Heintz v. Dellinger

Daniels, J.

The evidence before the court and jury upon that question consisted chiefly of measurements of certain distances. By those made and proven on behalf of the plaintiff, the defendant’s addition was shown to extend over upon the premises described in the complaint, while those on the part of the defendant excluded it from them. The question became, therefore, one of location solely, depending upon the accuracy of the respective measurements. If those relied upon by the plaintiff were correct, the effect of the defendant’s answer was to admit that the addition was over upon the plaintiff’s land, and it consequently followed that the trespass had been committed. If they were not correct, and those relied upon by the defendant were, then it became entirely immaterial upon whose land he had built, for the plaintiff had no cause of complaint on account of it. The question thus presented and litigated, was, therefore, not one of title, but merely one of location, for the purpose of ascertaining whether the piece of land on which it was claimed the defendant had trespassed, was a portion of that which he admitted was owned by the plaintiff. That brought the controversy to one which concerned the possession only. For when it was satisfactorily shown to be a part of that described in the complaint, it followed that it was in the plaintiff’s possession at the time of the trespass. If the lines of the land are properly laid as claimed by the plaintiff, the title which the defendant’s answer admitted, drew after it a constructive possession (Dewey agt. Bordwell, 9 Wend. 65). The production of the plaintiff’s deed could make no difference, for it would be of no use as evidence where the title and description were fully ascertained by the pleadings.

In Ehle agt. Quackenboss (6 Hill, 539), this court held that the term “ title,” as used in the statute under consideration, is limited to the right of possession. In this case the inquiry was as to the fact, not the right of possession. For when the fact was ascertained to be as the plaintiff alleged it, the right stood admitted. (Idem, 540; see also Ford agt. Sampson, 17 How. 447.)

The application made must be denied.