Becken v. Weeks — 39 N.Y. St. Rep. 786

Majority

p. 786

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

(Supreme Court, General Term, Second Department,

Filed July 2, 1891.)

Headnote

Bototo abibs.

In an action for trespass it appeared that the lands of the parties were unfenced and uncultivated, the boundary between them being the town line. This line was surveyed in 1886 so as to leave the locus in quo on defendant’s side. It was claimed by plaintiff that there had been a previous location of the line, the evidence as to which consisted of matters occurring forty years ago and which rested only in the memory of men from seventy to eighty years of age, and which showed that a road, fence and marked tree were regarded as monuments of a boundary. Held, that the evidence was sufficient to warrant a submission of the question to the jury, and that their verdict would not be disturbed.

Appeal from judgment in favor of plaintiff, entered upon verdict

A. A. Spear, for app’lt; George F. Stackpole and Timothy M. Griffing, for resp’t.

—This was an action of trespass which involved a dispute as to the -boundary line between two farms in Suffolk county. The plaintiff’s west line and the defendant’s east line, as appears from the deeds put in evidence, was the boundary line between the towns of Brookhaven and Riverhead.

The line has been recently surveyed and established so as to take in the land upon which the trespass is claimed to have been committed as a part of the defendant’s land; so that if this new line is to be regarded as the boupdary between the two farms, then the defendant is the owner of the land upon which the alleged trespass was committed, and the verdict was wrong.

The plaintiff’s answer to this contention is that many years since there had been a practical location of the line by the respective owners of the farms, and that such location placed the land

p. 787

upon which the trespass was committed upon the plaintiff’s side of the line between the two farms.

The evidence of this location is not as satisfactory as could be wished, but it was undoubtedly sufficient to warrant a submission of that question to the jury, which was done under a charge remarkably clear and impartial, and a verdict was rendered for the plaintiff.

The dispute involved uncultivated land that had never been fenced, and the evidence consisted of matters occurring forty or more years ago which rested only in the memory of men from seventy to eighty years of aga

Considering all the facts and circumstances, we think the jury were justified in finding that the plaintiff was the owner of the land upon which the trespass was committed, and, therefore, the verdict must stand unless some error was committed upon the trial.

This being unfenced and uncultivated land, it was very difficult to establish title by either side by adverse possession, but the declarations of the parties and their acts plainly show that the road and lop fence and a marked pine tree were regarded as monuments of a boundary between the two farms.

We have carefully examined the exceptions and find no error sufficient to warrant setting aside the judgment

Judgment affirmed, with costs.

' Barnard, P. J., and Dykman, J., concur.