
    The Mayor, etc., of New York, Resp’t, v. David C. Carleton, App’lt. Same, Resp’t, v. Same, App’lt.
    
      (Court of Appeals,
    
    
      Filed April 16, 1889.)
    
    1. Title to real estate—Possession of land as evidence of title— Strength of title by possession.
    Possession of land is prima facie evidence of title, and is sufficient evidence of title as against all persons but one who can show either a prior-possession or a better title. It must he a possession anima dominendi. The benefit of such a possession is not lost if the possessor leaves the land temporarily vacant anima rerertendi. As against a subsequent intruder without right, such prior possession is sufficient evidence of title.
    3. Same—Title by possession lost by abandoning possession—How evidenced.
    One who has entered upon land without a title may abandon his possession intending to surrender his dominion over the same, and then any other person may enter upon the vacant land and have the benefit which possession gives even against such prior possession. Such abandonment may he evidenced by any unequivocal act or by long continued absence from and inattention to the land, or it may he inferred from other circumstances.
    3. Same—A city may obtain title by adverse possession—Subsequent-
    INTRUDER CANNOT QUESTION.
    A city may obtain title to land by adverse possession. There is no possible ground upon which its title by adverse possession can he questioned by a mere subsequent intruder without any title. The fact that such intruder purchased the same from persons who also had no-title in no way fortifies his position.
    Appeals from judgments of the general term of the superior court of New York city, affirming judgments, entered in favor of the plaintiffs.
    
      D. P. Hays, for app’lt; Wm. L. Turner, for resp’t.
   Earl, J.

—These are actions of ejectment involving the title to most of that portion of a block of land situated in the city of New York, bounded by 120th and 121st streets, Third avenue and Sylvian Place. They were commenced in April, 1878, and brought to trial in 1885 at a circuit, and verdicts therein were directed in favor of the plaintiff.

Prior to 1838, the lands in question belonged to private owners. Early in that year a petition was presented to-the common council of the city asking that they be acquired by the city for a market and public square, and the following resolution was adopted by it:

Resolved, That the market committee report on the propriety of purchasing land between 120th and 121st streets, near Third avenue, for a public market.” The committee, reported recommending the purchase of the property for the purposes mentioned, and that application be made to the legislature for a law authorizing the taking of the property; and in pursuance with their report the following resolutions were adopted:
Resolved, That application he made to the legislature for a law authorizing the taking of a plot of ground on the 'Third avenue, between 120th and 121st streets, and running hack 275 feet, for public purposes by commissioners to be appointed by the supreme court, and that the counsel of the board prepare a memorial and law for that purpose.
“Resolved, That the market committee be authorized to purchase from the owners of the above described property any part thereof, provided the same can be obtained on reasonable terms, to be reported to and approved of by the common council.”

In pursuance of the application made on behalf of the city the legislature passed the act, chapter 246 of the Laws of 1839, the first section of which provided that it should be lawful for the city to acquire and become the owner in fee of the block of land in question; and section 2 provided the manner by which the city could acquire the title to the lands by condemnation proceedings.

It is now claimed on behalf of the city that proceedings were taken in 1839, under the act to acquire title to the lands, and that by such proceedings it acquired a perfect title to them. Upon the trial, however, the city was unable to prove all the proceedings. It proved the official oath of the commissioners of estimate and assessment, taken in July, 1839, which was entitled: “In the matter of the application of the mayor, aldermen and commonalty of the city of New York, to take laud in the twelfth ward of said city for public use;” the report of the commissioners to the supreme court, dated August 18, 1839, and an additional or supplemental report dated August 31, 1839, and an order of the supreme court confirming both of the reports, made on the 3d day of September, 1839. There was also proof that the city had paid the amounts awarded to the owners of the lands.

The defendant claims that the act of 1839 was unconstitutional; that the proceedings taken thereunder were irregular and invalid, and that enough had not been proved to show that the court had jurisdiction to make the final order, and that therefore the city did not become vested with the title to the lands by virtue of those proceedings.

We do not deem it important now to determine whether, hy virtue of those proceedings, the city obtained a perfect Title to the lands, because we think that its possession, taken under, and in pursuance of, those proceedings, is sufficient to enable it to maintain these actions against the defendant, and those proceedings will be considered now only as they bear upon, and characterize, the possession of the city.

