Robinson v. Phillips

By the Court, E. Darwin Smith, J.

This case comes before us not professing to set out the full evidence or proceedings at the circuit, and presenting but a brief statement of the charge of the judge, with a single exception to his refusal to charge as requested. The question of fact tried at the circuit was simply whether there had been such a practical location of the boundary line between the two farms, and such a recognition of such line, or claim and occupation in respect thereto, as to make it the true boundary between the said farms, independent of the line as indicated by the paper title. The circuit judge charged the jury that if the division line was established by Crooker and Barlow, (grantors of the plaintiff and defendant, respectively,) or those under whom they claimed, and they possessed and oQcupied respectively up to such line, recognizing it as the true boundary, and such occupation and acquiescence by them and their successors continued twenty years or more prior to the removal of the fence by the defendant— the plaintiff claiming up to such line—then the plaintiff was entitled to recover: otherwise he was not entitled to recover.

The court further charged that the evidence did not show any such dispute as to the line as to disturb the question of acquiescence.

The counsel for the defendant then requested the judge to charge that the evidence did not show any adverse possession on the part of the plaintiff. The court refused so to charge, and the defendant’s counsel duly excepted thereto. This is the only exception in the case.

The judge could hardly be expected to charge in a general form or phrase as the request asked. He could not truly have said there was no evidence tending to establish an adverse possession; nor could the judge properly have passed upon the force of the evidence and charge that it did not show any adverse possession.

The request virtually asked the judge to take from the jury the very question he had just submitted to them. But obviously this was not the view of the counsel. The request was doubtless based upon his view of the law in respect to what constituted an adverse possession in such case. It was admitted, at the trial, and the judge had charged, that the paper title to the strip of land in question was in the defendant. This fact it was admitted was established by the surveys as applied to the description in the deeds produced at the trial. The defendant’s counsel argued from that fact, probably, at the circuit, as he does here, that the strip of land 'in dispute not being covered by the plaintiff’s deed, there was no basis for the claim of an adverse possession, under sections 82 and 83 of the Code.

This, I think, was the mistake of the counsel. The plaintiff did claim, under a deed, as much as the defenfendant. He and his grantors had claimed since 1843 or 1844, as I understand the facts, that the ditch which separated the two farms part of the. way, and the rail fence that was constructed in continuation of such ditch, built by Barlow, the plaintiff’, s grantor, with or by the consent and direction of Crooker, the defendant’s grantor, in 1843 or 1844, was on the true line between such farms. The deeds of both parties, it was then considered, if the witness Lorenzo Barlow was to be believed, took the respective parties to this ditch. Both parties claimed under deeds which they supposed took them to this ditch. These deeds were, in this view, respectively sufficient to base a claim on each side to go to such ditch, and to hold adversely up • to the sanie. It appears from the result of this investigation, at the trial, that there was a mutual mistake in the construction of the plaintiff’s deed, ■and that the true line of the deed stopped a little distance short of the ditch. The deed nevertheless protects his possession if he had in good faith occupied according to his fence and this ditch,‘claiming adversely, for the full period of twenty years before the commencement of this action. (Baldwin v. Brown, 16 N. Y. 363.) The judge correctly charged and held that such possession must be continued for twenty years, to give him a valid title by possession of the strip of land in controversy, according to the well settled rule that no location or possession short of twenty years, under claim of title, adversely, would bar an entry. (Clarke v. Baird, 9 N. Y. 204. Drew v. Swift, 46 id. 309.) I think the judge at the Special Term correctly disposed of this question; and that the order made by him denying a new trial should be affirmed.

[Fourth Department, General Term, at Buffalo, June 3, 1873.

Mitllin, Taicott and E. J). Smith, Justices.]