Campbell v. Bateman

The opinion of the court was delivered by Skinner, Ch. J. The material facts in the case are, the plaintiff is the proprietor of a farm of land, situate south of, and adjoining lands of the defendant. In 1821, the defendant erected a rail fence on what he claimed as the line between them. In 1822, the parties mutually agreed upon the line a little north of the fence so erected by the defendant, and the plaintiff has since, by mutual consent, occupied the strip between the line upon which the defendant erected the fence, and the line agreed upon. The parties then agreed on the division of the fence, by them respectively to be made on the line, and the defendant erected thirty rods of wall. In 1823, the plaintiff ordered the defendant to remove the rail fence, so by him erected. The plaintiff also claims, that the true line between them is farther north than that agreed upon in 1822. This action was brought the 3d of April, 1824. The court admitted evidence on the part of the defendant, (though objected to by the plaintiff,) to show the assent of the plaintiff to the erection of the wall by the defendant, to his acquiescence in that line, and to his having occupied and improved the strip of land north of the rail fence, up to the line agreed upon in 1822. The case then states, the court decided, it was the duty of the plaintiff, previous to bringing his action, to have caused a correct survey made, showing the true line, and to have given formal notice to the defendant to move his fence to such line, or at least, to have given the defendant regular notice to quit; and thereupon a non-suit was entered under a rule, <fcc. No action of ejectment could lie for the erection of the rail fence, in as much as the plaintiff, at the time of bringing the suit, was, and long before had been, in possession of the land on which it stood, as also upon both sides thereof, and no claim was set up by the defendant; neither will such action lie for neglecting to remove the fence. The opinion of the court expressed upon the trial, (which seems to have been rather with a view to apprize the parties of the principles upon which the jury would be instructed, than to decide any question presented,) “that the plaintiff previous to commencing his suit, ought to have had a correct survey made, showing where the division line ought to have been, and have given formal notice to the defendant to move his fence on to such line, or at least, to have given the defendant regular notice to quit,” was not altogether correct. As the counsel for the defendant insists, the owners of adjacent lands, (the division line being uncertain or unkown,) occupy at their peril, nor is it incumbent upon either, to point out the exact boundary to the other, nor is it necessary to give regular ^notice to quit, [180] ^hat *s to say, such notice as is required where the relation of landlord and tenant subsists. But in this case, although the opinion of the court thus expressed, and which undoubtedly in¿ucecj the plaintiff to submit to a non-suit, may have been er-r0neous, the facts appearing upon the record, show very clearly, that the non-suit ought to stand. R. C. Royce, J. Kellogg, William Page, S. Hodges, and M. Strong, for the plaintiff. Gordon Newell, and J. Clark, for the defendant. There is no evidence, nor is it pretended, that the plaintiff made any other request or deinand upon the defendant, but to remove the rail fence. And it was in evidence on trial, and is not denied, that the defendant was in possession only to the line agreed upon by the parties in 1822, and erected his stone fence by the consent of the plaintiff. Admitting then, that the true line is yet farther north, that the defendant is in possession of a portion of the plaintiff’s premises, that the parol agreement as to the line in 1822, is not conclusive upon the rights of the parties, and that the defendant is not the tenant of the plaintiff, so as to be entitled to regular notice to quit, yet it would he manifestly unjust to subject the defendant to this action. The agreement of the parties, as to the line in 1822, can amount to nothing less than a licence on the part of the plaintiff to the defendant, to occupy to that line, and until that licence is revoked, no action will lie. Although it must be understood, the court, by the language regular notice to quit, intended the common notice of a landlord to a tenant, if the language had been precisely correct, viz. that the plaintiff could not prosecute till he had apprised the defendant of his claim beyond the line, the agreement notwithstanding, the same result would have followed, the defendant supposing he was occupying that, and that only, to which the plaintiff made no claim. — 13 East. 210. — 10 Johns. 335. Judgment of the county court affirmed.