
    Eugenia Stowers, Resp’t, v. Thomas Gilbert, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 12, 1895.)
    
    1. Evidence—Monuments.
    The effect of existing monuments to establish a boundary cannot be overcome merely by a new survey and the erection of new monuments without proving that the new monuments were in fact correct and the earlier ones not in accordance with the true and original location of the lines.
    2. Appeal—Modification.
    In an equitable action, the judgment is subject to modification on appeal.
    Appeal from a judgment rendered in favor of plaintiff.
    
      F. A. Mann, for app’lt; C. M. Allen, for resp’t.
   Dwight, P. J.

The action was for an injunction to restrain an alleged trespass, and for damages. The trespass described consisted in the cutting off the edge of projecting eaves of the plaintiff’S house, and some slight interference with other portions of that structure in the erection by the defendant of the wall of a new structure on his own lot, adjoining that of the plaintiff. The question involved was—as might be supposed—the extra location of the division line between the two lots. This the defendant was bound to establish with precision by his own affirmative proofs, or he could not justify his interference with the obvious and unquestioned possession of the plaintiff. This the referee finds he has failed to do, and we agree with him in respect to the effect— or, rather, noneffect—of the defendant’s proofs. Those proofs, in effect, ignore the existing and ostensible landmarks which indicated the actual location of the line in question, and seek to establish a new line in accordance with a certain survey made for the •city of Eochester to fix the lines of the two streets upon which the premises in question were bounded. But that survey was made many years after the premises in question were laid out and the line in question was established. Of course, no infallible authority was to be ascribed to that survey, although made by an official Surveyor, and the monuments erected in accordance with it could, of themselves, have no effect to overcome the evidence afforded by monuments already existing. The burden was still upon the defendant to prove that the new monum ents were in fact correct, and the earlier ones not in accordance with the true and original location of the lines. This was manifestly not accomplished by the evidence on the part of the defendant. Indeed, he made substantially no attempt to justify the location of the city monuments, but relied upon 'them as the basis of his own survey to fix the location of the line in question. Such being the case, we agree with the referee that he failed in his defense.

But upon the evidence relating to the extent of injury done to the plaintiff’s premises it seems to us that the award of damages was excessive. The amount of land embraced in the encroachment was inconsiderable, and for it the plaintiff still has her action of ejectment, and the value of her entire house was fixed by the evidence In her own behalf at $500, which was • the sum awarded for the damage done to it, which we think would be fully covered by the award of one-fifth of that amount. The action being an equitable one, the judgment is subject to modification on appeal. We are of opinion that it should be modified by reducing the amount of the recovery for damages to the sum of $100, and, as so modified, affirmed, without costs of this appeal to either party.

So ordered. All concur.  