
    Joseph Bohn et al., Appellants, v. Albert G. Hatch, Respondent.
    To support a claim for improvements put by the claimant upon the lands of another, it must appear that he acted upon a belief, having some probable basis, that he had title, and that the real owner, knowing of his acts, suffered him to go on without notifying him of the actual condition of the title.
    To maintain an action under the provision of the Code of Civil Procedure (§ 1638), authorizing a person who has been in possession of real property for three years, “ claiming it in fee or for life, or for a term of years not less than ten,” to compel a determination of adverse claims, plaintiff must show possession under some claim of title.
    In an action to restrain the prosecution of proceedings to summarily dispossess plaintiffs of certain premises and to have their equitable interest in the same adjudged, B., one of the plaintiffs, testified that he, in 1865, obtained' permission from one J. to move a house upon the land, and that J. told him if he would fill it in, he would give him a portion. At the time, the title of the premises was in two sons of J., who were nonresidents; it did not appear they had ever authorized him to create any interest in or right to the premises, or that they ever knew of B.’s entry, or had ratified what J. had done. Held, that plaintiffs failed to show they were entitled to any equitable relief.
    It also appeared that in 1875 said plaintiff took a lease of the premises from C., to whom J.’s two sons had conveyed it. In a proceeding by defendant and another, as grantees of C., to remove plaintiffs for default in the payment of rent, these plaintiffs, by their answer, put in issue the title to and leasing of the premises, and the allegations of the petition as to their indebtedness for rent and holding over after default. A judgment was rendered which established the lease and the lessor’s title, which judgment was affirmed on appeal. Plaintiffs claim the right to attack the validity of that judgment on the ground that the lease was void. Held, untenable; that plaintiffs were concluded by said judgment; and that the acceptance of the lease was a waiver of any claim for improvements.
    (Argued March 16, 1892;
    decided April 12, 1892.)
    Appeal from judgment of the General Term of the Superior Court of the city of Buffalo, entered upon an order made June 16, 1891, which affirmed a judgment in favor of defendant, entered upon a decision of the court on trial at Circuit.
    The facts, so far as material, are stated in the opinion.
    
      
      0. G. JDeWitt for appellants.
    The defendant should be restrained from obtaining a judgment with costs against the plaintiffs, which they have before received. (Emerson v. Udell, 13 Vt. 477; O. Ins. Co. v. Fields, 2 Story, 59.) The grantors of the defendant were not the riparian owners of the stream or owners of the land adjacent to the new land on the north part of Scajaquada creek. The defendant has not, under the circumstances, a good title against all but the state. (Ledyard v. Ten Eyck, 36 Barb. 102; People v. Kelsey, 14 Abb. Pr. 372.) Equity will aid in protecting the plaintiffs from damage in a case where the statute is not broad enough to give the relief required. (Scott v. Scott, 33 Ga. 102; Welter v. Arnett, 8 Ark. 57; Mock v. Bowman, 9 id. 501; Matingly v. Corbett, 7 B. Mon. 376.) ¡Notwithstanding the Municipal Court judgment stands against the plaintiffs, all the points in references to the lease and the said Clinton’s will or whatever they may be, can now be used, as a part of the relief asked is a stay of second Municipal Court proceedings in which there was no judgment obtained. (Laughren v. Smith, 75 N. Y. 205 ; Hill v. Stocking, 6 Hill, 314; Benjamin v. Benjamin, 5 N. Y. 383 ; Jackson v. Delaney, 13 Johns. 537; Jackson v. Emsabaugh, 10 id. 435 ; Sperling v. Isaacs, 22 Wkly. Dig, 174; Jackson v. Livingston, 11 Johns. 365 ; Sloan on Landl. & Ten. 79; Jackson v. Colton, 5 Wend. 246.) Equity will award for improvements. (Hardisty v. Hendrickson, 44 Md, 617; Freeman v. Freeman, 43 N. Y. 34; Neal v. Neal, 9 Wall. 1; Shepard v. Bevin, 9 Gill. 32; Haines v. Haines, 6 Md. 435; King v. Thompson, 9 Pet. 204; Wynn v. Garland, 19 Ark. 23 ; 2 Am. Lead. Cas. 570; Bose v. Davis, 14 Tex. 331; 1 Pom. Eq: Juris. § 1241; 3 Pom. on Cont. §§ 115-140.) Bohn was in uninterrupted possession when he took the Erie county tax deed. That occurred two years prior to the making of the pretended lease. That deed gave him the right of the possession of the premises with all its improvements which he had previously made. A tax purchaser is entitled to the possession of the land. (Harson v. Brown, 15 Barb. 590; Bliss v. Johnson, 73 N. Y. 529; McMillan v. Cronin, 
      Id. 474; Kelley v. Sheehy, 60 How. Pr. 439; Sperling v. Isaacs, 22 Wkly. Dig. 174; Laws of 1859, chap. 162, § 17; Laws of 1860, chap. 440, §§ 1, 2; 3 R. S. [6th ed.] 970, § 6; 1 id. [2d ed.] 732, § 147; Jackson v. Delaney, 13 Johns. 537.) Tax deeds in the plaintiffs, title in a third party, and after-wards in defendant, make the lease from G. D'. Clinton void. (Tinkham v. E. R. Co., 53 Barb. 396; McKinley v. Phelps, 8 Hun, 339 ; Mosher v. Gast, 33 Barb. 277; Bloom v. Burdick, 1 Hill, 130 ; Tilyon v. Reynolds, 108 N. Y. 563; Hendrickson v. Hinkly, 19 How. [U. S.] 443.)
    
