
    George Spies, Resp’t, v. The Rome, Waterown & Ogdensburg R. R. Co., App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July 7, 1891.)
    
    1. Ejectment—Adverse possession.
    One 0., in 1805, conveyed certain premises to the board of supervisors as a site for a court house, the deed containing a condition for a reversion in case the premises should cease to be the place for holding court. In 1842 C. conveyed certain premises to plaintiff's predecessor, and he and his predecessors in title have been in possession until 1886. The premises conveyed to the supervisors ceased to be used for court purposes in 1860, and subsequently were conveyed to defendant, which laid its track thereon in 1886. Held, that plaintiff had acquired title by adverse possession sufficient to entitle him to maintain ejectment against defendant.
    2. Same—Title.
    If the premises described in the deed to plaintiff’s predecessor were covered by the deed to the supervisors and to defendant, the title reverted to O.’s heirs and assigns, and under the covenants in his deed vested in plaintiff. •
    Action to recover the possession of a small parcel of real estate in the city of Watertown. The complaint alleges that from March 1, 1856, to January 10, 1886, the plaintiff was lawfully possessed of the land and premises described in the complaint, and that the defendant unlawfully, on the 10th day of January, 1886, “ entered into and upon said premises and unlawfully withholds from the plaintiff the posséssion thereof, to the plaintiff’s damage $150.”
    Defendant admits its incorporation and denies the other allegations of the complaint. By consent of the párties the cause was tried at special term, and the court found: “ That the plaintiff, George Spies, is the owner, and was lawfully in possession of the lands and premises described in the complaint in this action, from the 1st day of March, 1856, to the 10th day of January, 1886; ” also, “ that the estate of the plaintiff, George Spies, in said premises is in fee simple absolute; ” also, “ that on or about the 10th day of January, 1886, the defendant, the Eome, Water-town & Ogdensburg Eailroad Company, unlawfully entered into and upon said premises, took possession of the same, and still unlawfully withholds from the plaintiff the possession thereof; ” and he found that the damages sustained by the plaintiff amounted to the sum of $163.34; and as a matter of law the court found that the plaintiff was entitled to recover the possession of the premise’s and the damages for withholding the same, and ordered judgment accordingly. Exceptions were filed to the findings. Judgment was entered in accordance with the decision and the defendant appeals from the judgment so entered in Jefferson county.
    
      Edmund B. Wynn, for app’lt; George S. Hooker, for resp’t.
   Harden, P. J.

—After a careful 'perusal of the evidence, the conclusion is reached that the findings of fact are sustained by the evidence. While there is some obscurity produced by the evidence, and some of the evidence tends to show facts inconsistent with the findings made by the trial judge, we are of the opinion that the conclusions of fact are sustained by evidence given upon the trial. We therefore accept the conclusions of fact stated. Wright v. Sanders, 65 Barb., 214.

It is apparent from the evidence that the title to the premises was originally in one Henry Coffeen. In April, 1842, Coffeen made a conveyance to He well & Haas, having theretofore in 1805 made a conveyance of certain premises to the supervisors of Jefferson county of about two acres and a half to be held as a site for a court house and jail. The deed to the supervisors contained a condition that if it shall happen that the site for the court house and jail shall at any time be removed from the above mentioned premises, or otherwise it shall cease to be the place for holding the courts for the said county, that then and in such case the above granted and described premises, and every part and parcel thereof, with the appurtenances, shall revert back unto the said party of the first, his heirs or assigns, in as full and ample a manner as though the same had never been granted in manner aforesaid.” In 1823 the court house that was erected on the premises so conveyed to the county was burned, and thereafter the county built “ a stone court house; ” that has been taken down and the use of the real estate for court house purposes •ceased about 1860 or 1861.” “ There have been no courts held on that lot since.”

It appears by the evidence that Hewell & Haas upon receiving a deed of the premises in 1842 went into possession of them, and that by a deed bearing date October 25, 1853, they conveyed the premises to one Ellihue Corss, who went into possession of the premises described in the complaint, and on the 22d day of December, 1853, he executed a deed conveying the premises to one Samuel W. Hall. Hall entered into possession of the premises, and he and his wife conveyed them to the plaintiff by a deed dated March 1,1856, which was recorded March 17,1856, and the evidence tends to show that the plaintiff the year before he purchased the premises of Hall had taken a contract therefor, and he entered into possession of them under the contract claiming, as purchaser, and that upon receiving a deed he continued in possession down to the 10th day of January, 1886, when the defendant took possession of the same against the protest and objection of the plaintiff.

The plaintiff testified, viz.: “ I have remained in possession of the premises decribed in that déed ever since down to 1886, January 10th; I was in possession of the premises described in the complaint up to January 10,1886; I remained in possession from a year or two prior to the giving of this deed, down to the 10th of January, 1886; in the afternoon of Sunday, January 10, 1886, I went down there and saw these people laying a track; I said, ‘ What are you doing ? ’ They said they were ordered to lay a track there; said I, ‘You keep off here, or I will make you trouble"; ’ they went on laying the track; they said they were ordered to; I had a lot of timber and lumber piled up on the premises there at the time; I used the balance of this lot for piling lumber and timber; there was a cooper shop on the lot. * * * They laid the track across the premises on Sunday.”

After this evidence had been given, the counsel for the defendant said, “We admit we laid the track, and have been using it ever since.”

In Jackson v. Harder, 4 Johns., 203, it was held that a person in possession “ under color of title is held entitled to recover in ejectment against a mere intruder or trespasser.” The case from which we have just quoted was recognized and followed in Clute v. Voris, 31 Barb., 514. We think there was nothing in the evidence which would warrant the finding that the plaintiff had abandoned the claim which he had to the premises by reason of his long continued possession thereof. Whitney v. Wright, 15 Wend., 172.

In Cahill v. Palmer, 45 N. Y., 479, it was said: “Where the possession is actual, exclusive, open and notorious, under a claim of title adverse to any and all others for the time prescribed b}r statute, such possession establishes a title.” We think the possession shown in the plaintiff and his grantors was persuasive and strong evidence of title to the premises in the plaintiff. Argotsinger v. Vines, 82 N. Y., 308.

.In Sherman v. Kane, 86 N. Y., 57, it was said : “Where title to land has been acquired by twenty years adverse possession, it is equally strong as one obtained by grant.”

(2) If it be assumed that a portion of the premises described in the complaint and in the deed from Coffeen to Haas and Newell was covered by the prior deed from Coffeen to the supervisors, .and by the supervisors to the railroad company, and that the title to the land conveyed to the supervisors reverted to the heirs and assigns of Coffeen in pursuance of the condition found in the deed to the supervisors, then in virtue of the deed from Coffeen to Newell and Haas, which contained covenants of warranty and quiet enjoyment, it would seem the title would vest in the plaintiff. House v. McCormick, 57 N. Y., 310.

We are of the opinion that the evidence fully warranted the trial court in finding as a matter of fact, viz.: “ That the plaintiff, George Spies, is the owner, and was lawfully in possession of the lands and premises described in the complaint in this action from the 1st day of March, 1856, to the 10th day of January, 1886,” and that on the latter date the defendant “ unlawfully entered into and upon said premises, took possession of the same, and still unlawfully withholds from the plaintiff the possession thereof.”

We see no error as to the finding of the damages sustained by the plaintiff. We think the conclusion of the trial judge should be sustained.

Judgment affirmed, with costs.

Martin, J.. concurs; Merwin, J., not sitting.  