
    Nancy Erkson, Appellant, v. Andrew Johnston, Respondent.
    
      Nonsuit—presumption on appeal — trespass to realty—proof of adverse possession.
    
    Upon an appeal from a judgment of nonsuit the appellant is entitled to that construction of the evidence which is most favorable to him, and to have the benefit of all the inferences dcducible therefrom.
    An action for the recovery of the damages resulting from a trespass upon real estate brought in question the title to a strip of wild woodland lying between the lands of the plaintiff and those of the defendant.
    It was shown that, in 1885, the defendant entered into a contract for the purchase of this strip of land from the owner, which was never completed, and that in 1887 the owner conveyed the strip to the plaintiff, who thereupon erected a fence between the strip and the premises of the defendant. The only acts of possession proved upon the part of the defendant were that from time to time the defendant permitted his cattle to go upon this strip, and that he cut wood thereon; and that for two or three seasons he cultivated a very small part of it, and that after the erection of the fence by the plaintiff, he, from time to time, tore down portions of it, drove his cattle upon and cut wood from the strip.
    
      Held, that a dismissal of the complaint was erroneous, as the jury might properly have found that the plaintiff owned the strip;
    That, if so, the plaintiff was entitled to maintain an action under section 1667 of the Code of Civil Procedure against the .defendant as a person who had cut down or carried away wood upon the land of another, without the owner’s leave.
    Appeal by the plaintiff, Nancy Erkson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Delaware' on the 10th day of September, 1895, upon the dismissal of the complaint directed by the court after a trial at the Delaware Circuit before the court and a jury, and also from an order entered in said clerk’s office on the 23d day of September, 1895, denying the plaintiffs motion for a new trial made upon the minutes.
    The action was brought to recover damages resulting from trespass upon lands óf the plaintiff.
    
      C. L. Andrus and I. H. Maynard, for the appellant.
    
      Walter O. Elliott and E. H. Eenn, for the respondent.
   Herrick, J.:

This is an appeal from a judgment of nonsuit directed at the close of the plaintiff’s evidence, and from an order denying a motion for a new trial.

Upon an appeal from a judgment of nonsuit the appellant is entitled to that construction of the evidence which is most favorable to his contention, and to have the benefit of all the inferences which could be legitimately drawn therefrom. (McPeak v. N. Y. G. & H. R. R. R. Co., 85 Hun, 108.)

And where an answer has been interposed he is entitled to whatever judgment the evidence, where properly received under the complaint, entitles him to.

The appellant and respondent were both the owners and occupants of real estate, the title to which they derived through a common source. The appellant, in 1865, received by conveyance, and has since been in the occupation of, a piece of land containing about 40 acres, known as a wood lot, and also another piece of land containing about 102 acres.

In 1863 the respondent received the conveyance, and has since been in the occupation, of a piece of land containing about ninety-two acres. Between the forty-two-acre wood lot of the appellant and the ninety-two-acre lot of the respondent, there is a rectangular strip of land of between twenty-one and twenty-two acres, being wild and uncultivated wood land.

The evidence shows that from time to time the respondent drove or permitted his cattle to go upon such land, and from time to time cut wood thereon. Two or three acres thereof had been cleared, it does not appear by whom, and for at least two or three seasons it had been cultivated by the respondent.

The title to this rectangular piece of land between appellant and respondent, together with the title to 1,500 or 1,600 acres more of land, had become vested in I. H. Maynard.

In 1885 a person in the employ of Mr. Maynard, but, as is alleged, without authority, entered into a contract on his behalf to convey the piece of property in question to the appellant; shortly thereafter the respondent called upon Mr. Maynard in reference thereto, and expressed his desire to purchase such property, saying that he had always intended to purchase it; and after consulting a map or maps, whereon was designated the land conveyed to the appellant and respondent respectively, and the strip of land in question, and after several interviews and some correspondence in relation thereto, the respondent entered into a contract with Mr. Maynard to purchase said strip of land, together with some thirty acres in addition thereto. This contract was never completed, because of a disagreement between the respondent and Mr. Maynard as to the location of the additional thirty acres of land.

In 1887 Mr. Maynard conveyed to the appellant the rectangular strip of land in question ; the appellant thereupon erected a fence between such strip of land and the respondent’s ninety-two acres; the respondent complained to the appellant’s husband that he had not been used very well, claiming that he always wanted to get that land, and that the appellant’s husband ought to have come and told him before he bought it, admitting that it had been offered to him, and he knew that he ought to have bought it then.

After the erection of the fence by the appellant, respondent, from time to time, tore down portions of it, drove his cattle in upon the land and cut and carried away timber therefrom.

Upon this state of facts it seems to me that the jury would have had the right to have found that the appellant was the owner in fee of the property in question; that the respondent had not by his acts acquired any adverse possession thereto; that his occupation of such premises was only occasional, not exclusive, and never made under a claim of title, but that, on the contrary, he admitted the= title thereto to be in the appellant’s grantor. They could also have found under the evidence that the respondent had cut down and carried away wood and trees from the property of the appellant, and under such findings the appellant would have been entitled to maintain an action under section 1667 of the Code of Civil Procedure, which provides that “ if any person cuts down or carries off :any wood, underwood, tree or timber, or girdles, or otherwise despoils a tree on the land of another, without the owner’s leave, or on the common, or other land, of a city, village or town, without having .right or privilege in those lands, or license from the proper officer, ■an action may be maintained against him by the owner, or the city, village or town, as the case may be.”

It seems to me, therefore, that the court erred in directing a nonsuit, and that the order and judgment should be reversed and .a new trial granted, with costs to abide the event.

All concurred.

Judgment reversed and a new trial granted, costs to abide'the event.  