
    Eda Brainin, Respondent, v. New York, New Haven and Hartford Railroad Company and the Western Union Telegraph Company, Appellants.
    Second Department,
    January 21, 1910.
    Heal property—ejectment — deed and map construed together — failure to show title — adverse possession.
    Where the title deeds of a plaintiff in ejectment describe the land as two lots known and distinguished by numbers on a certain map an(d limit one boundary by the lands of the defendant railroad company, while the map itself contains a note stating that the lots are bounded by the correct line of the railroad company’s land, wherever that line maybe, and that the correct depth of the lots may be more or less than that laid down, the map .becomes part of the deed and controls the description. Hence, .the plaintiff cannot recover where the defendant introduces deeds which prove beyond contradiction that it extended its right of way to cover the strip of land in dispute.
    Plaintiff cannot assert title by adverse possession under deeds not purporting to convey the strip of land in dispute, and the actual possession arising by the occupation of a dwelling house on the front part of her lots is not constructive possession of a portion in the rear covered by the defendant’s deed.
    Evidence examined, and held, not to show an actual continued adverse possession for twenty years.
    Appeal by the defendants, the New York, New Haven and Hartford Bailroad Company 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 Westchester on the 23d day of January, 1909, upon the verdict of a jury rendered by direction of the court after a trial at the Westchester Trial Terrain an action of ejectment.
    
      William A. Woodworth [Charles M. Sheaf e, Jr.j with him on the brief], for the appellants.
    
      David B. Ogden [Philip S. Dean with him on the brief], for the respondent.
   Rich, J.:

