
    Henry W. Hayden, Appellant, v. Catharine T. R. Mathews and Others, Respondents.
    
      Equity — in an action to restrain trespasses. and a threatened conveyance the plaintiff must succeed upon his own title — the value of property as a basis for an extra allowance may be shown by affidavit.
    
    Where an equitable action is brought by a person claiming, title to certain property against a defendant, who also claims to own it and threatens to cut down shrubbery and trees upon it and also to convey it, the plaintiff must succeed upon the strength of his own title.
    Although no proof is made upon the trial of such an action as to the value of the premises in question, the value upon a motion for an extra allowance may be, shotvn by affidavit.
    Herrick, J., dissented.
    Appeal by the plaintiff, Henry W., Hayden, from a judgment of the Supreme Court in favor of the défendants, entered in the office . of the-clerk of the county of Warren on the 28th day of September, 1895,-upon the decision of the court rendered after a trial at the Warren Special Term dismissing the plaintiff’s complaint upon the merits, and also from an order entered in said clerk’s office on the 28th day of September, 1895-, granting to the defendants an extra allowance of costs.
    
      Henry W. Hayden, appellant in person.
    
      Frank Manser, for the respondents.
   Merwin, J.:

The. plaintiff is the owner of certain premises on the westerly shore of Lake George at Caldwell in Warren county, known as the Mansion House property. The defendants own certain other premises in the same place known as the Fish Pond lot. The plaintiff claims, as a part of his property on the southern side, about four acres which are uninclosed and upon which there are some trees and shrubbery and through which a. small stream runs into the lake, There is now or has been at some time on this four acres.a fish pond. The defendants claim that this fouuacre piece is within the boundaries of their property.

The present action was commenced on June 29, 1894 against. Catharine E. Van Cortlandt who then owned the Fish Pond lot. She died in January, 1895, and the present defendants have been substituted as her heirs and devisees.

In the complaint it is alleged that the southern boundary of plaintiff’s property includes the four acres in question; that the defendant claims that her northern boundary includes the premises and threatens to cut down the shrubbery and trees and has committed acts of trespass upon the premises, and threatens to sell and convey the premises. Relief is asked that, in order to prevent irreparable injury to the premises and multiplicity of actions of trespass and a sale of the land by defendant, the defendant be enjoined from conveying the same and from entering upon or using the premises or cutting the trees or shrubbery, or exercising any acts of ownership, and that the plaintiff’s boundary line on the south be established as he claims it to be.

The defendants admit the acts of ownership and claim that the original defendant and they, as her successors in interest, own the property.

■ Both properties, including the disputed territory, were owned by William Caldwell, who died on April 1, 1848. He left a will, afterwards duly proved, which was dated March 29, 1841. In this there was a devise to Eliza McGillis for life, with remainder upon her death to her lawful issue, of property described as follows: “Also, my mansion house in the town of Caldwell, Warren county, and State aforesaid, with the grounds attached, about thirty acres, now occupied by my agent, Seth C. Baldwin.”

The balance of the lands of the testator in Warren county was devised one-third in fee to Catharine E. Van Cortlandt, one-tliird in fee to Helen L. Parmelee, and the other third to Eliza McGillis for life with remainder to her lawful issue.

The ownership of plaintiff is under the specific devise above quoted.

In 1851 a partition suit was brought in Albany county, which included all the property in Warren county of which William Caldwell died seized, excepting the mansion house property. In this suit there was set apart to Catharine E. Van Cortlandt and Helen L. Parmelee the lot “ known as the Fish Pond lot.” Boundaries were given, and on the north the'boundary wás“by lot No. 15, Kennedy’s Patent.” At the close of the description is the expression “as the said premises are now leased to and occupied by John F. Sherrill.” The defendants claim under this allotment. ■

It was found and decided by the Special Term that the premises in dispute are not and never were owned by or in possession of the plaintiff, and are not now and never were embraced within or part, of the mansion house property which the plaintiff owns. The plaintiff challenges the correctness of this finding and conclusion.

The plaintiff must stand upon his own title. (Wallace v. Swinton, 64 N. Y. 188.) His claim, therefore, to the property in question must depend upon whether it is included in the description in the devise of the mansion house, “with the grounds attached,, about thirty acres, now occupied by my agent, Seth C. Baldwin.”

