Rowland v. Miller — 60 N.Y. Super. Ct. 399

Majority

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MARY ELIZA ROWLAND, Appellant v. CHARLES MILLER, et al., Respondents.

Headnote

Ejectment—Premises sought to be recovered must be intelligently described in the complaint.

The sole question argued or decided in the court below, relates to the sufficiency of the description of the premises set forth in the complaint, as follows: “ commencing at a point in the easterly line of said premises three and one-eiglith inches southerly from the northerly line of said premises, and running thence westerly to a point distant one and one-eighth inches southerly from a point in the said northerly line of said premises, distant nineteen feet west'erly from the easterly line thereof.”

Held, that this description is that of a straight line and nothing else. As it is impossible to deliver the possession of a straight line the complaint clearly does not set forth facts sufficient to constitute a cause of action, and, therefore, the demurrer must he sustained.

Before Sedgwick, Ch. J., Dugro and Gildersleeve, JJ.

Decided March 14, 1892.

Appeal from an order of the special term and from the judgment entered thereon.

Lockwood & Hill, attorneys, and John L. Hill of counsel, for appellant, argued :

I. Miller owns the lot southeast corner of Forty-third street and Madison avenue. Plaintiff owns the adjoining lot on Madison avenue. Miller built a brick wall on his lot, encroaching on the northerly side of plaintiff’s lot. The wall is 19 feet long. It encroaches Sc-inches on the easterly line of our lot, and runs thence westerly on our lot to a point inches south of our line; i. e., this wall, 19 feet long, is 3-g- inches on our

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lot at its southeast corner, which stands in our easterly-line, and lg- inches at its southwest corner. There stands this wall, an existing physical, visible monument, its exact encroachment on our lot specified, and yet the court said that we described nothing but a straight line in our complaint. Perhaps there might be some ground for defendant’s contention if the law required that a complaint in ejectment should describe the premises by metes and bounds only. But that is not the law. On the contrary the only requirement is that the description, whether by metes and bounds, or by monuments or in any other way, must be simply sufficient to enable the sheriff to execute the judgment, provided plaintiff succeeds in the action. The Code says : “ With common certainty, by setting forth the name of the township or tract and the number of the lot, if there is any, or in some other appropriate manner 5 so that, from the description, possession of the property claimed may be delivered where the plaintiff is entitled thereto ” (§ 1511). We may therefore describe the property in any “appropriate manner.” We shall show that this description is sufficient, whether treated as one by metes and bounds or by monuments.

II. This description is sufficient as by monuments. We describe that part of our lot which is covered by this brick wall. We definitely describe our lot by metes and bounds. W e then say that Miller entered into the possession of, and occupied, by a brick wall forming the southerly side of a building, a part of our lot. We describe the exact part of our lot thus occupied. But no matter about that. Suppose that we had given no other details of description than this wall alone. Can it be possible that we have not described that part of our lot on which this brick wall stands ? No matter whether it is 10 feet this way or 50 feet that way. The wall is there, and that land under that wall, south of our line, is the land we “ claim.” Can it be possible that, if I

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lay a plank down on a boundary line, and then draw a chalk line on the plank showing where the line really is, and then say that I “ claim ” (see Code, 1511) all the land covered by the plank on the south side of the chalk line—can it be possible that I have not thus indicated a four-sided piece of ground! Can it be possible that I have not thus described a piece of ground, no matter how many sides it has ? And is the description any the less certain when we use a brick wall of a brick building in place of the plank ?

