Weeks v. Becken — 22 N.Y. St. Rep. 857

Majority

p. 857

William J. Weeks, App’lt, v. John F. Becken, Resp’t.

(Supreme Court, General Term, Second Department,

Filed February 11, 1889.)

Headnote

1. Boundaries—Question for the jury.

In an action for trespass against the defendant for entering upon and doing damage to plaintiff's property, the question was whether the parties had settled upon a boundary line other and different from the mathematical line stated in a certain deed. Held, properly submitted to the jury-

•3. Same—Evidence—Verdict.

There was testimony tending to show that the line had been located by consent, and the jury so found. Reid, that the verdict was properly supported.

8. Same—Evidence—When not prejudicial.

Where none of the testimony excluded bears upon the question submitted to the jury, the exclusion is not prejudicial.

Appeal from a judgment entered on a verdict and from an order denying a motion for a new trial.

This action for an alleged trespass was tried before Hon. E.M. Cullen and a jury, at the Suffolk circuit, in May, 1888.

The plaintiff and defendant are owners of adjoining tracts ■of woodland.

The boundary line between them was, for many years, -considered as the boundary line between the town of Brook-haven on the west, and the town of Riverhead on the east, and was commonly known as the “ Manor Line.” The plaintiff’s land is in the town of Brookhaven, and the defendant’s land, until the year 1885, was supposed to be entirely within the town of Riverhead.

In that year the line between these two towns was re-surveyed, and was located some distance east of the old line.

The new line crosses defendant’s land 107 feet from the west boundary at the north end, and 272 feet from the west boundary at the south end, and the area of defendant’s land •between the two lines is twenty-eight acres.

In 1853 the plaintiff ran out the east boundary line of his ■property, and marked it out with stones as far south as a large pine tree, near the north end of defendant’s premises.

p. 858

This tree is about in line with the old road which, as defendant claims, is the western boundary of his premises.

After the new town line had been surveyed and staked out, the plaintiff removed some of his boundary stones, and, placing them on this new line, claimed up to this line, because, as he states, it was “ the true line of the east boundary of the town of Brookhaven.”

In the latter part of 1887, the defendant cut down and carted away some trees growing on premises claimed by him east of the old road, and west of the “new line.”

The plaintiff then asserted a claim to the wood, and brought this action to recover its value.

The jury found a verdict for the defendant.

Chas. H. Smith, for app’lt, George F. Stackpole and Timothy F. Griffing, for resp’t.

—The only question submitted to the jury was whether the parties had settled upon a line other and different from the mathematical line stated in the deed.

There was testimony to the effect that the line had been located by consent, and the verdict shows the jury must have given credit to the evidence. Otherwise, the verdict must have been for the plaintiff.

We think the evidence justifies the submission of the question to the jury, and that the verdict is properly supported.

There are some exceptions to the exclusion of evidence offered by the plaintiff, but none of the testimony thus excluded bore upon the question submitted to the jury.

The exclusion was, therefore, not prejudicial to the plaintiff, even if erroneous, of which we are not convinced.

Judgment affirmed, with costs.

All concur.