
    The Ausable Company, Resp’t, v. Seth Hargraves, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed, May, 1888.)
    
    1. Road—Location of—Presumption.
    The only evidence of the first location of a certain road was of the year • 1839 ; that was definite and certain, the location was shown to have then been accomplished ; there was an absence of evidence of any other location. Held, that since the first memory of its location is, as shown to be, in 1839, and no fact is shown indicating any other upon the ground, the presumption is, that as it was first known within any memory of which we have any knowl dge, so it came down from time without memory.
    2. Title by adverse possession.
    The deed of the plaintiffs described the western boundary of their land as the middle of the old High Bridge road. There was only one such road of which they, the plaintiffs, were advised, and they believed it to be the road mentioned in their deed. They occupied all their deed apparently covered ; they claimed to own all they occupied ; their claim was unchallenged for forty years They never admitted the possibility of error in the location of the road, but held and claimed according to the existing monument — even if there was an original error in the location of the road and the deed referred to the road survey and not to the location. Held, that practical location and long and unbroken acquiescence of the adjoining proprietors for more than twenty years in the located road as the true boundary would conclude both parties.
    3. Description of land in deed—To what date it refers.
    The defendant deduced title only from 1840. His deed bounded the land on the east by the middle of the Old Bridge road. Held, that his deed adopted the road as it then was.
    Appeal from a judgment in favor of the plaintiff entered upon a verdict directed by the court upon the trial in Essex county.
    The complaint charged the defendant with trespass in entering upon the plaintiff’s land and erecting a fence-thereon.
    
      R. L. Hand, for app’lt; F. A. Rowe, for resp’t.
   Landon, J.

The lands of the parties lie opposite each other, the plaintiff’s land is bounded on the west “by the middle of the old High Bridge road,” and the defendant’s on the east by the same line.

The Great Northern Turnpike Company was, by chapter Í6 of the Laws of 1805, authorized to construct a turnpike-road from a point in Washington county to the north line of the state through Essex and Clinton counties. Commissioners were provided to lay out such road, and it was made their duty to file “in every county through which such road shall pass an accurate map of the survey of. the same in such county,” and the company was directed to cause the road to be opened. The commissioners made and filed a map and survey of the turnpike. These were produced in evidence. No evidence of the actual location of any road between the lands of these parties was given of an earlier date than 1836. The trespass of which complaint is made is the extension by the defendant of his fences up to the center of the old High Bridge road as defined by the survey, and this oxtension passes considerably to the east of the old High Bridge road as actually located in 1836, and as it continued to be down to within eight years of the trial The plaintiff keeps a large hotel, and about eight years ago the fences along its side of the old road were removed.

The plaintiff’s deed and those of its grantors contain a description given in the deed from the first grantor in 1828. Mrs. Cooley’s deed, under which the defendant claims, and the deeds of her grantors contain a description first shown to have been used in 1840, with respect' to the defendant’s lands by the grantor. The occupation of the plaintiff and of its grantors since 1856, has been to the line of the High Bridge road, as actually located. The trial court held that the boundary between the lands of the parties was the middle of the road, as actually located and not as surveyed, since there is no evidence that the location and the survey ever corresponded at this point.

The defendant contends that as the first known deed of plaintiff’s grantors was in 1828, and there is no other evidence of the then location of the road, except such as the survey and map indicate, the plaintiff’s boundary must correspond with that of the map and survey. The defendant gave evidence tending to show that such boundary fine corresponds with the calls of plaintiff’s deed, as to the parallel boundary upon its eastern side, but this evidence rested upon the assumption that the surveyor had found the true eastern fine, and that the distances between the east and west lines were exactly given in plaintiff’s deeds. As between plaintiff and defendant, the boundary is the middle of the old High Bridge road, without respect to the plaintiff’s other boundaries, though it is conceded that other boundaries may be resorted to as evidence if the location of the road is uncertain.

The appellant claims that defendant takes nothing by long possession, since it was not accompanied by any claim of title. In- this we think he is in error. There is no evidence that the road was ever located at this point in conformity with the survey; the only evidence of its first location is of the year 1839; that is, definite and certain; the location is shown to have then been accomplished; there is an absence of evidence of any other location. Since the first memory of its location is as shown to be in 1839, and no fact is shown indicating any other upon the ground, the presumption is, that as it was first known within any memory of which we have any knowledge, so it came down from time without memory.

The survey does not even tend to contradict this presumption. It is a survey for a proposed road, not of a road actually located. It is no part of the road itself, but part of the proposal for a contemplated road.

We may assume that the line indicated by the survey was contemplated in 1806, and we know that the road found on the ground in 1839. had theretofore been located. Why the road contemplated, and the road located, did not exactly correspond, we do not know. We know they did not in 1839; and since we know that roads do not of themselves, change their location, but are changed by the application of means to that end, and as we have no evidence of such application, we assume the road of 1839, and the road of 1828, are identical, and never conformed to the survey.

The plaintiff and its grantors were in possession of the land on the east side of the road as located since 1839. The defendant says they only claimed under their deed, and therefore did not claim to the road as actually located, but as described in the survey.

The fact is plainly otherwise. Their deed described their western boundary as the middle of the old High Bridge Toad. There was only one such road of which they were advised, and they bélieved it to be the road mentioned in their deed. They occupied all their deed apparently covered; they claimed to own all they occupied; their claim was unchallenged for forty years. They never admitted the possibility of error in the location of the road; but held and claimed according to the existing monument. Grant that there was an original error in the location of the road, and that their deed ref erred to the survey, and not to the location. Practical location, and long and unbroken acquiescence of the adjoining proprietors, for more than twenty years in the located road, as the true boundary would conclude both parties. Jones v. Smith 64 N. Y., 180.

There is an entire absence of any qualifying circumstance breaking the force of this practical location, such as appeared in the subsequent trial of Jones v. Smith, reported in 73 N. Y., 205.

The defendant deduces title only from 1840. His deed, therefore, adopts the road as it then was. Glover v. Shields, 32 Barb., 374. When he built the fence complained of, he therefore was a trespasser upon somebody; and since the plaintiff was in possession under color of a paper title which the defendant had no standing to dispute, the defendant violated that possession.

The judgment should be affirmed with costs.

Learned, P. J., and Ingalls, J., concur.  