
    Sarah G. Ridgway and Others, Respondents, v. Alexander Hawkins, Appellant.
    Second Department,
    December 5, 1907.
    Trespass — evidence — presumptive title to unoccupied lands.
    When the only issue in an action for trespass upon unoccupied lands is one of title, a plaintiff proving an unbroken chain of title back to the year 1745 is, by virtue of the presumption raised by section 960 of the Code of Civil Pro- • cedure, entitled to recover against a defendant showing a chain of title beginning in 1828.
    In such action it is immaterial that a surveyor called by the plaintiff failed to prove certain boundaries by a map, if the plaintiff has otherwise established his title by conveyances in evidence.
    Rich, J., dissented, with opinion..
    
      Appeal by the defendant, Alexander Hawkins, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the -clerk of the county of Suffolk on the 2d day of November, 1906, upon the verdict of a jury rendered by direction of the court after a trial at the Suffolk Trial Term.'
    
      Ackerly & Miles, for the appellant.
    
      Livingston Smith, for the respondents.
   Gaynor, J.:

This is an action for damages for trespass on unoccupied lands in Suffolk county by cutting timber thereon. The court directed a verdict for the plaintiffs. The. complaint describes the-lands particularly, and also as being lot 29 in the West Meadow Division of the township of Brookhaven, alleges title- thereto in the plaintiffs and the trespass by the defendant on specified dates. The answer admits that the defendant on the said dates “ entered upon the lands and premises described in the complaint and cut down some stands ing trees and timber thereon ”, but alleges as a defence that the said lands were then and are the lands of one Hawkins, and that such entry of the defendant was by her consent and authority.

There was therefore no dispute in respect of the locus in quo, it. being admitted by the answer that the entry was made upon the- lot described in . the complaint. The only' question therefore was whether the plaintiffs or the defendant’s licensor owned'it. By section 960 of the Code of Civil Procedure proof in an action for trespass upon unoccupied lands of an unbroken chain of title in the plaintiff for thirty years next preceding the trespass is presumptive evidence of his ownership. The alleged trespass was in 1906, and the plaintiffs proved an unbroken chain of title to the said'lot 29 -from thence back to 1745, having first put in evidence the town record of a written instrument made by a committee of the trustees of the common laridsof the-town of Brookhaven in 1738 of the division of the West Meadow lands into 46 lots and giving the boundaries of each. The course of the trial, including the failure of the defendant to move to dismiss, shows that there was no question that each conveyance in the plaintiffs’ chain, conveyed the land described in the complaint,, and the br-ief for the defendant on this appeal expressly admits that to be the fact in these words : “ The plaintiffs trace a record title of a certain lot number 29 in that division down and into themselves” ; and then follows a statement of the defendant’s theory of the plaintiffs’ case.

The defendant putin evidence a.chain of conveyances beginning in 1828 and terminating in his licensor. If it should , be conceded that the land thereby conveyed was the locus in quo, i. e., lot 29 (which does not seem to haye been either proved or claimed), it would not help, the defendant, for the title proved by the plaintiffs, and which is presumptively good, runs back S3 years further than the chain of conveyances proved by the defendant.

The learned counsel for the plaintiffs' called a surveyor to prove a map- which he had made to show the boundaries and location of lot 29, and it may be he failed to do so. " But there was no need of such a map, and the mind of the learned trial judge was not misled by the pother about it.

The judgment should be affirmed.

Woodward and Miller, JJ\, concurred; Rich, J., read for reversal; Hirschberg, P. J., not voting.

Rich, J. (dissenting):

. I am unable to agree with my associates in this case. Defendant admits going upon the premises described in the complaint, but alleged .that they were owned by .Myra B. Hawkins, who had given him permission to go upon them, and the only question in dispute was the. location of this line. Plaintiffs have shown a paper title from the year 1738, and defendant from about 1829. Upon the trial the plaintiffs called .a surveyor who, after testifying to the line, admitted upon his cross-examination that there were no visible monuments of any.kind; that he started from the “old field gate” and ran the lots out according to the record. He did not know the location of the “old field gate” of his own knowledge, and relied, upon information obtained from people living in the neighborhood.; this he was compelled to" do because there was no visible trace of this starting point. Neither party has .ever occupied the land in dispute,, .and it was necessary for plaintiffs to show that the conveyances constituting their chain of title covered the locus in quo. In order to meet this requirement they called the surveyor, who relied entirely upon hearsay evideneé in locating his starting point. Defendant did hot concede the accuracy of this survey. On the eontrary he called a surveyor who denied its correctness. At the close of the evidence the learned trial justice directed a verdict for the plaintiffs. In this I think he was in error. No one was called to give any information as to where the “ old field gate ” was located,, and no evidence was offered upon the subject except the hearsay evidence of plaintiffs’ surveyor. . He may have been correct, but the defendant was entitled to have the jury pass upon that question, and I must vote for a reversal of the judgment. •

Judgment affirmed, with costs.  