Becker v. Van Valkenburgh

By the Court, Wright, J. There is but a single point in this case,- vig. whether the evidence is sufficient to uphold the finding of the referee that the premises upon which the logs were cut were held adversely by one of the defendants at the time of the alleged trespass, The referee assumed that the plaintiffs had shown a proper title to lot No. 14, in what was known as the Butler or Clark patent, and that the line run by the surveyor, Becker, was the true western line of such patent. In his view, therefore, the defendants were trespassers, unless the proof established an adverse possession in Jacob Yan Yalkenburgh, of the lands from which the timber was taken. The evidence, it seems to me, tended to establish an adverse possession, and justified the finding of the referee. As early as 1823, Jacob Yan Yalkenburgh, under a license from his father, who claimed the lands lying between lot No. 18 in the 323 Strasburgh patent and a ledge of rocks easterly thereof, entered upon such lands, erected a house and made a clearing thereon. At this time that part of the Butler patent east of this ledge of rocks, and between the ledge and the Schoharie creek, was in the occupancy of William H. Becker, the father and ancestor of two of the plaintiffs. Van Valkenburgh’s entry was under a claim of right, open and notorious, and in hostility to the grantors of the plaintiffs. He lived on the lot, claiming it as his own as far east as the ledge of rocks. He cleared and cultivated a portion of it, and cut his firewood and timber from the improved part adjoining and westerly of the ledge. He erected a fence on the upper and south side of the premises, and that part which was not improved was used as a wood lot and pasture. The possession and claim was continued during the lifetime of William H. Becker, whose death occurred in 1834, and afterwards down to the time of the alleged trespass in 1848 or 1849. Van Valkenburgh occupied the premises at the time of the trial in 1852, and it was not until after Becker’s survey in 1850, or 1851, that the present plaintiffs séemed ever to have attempted to assert any claim to the land westerly of the ledge of rocks. The defendant’s entry and claim of title seems not to have been founded upon any written instrument, or any judgment or decree, and hence he is to be deemed to have possessed and occupied adversely only so much of the lands as have been protected by a substantial inclosure, or have been usually cultivated or improved. Where there is no claim of title founded upon a written instrument, or a judgment or decree, there must be a pedis possessio—an actual occupancy, or a substantial inclosure of the lands, definite, notorious and certain, to constitute adverse possession. The line traced by Becker (if the true westerly line of the Butler patent) embraced within such patent a portion of the improved land and the dwelling house and barn of Jacob Van Valkenburgh. To so much of the disputed premises, it was not pretended that Van Valkenburgh’s adverse possession was incomplete, But the logs were cut some four or- five rods 324 southeasterly of the dwelling house, and upon that part of the premises improved and lying adjoining to and west of the ledge of rocks. The question therefore occurred, whether that part of the premises where the trespass was claimed to have been committed was protected by a substantial inclosure. Van Yalkenburgh had maintained a fence on the south and west sides of the premises; and on the east and southeast was the ledge of rocks, from 200 to 400 feet in height. Along this ledge there was no artificial fence; but in the view of the intelligent referee—and it is also our view—this ledge completed the in closure, as much so as if a fence had been constructed along it. With such a boundary to his possession, no man would regard an artificial fénce as necessary. Nature had substantially inclosed the possession on its eastern boundary. (Jackson v. Halstead, 5 Cowen, 216.) It was claimed, on the argument, that the plaintiffs were reversioners, and as to them there could be no adverse possession. The referee, in his report, regards the Beckers as reversioners ; the mother having a life estate in the premises. But there is nothing in the case, as presented to us, to show that the whole estate was not in the plaintiffs. Indeed it appeared that the mother, after the death of her husband, had conveyed to her sons her interest in lot No. 14; so that if she had a life estate, at any time, in the disputed premises, she had parted with it to her sons Joseph and Grant. But allowing the fact to be that the Beckers were reversioners, still" the point is not sustainable, for the reason that the defendants’ adverse possession commenced in the lifetime of William H. Becker, the ancestor and grantor of the plaintiffs. William H. Becker became seised in 1810; Jacob Yan Yalkenburgh entered and built on the premises in 1823; Becker died in 1834, eleven years after the entry of the defendant Jacob Yan Yalkenburgh. The statute consequently commenced running against the plaintiffs’ ancestor before the creation of Caty Becker’s particular estate; and under the revised statutes, as formerly, if an adverse possession commence in the 325 lifetime of the ancestor it will continue to run against the heir, notwithstanding any existing disability on the part of the latter, when the right accrues to him or her. (Fleming and wife v. Griswold, 3 Hill, 85. Jackson v. Schoonmaker, 4 John. 401, 402.) The judgment rendered upon the report of the referee should be affirmed. [Albany General Term, December 6, 1858. Harris, Wright and Gould, Justices.]