      É. L. Parker for respondent.
    Ho requests to find any facts whatever were made. Ho exception was taken by the plaintiffs at any point in the trial. Ho amendment of the complaint has been asked or suggested. The case does not state that it contains all the evidence. There is nothing which* is the subject of review upon this appeal. (Burnap v. Bank, 96 N. Y. 125; West v. Van Twyl, 119 id. 620; E. C. F. Co. v. Hersee, 103 id. 25; Travis v. Travis, 122 id. 449, 454; Wicks v. Thompson, 45 Alb. L. J. 100; Day v. Town of New Lots, 107 N. Y. 152.) Supposing Jesse Peck to have been proved the owner, and that Bohn entered under a license from him, the' license was revocable at any time. (Duryee v. Mayor, etc., 96 N. Y. 478.) The plaintiffs have failed to prove clearly and beyond criticism the terms and the fairness of the agreement with Peck, and their improvements should be referable to that agreement only. (Wiseman v. Lucksinger, 84 N. Y. 31, 39, 41; Pom. on Cont. § 131; Cronkhite v. Cronkhite, 94 id. 323 ; Ogsbury v. Ogsbury, 115 id. 290, 296.) In 1875 Joseph Bohn took a lease from George D. W. Clinton, of the property affected by this action. The judgments, introduced by defendants, establish the fact and also establish that the defendants succeeded to the title of the lessor and that the plaintiffs are tenants of the defendant, and hold over without permission after the failure to pay rent. (Tompkins v. Snow, 63 Barb. 525; Stott v. Rutherford, 92 U. S. 107; Territt v. Cowen
      
      hoven, 79 N. Y. 400; Ackley v. Westervelt, 86 id. 448; Woodruff v. E. R. R. Co., 93 id. 609 ; Whiting v. Edmunds, 94 id. 314; Prevot v. Lawrence, 51 id. 219 ; McCreary v. Marston, 56 Cal. 403; Tilyon v. Reynolds, 108 N. Y. 558; 97 Mass. 105 ; 99 id. 13 ; 100 id. 187; 79 N. C. 71; 83 id. 71; 61 Me. 590; 62 id. 248; 20 Penn. St. 62; 64 N. H. 51; 106 N. C. 553 ; 15 N. Y. 374; 35 id. 469; 69 id. 1-15; 108 id. 565; 113 Mass. 348.) Conceding, for the purpose of the argument that this land was formerly within the bed of the creek, that avails the plaintiff nothing, because the riparian owners on either side take title to the ground under water to the- center or thread of the creek. (Angell on Watercourses, §§ 10, 16, 536 ; Seneca Nation, etc., v. Knight, 23 N. Y. 468; C. B. Co. v. Paige, 83 id. 178; Morgan v. King, 35 N. Y. 454; Buffalo Pipe Line Case, 11 Abb. [N. C.] 107; Smith v. City of Rochester, 92 N. Y. 463.)
   Gray, J.

This action was brought by plaintiffs to restrain the defendant from prosecuting, in the Municipal Court of Buffalo, proceedings to summarily remove them from premises in their occupation, and to have their equitable interests in and to the same adjudged. Their complaint was dismissed at the trial term of the Superior Court of Buffalo, and the judgment of dismissal was affirmed upon appeal to the General Term. The opinions delivered upon each occasion were very full in their discussion of the questions and leave little for us to say now in further affirmance of the judgment.

