McRoberts v. Bergman — 32 N.Y. St. Rep. 1111

Majority

p. 1111

Hugh McRoberts, Resp’t, v. Henry S. Bergman et al., App’lts.

(Supreme Court, General Term, Second Department

Filed July 18, 1890.)

Headnote

1 Ejectment — Title—Possession.

In an action of ejectment for a piece of salt meadow plaintiff proved a chain of title extending back to grants from the crown of Great Britain and proved that his predecessors in title had cut grass from the meadow and fished from the beach. Held, that this showed as full occupation as the premises were capable of and showed a clear title.

2. Same — Adverse possession — Champerty.

One year prior to the deed to plaintiff, the defendant B, who was in possession by permission of one W, took a deed of the portion forming the beach from parties who were subsequently shown to have no title. Held, that this deed was insufficient as a basis for an adverse possession, and did not raise the question of champerty as against plaintiff’s deed given by the true owner, and was void, having been given while the true owner was in actual possession by his tenants.

Appeal from judgment in favor of plaintiff and from order denying motion for a new trial.

Action of ejectment for a piece of land on Staten Island, commonly called the “ Little Salt Meadow.” Defense, denial, adverse possession and champerty.

Plaintiff traces his title back, by mesne conveyances, to grants from the crown to Mary Britton and Sarah Scidmore in 1686 and 1687, and showed that one K, who owned the land from 1780 to 1845, was accustomed to cut grass thereon and fish from the beach; that in 1846 it was conveyed to one White, from whom plaintiff leased it in 1868, and that plaintiff held the same under the lease until he received his deed, cutting the grass and using the beach for the purpose of drawing sand therefrom.

David JR. 6amiss, for appl’ts; Geo. J. Greenfield, Wm. M. Mullen and Wm. M. Bruce, for resp’fc

The plaintiff proved a singularly clear title to the land in question. The lands were supposed to be and no doubt were included in grants from the crown of Great Britain to Mary Britton and to Sarah Scidmore, over two hundred years ago. The descriptions in the charters are very general and the monuments are difficult to identify. It can however safely be said that the occupation under these patents is proven beyond contradiction.

In 1876, the lands were devised to one John Keteltas, and subsequent to that sale the land in dispute has been occupied as fully as it could be by the successive owners of the same. It is a small lot between a low meadow and the lower bay of Hew York. The meadow has been constantly used as such meadows are, and there is not the slightest reason to suppose the description left a narrow strip of beach between the meadow and high water mark. The plaintiff derived his title from the widow and heirs of Thomas H. White in 1874, 1875 and 1876. In 1873 Sarah A. Burke took a deed from Joseph Stillwell and Anna M. Tucker to the lands in question. Mrs. Burke was in possession by permission of Daniel Wordell when she took this deed. The deed to Mrs. Burke when -she was in possession under Wordell was insufficient as a basis

p. 1112

for an adverse possession. Stillwell and Tucker had no title to give. This Stillwell and Tucker deed was insufficient to raise the question of champerty as against the plaintiff’s deed, given subsequently by the true owner, and the deed itself was void, having been given while the true owner was in actual possession by his-tenants. Mrs. Burke repudiated the Tucker title as founded on no right, and took, it appears, another deed from other parties, which is not set up in this action as a source of title, or proven on the trial. It has not support. It 'is supposed to be operative on the strip of beach outside the meadow, because that strip is not defined in the grant to plaintiff’s predecessor in title, under which plaintiff’s claim and the grant to Sims gives all which is not given to other parties in Richmond county. The claim is baseless under this evidence. The occupation under the crown grant to plaintiff’s predecessor in title is so positive and long continued that the rule .as to location of the land under an ancient deed would apply There was no outlying strip which would appear for the first time nearly or quite two hundred years after the grant to the plaintiff. The plaintiff’s right 'to the land was, therefore,, clear, both by deed and by an occupation of over twenty years,, under a claim of title, and the defendant had no right either by deed or by occupation.

The judgment should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ, concur.