
    James P. Fortier, Appellant, v. Delaware, Lackawanna and Western Railroad Company and Others, Respondents.
    
      Adverse possession — piles driven, but not used, do not constitute a, substantial inclosure.
    
    Piles driven outside of a dock, and left uncovered and unused, do not constitute -a substantial inclosure,’within the meaning of section 372 of the Code of Civil Procedure, relating to adverse possession.
    ■Appeal by the plaintiff,- James P. Fortier, from a judgment of. the Supreme Court in favor of the defendants, entered in the office- ' of the clerk of the county of Erie on the 11th day of February, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of October, 1900, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Lewis & Lewis, for the appellant.
    
      Rogers, Locke & Milburn, for the respondents.
   Williams, J.:

The judgment and order should be affirmed, with costs.

The action was brought to recover real property, with damages. for the detention thereof. The Delaware, Lackawanna and Western Railroad Company is the principal defendant, the-property in question being a part of its terminal in the city of Buffalo. The other defendants were made parties upon the allegation that they had some interest in the property also. The plaintiff claimed that he was, about November 15, 1880, the owner and in possession of the property, and that the defendant (the Delaware, Lackawanna and Western Railroad Company) wrongfully took possession thereof; and has ever since retained the same. The defendant disputed this and claimed itself to be the owner and entitled to the possession of the property. . The plaintiff based his claim of ownership and right to possession upon alleged adverse possession for more than twenty years. He never had any conveyance of the property, and never made any claim of ownership or title under a written instrument or a judgment or decree. The defendant received a conveyance February 24, 1868, which it claimed covered the property in question, and its grantor acquired title to the property by conveyances constituting a perfect chain of title from the Holland Land Company, the original landowner in 1827, down to such grantor. The plaintiff denied, that defendant’s conveyance covered the property in question. On the north bank of Buffalo creek, where it flowed into Lake Erie, was a pier constructed by the government, of stone, known as North pier. The first conveyance in defendant’s chain of title in 1827 described two lots, Hos. 150 and" 151, upon a map made by Joseph Endicott of the property of the grantor's. Lot Ho. 151 was bounded on the west by Lake Erie and on the south by the North pier. Lot Ho. 150 was bounded on the. west by Lake Erie also, was north of lot Ho. 151, an avenue only being between them. In 1852, 1853 and 1854 there was an old dock and some buildings thereon extending north from the North pier near its westerly end, and this dock and buildings the plaintiff claimed to have taken possession of in 1853 or 1854, and he claimed this dock was westerly of and entirely outside of lots Hos. 150 and 151. It may not be very material to determine this dispute between the parties as to whether defendant’s deed covered the property taken possession of by plaintiff, because if the plaintiff ever acquired title to the property by adverse possession at all he did so before defendant received its conveyance, and plaintiff must succeed here if at all upon the strength of his own title and not the weakness of the defendant’s title.

Whether plaintiff’s possession was continuous from 1853 or 1854 for more than twenty years, as claimed by him, was a question for the jury, and was submitted to them by the court. The plaintiff claimed the dock, as possessed by him, extended from the Horth pier to the extension of Jay street, which street was parallel with the pier. In 1857 he drove some piles westerly of the dock out to the end of the pier, and claimed to have possession of that space and to have acquired title thereto by adverse possession also. The court charged the jury that, in order to constitute adverse possession, the occupation must be taken and continued under claim of title, exclusive of any other right, and such is the provision of the Code of Civil Procedure (§ 369 et seq.). The evidence was quite meager, if there was any at all, that the plaintiff, when he entered into the occupancy of the property, claimed title thereto and especially that his x claim was exclusive of any other right. The evidence rather tends to show that- he claimed his grandfather had some rights there which others besides the plaintiff were interested in. This could hardly be a claim of title exclusive of any other right, but it was a question of fact for the jury at least, and was left to them, by the court., The claim here made not being based Upon a written instrument or a judgment or decree, only the property actually occupied could be deemed to be held adversely (Code Civ. Proc. § 371), and for this pnrpqse land could be deemed to be occupied or possessed only when it was protected by a substantial inclosure .or was usually cultivated or improved. (Code Civ. Proc. § 372.) The court submitted this question to the jury so far as the dock itself was concerned, but refused to submit to the jury the question whether the portion where the piles were driven was thereby protected by a substantial inclosure. Of course it was' not usually cultivated eor improved. ■Nothing was done except to drive the piles and leave them, without cover or any use whatever during the twenty years thereafter.

. We think the court was not in error in taking this question from the jury. Upon the evidence most favorable to the plaintiff it could not be found that this portion of the property was during all the twenty years protected by a substantial inclosure within the provision of section 372 of the Code referred to.

The verdict of the jury for the defendant may have been based upon the finding that there was no occupancy shown under claim of title, exclusive of any other right, or upon the finding that actual continuous occupancy or possession for twenty years was not shown.

In either case the verdict should not be disturbed by this court.

The judgment and order should, therefore, be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  