
    Anthony Voight and Others, Respondents, v. John G. Meyer, Appellant.
    
      Use of land outside the boundaries of a deed -¡- not deemed to be founded orí a written instrument — when lands are not Usually cultivated or improved.
    
    'The claim of -title asserted by a grantee who continuously and .exclusively occupies land outside the boundary line of the lot conveyed to him, under the claim and belief that such land is part of the lqt, is not founded on a written instrument within the meaning of sections 369 and 370 of the Code of Civil Procedure,
    
      ■Qucere, whether proof that such grantee had for more than twenty years used the premises so claimed as a sugar bush and wood lot, cutting fuel therefrom, establishes that they were usually, cultivated- or improved within the-meaning of the statute. ,
    Appeal by the defendant, John G." Meyer, from a judgment- of the Supreme Court in favor, of the plaintiffs, entered in the office of the clerk of the county ,of Delaware on the 29th day of August, 1898, upon the report of a referee, j
    
      George A. Fisher, for the appellant.
    
      F. A. Taylor and Arthur More, for the respondents.
   Merwin, J.:

This action was brought to recover damages for trespass upon real estate. The parties own adjoining lands, and the controversy is over the location of the dividing line. The common source -of title is Rene A. De Russey. On the 1st-of January, 1867, he conveyed to the plaintiffs lot No. 1 in division So. 2, in Great Lot 3, Hardenburgli patent, De Russey trapt, containing sixty acres, more or less. On April 17, 1867, De Russey conveyed to Amasa Geer lot 2, in the same division, containing sixty acres, more or less. Geer, on May 17, 1867, conveyed to:John. Mavis, who, on July 15, 1868, conveyed to Frederick A. C. Eberline, who, on October 20, 1884, conveyed to the defendant.

In the complaint, it is alleged that; on or about October 30, 1895, the defendant wrongfully entered upon the plaintiffs’ farm and premises, the same being in the complaint described the same as above stated in the deed to the plaintiffs, and cut down, took and carried away a large quantity of wood cut from timber then growing and being on the said premises, and also cut down and destroyed about 100 maple sap trees, which was a part of the plaintiffs’ sugar bush, and used by the plaintiffs as such sugar bush in connection with said farm. The answer was a general denial.

In the deeds, under which the defendant holds, the southerly boundary of lot Ho. 2 is the northerly line of lot Ho. 1. This line is about 120 rods long, and runs nearly east and west. At the time of the conveyances by De Russey the land was all woodland. Prior to 1895, however, the land on both sides of the line along its central portion had been cleared, but at the eastern end of the line, for about forty rods, there was no clearing, and the land of either party was not inclosed. There was no division fence.

For sometime prior to 1895 .there had been dispute as to the location of. this line. Its eastern end, as claimed by the plaintiffs, was about six rods farther north than its eastern end, as claimed by the defendant. The space between these two-claimed lines, from the eastern line of the lots westward from thirty-five to forty rods, comprises the territory upon which the alleged trespasses were committed.

The main issue at the trial was over the location of the division line. There had been several surveys — one in 1859, two in 1884, and one by each party after 1895. The referee found that the line claimed by the defendant Was the correct one, so that no part of the land in dispute was within the bounds of lot Ho. 1. He also found, as matter of fact, that from January, 1867, to October, 1895, the plaintiffs continuously and exclusively occupied the territory in controversy, in connection with their use and occupation of lot Ho. 1,, as their farm, for procuring their fuel and for tapping and taking sap from the maple trees thereon as a part of their sugar bush, under a claim of title founded upon the De Russey deed of Januuary 1, 1867, exclusive of any other right, and that such use and occupation was under the claim and belief that the land was part of lot Ho. 1. Upon these facts the referee found, as matter of law, that, in October, 1895, the plaintiffs were the owners of the land by adverse possession and were entitled to recover damages sustained by the acts of the defendant, and he ordered judgment accordingly.

The only entry alleged in the complaint is upón lands in lot No. 1, and it is not quite apparent how, under the complaint, the plaintiff can recover damages for injuries to lands in lot No. 2. Passing, however, this question, we come to the question whether the judgment can be sustained on the theory that the plaintiffs have, by adverse possession, acquired title to the premises in controversy.

We must assume that the referee has correctly found that the line; as claimed by defendant, was correct. The plaintiffs cannot here dispute that. That being so, no. part of the lands in dispute was included in-the conveyance to the plaintiffs, and the plaintiffs are not in a position to assert an adverse possession, as under a claim founded upon a written instrument, within the meaning of sections 369 and 370 of the Code of Civil Procedure. (Pope v. Hanmer, 74 N. Y. 240.)

If the claim is not under a written instrument, then, under sections 371 and 372 of the Code it must appear that the land has been protected by a substantial inclosmre, or has been usually cultivated or improved. Concededly there was here no inclosure. Can it be said that the land has been usually cultivated or improved for the necessary period ?

The wood lot of the plaintiffs upon the eastern end of the farm comprised about thirty acres. Along the northerly side of this was. the disputed land, being a strip five or six rods wide, containing about one acre and a half. The timber in that locality was maple, birch, basswood and hemlock. It was shown upon the part of the plaintiffs that they had used the premises in question as a part of their wood lot, taking therefrom -wood for fuel, and using the whole wood lot as a sugar bush up to about ten years before the trial. They had treated these premises as their own on the theory that their deed covered them. They did not claim to own any part of lot No. 2. The extent to which they had taken fuel does not appear. There was other wood land on the farm. Whether the occupation of the disputed premises was, as the referee finds, exclu-. sive, is not so clear! There was proof that the defendant, or those under whom he claims, cut wood or timber thereon at divers times, and this proof does not seem to be fully met on the part of the plaintiffs. In 1884 Martin, a surveyor, at the request of the plaintiffs, ran out the line and found it substantially as now claimed by the defendant. The constructive possession was in the defendant. (Donohue v. Whitney, 133 N. Y. 178; Code, § 370.)

In Doolittle v. Tice (41 Barb. 181, 185) Judge Miller, in speaking of the provision in the Code of Procedure (§ 85) similar to subdivision 2 of section 372 of the present Code, says: “ Eéaping alone can scarcely be considered as cultivating, and this was all the-cultivation the land received; nor can the keeping up a fence already made, mowing the grass and cutting brush (with no proof that it was designed to improve the land), be considered an improvement within the meaning of the statute. I think the statute was intended to provide for the ordinary cultivation and improvement of lands in the manner in which they are usually occupied, used and enjoyed by farmers for agricultural purposes; sowing, plowing and manuring, and by the erection of buildings, &c., which might add to their value.”

In Clark v. Phelps (4 Cow. 203), the court, in speaking of the terms “ improved or cultivated land,” as used in the law as to laying out highways, says: “ These terms are to be taken in the popular sense, according to the general understanding of the community, when distinguishing what is called wild land, or land in a state of nature, from that which has been cultivated and improved. The terms, to‘improve or cultivate,’ may be considered synonymous. To cultivate is defined ‘to improve the product of the earth by manual industry.’ When speaking of improved land it is generally understood to be such as has been reclaimed, is used for the purpose of husbandry, and is cultivated as such, whether the appropriation is for tillage, meadow or pasture.”

The. referee did not find that the land had been usually cultivated or improved. Eor does the evidence warrant such a finding. The land was not cleared or made fit for cultivation, nor were any improvements made thereon, within the meaning of the statute.

The referee erred, we think, in his conclusion that the plaintiffs, had established title by adverse possession.

All concurred.

Judgment reversed, referee discharged, and a new trial granted, costs to abide the event.  