of defendant's land in the final deed to him, dated February 8, 1881, are as follows: ‘Thence on the south line of land, now or lately owned by Erastus Williams, north, 84 1/2 degrees west, 40 chains 20 links to land of Isaac Barnes; there south, three degrees and a quarter west, along said land 15 chains.’ It is conceded ‘that by following the courses and distances alone given in the deed from Culver to Barnes along the west and south sides of plaintiff's farm the east line would be so drawn as to exclude the locus in quo.’ On the trial the court directed a verdict for the defendant, and judgment was entered accordingly. On appeal to the general term the judgment was affirmed, and plaintiff appeals.

Henry W. Conklin, for appellant.

James B. Perkins, for respondent.

VANN, J., ( after stating the facts substantially as above.)

The land in question is not covered by any deed in plaintiff's chain of title, but he founds his right to recover (1) upon adverse possession, and (2) upon a practical location of the boundary line between his farm and that of the defendant. Unless there was enough evidence to authorize the jury to find for the plaintiff upon one of these questions, the trial court was right in directing a verdict for the defendant. An action of ejectment, founded only upon adverse possession, can be maintained even against the true owner. Cahill v. Palmer, 45 N. Y. 479;Millard v. McMullin, 68 N. Y. 345;Sherman v. Kane, 86 N. Y. 57;Carleton v. Darcy, 90 N. Y. 566;Mayor v. Carleton, 113 N. Y. 284, 21 N. E. Rep. 55; Baker v. Oakwood, 3 N. Y. Supp. 570; Busw. Lim. 313-315. As the plaintiff's claim of title was not founded upon a written instrument, judgment, or decree, it was necessary for him to show an actual continued occupation of the premises under a claim of title not founded upon written evidence, exclusive of any other right. Code Civil Proc. §§ 370, 371. Under such circumstances land can be deemed to have been held adversely only where it has been protected by a substantial inclosure, or where it has been usually cultivated or improved. Id. § 372. Upon the trial, evidence was given tending to show that the west end of defendant's farm had been cleared and cultivated for 40 years or more. The adjoining land of the plaintiff was, for a distance of over eight chains, a forest, and for the remaining six chains and upwards cleared, inclosed, and cultivated land. The entire forest comprised from 60 to 100 acres, and, although owned by several persons, had no division fences. The portion owned by the plaintiff, constituting the south end of his farm, was separated from his cleared land by a fence that has stood there for over 30 years, during which period all of his cleared land has been cultivated and inclosed,...