Both the plaintiff a!nd the defendant railroad company claim ownership of a piece of land over which the latter permitted its codefendant to place poles and string wires and cables. The New York and New Haven Eailroad Company was originally laid out in 1847, at which time there was conveyed to it by one Davenport a piece of land eleven chains and fifty-eight links in length of the average width of one chain and ten links. The law then in force required the company to fence its right of way, and a stone wall vet standing on " the east side of said premises is, I think, beyond question the fence erected by the company in conformity with the law and marked the then south boundary of its right of way. In 1851 the railroad company double tracked its road and, on March first of that year, purchased from its former grantor an additional strip of land about fifty rods in length, bounded on the south by a line parallel with the centerline of the rails, as then laid, and three rods therefrom. The-land so purchased includes the strip in dispute, which is one hundred feet in léngtli along the railroad, and its southerly line five-feet south of the.stone wall at its east end, and eight feet south of it at its west end. The locus in quo.lies at the rear Of two lots owned By the plaintiff, fronting on Oak street, and her contention is based on an alleged title and right of possession founded on a series of deeds, running back to Davenport, the common source of title, and by adverse- possession under'claim of title. All of the deed's introduced in evidence by .the plaintiff, including the one to herself, describe the land as' being two. lots “ known and distinguished on a map of property of Frederick Lorenzen surveyed by Horace Crosby C: E. Jan. 1876 and March 1879 and filed in the Westchester County Eegister’s office March 3d, 1879, by the numbers 12 .and 13, which said lots taken togéther are' on said map bounded and described as follows, viz-.: Beginning at a point on the -Northerly side of Oak Street adjoining other lands of Frederick Lorenzen, thence running in a westerly direction along the Northerly side of Oak Street one hundred feet; thence in a Northwesterly direction by and along the lands of one Daly one hundred and forty-nine feet and forty-two hundredths of a foot (149.42/100) to land of the New York, New Haven and Hartford Eailroad Company ; thence in ah Easterly direction along the lands of said Eailroad-Company One Hundred feet and sixteen one-hundredths of. a foot (100.16/100) to -other lands of said Frederick Lorenzen;' thence along said other lands of said Frederick Lorenzen in a Southeasterly direction one hundred and' fifty-five feet and eiglity-three one-hundretlis of a foot (155.83/100) to Oak Street' the point and place of beginning.” The map referred to in the deeds was introduced in evidence, and shows lots 12 and 13, taken together, as being of the same dimensions stated in the. deed, and extending from Oak street to the center of the stone wall referred to. On the map is the following explanatory note: “Explanatory Hote. All the lots adjoining the H. Y., H. H. & H. B. B. are bounded on the north by the correct southerly line of the said railroad company’s land, according to the deeds of the latter, wherever the said southerly line may be. The lengths or depths of the said lots given on this map are the distances from the north side of Oak St. to. the center of the stone wall now standing on the southerly side of and running in the same general direction as the tracks of the said railroad, excepting for lots 16,17 & 18 the depth of which do not quite reach the stone wall. The porrect lengths or depths of all the lots between the railroad and Oak St. may therefore be either more or less than is laid down upon this map; and this explanatory note is hereby intended to be made a part of the description of each and every one of the aforesaid lots; H. C. March 3.1st, 1879.” Lorenzen testified that when he had the survey and map made he did not know where the railroad line was; and the surveyor, Crosby, testified that he did not-then know exactly where the southerly line of the railroad was. He says: “ That was the reason the note was put on the map.” There was a stone fence that seemed to mark the division line between the lots and the railroad. “ I measured to the stone wall and after the map was made before it was filed,.. I was informed that the railroad company had bought an additional strip from Davenport and I put this note on the map to repair any discrepancy between that stone wall and the southerly line.” The map must be taken as part of the deeds, and controls the description. (Kingsland v. Chittenden, 6 Lans. 15.) The lengths of the side lines, stated in the deeds of the plaintiff and her predecessors in title, are not of importance in determining the rear line of plaintiff’s lots, and are not the determining factor as to which is the precise location of the southerly boundary line of the railroad land. There is no.reasonable doubt that the intent of the parties to these several deeds was to convey and take title, not to the center of the stone wall, but to the southerly boundary line of the railroad land, wherever that might be, and such intent is made clear by the explanatory note on the map, which is made a part of the description of each and every lot. (Benjamin v. Welch, 73 Hun, 371; Ousby v. Jones, 73 N. Y. 621 ; Higinbotham v. Stoddard, 72 id. 94, 99; Walter v. Ham, 68 App. Div. 381, 383; Brookman v. Kurzman, 94 N. Y. 272, 276.) The plaintiff gave no evidence of the location of this south boundary line. The defendant railroad company introduced in evidence its déeds^ and proved without contradiction, by two surveyors, one of whom was Crosby who made the map and survey for Lorenzen, that the southerly line of the railroad land, in the rear of plaintiff’s lots, was between five and eight feet south of the stone wall, and, therefore, included the strip in dispute. The record discloses á failure on the part of the plaintiff to establish- that she owned the locus in quo in fee, or that she had any title by adverse possession, under claim of. title founded on the several deeds she put in evidence,- for the reason- that such deeds do not purport to convey the strip of land in dispute, and she cannot avail-herself of constructive possession arising from the occupation by herself and her predecessors in title, of the dwelling house on the front of the-lots. (Pope v. Hanmer, 74 N. Y. 240.) She also failed to establish adverse possession under claim of title. The evidence does not show an actual continued occupation for twenty years. McCarthy began an adverse possession in 1883 by the erection of fences and a stable, which continued until 1888, when- his house burned down and he abandoned the premises. The grantee, Barton, never took possession. No one actually occupied the premises from 1888 to 1892, when Hayes,' Barton’s grantee, took possession and rebuilt the fence. He died in 1895, and his executors conveyed to the plaintiff in 1906. Neither of their deeds transferred any possessory right to the strip of land in question, for they conveyed only lots 12 and 13, extending from Oak street to the southerly line of the railroad lands, and did not assume to convey the disputed strip or any rights therein. When plaintiff purchased, the land was not inclosed, cultivated or improved. (Smith v. Reich, 80 Hun, 287; Sawyer v. Kendall, 10 Cush. 241; Simpson v. Downing, 23 Wend. 316 ; Cleveland v. Crawford, 7 Hun, 616 ; Jackson v. Leonard, 9 Cow. 653.) There is no evidence óf any assertion of claim of title by any of plaintiff’s predecessors, and- their acts were with the knowledge given them by the map, and as matter of law part of their conveyances, that the correct southerly line of the railroad land as shown by its deeds, and not the stone wall, was their north boundary line. (Humbert v. Trinity Church, 24 Wend. 587.)

The evidence furnishes no foundation for the contention of a practical location of the stone wall as a boundary line; the case was not tried upon that theory, nor was such question raised or urged on the trial.

The judgment should be reversed and a new trial granted, costs to abide the event.

Hirschberg, P. J., Woodward, Burr and Thomas, JJ., concurred.

Judgment' reversed and new trial granted, costs to abide the event.  