Davock v. Nealon

• Decision Date: 13 July 1895
• Parties: DAVOCK v. NEALON.
• Court: New Jersey Supreme Court

32 A. 675

58 N.J.L. 21

DAVOCK

v. NEALON.

Supreme Court of New Jersey.

July 13, 1895.

(Syllabus by the Court.)

Ejectment by John Davock against James Nealon. Cause tried in the Hudson county circuit court before Mr. Justice Lippincott and a jury. Judgment for defendant, and plaintiff brings rule to show cause why new trial should not be granted. Reversed.

Argued February term, 1895, before the CHIEF JUSTICE, and DEPUE, REED, and GUMMERE, JJ.

Abel I. Smith, for plaintiff.

James F. Minturn, for defendant.

REED, J. This is an action of ejectment, brought to recover the possession of a strip of land fronting 1 foot in width on Ferry street, and running, 1 foot in width, back from the street, a distance of 100 feet The facts proved at the trial were these: Davock, the plaintiff, in July, 1873, bought a lot, No. 17, on a plot. Nealon, the defendant, now owns the adjoining lot, No. 16. When Davock bought, a house stood on his lot, No. 17, one side of which house, with two fences, formed the practical line of division between the two lots. One fence ran from Ferry street, and was joined to the front corner of the house. The other fence ran from the rear corner of the house, back the depth of the lots. The front fence, the side of the house, and the back fence, together, formed practically a straight line dividing the two lots. Some time after he had purchased lot 17, Mr. Davock raised the house which stood upon his lot, and put a new foundation under it. In doing this, he moved the house one foot in on his lot, leaving a space of one foot between the corners to which the ends of the division fence had been attached, and the fence ends. The ends of the two fences, without any change in the location of the fences, were afterwards connected with the two corners. On April 16, 1892, Nealon, the defendant, tore down these fences, claiming that the true division line between lots 16 and 17 was one foot over on lot 17, as that lot had been occupied and fenced. On the trial, Davock did not claim a paper title to this one-foot strip: The description in the deeds from his predecessors in title for lot 17 stopped short of the one-foot strip. He rested his right to the one-foot strip upon two grounds. He claimed, first, that there had been a practical location of the division line between the two lots, by the mutual location of the fence, and by acquiescence in such location by the preceding owners of the respective lots. He claimed, secondly, that he had gained a title by adverse possession.

At the conclusion of the plaintiff's case the trial justice ruled that he had shown nothing from which a jury could find for him upon either ground. The counsel for the relator rests his application for a new trial upon the ground that there was evidence upon the second point which should have been submitted to the jury. There seems to be no ground for a question that Davock's possession, from the time he received his deed for lot 17, and went into occupation of the house and its curtilage, was adverse to every other person. And it is beyond all question that his possession extended to the fence which inclosed the lot. Upon this point the evidence seems clear. But Davock went into possession in July, 1873, and Nealon terminated Davock's possession of this strip of land in April, 1892; so that his occupation was short of the 20 years required to ripen his possession into a title good against Nealon. It was mainly upon this failure to show the requisite length of adverse enjoyment by Davock that the trial justice refused to submit this branch of the case to the jury. It is, however, insisted that there is in the testimony evidence of an adverse possession of the locus in quo by Meese, who sold lot No. 17 to Davock, and that his possession can be tacked to the possession of Davock so as to complete a 20-years continuous adverse...