Vosburgh v. . Teator

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 563 The plaintiff and the defendants were the owners of adjoining farms, the plaintiff's lying on the north and the defendants' on the south of the division line. The question is as to the true location of that boundary line at the point where the defendants, in 1849, removed an existing fence farther north, and cut down a chestnut tree standing north of the old, and south of the new, location of the fence. It appeared that the parties claimed title to their respective farms under Garritt Van Benthuysen; the plaintiff's predecessor, having entered under a lease for sixty-six years, executed on the 23d May, 1789, and parties holding that title having subsequently purchased the premises in fee under a title arising upon the foreclosure of a mortgage executed by the same G. Van Benthuysen in 1818. The defendants made out their title under a deed from Van Benthuysen, executed on the 9th May, 1798. The description of the land contained in these papers is not stated in the case. It cannot, moreover, be determined which of the parties had the paper title to the premises. The parcel last granted was probably bounded by the other; but this is not stated, and neither thetermini or the course of the line of the first granted farm is specified in the case. It was proved, however, that the plaintiff, or those under whom he claimed, had been in possession, up to a fence running south of the point where the trespass was alleged to have been committed, a great many years; much longer than would be necessary to found a defense of adverse possession. The effect of this was attempted to be met by evidence that those under whom the plaintiff claimed held a strip north of that fence, and including the place in dispute, by permission and license of the owner of the defendants' farm for his use as a lane, and for accommodation as to a run of water; and also by evidence that the plaintiff and defendants had agreed and settled upon the boundary line by agreement, according to a survey made by a Mr. Beckwith, a surveyor, in 1846, and had *Page 564 removed their fences accordingly. There was a good deal of contradictory evidence on these points. But the plaintiff swore, as a witness on his own behalf, that there was no dispute about the line at the point in question, but that the controversy was confined to a place not defined by any fence, and on another point of the line between the farms. He denied having agreed upon a line at this place; and Beckwith, the surveyor, swore, in effect, that he did not consider the line run by him a true one, not being satisfied as to the starting point. The fence at the place now in question was not immediately removed; and when the defendants did remove it, in 1849, the plaintiff forbade them. This outline will enable us to examine the accuracy of the charge in the particulars to which the exceptions taken are now insisted on. The judge charged that if the plaintiff was in possession of the land on which the tree stood, the cutting down of which was the principal act of trespass, when the defendants cut it down, he was entitled to recover, unless the defendants had title and were entitled to the possession; and also that if the plaintiff then had the title and the possession he had a right to recover. It is objected to this portion of the charge that it excludes the consideration of the evidence of the settling of a disputed boundary line. This view cannot prevail, because the judge did, in another part of the charge to be immediately mentioned, lay down what he considered to be the law upon that evidence. The positions of the charge above mentioned are certainly correct in the abstract, and I do not see how they could mislead, inasmuch as the evidence of the agreement was considered in a subsequent part of the charge. The next portion of the charge is admitted to be correct in law, but it is said to be erroneous in its application to the case, for the same reason that it does not allow any force to the alleged agreement settling the line. It was, that if the defendant had the paper title it must prevail unless the plaintiff had acquired a title by adverse possession, which would bar an entry. The same answer holds to this, as did to the first mentioned exception. It was, in effect, hypothetical, as if the *Page 565 judge had said that such was the law, unless the defendant established a defense of a line settled by agreement, as to which he instructed them subsequently. That part of the charge, in which that instruction was given, was as follows: "That the agreement claimed by the defendants to be established in this case, fixing the boundary, if any agreement there was, would be void and of no effect if the true boundary was already known and established, and was not indefinite or uncertain." Before this, he had said, that in case this was a disputed, indefinite and uncertain line or boundary, then the parties have a right to fix upon a line by agreement, and such established line, when made and settled, becomes binding upon the parties as the true line between them. This instruction may have had reference to the testimony which asserted that it was another part of the line, where there was no fence, which was in dispute, and that at this place it was not disputed; but it is more significant as asserting the principle of law, that parties cannot alienate their land by parol, where the object is to make a new line and not settle a dispute about an uncertain one. If the land at the place in question was, in the view of the parties, confessedly the plaintiff's, it could not become vested in the defendants by any parol arrangement without a violation of the statute of frauds. (Terry v. Chandler, 16 N.Y., 354.) The plaintiff had sworn positively that there was no dispute respecting that part of the line. The judge was requested by the defendants' counsel to charge that if the paper title of both parties covered the land in dispute, then a parol agreement fixing the line, was good. It is difficult to see how such a state of things as this proposition supposes could exist. But if it could, it was a sufficient reason for not giving that instruction that there was no evidence as to the extent of the paper title of either of the parties. It was shown that they had conveyances of their respective farms proceeding from the same source of title, the plaintiff's being the oldest title, but how they bounded the land conveyed at the point where the farms abutted upon each other, if they did adjoin, as is to be inferred, is, as I have said, nowhere stated in the case. There *Page 566 is nothing, therefore, so far as we know, upon which the desired instruction could have been based. I am satisfied that none of the exceptions are well taken, and think the judgment should be affirmed.