Seader v. Zito

De Angelis, J.: The judgment under review determines that the plaintiff has title to a small piece of land in the city of Rochester, that a part of a brick building erected by the defendants encroaches upon such land and directs the removal of such encroachment. The land in dispute is described in the complaint as forming an isosceles triangle whose legs are forty feet in length and whose base is eight inches in width fronting on the southerly side of Baden street (formerly McDonald avenue) in the city of Rochester. The base of this triangle is a definite distance from a certain angle on the southerly side of Baden street, the exact location of which angle both sides agree to. The complaint alleges, in substance, that the plaintiff is the owner in fee simple of this triangular piece of land and that she and her predecessors in title were in continuous peaceable and — 401 — undisputed possession of such piece of land for more than thirty years immediately preceding the year 1913 or thereabouts; that during all that time there had been maintained continuously in the same place, by the plaintiff’s predecessors in title, a fence on the westerly boundary of such triangular piece of land; that in the year 1913 the defendants or their predecessors in title caused this fence to be removed, constructed a fence on the easterly boundary of such triangular piece of land, took possession of such land and have ever since remained in possession thereof; that in the year 1913 the defendants caused to be constructed on such piece of land part of a brick building which has remained thereon ever since; that before the construction of such building began and during the course of its construction the plaintiff and her predecessors in title protested against such construction and warned the defendants that the same would be and was an encroachment upon such triangular piece of land, and that before the commencement of this action the plaintiff demanded of the defendants the removal of such building from such land. In the year 1850 there was filed in the Monroe county clerk’s office a map (Liber 2 of Maps, page 49) showing the plotting and laying out into lots and a street of a tract of land in the city of Rochester bounded on the east by Parker street, now Joseph avenue, and on the west by Clinton street, now Clinton avenue, North. This tract of land was owned by one Henry McDonald who is the source of title to the lands of the plaintiff and defendants, including that in dispute. The street so laid out runs easterly and westerly through the middle of the tract and was originally designated McDonald avenue. Its name has now been changed to that of Baden street. Lot 7 of this tract, bounded on the east by lot 9, lot 9 bounded on the east by lot 11, and lot 11, all fronting on the southerly side of Baden street, are particularly involved in this controversy. The triangular piece of land in dispute is on the west side of lot 9. Lot 7 is designated on the map as forty feet wide in front and twenty-four feet wide in rear. Neither side of it is at — 402 — right angles to Baden street. Lot 9 is designated on the map as thirty-five feet wide in front and twenty-seven and one-half feet wide in rear. Its west line, which is, of course, the east fine of lot 7, is not at right angles to Baden street, but its east line is at right angles to Baden street. Lot 11 is thirty-five feet wide in front and rear and both its east and west lines are at right angles to Baden street. The proof of the plaintiff, and it is quite convincing, is that lot 7 is scant thirty-five feet in width in front. The defendants concededly own lot 7 and a strip eight feet in width off the west side of lot 9. The plaintiff concededly owns the remainder of lot 9 and the westerly part of lot 11. The proof is convincing to me that the plaintiff owns a strip of land off the west side of lot 11 four and a half feet wide in front and six and a half feet wide in the rear, and all of lot 9 except such strip eight feet in width off the west side thereof, in other words, a piece of land thirty-one and one-half feet wide in front and twenty-six feet wide in rear. The chain of title of the plaintiff and defendants, in its chronological order, is as follows (the italics are mine): Henry McDonald and wife to Warranty deed Ernst Peters Dated October 24, 1851. Conveys all that tract or parcel of land, situate in the city of Rochester, county of Monroe, and State of New York, bounded on the north by McDonald avenue, on the west by land owned by Henry McDonald and on the south by Mrs. Bowes and on the east by land belonging to Mr. Spies. Said lot is thirty-five feet front on McDonald avenue and twenty-four feet wide in the rear and extending back to Mrs. Bowes’ land. The description in this conveyance does not in terms refer to lot 7 but it contains an exact description of the width of lot 7 in the rear, describes the front of the lot as thirty-five feet in width and refers to an