
    Ellen D. Carter, Resp’t, v. William Pitcher, App’lt
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 21, 1895.)
    
    1. Evidence — Pabol.
    Title to land cannot be proved by paroi.
    2. Same — Pbesumption.
    The sale of trees growing upon land does not raise a presumption of possession of. the land in the vendor.
    3. Tbespass — Possession.
    The owner of premises, actually occupied, does not have .constructive possession, which will enable him to maintain trespass;
    4. Same — Damages.
    The measure .of damages for. .cutting trees is the difference in the value of the land before and after the' trees were cut.
    
      5. Appeal — KbvebSAl.
    A justice’s judgment, lidwever just it may be, it not sustained by the competent, after disregarding the incompetent, evidence, will be reversed.
    Appeal from a judgment of the county court, affirming a judgment of a justice of the in favor of
    
      E. C. Almy, for app’lt; Charles D. Newton, for resp’t.
   Werner, J.

— The trespass complained of was that the defendant entered upon the premises of the plaintiff in the town of Grove, Allegany county, and wrongfully cut down and carried away teii apple trees which were the property of the plaintiff. The defendant’s answer was a general denial. This put in issue, not only the alleged trespass, but the ownership of the premises upon which it took place.

The evidence discloses that on or about the 2d day df January, 1894, the plaintiff and the defendant entered into a contract under which the defendant was to cut down certain apple trees upon the premises in question, and pay the plaintiff seventy-five cents a ■cord for the wood. The trees with referehde to which this contract was made were situate in a pasture, to which plaintiff claims title, and about forty rods distant from the trees which it is claimed the defendant wrongfully cut down and carried away.

Thé appellant relies upon certain exceptions taken at the trial, which .we will proceed to consider. The plaintiff wTas asked the question, “ Do you own the farm ?” This question was properly objected to. It appeared Upon the trial that the plaintiff was not in acttial possession of the farm in question, and that she resided in the town of Nunda, in Livingston county. It v/as evidently considered necessary for her to prove title in order to raise the presumption of possession which such j)roof creates. While it was therefore competent for the plaintiff to attempt to prtive her title, it was essential that this should be done in the píopér way. Parol evidence was not competent to make this proof (Miller v. Railroad Co., 71 N. Y. 385), and it was error for the' court to permit the plaintiff to testify orally as to her ownership of the premises in question.

In answer to respondent’s proposition that the right to maintain an action of trespass depends not upon title, but upon possession of the premises, and that proof of title is in some cases presumptive proof of possession, we are confronted with another difficulty which stands in the way óf an affirmance of this judgment. The case it barren of evidence tending to show who was in actual possession of the premises. It clearly appeared that the plaintiff did not reside there. It also appears, by inference at least, that the premises were not vacant; and therefore the plaintiff is not entitled to maintain the action, under the rule laid down in Randall v. Sanders, 37 N. Y. 578, that an owner of premises not actually occupied has constructive possession, which enables him to maintain trespass. The question was.áskéd the plaintiff, “ Who lives upon your premises ?” To this question the defendant objected, and the justice, with the same misapprehension as to the rules of evidence in such cases which led him to receive the oral testimany of the plaintiff as to the title of the premises, excluded the •evidence offered to show who was in possession. It was incumbent upou the plaintiff to show that she was is actual or construcive possession, and consequently had the right to maintain this action. Wood v. Lafayette, 68 N. Y. 181. The latter ruling of the justice made it impossible for her to produce the evidence from which it might appear that she had such possession. This proof was essential, in the absence of a title from which possession could be presumed.

It is also urged that the sale of a portion of these trees by the plaintiff to the defendant is sufficient to raise the presumption of possession of the premises in the plaintiff; but the difficulty is that all the evidence negatives any such presumption. For aught that appears, the plaintiff may have been as much of a trespasser as the ■defendant. If such were the case the defendant would certainly not be precluded from urging that as a.reason why the plaintiff should not maintain this action. It was incumbent upon plaintiff •to show the facts upon which the right to maintain the action rested, and this she failed to do.

It is further claimed for the defendant that fatal errors were -committed in the rulings relating to the admission of evidence upon the question of damages. We think that the proper measure of damages was applied. Sedg. Darn. (8th ed.) § 933. That is the difference between the value of the premises before the injury .and their value thereafter. But the trial court seems to have utterly disregarded defendant’s objection that none of the witnesses who were called upon the question of damages were shown to be competent or qualified. Mot one of the witnessss who were called to testify upon the question of damages was shown to have any knowledge upon the subject. We have simply their naked statements as to their idea of the extent of the damage.

It is, of course, well settled that a judgment rendered in the justice court will not be reversed for the admission of improper, irrelevant, immaterial, or cumulative testimony, when there is •abundant competent evidence to sustain it, and the court can see that no injury has been occasioned to the party complaining (Milliner v. Lucas, 3 Hun, 496); but it is also equally well settled that: ‘"Rules of evidence are rules of law. They are of imperative obligation, and are not to be put aside in the discretion of the court, from solicitude for the supposed interests of justice. The only justice known to the courts is such justice as is ascertained and certified by legal evidence; and the rules may not be disregarded but at the risk of a reversal of the judgment that proceeds in disregard of them.” Mt. Morris Electric Light Co. v. United States Horse & Cattle Show Soc. 60 St. Rep. 642. However just, therefore, this judgment may in fact be, it is not sustaned by competent evidence. On the contrary, when we exclude the incompetent evidence in the case, there is nothing whatever to support the judgment of the court below.

The judgment of the court below must be reversed with costs.

All concur.  