In 1865 the plaintiff, Joseph Bohn, obtained permission from Jesse Peck to move a small house upon some land proposed to be made by filling in on the bank of a stream. The allegations of the complaint and the evidence first given by plaintiff placed his entry into possession of the premises upon the ground of a mere license to occupy them; but, subsequently, he changed his evidence and testified that Jesse Peck told him to fill up the land, and that if he did so he would give him a portion of it. The latter aspect of the case for the plaintiffs would be, of course, the more favorable one to them; inasmuch as such an agreement with an owner of the land would he based upon some consideration and give strength to the claim of the plaintiffs for equitable relief. But the difficulty in the way of any equitable relief lies in the utter failure of the evidence to prove any title, or sufficient authority, in J esse Peck. At the time, the record title and the ownership of the premises were in Francis and Charles Peck, who were in California. They were sons of Jesse Peck; but it did not appear that he ever had any authority from them to create any interest or rights in or to the premises. Nor did it appear that the owners ever knew of plaintiff’s entry, or that there was any ratification of what Jesse Peck had done. lie is dead, and the extent of any authority in him to deal with the property turns upon evidence of circumstances, which fall short of establishing the fact. Certainly there was no evidence competent to prove the existence of any power in Jesse Peck to grant any rights, in connection with the property in question. "With no action by the owners and with no authority in Jesse Peck, who, we may even assume from the evidence, exercised some supervision over the property, I cannot see that the claim of the plaintiffs has any foundation in facts, upon which equity can rightly intervene for their protection. The mere assumption of Bohn, at the time of his entry; that Jesse Peck had the title to, or some delegated power over, the property, from the circumstances of his taking care of it, or from appearances, did not warrant nor protect him in entering upon- and occupying the land. Ho property rights can be predicated upon what was mere assumption, and which the slightest investigation of title, or of the authority of the presumed agent, would have demonstrated to he baseless. To move a court of equity to support a claim for the improvements put upon the property of another,' ■ it should at least appear that the occupants had acted upon a belief as to their title, which had some probable basis; and that the real owners, knowing of their acts, suffered them to go on without notifying them. It further appears that in 1875, ten years afterward, plaintiff Bohn took a lease in writing of the premises for three years from George DeWitt Clinton, to whom. Francis and Charles Peck had conveyed them, agreeing to pay an annual rental therefor. In a proceeding in the Buffalo Municipal Court, brought by this defendant and another, as the owners of the property in fee through a conveyance of Clinton’s title, to remove these plaintiffs for default in the payment of rent, a judgment was had, upon issues raised and tried, which established the lease and the lessor’s title. In that proceeding the tenants, these plaintiffs, by their answer, put in issue the title to and the leasing of the premises, as well as the other allegations of the petition as to their indebtedness for rent and of their holding over after default. The final order of the Municipal Court was, upon appeal to the Superior Court, affirmed there, and the judgment is conclusive upon these plaintiffs as to the defendant’s title. They claim the right to attack the validity of the judgment on the ground that the lease was void.; but the dispute over the lease and all questions concerning its validity ended, as to these parties, with the termination of the litigation by the judgment of affirmance in the Superior Court. The adjudication in that litigation has barfed any inquiry, in another action between the same parties, into matters involved in and necessarily passed upon by the judgment in the previous action.

These plaintiffs are in no position to assert any title to the land, or to claim payment for the improvements made upon it. In any way their case is regarded, it is defeated for the want of any title or authority in Jesse Peck, through whose acts they claim; and the subsequent acceptance of a lease of the premises was a recognition of the title in their lessor, which} when considered in connection with the absence of any legal title or estate in them, I consider to have amounted to a waiver of any claim for improvements. The appellants attempt to found some right upon a tax sale two years prior to the lease; but the certificate received then conferred no title to, nor any estate in,- the premises. There was nothing in that, nor in the existing conditions, upon which to found a claim of adverse possession, which would, as appellants’ counsel argues, entitle them to maintain this action as against the grantees of the former owner. Under section 1638 of the Code, to which he refers, the possession of the property must be under some claim of title in order to maintain the action. This is not an action which that section authorizes.

A careful consideration of this case compels the conclusion that there is no ground for the award of equitable relief. To support a claim for an accounting, in a case where the plaintiffs have failed to prove any legal inception of their occupation, under some actual or implied grant of right from the owner of the property, and where their entry was only under the permission of one standing in no relation of ownership, or of agency, would be contrary to legal principles and without any precedent that I am referred to, or am aware of.

The judgment appealed from should be affirmed, with costs.

All concur.

Judgment affirmed.  