Doolittle v. Tice

By the Court, Miller, J. From the facts elicited upon the trial I incline to the opinion that there was some evidence that the plaintiff claimed to hold the premises in question adversely. Although there is no proof that he claimed title, in so many words, to third parties, yet there are circumstances attending the possession from which it may he fairly inferred that such a claim was actually made by him. He was in possession by himself and by his tenants, keeping up the fences, cutting brush, and mowing the grass. I think these are open and notorious acts, and an unequivocal assertion of title which apprised the world of the nature of his claim, within the principle of adjudicated cases. (See Lane v. Gould, 10 Barb. 254.) As the plaintiff’s claim to hold the premises adversely for a period of twenty years and upwards, was not founded upon a written instrument, or a judgment or decree, he was bound in addition to establish, for the purpose of constituting an adverse possession; First. That the land upon which the alleged trespasses were committed had been protected by a substantial inclosure; or, Secondly. That it had been usually cultivated and improved. (Code, § 85.) As to the first proposition, the evidence shows that prior to 1851 the land was only fenced on three sides, with rails, brush and poles, and there was no fence on the line between this lot and the Cudney farm. The Oudney farm was, however, inclosed with these premises, and it is insisted that this was in fact a “substantial inclosure” of them. The provision of the code referred to was intended to provide that a party claiming [184] to hold adversely, where his claim was not founded upon a written instrument, or a judgment or decree, should protect his claim by the erection of a substantial inclosure. I think the language employed means that he shall provide the inclosure around the land, without relying upon a distant and remote fence of a neighbor, inclosing that neighbor’s land also. And although he may avail himself of a fence upon the line, yet it was not designed that a fence located far away from the premises and including other lands, should be used as a means of protection to a claim of this character. It was also intended that the inclosure should provide fixed, certain and definite boundaries of the claim made, by which it might be designated, marked and known. It must be-an inclosure of the lot alone, upon the lines claimed by the party, and not embracing premises.adjoining, extending in part a great distance from the lines. It cannot fairly be claimed that the premises in controversy were protected by a “substantial inclosure,” because they were inclosed in connection with an adjoining farm. It was not the plaintiff’s land, alone, but both together, which were inclosed; a portion of the land being claimed by the plaintiff, and another portion belonging to the adjoining owner. The statute was not intended to provide for the iuclosure of other lands, adjoining those claimed adversely, and in furnishing a substitute by adverse possession against a written title, meant that the party thus claiming should designate by boundaries what he actually claimed. This was the title he was bound to make out in place of a higher one. The fence on the Cudney farm did not constitute a part' of the inclosure of the plaintiff’s "land, and there being only a fence upon three sides of the premises I think they were not protected by a “substantial inclosure,” within the spirit and meaning of section eighty-five of the code. As to the second proposition, it was proved that the plaintiff had kept up a fence of brush, rails and poles, which had been previously, erected. He had also cut brush (although the na [185] ture and extent of the labor done in this respect, does not distinctly appear,) and had reaped the grass which spontaneously grew upon the land. All these acts might have been done by a mere trespasser, and there is no evidence that he adopted any of the means usually employed to improve the land so as to increase its value. He erected no buildings, and'made no substantial improvements. He never plowed, sowed or tilled the land, and not a single crop was planted upon it. by him. He reaped the fruits without really doing any thing to produce them. The land must not only be “cultivated ” but “improved.” Both cultivation and improvement are essential to make out a case within the provision cited. Reaping alone can scarcely be considered as cultivating; and this was all the cultivation the land received; nor can the keeping up a fence already made, mowing the grass and cutting brush, (with no proof that it was designed to improve the land,) be considered an improvement within the meaning of the statute. I think the statute was intended to provide for the ordinary cultivation and improvement of lands in the manner in which they are usually occupied, used and enjoyed by farmers for agricultural purposes; sowing, plowing and manuring, and by the erection of buidings, &c. which might add to their value. The land of the plaintiff was not thus cultivated and improved, and he does not make out a case within the second subdivision of the section quoted. [Albany General Term, September 7, 1863. Although there was some evidence of adverse possession, yet the plaintiff failing to make out a case in other essential particulars, there was no error in the rulings of the judge; and a new trial must be denied, with costs. Gould, Hogeboom and Miller, Justices.]