III. But the description is sufficient even by metes and bounds. We have definitely described a quadrilateral so- that any person of ordinary experience can go and find exactly the land which we claim. Let us now throw away the idea of the brick wall, except so far as its sides shall help us to describe geometric lines, (a.) We certainly have four sides of a quadrilateral definitely described. (1.) We have in the first place the northerly and easterly lines of our lot described in the ordinary way. Thus we have two sides of the quadrilateral. (2.) Now, let us look for the others :. We begin in the easterly line of our lot 3y inches south of the northerly line. That makes the easterly side of our quadrilateral 3» inches long. We run thence 19 feet westerly to a point 1-y- inches from the northerly line. We have thus a 19-foot line and a line 1¿- inches long (&.) But, say our adversaries, you do not say that the land which you claim lies within these lines. Your description of the land in dispute is wholly within paragraph IY. of the complaint. So far we agree. But our adversaries go on to say that that paragraph describes nothing but one straight line. W e say no : It describes the quadrilateral. In the first place, this paragraph certainly does say that the land claimed is a part of our lot. Hence necessarily it is south of our northerly line. And the question is what part of our lot is described. In the next place, this straight line, 19 feet long, is the southerly side of a

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building. Hence, it is safe to say that the building and its brick wall lies north of that line. It is therefore plain that we are talking about that “ portion of said premises,” which lies north of this straight line, 19 feet long. And so we clearly get the land which we “ claim ” within three lines: (1.) Our northerly line as its northerly boundary ; (2.) the 19-feet straight line as its southerly boundary; (3.) the 3¿- inches of our easterly line which intersect these two lines as its easterly boundary. In the next place, the fourth line (the line Te¡ inches long) necessarily forms a right angle with our northerly line, i. e., unless “ a straight line ” has ceased to be “ the shortest distance between two points.” (c.) Now this is certainly within the term “ common certainty,” at least within the phras e other appropriate manner.” Code, § 1511. (1.) It is definite and accurate. The moment we recall the fact that the premis es claimed ” are covered by the “ brick wall,” and that that wall forms the “ southerly side of a building,” we know that the locus in quo is between the four lines of the quadrilateral above described, because it couldn’t be anywhere else and still be a “ portion of said premises.” Hence we have metes and bounds. (2.) Then we have that part of our lot which lies under the brick wall—the wall being a monument. (3.) St. John v. Northrup, 23 Barb., 31 , was infinitely more indefinite and yet sufficient. The complaint simply described “ fifty acres in the southerly part ” of a lot otherwise accurately described the same as our lot is accurately described.

Burrill, Zabriskie & Burrill, attorneys, and John B. Burrill of counsel, for respondent Miller,

argued that the complaint only describes a straight line as the property of which possession is claimed, and therefore no property is described in the complaint, and cites the case of Budd v. Bingham, 18 Barb., 494 , as one exactly like the case at bar. There the description of the

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premises will be seen on inspection to be the description of a straight line, and the court held that a demurrer was proper and that a motion to make more definite and certain would" not be proper, because there was no property described in the complaint, and therefore nothing to make more definite. Jolly v. Ghering, 40 Ind., 139 .

William H. Sage, attorney and of counsel, for respondent The Taylor Co.

This is an action for ejectment. The description of the property in suit is set forth in the complaint as follows: “ Commencing at a point in the easterly line of said premises three and one-eight inches southerly from the northerly line of said premises, and running thence westerly to a point distant one and one-eighth inches southerly from a point in the said northerly line of said premises, distant nineteen feet westerly from the easterly line thereof.”

This is a description of a straight line, and nothing else.

Section 1511 of the Code of Civil Procedure provides that “ the complaint must describe the property claimed with common certainty, by setting forth' the name of the township or tract, and the number of the lot, if there is any, or in some other appropriate manner; so that, from the description, possession of the property claimed may be delivered, where the plaintiff is entitled thereto.”

As it is impossible to deliver possession of a straight line, the complaint clearly does not set forth facts sufficient to constitute a cause of action; and, therefore, the demurrer must be sustained. Code, section 488.

The complaint does not describe any property at all; and there is, therefore, nothing of which a bill of particulars can be given, and nothing to be made more

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definite and certain by motion, under section 546 of the Code; it consequently follows that defendants’ proper course was to demur. See Budd v. Bingham, 18 Barb., 494 .

The judgment and order appealed from are affirmed, with costs.

Sedgwick, Ch. J., and Dugro, J., concurred.