
    Emma C. Arnold, Appellant, v. New York, Westchester and Boston Railway Company, Respondent.
    Second Department,
    June 2, 1916.
    Real property — title by adverse possession — agricultural lands — abandonment oí railroad right of way — evidence.
    Where an abandoned railroad right of way which was sold on foreclosure to the plaintiff’s predecessor in title was unfenced, but was a portion of a larger tract of agricultural lands which were fenced, acts of tillage, use and enjoyment by the owner of the large tract may be shown to establish adverse possession of the abandoned right of way, and it is not essential that a specific use of the site of the former right of way itself be shown.
    Evidence examined; and held, to warrant a finding of title by adverse possession to said right of way in the defendant’s predecessor in title, such possession being undisturbed for a period of over forty years.
    It was not necessary for the defendant to show that its predecessor actually plowed on the site of the abandoned right of way where it was rocky and not fitted for cultivation.
    Appeal by the plaintiff, Emma C. Arnold, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 12th day of August, 1914, upon the decision of the court after a trial at the Westchester Special Term in a suit to enjoin the defendant from trespassing upon two parcels of land in White Plains, N. Y., over which defendant had built and run its electric railroad.
    These two parcels, called A and B, were separated strips, each being sixty-six feet wide. They formed parts of the proposed Southern Westchester Railroad Company, which had been projected in 1872, hut was never completed. After 1872 the railroad company did no work on these parcels, and its interest therein was sold under foreclosure in 1876. From this decree, through mesne conveyances in 1881, the title passed to Van Pelt, who conveyed to Hopkins in 1904, and Hopkins conveyed to plaintiff in 1907. Defendant now has a right of way through these parcels, by a chain of title, going back to the Barker sisters, the original grantors to the Southern Westchester Railroad Company.
    Parcel HI, which entirely surrounds and includes the strip called B, was shown to have been wholly inclosed by stone walls and a wire fence in 1887. It had a small residence house near the public road.’ The occupants kept up these fences. The possession appears to have been undisturbed since 1872. Most of this parcel had been pastured, though formerly it had been cleared for tillage. There was still visible evidence of an old excavation for a railway cut two or three feet in depth.
    In like manner parcel IV included the shorter strip A. The land here was better, with crops raised on it and afterwards used as a vegetable garden and orchard. It was also fenced. But in case of each of the strips A and B there had never been any fence to separate them from the residue of the surrounding parcels of which they formed parts. It was also found that since 1872 neither the plaintiff nor her predecessors in title had ever been in actual possession of parcels A or B, or have ever used or enjoyed them. Accordingly the court held that the grant to plaintiff from Hopkins in 1907 was void, since, when that conveyance was delivered, the property was in actual possession of one Louis V. Sone, claiming under adverse title (Real Prop. Law [Hen. Laws, chap. 46; Laws of 1896, chap. 547], § 225; now Real Prop. Law [Consol. Laws, chap. 50; Laws of 1909, chap. 52], § 260, as amd. by Laws of 1909, chap. 481, and Laws of 1910, chap. 628), with a like conclusion as to the earlier deed from Van Pelt to Hopkins in 1904. From this judgment of dismissal plaintiff appealed.
    
      J. Henry Esser, for the appellant.
    
      Ralph Polk Buell, for the respondent.
   This appeal questions the adverse possession of land parcels which are surrounded by larger tracts. These strips, granted in 1872 for railway purposes, were not fenced off, and when the railroad project was dropped, appear to have been abandoned and discarded. The land then became used as portions of the surrounding farm tracts and returned to its original occupation. As a mere projected way it had not been fenced off; of course, it required no separate fencing when restored to its use as part of a larger field cultivated and pastured to its original limits, where the field was substantially fenced in. Such exterior fencing being kept up upon the entire inclosed lands became acts which might reasonably lead to the inference that the entire land, and consequently these strips, belonged to the same owners. Acts of enjoyment to prove possession of land cannot in the nature of things be confined to the precise spot in dispute. Evidence of acts in other parts of the inclosed lands may be received provided there is such a common character of locality between these parts and the spot in question as would raise a reasonable inference that the place in dispute belonged to the plaintiff if the other parts did. Hence, to prove title to a close, plaintiff may give in evidence acts of ownership within the same inclosure. (Jones v. Williams, 2 M. & W. 326, 331.) But in most of the United States such exterior boundary fences alone would not establish adverse possession of such separate interior strips. (Doolittle v. Tice, 41 Barb. 181; 1 Cyc. 990.)

The findings specifically made as to tillage, cultivation and pasturage are affected by the proof of these visible boundary fences shutting in these entire tracts. They show an occupation not desultory and fugitive, but each tract as a single close held in undisturbed possession for purposes of ordinary farming; or, as the Code says (Code Civ. Proc. § 372), “usually cultivated or improved,” showing actual appropriation and control extending over the entire tract.

During more than forty years there has been no other person claiming any right in these lands. The possession of defendant’s predecessors was, therefore, exclusive and effective to exclude all persons from interfering with the occupier’s use and enjoyment, so that the acts done within these substantial inclosures, with these fences, were marks of exclusive possession. A rocky abandoned railroad cutting lapsed into part of the surrounding farm lands. In order to show de facto possession the occupant is not called on to try to plow over such waste land if he is dealing with such spot in the ordinary manner that a farmer would use his own property. The Roman law also looked to the purpose of such occupation when applied to farm lands, declaring that it was sufficient to enter upon part of the farm with the purpose and intention to possess the entire farm to its boundaries. “Sed sufficit quamlibet partem ejus fundi introire, dum mente et cogitatione hac sit ut totum fundum usque ad terminum velitpossidere.” (Dig. 41, 2, 3.)

Such possession of agricultural lands is, therefore, a mixed question of law and of fact. On the findings here made as to cultivation, tillage, use and enjoyment, adverse possession under Code of Civil Procedure (§ 372, subd. 2) has been found as a fact, which finding is the stronger because, after 1872, the prior owner had left both these strips as derelict and vacant.

I advise that the judgment be affirmed, with costs.

Jenks, P. J., Carr and Stapleton, JJ., concurred.

Judgment affirmed, with costs.  