Tindale v. Powell — 34 N.Y.S. 659

Majority

p. 659

(88 Hun, 193.)

TINDALE v. POWELL.

(Supreme Court, General Term, Fourth Department.

July 5, 1895.)

Headnote

Adverse Possession—Evidence.

On an issue as to whether possession of certain land by one P. was adverse, it appeared that P. inclosed land, and cultivated it for 30 years, and until his death, after which it was occupied by his widow and daughter. It appeared that during P.’s occupation his brother built a house on the premises. The brother was a man of wealth, and P. was in moderate circumstances. Evidence was given tending to show that the house was erected by the brother because he owned the premises. Held, that it was competent to show that the house was built for P. by his brother, who acknowledged that P. owned the premises.

Appeal from circuit court, Oneida county.

Action by Frances M. Tindale against Martha F. Powell. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.

Reversed.

The action was brought by George A. Tindale to recover the possession of the lands described in the complaint, which are situated at Clark’s Mills, on the easterly side of the highway leading from Kirkland to Westmoreland. After the trial of the action, George A. Tindale died, and his wife and sole legatee, the present plaintiff, was substituted. Plaintiff claimed title to the lands in question from one Liberty Powell, and it was claimed that he derived his title from two sources,—one-half acre from one Stephen Chappel, under a deed of October 31, 1814; and the other acre and a half, it is claimed, he obtained by deed from Charles W. Powell, dated January 10, 1876. Liberty Powell died March 26, 1886. No evidence was given on the trial that Liberty Powell, or either of his grantors, ever occupied the one-half acre, or the acre and a half. The premises were occupied from 1845 until September, 3.875, by Philo Powell; and, after his death, his widow, Harriet Powell, and the defendant occupied the premises, until after the trial of this action. The widow died in December, 1892, and the defendant is a daughter of Philo Powell, and one of six children, who were the sole heirs and descendants of Philo Powell. When Philo Powell moved onto the one-half acre, in 1845, there was an unpainted house and a small bam; and in 1851 a fence was built on the half acre upon the place occupied by the old fence, and this was built by Philo Powell. There was a fence built in 1851 or 1852, which inclosed both pieces of land in question, by Philo Powell and his sons; and he lived on the place at the time, and continued to do so until the time of his death, in 1875. He cultivated the place, and raised crops on it, every year; and afterwards the widow and the defendant, his daughter, occupied it, the evidence showing that he held himself out as owner of the premises. He planted trees on the place, both on the half acre and the acre and a half, and caused the trees to be grafted. The trees grew large. He moved the old barn back from the half-

p. 660

acre piece by the piece added on by the building of the new fence. He kept the fence in repair around the place while he lived, and the premises were cultivated as farms usually are from 1845 until 1875 by Philo, and subsequently by his widow and this defendant. It appears in the evidence that Philo and his widow paid taxes on the place during the time they occupied it, and there is other evidence tending to show acts of adverse possession on the part of Philo Powell and by his wife and this defendant; and there is evidence to show that the acts were public and notorious in which they asserted ownership and possession thereof, and there is some evidence from which a jury might infer that Liberty knew of the claims made by Philo and his widow and the defendant, and from it might be inferred he never asserted the contrary.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.

Josiah Perry, for appellant.

S. J. Barrows, for respondent.

Upon all the evidence found in the appeal book, we are inclined to the opinion that the case should have been submitted to the jury. We think the evidence warranted a finding upon the important questions relating to adverse possession. It is provided in the Code that, for the purpose of constituting adverse possession, land is deemed to have been possessed and occupied where it has been protected by a substantial inclosure, or where it has been actually cultivated and improved. The evidence discloses an actual occupation for over 20 years. Barnes v. Light, 116 N. Y. 34 , 22 N. E. 441 ; Woodruff v. Paddock, 130 N. Y. 618 , 29 N. E. 1021 .

It was claimed during the trial by the plaintiff that circumstances were such as to rebut the presumption of adverse possession arising from the occupation by Philo Powell. With a view of establishing an explanation of the possession or claim of ownership of Philo, it was shown that, in 1875, Liberty Powell built a house upon the premises. At. that time he was a man of wealth, and his brother seems to have been in moderate circumstances; and it is a question, upon the whole evidence, whether it was a brotherly act without pay, or whether it was an advancement upon the property by Liberty, with the knowledge on the part of Philo that ultimately the expenses for building the bam were to be accounted for. There was some considerable evidence as to why the building was erected; and some evidence was given tending to show it was erected by Liberty Powell because he was the owner of the premises, and that Philo assented to the idea that he was the owner of it. To meet that evidence, the defendant offered to show that, at the time, Liberty Powell acquiesced in the fact that Philo Powell owned the premises, and was building the house there for Philo. The evidence was excluded, and an exception was taken.. At a later stage of the case, the defendant, in effect, offered to show by a witness “that he was riding with Liberty Powell, and the latter told him that he was building the house for his brother Philo.” The evidence was excluded, and an exception taken. We are inclined to think that, as the issue then stood, the offer ought to have been received to explain the relations of the parties to it. We think there should be a new trial.

Judgment and order reversed, and a new trial ordered, with costs to abide the event. All concur.

Cases cited

Barnes v. Light 116 N. Y. 34 N.Y. 1889-10-08 p. 660
Woodruff v. Paddock 130 N. Y. 618 N.Y. 1892-02-09 p. 660