Barnes v. . Light

Yann, J. 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 wras 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 id. 345 ; Sherman v. Kane, 86 id. 57; Casleton v. Darcy, 90 id. 566; Mayor, etc., v. Carleton, 113 id. 284; Baker v. Oakwood, 49 Hun, 416 ; Buswell’s Lim. and Adv. Pos. 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 Civ. Pro. §§ 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 forty years or more. The adjoining land of the plaintiff was, for a distance of over eight chains, a forest, and for the *38 remaining six chains and upwards cleared, inclosed and cultivated land. The entire forest comprised from sixty to one-hundred 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 thirty years, during which period all of his cleared land has been cultivated and enclosed, including the northerly part of the land in question. It was plowed, planted and seeded, then used as a meadow until the grass ran out, when it was plowed, planted and seeded again, and was used, according to one of the witnesses, “ as a general farm is used.” For over forty years a crooked fence, made of rails, boards nailed upon posts and trees, brush and “ odds and ends,” ran between the east end of the woods and the rear of defendant’s farm, and from the-woods northerly, between the latter and the cultivated part of' plaintiff’s farm. The north portion of this fence was better and was more carefully kept up than the part by the woods, and the land upon plaintiff’s side thereof was cultivated u as close up to the rail fence as you could plow, or within three-feet.” This fence was occasionally repaired and partially renewed until shortly before the commencement of the action,, when it was torn down by the defendant and a new fence-erected on the west side of the land in dispute. Several marked trees, the marks being apparently very old, were-found on the line of the old fence. Ho use appears to have-been made of the forest by the plaintiff or his grantors, except to cut wood and timber therefrom occasionally. The evidence, when construed most favorably to the plaintiff, did not merely tend to show an occasional use of the cleared part of the locus in quo for particular purposes or upon special occasions, but an actual enjoyment thereof as part of a farm, year after year, for more than twenty years. There was other evidence less favorable to the plaintiff’s contention. Several witnesses testified, in substance, that the-fence was temporary and unsubstantial, and that it was erected upon the edge of the woods at the rear of defendant’s cleared; *39 land, for tlie purpose of keeping cattle from going back into the woods, and that this was the object of the fence on the south of plaintiff’s cleared land also. The testimony of others was to the effect that no part of the land in question was either cultivated or improved. There was, however, evidence that would have warranted the jury in finding the facts as already stated. By drawing permissible, although possibly extreme, inferences, the jury might have found that the few rods of cleared land in controversy were, for more than twenty years, a portion of a cultivated field, fenced on each of its four sides with a substantial fence and used as part of a farm in the ordinary course of husbandry. While the fence itself may have covered a large part of the cleared land, the jury would have been warranted in finding that it did not cover all of it, and that the part not so covered -belonged to the plaintiff through adverse possession for the period required by law. The land thus acquired may have been small in quantity and insignificant in value, but if it belongs to one party it should not be awarded to the other. Whether the portion north of the woods was protected by a substantial enclosure, and whether it had been usually cultivated or improved within the meaning of the statute, were questions of fact which the jury should have been permitted to pass upon. The defendant, however, contends that it does not appear that the plaintiff or his grantors ever claimed this strip of land, or any part of it. There is no evidence that any claim of title was made byword of mouth, but it appears that each grantee in taking possession of the farm, under his deed, entered upon, actually occupied and improved the land in controversy, or a part of it, although it was not included in his conveyance. This, if done in good faith, was enough to satisfy the statute. A claim of title may be made by acts alone, quite as effectively as by the most emphatic assertions. As was said by the chancellor, when speaking for the Court of Errors in La Frombois v. Smith (8 Cow. 589, 603): “ The actual possession and improvement of the premises, as owners are accustomed to possess and improve their estates, without *40 any payment of rent, or recognition of title in another, or disavowal of title in himself, will, in the absence of all other evidence, be sufficient to raise a presumption of his entry and holding as absolute owner, and unless rebutted by other evidence, will establish the fact of a claim of title.” Possession, accompanied by the usual acts of ownership, is presumed to be adverse until shown to be subservient to the title of another. We think that the refusal of the court to submit to the jury the question “ whether the plaintiff had not had such adverse possession of the premises claimed in the complaint, lying north of the woods, as to give him title thereto,” as requested by the counsel for plaintiff, was error, and calls for a reversal of the judgment. This makes it unnecessary to consider the question of practical location. The judgment should be reversed and a new trial granted, with costs to abide event. All concur, except Bradley and Haight, JJ., not sitting, and .Follett, Oh. J., not voting. Judgment reversed.