eastern boundary that in later conveyances is recognized as the east line of lot 7, being the west fine of lot 9. The record does not disclose any title in “ Mr. Spies.” The name appears in the later conveyances, variously, as “ Spices,” “ Mr. Spirs,” “ Mr. Spice,” “ Spies,” “ Spies,” but most often as “ Spies.” Whoever Spies may have been, he probably held a contract for the purchase of — 403 — the land,east of that conveyed which never matured in title to him. There is no doubt that the property, on the east of that conveyed is lot 9. Ernest Peters and wife to John Marzluff and Elizabeth Warranty deed Marzluff Dated February 16,1852. Conveys the same as the last conveyance except that the rear of the lot is described as twenty-five feet in width and the premises conveyed are recited to be the same as those in the last conveyance. John Marzluff to Warranty deed Leo Schlitzer Dated November 6,1854. Conveys by the same description as the last conveyance except that it omits any reference to either of the last two conveyances and adds the following: “ The said premises being known as lot number seven (7) on a map of the McDonald tract filed in the clerk’s office of Monroe County, to which said map reference is hereby had for a more particular description. The part hereby intended to be conveyed being the undivided one-half of the said lot and no more.” Leo Schlitzer and wife to Warranty deed Elizabeth Marzluff Dated November 28, 1854. Conveys by the same description as the last conveyance. Henry McDonald and wife to Deed dated Martha Hart September 12, 1855. Conveys all that tract or parcel of land situate in the city of Rochester, county of Monroe and State of New York, and known and distinguished as lots numbers nine (9) and eleven (11) on the McDonald allotment on the Gorham tract, and surveyed by Daniel McHenry as by reference to a map of the same on file in the office of the clerk of the county of Monroe will more fully appear. Said lot number 9 is thirty-five feet wide in front and twenty-seven and one-half feet wide in the rear and said lot number 11 is thirty-five feet wide in front and rear. Both of said lots are one hundred — 404 — and fourteen feet in depth and are bounded in front by McDonald avenue and in the rear by Mrs. Bowles’ land. • Martha Hart to Ernest Kuhn Deed dated September 8, 1856. Conveys by same description as that last above. Ernest Kuhn and wife to John Bahde Deed dated March 11, 1857. Conveys by same description as that last above. Elizabeth Marzluff and John Marzluff to Warranty deed Ferdinand End Dated September 13, 1859. Conveys by same description as that in Marzluff to Schlitzer, above. Leo Schlitzer and wife to Quit-claim deed Ferdinand End Dated September 14, 1859. Conveys all that tract or parcel of land situate * * *, bounded on the north on McDonald avenue, on the west by land owned by Henry McDonald and on the south by Mrs, Bowes’ land and on the east by land owned by Mr. Spice, and in the sixth ward of the city of Rochester. Said lot is thirty-five feet front on McDonald avenue and twenty-five feet wide in the rear and extending back to Mrs. Bowes’ land. The said premises being known as lot number seven (No. 7) on a map of the McDonald tract filed in the'clerk’s office of the county of Monroe. John Bahde and wife to John W. Guenner Deed dated April 11, 1864. Conveys by same description as that of McDonald to Hart, above. John W. Guenner to Ferdinand End Deed dated May 18, 1864. ^ Conveys all that tract or parcel of land situate in the city of Rochester, county of Monroe and State of New York, — 405 — being eight feet taken off from the west side of lot number nine (9) in the McDonald allotment on the Gorham tract, surveyed by Daniel McHenry according to a map of said allotment on file in the clerk’s office of the said county of Monroe. The land hereby intended to be conveyed being the premises next adjoining the premises now owned and occupied by the party of the second part and being eight (8) feet wide front and rear and one hundred fourteen (114) feet deep. The party of the first part hereby reserves the privilege for himself and assigns to use the well now on the premises above conveyed in common with the party of the second part for and during the period of five months from the date hereof and no longer. The party of the first part and assigns to have at all reasonable times during the aforesaid period of five months free access through the front gate of the premises now owned and occupied by the party of the second part and not otherwise. It is to be observed that this eight-foot strip of land is taken from the west side of lot No. 9 and extends the whole depth of the lot, so that the easterly boundary thereof is not at right angles to Baden street. This strip of land adjoins the premises owned and occupied by the party of the second part, that is, the premises known as lot 7. It appears that there was a well on this strip of land and that probably the easterly fine of