
    Harma D. French, as Committee, etc., of William A. Cook, an Incompetent Person, Respondent, v. Emma Mann Wray, Appellant.
    Third Department,
    December 30, 1912.
    Real property — ejectment — disputed boundary line — survey — adverse possession — evidence.
    Where, in an action for ejectment, the controversy arose from the plaintiffs locating the starting point in a survey some distance from the point where the defendant started, and so long a time has elapsed since the original .survey was made that it is difficult to locate the exact lines, the continued occupancy by the defendant and her grantor up to a fence which passes along the original line of the patent and completely separates the defendant’s premises from the plaintiffs lands, the erection of valuable buildings in reliance upon, such line, and the recognition of it by all parties as the true line for oyer twenty years is convincing evidence in favor of the defendant.
    The finding of old marked trees along the lines as claimed by the defendant was convincing evidence in her favor.
    A judgment awarding possession of the premises to the plaintiff is against the weight of evidence and should be reversed.
    Appeal by the defendant, Emma Mann Wray, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Warren on the 5th day of June, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day on June, 1911, denying the defendant’s motion to set aside the verdict and for a new trial made upon the minutes. .
    
      Charles R. Patterson and Erskine P. Rogers, for the appellant.
    
      Lyman Jenkins and John H. Barker, for the respondent.
   Kellogg, J.:

■ The calls of the patents cannot with great confidence be placed upon the ground. The starting point was a rock marked W. F.,” situated upon, a rocky point. The marks cannot be found and it difficult to tell from what particular rock the survey started. The controversy arises from the plaintiff’s locating the starting point in the survey some 200 or 250 feet south of the point where the defendant starts. The defendant has the advantage in the line which she claims of finding blazed and marked trees, the blazes and marks apparently having been made about the time the original survey was made.- The plaintiff takes a starting point which. will coincide with a line of marked trees, but it is conceded that the marks are of quite recent origin. It seems pretty well established that the elder Barnett, who occupied the premises on the lake immediately north of the patents in question, maintained a fence on his southerly line and that his premises had been cleared up to the line; that about twenty-nine years ago he had a survey made and removed the fence 200 or 250 feet to the south and marked trees 'along the new line,, and immediately he and his sons cut the valuable timber from the land which had thus been acquired, and apparently the new fence built by them is what is now called the old fence near the line which the plaintiff claims as the proper line. The finding of the old marked trees along the lines as claimed by the defendant is convincing evidence in her favor. The marks upon the trees and the monuments found by the plaintiff are not convincing, as they were made long after the original patent, and the circumstances under which they were made are not shown. Some of them were evidently made by-the Barnetts when they attempted to change the line; some may have been made by others relying upon that survey. Clifton bought the premises now owned by defendant in 1882, and soon after he built a fence extending from the lake to the highway along the line which the defendant’s survey indicates to be the original line of the patent, and that line passes through a large oak tree at the lake, and one of the patents shows that the true line passed through such a tree near the lake. This fence completely separated the defendant’s premises from the plaintiff’s lands. The premises were inclosed by this fence, the road and the lake. They have been cultivated and improved since the fence was erected, about 1883 to 1885, and a garden, without substantial interruption, has been maintained near the fence, and the defendant, with the knowledge of the plaintiff’s predecessors, has built valuable buildings in reliance upon that line: We may infer that the buildings and improvements represent a substantial part of the value of the premises in dispute. This fence barred the plaintiff and his predecessors in title from the premises, and effectually inclosed the premises so far as they were concerned. It is improbable that the acts of. the defendant, so open and hostile, would have been acquiesced in for over twenty years if the line represented by the fence had not been mutually agreed upon or at least understood by all the parties interested to be the correct line, and the evidence indicates that it was mutually agreed between the adjoining occupants that this fence was the line. The descriptions in the two patents do not accord. The monument representing the starting point is obliterated. So long a time has elapsed" since the original survey was made that ■ it is difficult to locate the exact lines. Under such circumstances the continued occupancy by the defendant and her grantor up to this fen'ce, and the improvements, and the recognition of it as the true line, is very convincing evidence in favor of the defendant. If in 1882 the plaintiff’s predecessors had raised the question that the defendant’s grantors were trespassing upon their premises, the true line at that earlier day probably could have been more correctly determined, and if they had succeeded, the defendant’s grantors would have lost nothing except they were unable to take land which did not belong to them. Since that time the situation has materially changed; on account of the.changes by time it is now more difficult to prove the exact line, and a recovery now would bring to the defendant great damage in the loss of her buildings and improvements. The plaintiff should not be thus benefited by the delay to assert her rights, if she had any. It is not reasonable to assume, where the acts were so open and hostile, that a mere trespass would have been suffered to ripen into a substantial right. It is not necessary to say that the plaintiff is estoppedit is sufficient to say that the acts of the plaintiff and his predecessors, and .the acts of the defendant, under all the circumstances, leave the fence as the best evidence of the dividing line.

The findings of fact that the plaintiff is the owner and entitled to the possession of the premises in dispute and that the defendant is wrongfully in possession, are disapproved of as against the evidence. - The court properly excluded the testimony of the witnesses Clifton. The judgment should, therefore, be reversed upon the law and the facts and a new trial granted, with costs to the appellant to abide the event.

All concurred; Lyon, J., in result.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  