
    Thomas A. Devyr, Respondent, v. William Schaefer et al., Appellants.
    In an action for trespass upon lands against several defendants, one pleaded title, the others simply a general denial. It appeared upon the' trial that all the other defendants acted under the one pleading title; evidence of his title was received on behalf of all the defendants without objection, and the case was tried upon the assumption that all the defendants stood before the court in the same position. Held, that it was too late on appeal to attempt to discriminate between them.
    No possession can be deemed adverse to a party who has not at the time the right of entry and possession.
    Plaintiff and B., the grantor of defendant 8., owned adjoining lots, which were built upon. After occupation of the buildings for seventeen years, an agreement was entered into between them under seal, reciting that the buildings might not be located correctly, but that one might encroach upon the lot of the other. It was, therefore, in consideration of one dollar, agreed that neither would disturb the other in the enjoyment or occupation of his building, so long as the building should stand or be used and occupied; which agreement should bind the heirs and assigns. Ten years, thereafter both buildings were burned, and it was then discovered that plaintiff’s house encroached five feet upon the lot formerly owned by B. In an action for trespass, plaintiff claimed title to the land so occupied, by adverse possession. Held, that the agreement was a recognition of the title of each of the parties to the whole of his lot, and was inconsistent with an adverse claim of title to any portion thereof; that it was in legal effect a license from the party encroached upon to the other to occupy the land improperly covered by his building, and that the latter thus held under the true owner and could claim no adverse possession after the making of the agreement until the destruction of the buildings.
    (Argued December 17, 1873;
    decided January 20, 1874.)
    Appeal from judgment of the General Term of the City Court of Brooklyn, affirming a judgment in favor of plaintiff entered upon a verdict.
    This was an action of trespass on lands. The defendant, Schaefer, pleaded title to the locus m quo; the other defendants a general denial.
    Upon the 2d of January, 1860, plaintiff was the owner of a lot known on a map of certain lots in the city of Brooklyn as lot 77; one Charles M. Briggs was the owner of lot 76. There were buildings upon both lots; plaintiff had then occupied his lot and building for seventeen years. The parties upon that day entered into the following agreement:
    “ Whereas, Charles M. Briggs, of the city of Brooklyn, is the owner of a lot of ground in the Fourteenth ward of Brooklyn, Kings county, known on a certain map of 141 valuable lots of ground, situate in the village of Williams-burgh, Kings county, dated New York, May, 1835, drawn by D. Ewen, city surveyor, and intended to be filed in the register’s office of Kings county, by the number 76 (seventy-six) :
    “And, whereas, Thomas A. Devyr is also the owner of a lot, known on the said map by the number 77 (seventy-seven), being on the south-easterly side of lot 76, first above described: Arid, whereas, both of said lots are built upon, and the buildings thereon erected may not be located correctly, but that one may encroach upon the lot of the other:
    “Now, this agreement witnesseth that the above named owners mutually agree, to and with each other, in consideration of one dollar, each to the other paid (the receipt of which is hereby mutually acknowledged), that neither of the above named owners will disturb the other in the enjoyment and occupation of his house or building, so long as his house or building shall stand, or be used or occupied, upon his respective lot above mentioned.
    “ It is hereby agreed, that this said agreement shall apply to and bind the heirs and assigns of both parties.
    “In witness whereof, we have hereto set our hands and seals, this 2d day of January, 1860.
    THOMAS A. DEYYR. [l. s.]
    O. M. BRIGGS. [l. s.]
    Which agreement was duly acknowledged.
    Briggs subsequently sold and conveyed lot 76 to defendant Schaefer; in February, 1871, the buildings upon both lots were destroyed by fire. It was then ascertained that plaintiff’s building encroached upon lot 76 five feet and five inches. Schaefer thereupon served upon plaintiff a notice, that he claimed the land which had been so occupied and forbade him from trespassing thereon. The other defendants herein, under the direction of Schaefer, entered upon this strip of land and commenced excavating for building, which is the trespass complained of.
    Further facts appear in the opinion.
    
      G. L. Lyon for the appellants.
    To maintain an action for trespass the plaintiff must show a freehold interest in the premises, a lease for years, or some right to the possession, or actual possession. (People v. Nelson, 13 J. R., 340; Cole v. Eagle, 9 B. & C., 409; Wilde v. Cantillion, 1 J. Cas., 123; Hyatt v. Wood, 4 J. R., 150; Ives v. Ives, 13 id., 235; Jackson v. Morse, 16 id., 197; Estes v. Kelsey, 8 Wend., 555 ; People v. Field, 52 Barb., 211; 1 Lans., 222 ; Willard v. Warren, 17 Wend., 258; Add., 43, 316, 353; Ashm., 140; 17 Com., 209; 3 Wash., 118; 58 Barb., 270.) The contract between Briggs and Devyr destroys any claim of plaintiff to the premises under adverse possession. (Parker v. Foote, 19 Wend., 313; Flora v. Carbeau, 38 N. Y., 111, 115; White v. Spencer, 14 id., 249 ; Cahill v. Palmer, 45 id., 478; Miller v. Platt, 5 Duer, 272; 14 Mass., 53 ; Code, § 110 ; 
      Rowe v. Thompson, 15 Abb. Pr., 377.) When the buildings were burned defendant was revested with the right of possession. (People v. Field, 58 Barb., 278 ; Estes v. Kelsey, 8 Wend., 560.) An action of trespass under the statute to recover treble damages for the forcible disseizure of lands cannot be sustained, unless there be something beyond a mere trespass. (People v. Van Nostrand, 9 Wend., 50; Willard v Warren, 17 id., 257; People v. Fields, 1 Lans., 222; Wood v. Phillips, 43 N. Y., 158; Porter v. People, 7 How., 441-445.)
    