the strip was marked by a fence immediately constructed after the above conveyance because there was reserved to the grantor the privilege of using the front gate of lot 7 which would not have been necessary if a fence had not separated the premises. Ferdinand End and wife to Quit-claim deed William Graebe Dated July 14, 1864. Conveys all that tract or parcel of land situate in the city of Rochester bounded north by McDonald avenue, on the west by land now or formerly owned by Henry McDonald, on the south by Mrs. Bowes’ land and on the east by land now or formerly owned by one Spies, and being in the sixth (6th) ward of 'said city and known as lot number seven (No. 7) on a map of the McDonald tract which map is on file in the clerk’s office of said county of Mon — 406 — roe. Reference being had to said map for a more particular description. Also all that other tract or parcel of land being eight (8) feet taken off from the west of lot number nine (No. 9) in the McDonald allotment on the Gorham tract surveyed by Daniel McHenry according to a map of said allotment on file in the clerk’s office of said county of Monroe. Reference being had for a more particular description of the last above mentioned tract or parcel of land hereby conveyed by a certain deed executed by John W. Guenner to the said Ferdinand End which deed bears date the 18th day of May, 1864, and was recorded on the same day at eleven o’clock in liber 185 of deeds at page 359. William Graebe to Quit-claim deed Caroline End Dated July 14, 1864. Conveys by the same description as last above. Caroline End and Ferdinand End, her husband, to Warranty deed Jacob Nunnold Dated August 2, 1864. Conveys by the same description as last above. Elizabeth Marzluff and John Marzluff, her husband, to Quit-claim deed Jacob Nunnold Dated August 3, 1864. Conveys to correct error in above deed from Elizabeth Marzluff and John Marzluff to Ferdinand End where only an undivided half appears to have been conveyed, where the whole should have been conveyed. John W. Guenner to Deed dated John Meyering and wife February 14, 1867. Conveys all that tract or parcel of land situate in the city of Rochester, county of Monroe and State of New York, known and distinguished as follows: Being thirty and a half (30|) feet taken from the east side of the following described premises, viz: lots numbers nine (9) and eleven (11) in the McDonald allotment on the Gorham tract surveyed by Daniel — 407 — McHenry, reference being had to a map of the same on file in the office of the clerk of the county of Monroe. The premises hereby agreed to be conveyed are thirty and a half (30|) feet front on McDonald avenue and twenty-eight and a half (28!) feet in rear and one hundred fourteen (114) feet deep and are next adjoining on the east the premises on which the dwelling house now owned by John W. Guenner [is located]. William Kuenner (John W. Guenner) to Deed dated Peter Frommherz April 9, 1867. Conveys all that tract or parcel of land situate in the city of Rochester, county of Monroe and State of New York, and known and distinguished as lot number nine (9) on the McDonald allotment on the Gorham tract surveyed by Daniel McHenry as by reference to a map of the same on file in Monroe county clerk’s office will more fully appear. Said lot No. nine (9) is thirty (SO) feet wide in front and 28 feet and 4 inches in rear. Said lot No. nine (9) is one hundred fourteen (114) feet in depth and bounded in front by McDonald avenue and in rear on the south by Mrs. Bouls’ land. This conveyance seems to have been attended with no small degree of error. The grantor, John W. Guenner, seems to have changed his name to William Kuenner. I say this because there seems to be no dispute of the identity of the grantor. The deed conveys lot No. 9 of the McDonald allotment on the Gorham tract, and in the deed there is no reference to lot No. 11. The fact is that the grantor owned a part of lot 11 and only a part of lot 9. He acquired by bis deed from Bahde, as already appears, a lot seventy feet wide in front on McDonald avenue and sixty-two and one-half feet wide in the rear, that is, lot 9, thirty-five feet wide in front and twenty-seven and one-half feet wide in the rear, and lot 11, thirty-five feet wide in front and rear. Off the west side of lot 9 he sold a strip of land eight feet wide, leaving the remainder of lot 9 twenty-seven feet wide in front and nineteen and one-half feet wide in the rear. Then he sold all of lot 11 except a strip four and a half feet wide in front — 408 — and six and one-half feet wide in the rear. That left him a lot thirty-one and one-half feet wide in front and twenty-six feet wide in the rear. Yet by his deed he conveyed a lot thirty feet wide in front, although he owned a foot and a half more, and twenty-eight and one-third feet wide in the rear although he owned only twenty-six feet in width. The defendants argue that that portion of the frontage of his lot which he failed to convey