It was, in effect, found by the Special Term, upon,.sufficient, evidence, that the property in dispute was not occupied by Mr. Baldwin as a part of the mansion house property. It was not inclosed and was separated from the grounds of the mansion house by a fence running along the north side of the four acres from the lake to a highway. It was shown, on the part of the plaintiff, that Mr.. Baldwin at divers times ordered away boys who were bathing on the beach, in front of the- disputed property. As Baldwin was the agent of the' owner of all the property, this has not much significancy on the question as to what was deemed to belong to the mansion house property. On the part of the defendant it was shown that Mr. Sherrill, who had, in 1842, from Mr. Caldwell a lease of the Fish Pond lot, allowed his cattle to pasture up to the fence on the north side of the disputed lot.

Nor can it be reasonably said upon the evidence here that the disputed territory was a part of “ the grounds attached ” to the mansion house. It was not inclosed with the mansion house, or shown to have been used in connection with it.

The statement as to quantity, “ about thirty acres,” does not furnish any particular help..'" It is shown' that the mansion house grounds, exclusive of the disputed territory, and exclusive of a highway which crosses them, contain twenty-eight and fifty one-hundreths acres. Including the highway there are thirty-one and seven, one-hundredths acres.

It is argued on the part of the' plaintiff that the Fish Pond lot, as set off by the commissioners of partition in 1851, did not include the disputed land. The north boundary of the land so set off was stated “lot No. 15, Kennedy’s Patent.” Concededly this was a mistake, as the south line of lot No. 15 was in fact further south than the Fish Pond lot extended. It is very difficult to say where the commissioners in partition supposed the lot line was located. It is argued that they supposed that the south line of the lot was coincident with the north line of the village, and so meant to place the Fisli Pond lot entirely within the village, and, therefore, it would not include the disputed land. Suppose this to be so, it would not add to land of plaintiff or his predecessors in interest beyond what was given them by the description in the devise.

It is argued that Catharine E. Yan Cortlandt, by her declarations and acts after the partition, indicated her belief that her north line did not extend far enough north to include the dispúted land1. She was not familiar with the lot lines. The principle of estoppel did not apply. (Masten v. Olcott, 101 N. Y. 152.) It is quite clear that she never understandingly admitted that her title did not cover the land in question. The fact that she would not give the plaintiff a copy of'a map made for her by her attorney, which she claimed was not correct, and concededly was not so in some respects, is not very material. The plaintiff had no claim on the map, and it was not a part of his title.

It seems to me very clear that no good reason is apparent on the law or tlie facts for disturbing the conclusion of the Special Term that the description of the property in the devise under which plaintiff holds did not include the property in question. The plaintiff, therefore, did not make out a cause of action, and the complaint was properly dismissed.

It is claimed by the plaintiff that the ordér for an extra allowance was improper upon the ground that, this being a suit in equity for an injunction, and the value of the land not being alleged in the complaint or proved at the trial, there was nothing upon which to base an allowance. The motion was not made at the trial, but after-wards at Special Term, and was based on the pleadings, the testimony given at the trial, and affidavits which showed, among other things, the value of the land in controversy.

The basis of an allowance under section 3253 was “ the value of the subject-matter involved.” In Conaughty v. The Saratoga County Bank (92 N. Y. 401, 404). it is said upon this subject that “ the pleadings furnish the sole evidence as. to what was the subject-matter involved.” In the present case it appears clearly from the pleadings, as well as from the proceedings on. the trial, that the subject-matter involved was the four acres which both parties -claimed: to own.- Its ownership was the thing in issue. Its value is the basis for computing an allowance though the action in some view maybe for trespass. (Warren v. Buckley, 2 Abb. N. C. 323.) This value, if it does not appear at the trial,, may,"I think, be shown by affidavit. In the Conaughty case (see 28 Hun, 374) the proof of value was by affidavit, and the objection was not to the manner of proof, but that the necessary fact was not shown. The Code does not prescribe the manner in which the value shall be determined. In Hanover F. Ins. Co. v. Germania F. Ins. Co. (138 N. Y. 252, 255) it is said of allowances under section 3253: . “ Whether an allowance shall be made in cases coming within, the section is a. question which arises after the .trial, and determination of the issues. The court may determine the question upon the facts disclosed on the trial,- or brought to its attention by.affidavits.” -

In that case the pleadings contained the. only information as to value before the court, and it was said (p. 257): If extrinsic proof had been given- a different question would have been presented. * * * If.the value was not shown, and no evidence, admission or proof given from which the court could arrive at any conclusion as to value, no allowance could be made.”

The clear , inference is that proof by affidavit is proper, and that is the practice. * . '

No other question is made as to the -extra allowance.

It follows that the judgment and -order should be affirmed.

■ All concurred, except Hebriok, J., dissenting,, and Landon-, J., not sitting.

Judgment and order affirmed, with costs.  