Stuyvesant v. Tompkins

Per Curiam. The charge of the recorder was incorrect,' for the facts in this case clearly show that the plaintiffs below were not entitled to an action of trespass. The party must have actual and lawful possession of real property, to enable him to maintain trespass, and the plaintiffs below had not such possession. Their entry was, of itself, an act of trespass. The land owned by the parties respectively, was separated by a crooked fence, and the defendant below showed to one of the plaintiffs the two ends of the fence, as the extreme points of the boundary line between [63] them, and declared that the true boundary line was a straight line. The plaintiffs then employed a surveyor to run the line, and the defendant saw the surveyor while in the act of running it, and made no objection, but went away before the surveying was completed. The surveyor ran a straight line between the extreme points so shown by the defendant, and the plaintiffs moved the fence according to the line so ran, and it was erected beyond the former fence, and on a place in the actual possession of the defendant. The defendant proved that for more than twenty-five years before the action, he and his ancestors had been seised and possessed of the locus in quo, and the fence so removed had been, for that length of time, the actual boundary line between the parties and those under whom they held. The defendant further proved, that after the line was run, he disapproved of it and forbade the fence to be removed on to his land, and after it was erected he threw it down, and for this act the action was brought. The recorder ■charged the jury, that from the parol admissions of the defendant, they might infer that the parties had always intended a straight line, and that the defendant might be considered as holding by sufferance, or permission, and that his possession was not adverse-. This doctrine cannot be supported. The parol admission of the defendant was certainly not sufficient, per se, to change the possession. To give to a naked parol declaration, that the true line was a straight line, such an effect, after so long an acquiescence in a boundary line, would counteract the beneficial effects of the statute of frauds, and render the title to real property alarmingly insecure. The defendant’s possession, for upwards of twenty-five years, was,, of itself, an absolute title, and a bar to all the world. He had availed himself of the locus penitentia, and did not sanction the running of the boundary line, or the attempt to change the possession. The judgment below must, therefore, be reversed. Judgment reversed. [64] ■