
    Bradley N. Lobdell, Respondent, v. Village of Northville, Appellant.
    Third Department,
    May 28, 1912.
    Real property — trespass — defense of adverse possession — burden of proof — evidence.
    Where in an action for trespass the defendant claimed that since 1794 the land in question had been held adversely by it and the public against the plaintiff and used as a highway, it was reversible error for the court to charge that the burden of proof as to the title of the land in question was upon the defendant.
    ' Hou&htox, J., dissented.
    
      Appeal by the defendant, the Village of North ville, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Fulton on the 13th day of January, 1911, upon the verdict of a jury for $300, and also from two orders entered in said clerk’s office on the same day, one denying the defendant’s ■ motion for a new trial made upon the minutes, and the other granting the plaintiff an extra allowance of costs.
    
      Henry V. Borst, for the appellant.
    
      Fred Linus Carroll, for the respondent.
   Betts, J.:

I think this judgment must be reversed for error in the charge in placing the burden of proof as to the title of the land in question upon the defendant. It is unnecessary to cite authorities to the general proposition that the burden of proof does not shift, and remains through the trial just where the pleadings originally placed it. The respondent seeks to overcome this rule of law by citing two cases which seem to be mainly relied upon. One is the case of Iselin v. Village of Cold Spring (120 App. Div. 516). In that case Mr. Justice Miller, in writing for the court stated that the burden was on the defendants to establish the easements which they asserted. But that was a case where there had been sixty years’posséssion of land, which was prima facie evidence of title, and the burden was then upon the defendants to overcome that prima facie title. The case does not hold that after all the evidence is in the burden is not still upon the plaintiff to establish its right. In Bradt v. City of Albany (5 Hun, 591) it was held that an excuse or justification for what would otherwise be confessedly a trespass upon private property is an affirmative defense which must be pleaded and proved. There are other cases which hold in a general way that after the plaintiff has proven aprima facie title the burden is upon the defendant to overcome that proof. I do not believe that any of those cases go so far as to hold that the burden of proof shifts during the trial, so that the defendant must disprove the plaintiff’s case by a preponderance of -evidence. (Price v. Brown, 101 N. Y. 669.)

I also think that this judgment should be reversed for the exclusion of competent testimony offered by defendant as to lot lines and the original laying out of the highway offered to be shown by the defendant by the village clerk, who was also a surveyor. The question as to what patent and lots this property was in was very material. The certificate of 1794 . introduced in evidence showed that the road therein referred to was laid out between lots Nos: 1 and 2 in the subdivision of lot No. 20, beginning at a large dry pine tree standing on the bank of the river. This road in question — Ford street — originally led'to the Sacandaga river to a fording place. Naturally if the "road laid out led to or began at the Sacandaga river in great lot 20 between lots 1 and 2, it would begin at or lead to this fording place, as otherwise there would be no way to ci;oss this river.

The judge charged the jury that the town of Northampton was originally a part of the town of Broadalbin. He also took judicial notice that Fulton county was originally a part of Montgomery county. There is no river in Fulton county except the Sacandaga river.

Great lot 20 of the Northampton patent includes part at least of the village of Northville and extends to the Sacandaga river.

Plaintiff’s two deeds introduced in evidence locate his property in question in great lot No. 20 in = Northampton patent and parts of both lots are located along the center of the public highway in Northville leading westerly, on or near the north line of said lot No. 1 and extend through to and along the highway in the south line of lot No. 1; hence it was important to show where the great lot No. 20 was and where the subdivision lots Nos. 1 and 2 were. It was also important to locate that old road, if it could be done, and to show the width of it, and the defendant was not allowed to make any progress at all towards showing these facts..

It is a very common question to ask surveyors as . to whether they know or not the location of lot lines, particularly of great • lots, and it is- for the- jury, after cross-examination, from all the evidence submitted, where such a line is in dispute, to determine whether the surveyor answered correctly or not.

I think for these reasons the judgment and order should be reversed and a new trial granted, with costs and disbursements to appellant to abide the event.

Smith P. J., concurred; Kellogg and Lyon, JJ., concurred upon the ground that ■ the judge erroneously charged that the burden of proof was upon the defendant; Houghton, J., dissented.

Judgment and orders reversed and new trial granted, with costs to appellant to abide event.  