
    Nathan Hill, App’lt, v. Charles Edie, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1888 )
    1. Title boundaries—Division lines—When temporary removal of FENCE NOT AN INTERRUPTION OF THE CONTINUED EVIDENCE OF THE LINE.
    For the purpose of establishing a division line between the lands of the parties hereto it was shown that a fence was maintained by the owners of the lands and acquiesced in by them as the line between the lands for more than twenty years continuously. Held, that the temporary removals of the fence for the purpose of clearing out the brush along and adjacent to it would not be deemed an interruption to the continued evidence of the line. '
    3. Same—Adverse possession—When land deemed enclosed.
    The fact that a portion of the time for a distance of a few rods along the highway at one end of the strip of land in question there was no fence, would not necessarily defeat the claim of adverse possession founded upon substantial enclosure when the strip its entire length was within the fence which enclosed the premises of which the defendant became the owner, and was cultivated with and as part of them by those under whom the defendant derived his title.
    3. Same—A brush and pole fence a substantial enclosure within Code Civ. Pro., § 373.
    The jury were justified in finding that a brush and pole fence constituted a substantial enclosure within Code Civ. Pro., § 373.
    Appeal by plaintiff from judgment of Cattaragus county court entered on verdict of jury.
    
      W. Woodbury, for appl’t; W. S. Thrasher, for resp’t.
   Bradley, J.

The action was brought for an alleged trespass upon the land of the plaintiff, who had a verdict of six cents damages. The verdict was practically in favor of the defendant as the damages awarded to the plaintiff were for a trespass by the defendant upon the land of the plaintiff, the title to which was not in controversy, while the jury found that the disputed strip of land belonged to the defendant.

The parties owned land within lot number one, T. 6, R. 8, Holland Land Company’s survey, Cattaraugus county. The defendant’s land is west of that of the plaintiff. And the latter claimed that a strip about three rods in width was the west part of his land, and belonged to him. This was disputed by the defendant, who claimed title to it. That strip of land was the main subject of the litigation, and as to that the plaintiff failed to recover. The only questions here for consideration arise upon exceptions taken by the plaintiff at the trial, as the appeal is only from the judgment entered on the verdict. Whether or not the judgment is against the weight of the evidence cannot be considered on this review.

The exception taken by the plaintiff’s counsel to the refusal of the court to direct a verdict for the plaintiff was not well taken.

The evidence on the part of the plaintiff tended to prove that this disputed strip of land was within the boundaries of the conveyance under which he held. And starting the survey from the south-east corner of lot one, and observing the distances given by the deed, that strip seems to be embraced within such boundaries.

But the deed describes the west line of the plaintiff’s land as fifteen chains and two links east from the west line of lot No. one. And a witness on the part of the defence gives evidence tending to prove that' the line fifteen chains and two links east from the west line of lot one was that claimed by the defendant and did not bring the disputed strip within the boundaries of the plaintiff’s deed. The weight and force of the evidence locating the west line of lot one was for the jury. The line as claimed by the defendant was where there had been a fence, which as contended by him, was a line fence between the lands of the parties.

And there is evidence to the effect that as early as 1837, there was a brush and log fence there which continued until 1860, when by consent of the then owners of the lands it was taken up for the purpose of plowing and clearing out the briars etc., along where it was located, which was done, and in 1861, a new fence was rebuilt on the line of the old fence by the parties then owning and occupying the lands, which fence remained there until 1877, when a portion of it was taken away by Edie, and in 1881, the other part of it was taken away by the plaintiff’s grantor before the conveyance to the plaintiff. The testimony was not entirely in harmony on the subject, but the evidence presented a question of fact which permitted the jury to find that this fence was maintained by the owners of the lands and acquiesced in by them as the line between the lands for more than twenty years continuously, and in that view might be treated as a practical location of the line between the lands and the true line between them. Baldwin v. Brown, 16 N. Y., 359; Reed v. Farr, 35 N. Y., 113; Robinson v. Phillips, 65 Barb., 418; Swettenham v Leary, 18 Hun, 284. The temporary removals of the fence for the purpose of clearing out the brush along and adjacent to it would not be deemed an interruption of the continued evidence of the line.

The evidence permitted the inference that such was the united purpose on the part of the then owners of land at the times referred to. And the question of fact upon which the practical location depended was properly submitted to the jury, and the verdict rendered was warranted by the evidence upon that subject. The court also submitted to the jury the question of adverse possession by the defendant of this strip of land. The plaintiff’s counsel requested the court to charge the jury that if they found the land laid out to the commons and was not enclosed by a fence along the road it was not such a substantial enclosure as the law required. The court declined to change the charge as made, .and exception was taken.

This request was evidently made on the assumption that the disputed strip was not covered by the defendant’s deed, and in view of the claim made by the defendant of adverse possession, and of rights derivable from it. In such case when the claim rests upon enclosure merely, it must be substantial and effectual as such. Code Civ. Pro., § 372; Pope v. Hammer, 74 N. Y., 240; affirming 8 Hun, 265.

The court, however, charged the jury on this subject as fully as could be required. Then the fact that a portion of the time, for the distance of a few rods along the highway at the north end of the strip, there was no fence, would not necessarily deféat the claim of adverse possession founded upon substantial enclosure, as the strip its entire length was within the fences which enclosed the premises of which the defendant became the owner, and was cultivated with and as part of them by those under whom the defendant derived his title. Jackson v. Halstead, 5 Cow., 216; Becker v. Van Valkenburg, 29 Barb., 319.

We think the plaintiff was not prejudiced by the refusal to charge as so requested.

There was no error in the refusal of the court to charge that the brush and pole fence upon the line previous to that which the evidence tended to prove was constructed in 1861, ■did not constitute a substantial enclosure, and thecourt properly left that question to the jury. This might be treated more effectual than merely felling and lopping trees around a parcel of land, as was the case in Jackson v. Schoonmaker, (2 John., 230.) The jury were permitted to find that this-was treated by the parties as a fence on the. line, and that the defendant’s grantors claimed to it as such. And that the occupation by them under whom the defendant took title was notoriously up to that fence as the east line of the land they respectively occupied. The evidence of the one witness that the fence was made by the then occupant of the land now owned by the plaintiff, without reference to the line and merely to turn cattle is not conclusive upon the-fact, in view of the other evidence given upon the trial, and the circumstances bearing upon the question of the purpose of the parties in the construction and maintenance of that old fence, and its relation to the fine between the adjacent-lands.

There were some other requests to charge made by the-plaintiff’s counsel and exceptions taken to the refusals of the court to charge as requested. They related to the sufficiency of the evidence to submit to the jury the question of' adverse possession, founded upon cultivation or improvement of the strip of land by those under whom the defendant holds. We think there was no error in the ruling, and that the question in that respect was properly submitted to the jury. The plaintiff’s counsel took no exception to the. charge as made in any respect.

We have carefully examined the several objections and exceptions taken by the plaintiff’s counsel to the reception of evidence, and fail to find error there or in any of the rulings of the court, to which exception was taken upon the-trial.

The judgment should be affirmed.

Barker, P. J., Haight and Dwight, JJ., concur  