Immediately after those proceedings were closed the city took possession of the lands, and the common council passed a resolution and appropriated money for the building of a market thereon. In 1842 the common council, by resolution, directed a sale of all dwelling-houses and other buildings upon the lands, except the market house. In 1843 the city caused a strong, substantial fence to be built' all around the land, and it thereafter leased the market, house, and that was occupied under it for about twenty years:

It also erected thereon two engine houses, one prior to 1847, and the other in 1849. The lands remained enclosed with these buildings thereon until about 1860, when in pursuance of resolutions adopted by the common council, the buildings were removed therefrom. In September, 1863, the common council adopted a resolution directing the street commissioner to have the lands, which were then called the Harlem Park, thrown open to the public as a park, and to have benches and seats placed therein for the accommodation of those who might resort there. This was done, and walks were made and trees planted, and the lands were used as a park for a number of years, down to 1866 or 1867, during all of which time there was a substantial fence around the same. In 1867 the property was put up by the commissioners of the sinking fund for sale at auction, in separate lots. The purchasers of some of the lots took title and erected buildings thereon. The purchasers of others refused to take title, and such refusals resulted in litigations between the purchasers and the city which continued for several years. During the five or six years subsequent to 1867, the lands which the purchasers refused to take were neglected, and the fences went to decay, and what was before a park was to open to intruders, and to all persons who chose to go there for any purpose.

Such is the claim which the city acquired to these lands by possession prior to 1867; and this title by possession is sufficient to enable it to maintain these actions against the defendant, unless he can show a better title. Tyler on Ejectment, 72, 73; Allen v. Rivington, 2 Wm’s. Saunders, 111; Doe v. Webber, 1 A. & E., 119; Asher v. Whitlock, 1 Q. B. L. R., 1; Smith v. Lorillard, 10 John., 337; Novion v. Hallett, 16 John., 327; Jackson v. Denn, 5 Cow., 200; Whitney v. Wright, 15 Wend., 171; Carleton v. Darcy, 90 N. Y., 566. There is no pretense of any title to the lands on the part of the defendant. He went into possession of them about 1873, as a mere intruder, without any title whatever from any person who is proved to have had any title or interest in them.

It is true that he took several deeds of the lands within a. few years after that date. But the deeds came from persons who, so far as this record discloses, were themselves mere intruders, and whose possession, if they had any, .antedated^ the possession of the defendant by only a very short period of time. He did not show that he, or any of the persons under whom he claims title, were in possession prior to 1873, or about that time, about five years before the commencement of these actions. As against him therefore the prior possession of the city gave it standing for a recovery in these actions, as we held in the case of Carlton v. Darcy (supra), which involved a portion of the same tract of land now in question, unless the city so .abandoned its possession prior to 1873 that it thereby lost any right or benefit which it would otherwise have from such possession.

Possession of land is prima facie evidence of title, and is sufficient evidence of title as against all persons but one who can show either a prior possession or a better title. It must be a possession animo dominendi. The benefit of such a possession is not lost if the possessor leaves the land temporarily vacant animo revertendi. As against a subsequent intruder without right such prior possession is sufficient evidence of title. But one who has entered upon land without a title may abandon his possession, intending to surrender his dominion over the same, and then any other person may enter upon the vacant land and have the benefit which possession gives even against such prior possessor. Such abandonment may be evidenced by any unequivocal act or by long continued absence from and inattention to the land, or it may be inferred from other circumstances.

Here there is no evidence that the city intended to abandon these lands. There was a short period of time, from 1867 until 1873, when so much of them as were not effectually sold were very much neglected. They were left open to the public, and the city does not appear at that time to have had any particular use for them. It could not, like an individual, live upon or personally occupy them. Having taken the proceedings to acquire the title to them, having paid for them and improved and possessed them for many years, it is not a justifiable inference from -any of the evidence, that it meant to abandon them and not to resume its possession of them at any time it desired.

In 1871 a committee of the sinking fund commissioners charged with the duty of making an estimate of the value -of the real estate belonging to the city included this property in their report, and during some years before and after that the city was engaged in litigation with parties who had purchased portions of the property at public sale. We are, therefore, of opinion that the city can maintain this action, basing its right solely upon its prior possession, and that the verdict was properly directed.

But there is a still stronger and perhaps more satisfactory ground for the maintenance of this action, and that is the title of the city acquired by its adverse possession. It went into the possession of these premises, claiming to be the owner thereof as early as 1842, and it is absolutely undisputed in the evidence that it retained the possession as owner for more than twenty years thereafter, during all of which time the land was protected by a substantial enclosure. A city as well as an individual may obtain title to land by adverse possession. Sherman v. Kane, 86 N. Y., 57.

There is no possible ground upon which its title by adverse possession can be questioned by the defendant who occupies the attitude of a mere subsequent intruder without any title. The fact that he purchased the same from persons who also had no title, in no way fortifies his position. Gardner v. Heart, 1 N. Y., 528; Miller v. Long Island R. R. Co., 71 id., 380.

We are, therefore, óf opinion that these judgments should be affirmed, with costs.

All concur.  