Bockaway Beach. The answer alleged that defendant entered into possession as tenant of one McNeill; that he was the owner of the premises. The lands were owned in 1800 by one Cornell, and in 1808 were allotted in a partition suit to one Bannister; in 1869 they were conveyed to Judge Donohue by Benjamin C. Lockwood, Jr., and Elizabeth Carroll and husband, Lockwood being the grandson of Benj. Cornell, and in 1881 Judge Donohue conveyed them to plaintiff. McNeill is a descendant of Bannister.
The lands were unimproved, and both Judge Donohue and his grantors while in possession placed stakes around them and cut timber thereon for fuel and fencing.
The trial judge on motion for a direction of a verdict for defendant expressed himself as follows:
“ The testimony shows that the grantors of Judge Donohue were in possession of the premises in question as far back as 1850, and that there was then no claim but that they continued in absolute, peaceable, uncontroverted possession down to the. time of the conveyance to Judge Donohue in 1869, and that the plaintiffs were in possession down to the time of the possession of the defendant. The grantors of Judge Donohue and Judge Donohue after his deed exercised ownership and control over the property, the grantors of Donohue by putting a stake or stakes around it, Judge Donohue by putting stakes all around it. Both of them cut timber from the premises, and used it. If it was necessary to presume a grant to the grantor of Judge Donohue, the lapse of time would justify such a presumption; and my conclusion is that the possession, control has gone with the paper title, and that the title of the plaintiff must prevail over the claim of the defendant, and the motion is denied,” and directed a verdict for plaintiff.
Abner O. Thomas, for app’lt;
James F. Swanton (John J. MacJclin, of counsel), for resp’t.
The various exceptions taken at the trial to the admission and exclusion of evidence, not being urged on the appeal, do not require discussion, and we believe that they do not bear upon the points decisive of the cause.
We think the testimony supports the decision of the circuit judge to the effect that the grantors of Judge Donohue were in possession of the premises as far back as 1850, to which no adverse claim was made, which possession was absolutely peaceable and uncontroverted.
At the time defendant entered the premises the plaintiffs and their predecessors in the title had been in such possession over forty years. ’
The lapse of time justifies the presumption of an ancient grant
Judgment affirmed, with costs.
Barnard, P. J., concurs; Cullen, J., dissents