
    Edward B. Moore, Resp't, v. Isaac A. Cooley, App’lt.
    
      supreme Court, General Term, Fifth Department,
    
    
      Filed June 21, 1895.)
    
    Trespass — Proof.
    Where, in an action against an adjoining owner for cutting trees alleged to be on plaintiS’s land, the redord of proceedings to lay out a highway, offered by defendant for the purpose of showing that the land where the trees grew was a public highway, does not also show that the trees cut were on defendant's side of the highway, such record is immaterial.
    Appeal from a judgment in favor of plaintiff.
    
      Frank II. Robinson, for app’lt; A. M. Burrell for resp’t.
   Ward, J.

— This was an action for cutting three butternuttrees. The trees was so near the farm line of adjoining owners that a close contest arose as to whether the trees were on the plaintiff’s or defendant’s side. The jury found for the plaintiff, and the damages were trebled. The parties claimed under a common source of title, commencing in 1813. The premises were in the town of Oanisteo, Steuben county, and the interests of the parties diverged, and they took separate parcels of land in 1815. The chief exceptions by the defendant were:

First, that the court admitted a surveyor’s bill which was fairly identified as made for one of the plaintiff's grantors by a surveyor, -dated as made in 1815, surveying the line in controversy. This paper came from the proper custody, and was received as an ancient document proving itself. We think the objection was untenable.

The second, in refusing to receive, upon defendant’s offer, an application to lay out a highway, and the record of the laying out •of the highway. The application was signed byPeter Tice, the defendant’s grantor, who was in possession of the defendant’s premises, and asked that a highway be laid out on the line between the land that the plaintiff now owns and the defendant’s. This application was dated in 1830. A survey was made of the road for the highway by the highway commissioners, and that survey purported to locate the center of the road on the line between the parties. The proceedings were all in 1830, and the papers came in due form from the town clerk’s office. This evidence, as •claimed by the defendant, was offered for the purpose of showing that the land where the trees grew was a public highway. This was immaterial. Had the offer been to show that the line located by the highway put the trees on the defendant’s side, then a .serious question would be presented; for it might be said that a road laid out so long ago, when the point was to locate it on the« line between the parties, and all the men interested in the property, on both sides, at the time, having had notice of it, and it. being done at the instance of the defendant’s grantor, in part, the survey thus made would be an ancient document of considerable-force to fix the fact as to where the true line was.

All concur, except Dwight, P. J., not voting.  