
    Helen Brinkerhoff, Respondent, v. Ann Mooney and Patrick Mooney, Appellants.
    
      Adverse possession — the owner of lands held adversely may, at any time, repossess himself of them—testimony'of a surveyor that his chain had been “tested” is sufficient.
    
    An owner of land in the adverse possession of another may repossess himself of' the same at any time before the adverse possession has ripened into title, although the adverse holder is absent from the country at the time the re-entry is made.
    Testimony by a surveyor that his chain had lately been “tested,” is prima facie proof that it conforms to the standard of the State of New York.
    Appeal by the defendants, Ann Mooney and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tompkins on the 1st day of September, 1898, upon the decision of the court, rendered after a trial before the court without a jury at the Tompkins Trial Term, awarding the plaintiff possession of certain premises described in the complaint, with damages for withholding the same.
    
      John A. Milne, for the appellants.
    
      William.Austin, for the respondent.
   Parker, P. J.:

As near as I can gather from the record, the plaintiff has record title to about twenty-five acres of land, known as the Halseyville Mill Property, which she obtained through her husband’s will and through several other mesne conveyances from Nicol Halsey. The deed to her husband was given on May 5, 1875, and he and she have occupied the premises ever since;, except perhaps the strip in question. The defendant Patrick Mooney, about nineteen and one-half years prior to the commencement of this action, went into possession under a contract from the Tompkins County National Bank, of a parcel of land bounded on the south by the premises known as the “ Halsey-ville Mill Property,” being the twenty-five acres described in plaintiff’s conveyance, and about one year thereafter took a conveyance from the bank of the same.- ¡The question is over a strip' of land extending across the north side of such mill property — the plaintiff claiming that it is included within the boundaries of her conveyance, Mooney claiming that it is a part of the lot conveyed to him by the bank.

There is no doubt but that it is a part of the twenty-five acres conveyed to the plaintiff’s husband by his deed of May 5, T875. But it is swampy land, or least a portion of it; and it seems that it has not until recently heen inclosed or occupied by the plaintiff, and that a portion, of it, at least, has to some extent been cnltivated by Mooney. About four years ago, in Mooney’s absence, the plaintiff built a fence along the line, which is the correct line, of her lot, between her and Mooney. Mooney tore it down, and thereupon the plaintiff brought ejectment to recover the disputed strip. The trial judge found for the plaintiff, and from the judgment rendered thereon, the defendant appeals.

The defendant claims that, although the strip is included within the bounds of plaintiff’s deed, yet he has acquired the title to it by adverse possession.

The evidence is so blind in its references to the land in dispute, and the whole record so made up, that it is almost impossible to understand it. I am not sure that I do understand it correctly; but so far as I can ascertain, Mooney, himself,- had possession of the controverted strip, only since his contract from the bank. That was less than twenty years before the action was commenced, and whatever holding he may have had during that period it was not long enough to ripen into a title. As to the possession which it is claimed various persons had of different portions of this strip, viz., the pasture and the little garden plots, prior to Mooney’s contract, it does not appear that they were at all adverse to the title through which plaintiff claims. McClure and Carsaw seem to have occupied some portion of the strip as a garden for two years prior to Mooney’s taking possession; and they seem to have been tenants of the bank of the premises subsequently sold to Mooney and described in the deed to him as bounded on the south by the mill property. But there is no evidence that the bank ever claimed to own the part so occupied by them lying south of the plaintiff’s line, or knew that they did occupy it. And the deed to Mooney assumes to convey no further south than the north line of the mill property. Mooney can hardly start his adverse holding upon the fact of their occupancy. But even if he could, he has not occupied, such portion of the disputed strip for twenty years continuously from the time McClure began it. About four years before the suit he went to Ireland and left the whole premises vacant, and the plaintiff then took possession of and fenced in the strip. Hence he, and the bank’s two tenants before him, had not occupied adversely for twenty years before the plaintiff repossessed herself of the strip and fencéd him out of the same. So, in any event, his possession has never ripened into a title. She had the right to take possession of her own land at any time, even though he was absent. (People ex rel. Cooper v. Fields, 1 Lans. 222; Bliss v. Johnson, 73 N. Y. 529.)

There is some evidence that other persons cultivated these garden spots thirty or thirty-five years ago, but under what title or claim they did so I cannot discover. It does not appear that they occupied it under a claim advérse h> the plaintiff’s title.

Both parties seem to trace their title to Nicol Halsey as its common source. Hence the conveyances from him to the plaintiff put the actual title in her as against Mooney.

The objection that the evidence of the surveyor was improperly admitted is not well taken. He testified that his chain had lately been “tested” and Was correct. This, I think, isjprima faeie proof that it was conformable to the standard of the State. If not satisfied with that proof, the defendants should have. further inquired as to the character of such test,

I find no error, and think the "judgment should be affirmed.

All concurred.

Judgment affirmed, with costs.  