      P. S. Grooke for the respondent.
    Plaintiff’s title was a mixed question of law and fact, and not matter for nonsuit. (Briggs v. Prosser, 14 Wend., 229; 2 Wash. R. P., 50.) The location of the buildings by plaintiff' and defendant’s grantee, in 1843, was a practical location and conclusive upon the parties. (McCormick v. Brown, 10 Wend., 104; Jackson v. Gardner, 8 J. R., 394; Baldwin v. Brown, 16 N. Y., 359.) Plaintiff’s adverse possession was clearly established. (3 Abbott Dig., 727, § 161.)
   Rapallo, J.

The point is taken on this appeal that the motions that a verdict be directed for the defendants and for a nonsuit were properly denied, for the reason that they were made on behalf of all the defendants, whilst the defendant Schaefer, alone, had set up in his answer title to the locus in quo. That the other defendants, not having by their answers justified under Schaefer’s title, they could not avail themselves of that defence at the trial.

The answer to this position is that no such point was taken at the trial. The evidence of Schaefer’s title was offered and received, generally, on behalf of all the defendants, without objection; and it also appeared, and was not controverted, that the other defendants were acting under Schaefer. When the motions were made they were not opposed on the ground that the answers were insufficient, nor does it appear to have been disputed that if Schaefer was entitled to a verdict the other defendants were equally entitled. Had the objection been made that their answers did not entitle them to defend under Schaefer’s title, the defect might have been remedied by amendment. The case seems to have been tried upon the assumption that all the defendants stood before the court in the same position, and it is therefore too late, on appeal, to attempt to discriminate between them.

The proofs clearly showed that the title to the locus in quo was in Schaefer at the time of the alleged trespass, unless the plaintiff had acquired title thereto by adverse possession. It was equally clear that the plaintiff had thus acquired title by adverse possession, unless the agreement executed between him and Briggs (Schaefer’s grantor), in 1860, had the effect to prevent the plaintiff thus acquiring title during the running of that agreement. The construction and effect of that agreement were the only questions considered in the court below, and are, we think, the only questions properly presented on this appeal.

That agreement was under seal, and recited that Briggs was the owner of lot 76, and the plaintiff of lot 77, on a certain map; that both lots were built upon, and. that the buildings might not be located correctly, but that one might encroach upon the lot of the other. The parties, therefore, in consideration of one dollar, by each to the other paid, mutually agreed that neither of them would disturb the other in the enjoyment and occupation of his house or building, so long as his house or building should stand or be used or occupied upon his respective lot above mentioned, and that such agreement should bind the heirs and assigns of both parties.

At the time of the execution of this agreement, January 2, 1860, the plaintiff had been but seventeen years in possession of the house occupied by him. In February, 1871, both houses were destroyed by fire. It was found that the plaintiff’s house had, in fact, encroached upward of five feet upon lot 76 (Schaefer’s lot). These five feet are the premises in dispute, for entering upon which this action is brought.

We think that the agreement of 1860 was made in contemplation of an error in the location of the division line between the houses, and with the intent to secure to whichever party should be found to have encroached upon the lot of the other the quiet enjoyment of so much of his neighbor’s lot as was thus encroached upon, so long as the buildings should stand, but no longer. It recognized the title of each of the parties to the whole of the lot claimed by him as laid down and numbered on the map, however built upon, and was inconsistent with any adverse claim of title by either party to any portion of the lot of the other as designated upon the map; at the same time it precluded the party who should find that his lot was encroached upon from disturbing the possession of the other, so long as his building should stand. It is conceded, in the prevailing opinion at General Term, that under the agreement no action could have been maintained for the-recovery of these five feet while the buildings stood; and we think that the agreement was, in legal effect, a license from the party encroached upon to the other, to occupy the land, improperly covered by his building, so long as the building should stand. The encroaching party thus held under the true owner, the correct location of the division line being postponed by mutual agreement until the buildings should be removed or destroyed.

There was no adverse possession after the making of this agreement until the destruction of the buildings by fire. Schaefer’s right of entry then revived; up to that time it had been suspended. Ho possession can be deemed adverse to a party who has not, at the time, the right of entry and possession.

The judgment should be reversed, and a new trial ordered, with costs to abide the event.

All concur.

Judgment reversed.  