should be added to the premises of the defendants. Might it not just as well be argued that he gave the land to his neighbor on the east? Could it not be more forcefully argued that he gave it to his neighbor on the east because he only describes land in lot 9? The fact, which both sides seem to concede, that there is a surplus of about sixteen feet between Joseph street and Clinton avenue North, is no reason why this land should be added to that of the defendants. Jacob Nunnold and wife to Daniel Wenner and Catherine Warranty deed Wenner, his wife Dated July 29, 1872. Conveys by the same description as that from Caroline End and husband to Jacob Nunnold. Admitted to probate September 21, 1882. Testator devises his real estate to his wife Catherine Wenner. Will of Daniel Wenner Catherine Wenner, widow, and survivor of Daniel Wenner to Frederick Stuck and Anna Maria Warranty deed Stuck, his wife Dated August 29, 1889. Conveys by same description as from End and another to Nunnold. Frederick Stuck and wife to Warranty deed Catherine Wenner Dated June 20, 1895. Conveys by same description as in last above and recites consideration as satisfaction of mortgage from Stuck and wife to Catherine Wenner. — 409 — Last Will and Testament of Admitted to probate Catherine Wenner April 29, 1903. Devises property to her children, Henry Wenner, Catharine Welker and Magdalena Wenner. Henry J. Wenner and wife and Catharine Welker to Anthony Buonomo and Johanna . Warranty deed Buonomo, his wife Dated April 18, 1903. Conveys same as from Stuck to Catherine Wenner except that there is a statement of the change in name of McDonald avenue to Baden street. Magdalena Schuster, formerly Magdalena Wenner to Anthony Buonomo and Johanna Warranty deed Buonomo, his wife Dated April 18, 1903. Conveys same as last above. Peter Fromherz to Deed dated Abram E. Levin September 20, 1904. Conveys all that tract or parcel of land situate in the city of Rochester, county of Monroe and State of New York, known and distinguished as part of lots No. nine (9) and eleven (11) on the McDonald allotment of the Gorham tract surveyed by Daniel McHenry as by reference to a map of the same on file in Monroe county clerk’s office will more fully appear, being bounded on the west by premises conveyed by John W. Guenner to Ferdinand End by deed dated May 18, 1864, and recorded in Monroe county clerk’s office in Liber 185 of Deeds at page 359, and on the east by premises conveyed by John W. Guenner to John Meyering and Catherine Meyering by deed dated February 14, 1867, and recorded in Monroe county clerk’s office in Liber 207 of Deeds at page 393. The premises hereby conveyed are situate on the south side of Baden street (formerly McDonald avenue) and are about thirty (80) feet wide in front more or less and about twenty410 eight feet four inches (28 ft. 4 in.) wide in rear, more or less and about one hundred fourteen (114) feet deep, more or less. Being the same premises conveyed to the party of the first part by William Kuenner (or John W. Guenner) by deed dated April 9, 1867, and recorded in Monroe county clerk’s office in Liber 211 of Deeds at page 125. Anthony Buonomo and Johanna Buonomo his wife to Andonino Zito and Rosalia Warranty deed Zito his wife Dated April 14, 1910. Conveys by same description as from Magdalena Schuster to parties of the first part. Abram E. Levin to Rebecca Levin Deed dated June 17, 1913. Conveys by same description as in Fromherz to Levin. Rebecca Levin to Sadie E. Seader Deed dated August 11, 1915. Conveys by same description as in Levin to Levin. Mr. Lozier, the surveyor, called by the plaintiff, after making the proper offset from the established monument in the angle of Baden street, ran a fine along the southerly line of Baden street, easterly one hundred and sixty-two and one-half feet to a point which he determined to be the east line of lot 11. In doing this he determined the frontage of lot 7 to be thirty-five feet and not forty feet as shown by the figures on the McDonald map. Otherwise his measurements agreed with the figures on the map. He justifies his correction as to the frontage of lot 7 on several different grounds. The McDonald map shows on its face no scale. Lozier made various tests and determined the scale to be sixty feet to the inch. Using that scale he made the frontage of lot 7 scant thirty-five feet. He found at the point which he determined to be the east fine of lot, 11 an old fence. From that point he measured westerly along the front of lot 11 thirty and one-half feet, the distance given in the deed from Guenner to Meyering dated February 14, 1867, and that brought him to a point — 411 — three inches east of an old fence. He then measured thirty-one and one-half feet west and that brought him to a point eight-tenths of a foot or nine and six-tenths inches west of a fence running back to the corner of the brick building in question. As already indicated, after the conveyance to Meyering, there remained in