
    Third Department,
    December, 1946.
    (December 30, 1946.)
    Marcela F. Sanford, Respondent, v. Eugene Kirkby, Appellant.
   Appeal from a judgment of the Supreme Court in favor of plaintiff, entered January 7, 1946, in Chenango County, upon a decision of the court on a trial at Special Term.

Memorandum by the Court.

Appeal from a judgment of ejectment, made at a Special Term of the Supreme Court, Otsego County, December 31, 1945, by which it was determined that plaintiff-respondent is the owner of the premises described in the complaint, and that appellant is encroaching thereon.

The parties own adjoining lots on the south side of Gold Street in the city of Norwich, New York. The disputed parcel is a strip of land, approximately two feet wide, either on the east side of respondent’s lot or the west side of appellant’s lot.

Appellant obtained title to his lot in 1926. Respondent’s title to her lot came by devise from her deceased husband, who acquired title in 1886. Appellant’s deed fixed the fr'ontage of his lot on Gold Street at sixty-two feet and four inches, measuring in the center of the street from a point sixteen rods west of the westerly line of the New York, Ontario and Western Railroad Company. Respondent’s lot is one of a series of lots, originally conveyed by a common owner, who at one time owned the entire tract of land south of Gold Street, and east of the center line of Silver Street to the westerly boundary of land of the railroad. The description in the deed to respondent’s husband also calls for a frontage of sixty-two feet and four inches on Gold Street. Appellant denies that he is bound by the frontage specified in his deed, measured from a point sixteen rods west of the railroad property, and asserts that, under a blanket clause in his deed, he is entitled to all of the land as originally conveyed by the common owner to his predecessor in title lying between the Sanford lot and a lot previously conveyed to one Dimmick, and in which deed no dimensions were specified. There is no evidence, however, that the specific description in appellant’s deed was the result of a mistake, and unless it was a mistake it should control over general language.

The proof indicates, and it was practically conceded on the trial, that the center line of Silver Street cannot now be located accurately. In view of this, the trial court held that appellant’s survey, which began at a point in the so-called continuation of the east line of one Smith’s property north of Gold Street and which was related to the center line of Silver Street, was based upon an uncertain monument. In so holding the trial court apparently declined to accept, or held as insufficient, oral testimony tending to fix the location of the Smith line. Respondent’s survey, following the description in appellant’s deed, was held to be based upon a fixed, definite and ascertainable monument, i.e., the west line of the railroad.

Upon the ground stated, and all the evidence in the case concerning title, the trial court fixed the division line between the properties as contended for by respondent, and in accordance with a survey made in 1937 which was confirmed by a later survey.

Judgment affirmed, with costs.

Brewster, J.

(dissenting). I dissent and vote for a reversal of the judgment appealed from and a dismissal of the complaint, and for judgment in favor of the defendant-appellant upon his counterclaim.

To me the proofs clearly establish that the certain, undisputed and notorious ground location of the southerly extension across Gold Street of the so-called Edwin Smith East Line ” is an artificial monument which, fundamentally, controls' to fix the location of the easterly boundary line of plaintiff-respondent’s lot which is coterminus with the westerly line of that of the defendant-appellant. A common predecessor of both parties at one time owned all the land presently consisting of the lots or subdivisions on the southerly side of the center of Gold Street. His first conveyance (in 1871 to Smith and Gilbert) established the said extension of the “ Edwin Smith East Line ” as the easterly boundary line thereof and it thereby became certain and was marked. In his sale and subsequent conveyances, viz., to Darke, 1874-1896; to Leach 1880-1887, and to C. E. House, 1885 (now plaintiff-respondent’s lot), the location of the easterly lines thereof was in. each instance expressly fixed by the location of east line of what had been next earlier granted or contracted to be sold. Thus the Darke east line was located 66 feet east from Smith and Gilbert east line, (the extended Edwin Smith east line); the Leach east line 62 feet 4 inches east from the said Darke east line, and the C. E. House (now plaintiff’s) east line, 124 feet, 8 inches east from the said Leach east line. The evidence is that when plaintiff’s predecessor in title, C. E. House, received his deed all of the aforesaid east lines had been definitely located, marked, and were notorious. The use of such lines as a controlling monument is sanctioned. (Hall-Mark Realty Corp. v. McGunnigle, 253 N. Y. 395, 397.) Thus it can but be that the east line of the Leach property is a monument which controls the location of plaintiff’s east line and it fixes it as being parallel therewith and 124 feet and 8 inches distant therefrom. It is a strip of adjoining land two feet wide to the east thereof of which plaintiff claims the right to possession, but I cannot see that she has proved title to it. The failure in determination ef the center line of Silver Street I regard as wholly irrelevant because the Edwin Smith east line was located upon the ground and monumented as early as 1866. The plaintiff in ejectment may not now succeed by a disavowal of the monument, which controls the location of her easterly line, and by relying upon a distance call in defendant’s deed gratitutiously inserted in later years in aid of additional description. (Bernstein v. Nealis, 144 N. Y. 347.) The monuments aforesaid determined the true locations long prior to the 1915 addenda in the descriptive part of the deed to one of defendant’s predecessors in title.

As to defendant’s title, the deed from the heirs of the common owner (Pellett) to defendant’s predecessor in title (Lyman) was given in 1892. It contained no calls for distance but fixed the westerly line of defendant’s lot coterminus with the C. E. .House (now plaintiff’s) lot, and its easterly line as coterminus with the westerly line of the Dimmiek lot priorly conveyed by Pellett and the location of which was controlled by another line monument, viz., the westerly property line of the railroad. Those monuments thus fixing the ground locations of defendant’s lot included therein the approximate two-feet strip in question. Defendant’s title deed effectually covers it. The 1915 added reference to its Gold Street frontage was ineffectual to release the control of the monuments and certainly added nothing to plaintiff’s grant. The evidence shows some encroachment and possession by plaintiff of the strip of land in question and sufficient to call for the affirmative relief sought by defendant.

Heffernan, Foster and Lawrence, JJ., concur in memorandum by the court; Brewster, J., dissents in memorandum; Hill, P. J., taking no part.

Judgment affirmed, with costs.  