Guenner a lot whose frontage was thirty-one and one-half feet. This fence is the one in dispute. The point Lozier reached in his measurement, nine and six-tenths inches west of the fence, being the former line of the fence, marked the westerly line of the plaintiff’s land and the easterly line of the defendants’ land. Proceeding west, he measured forty-three feet from the point nine and six-tenths inches west of the fence in dispute and reached a point nine inches east of an old fence. This substantially verified his assumption that the deeds were right which conveyed lot 7 as having a frontage of thirty-five feet instead of forty feet. The variation was only nine inches, and that in favor of the defendants. The fact that in some way the defendants acquired a strip of land nine inches in width more than they were entitled to, along their western boundary, gave them no right, certainly, to take land from their neighbor on the east. Lozier then proceeded from the point on the street line thirty and one-half feet from the point which he located as the east line of lot No. 11, southerly, to the rear of the lot, where he found an old post, substantially on the south line of lot 11 and where there were some parts of a fence running east and west although there was no fence attached to this post. He then measured westerly twenty-six feet from the old post which brought him nine-tenths of a foot to the east of the fence extending from the building on the lot line, that is, from the southeast corner of the building. He thereby reached the conclusion that the fence in dispute was eight-tenths of a foot on the plaintiff’s land at the front and nine-tenths of a foot on the defendants’ land in the rear. This shows that the brick building is over on the plaintiff’s land fifty-seven one-hundredths of a foot at the front and runs back about twenty-one feet where it crosses the fine of the lot. It is to be observed that all these fences in their present location, except the fence in dispute, are old fences, probably having existed for more than thirty years. — 412 — We now return to the land in dispute and particularly the line fence between the properties of the plaintiff and defendants. I think it can fairly be said that that fence before it was arbitrarily removed by the defendants into its present location marked both the actual and practical location of the line between these properties. Upon the undisputed evidence that fence until it was changed by the direction of the defendants in 1913 had existed in its old location for more than thirty years. Although the defendants’ engineer testifies that when the fence was in its old location the boards were on the east side of the fence, the great preponderance of evidence is that they were on the west side of the fence. It is to be observed that the defendants’ engineer made a survey of the locus in quo in 1892 when he seems to have located the line between the parties as that along which the defendants placed the present fence. Over the objection and exception of the plaintiff this surveyor was permitted to testify to a custom in the city of Rochester for placing the posts of a division fence upon the property of one of the parties and the boards over the fine on the property of the other. If that rule were adopted in this case, it seems to me that the plaintiff was entitled to recover all the land she claimed and to have the defendants’ building removed therefrom. The trial court adopted the rule that the center of the posts of the fence should be regarded as the proper line and so reached a conclusion more favorable to the defendants than they were entitled to. In order to reach the conclusion arrived at by him, the defendants’ engineer assumed that lot 7 was forty feet wide in front, as indicated by the figures on the McDonald map, and, then, to make his survey reach the result desired, he had to take four feet away from the frontage of the lot. It is to be noted that the defendants’ engineer does not dispute the correctness of the scale of the McDonald map as determined by the plaintiff’s engineer as applied to the lots immediately involved. Certainly the trial judge was justified in adopting the conclusion reached by the engineer of the plaintiff as to the division line between these contending parties. As I view the evidence in the case, there is no room for the claim that the plaintiff is not entitled to the relief given her by the trial court because of the assertion that although — 413 — she might have succeeded if the conveyances in her chain of title had described the land to which she has been adjudged entitled by the judgment under review, such conveyances did not describe it. I think they did describe it; at least that the trial court was justified by the evidence in finding that they did. It follows from the foregoing that the judgment appealed from must be affirmed, with costs. All concurred, except Lambert and Hübbs, JJ., who dissented, in an opinion by Lambert, J.