
    Clarence R. Conger, App’lt, v. Samuel D. Kinney, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1891.)
    
    Adverse possession—Burial plot.
    In an action of ejectment to recover land claimed to have been encroached upon by defendant's burial plot, it appeared that the plot had been conveyed to defendant’s father; that on the portion in dispute the body of his brother was buried in 1865; that a headstone had been there for fourteen years and shrubbery planted by defendant for twelve or thirteen years. Held, sufficient to justify his claim to title by adverse possession.
    Appeal from judgment in favor of defendant, entered on verdict, and from order denying motion for a new trial.
    This action was brought in ejectment. The defense was title under a conveyance and adverse possession.
    The land in question is part of a burial plot in Mt. Repose Cemetery at Haverstraw, Rockland county. The cemetery lands were dedicated to that purpose in 1854.
    Isaiah Milburn and John S. Gurnee were made agents to sell and convey plots in such cemetery for the owners of said lands by a written power of attorney given in April, 1854, and recorded the same month and year, and they acted as such.
    On September 2, 1858, said agents by conveyance transferred to James Kinney, the father of the defendant, plot No.1 134, in said cemetery, for the consideration of $21. Possession was thereafter taken of said plot. The wife of said James Kinney and mother of the defendant was buried therein December, 1863. The. lines of the plot were prior to that time designated and located by stakes. In 1865, George Allison, a half brother of the defendant, was buried in this plot. The stakes on the southerly side of the plot were at the time of his burial found where this line is in dispute. He was buried there on this plot inside of the stakes, and since that time five children of the defendant and his father, and his wife have been buried in the plot. Shrubbery was placed and maintained around the plot for twelve or thirteen years, and trees, and the grave of Allison maintained there ever since his burial in 1865.
    A headstone and footstone were placed upon Allison’s grave which have remained there thirteen or fourteen years. No one ever made any objection to the location or lines of the plot until made by the plaintiff. The owners and agents were about the cemetery and made no objection. „
    The plaintiff acquired title to the cemetery lands then unsold under a deed of sale in partition, dated January 19, 1882, but to which action the defendant was not a party.
    
      Irving Broivn, for app’lt; George E. Weiant, for resp’t
   Dykman, J.

This is an action of ejectment for the recovery of a narrow strip of land used as part of a burial plot in a cemetery in Haverstraw, Rockland county.

The land for the entire cemetery was set apart for burial purposes as far back as 1854, and the owners executed a written power of attorney to Isaiah Milburn and John S. Gurnee, empowering them to make sales and conveyances of the same.

They made a conveyance to James Kinney, the father of the defendant, of plot number 134 in the cemetery, containing 210 sqpare feet, for twenty-one dollars. The defendant is the only child of the grantee James Kinney, and claims the plot of land so purchased as the sole heir of his father. His claim is that the plot was twenty-one feet long by ten feet wide. Possession was taken of the plot, and the mother of the defendant was buried there in December, 1863, and in 1865 George Allison, a half-brother of the defendant, was buried there, and the claim is that his grave is partly upon the land of the plaintiff, who claims that the lot of the defendant was twenty feet by ten, and not twenty-one feet by ten.

The plaintiff acquired title to the unsold portions of the cemetery land by 9 conveyance in pursuance of a sale under a judgment in an action in partition which is dated January 19, 1882, but the defendant is not a party to the action.

If the plot of the defendant is only twenty feet by ten, as the plaintiff contends, then the grave of George Allison encroaches upon the land of the plaintiff; but if it is twenty-one feet by ten, there is no such encroachment.

The defendant claimed title by adverse possession, and there was proof to justify the claim, and all the questions involved in the case were fairly submitted to the jury, and the verdict was rendered in favor of the defendant

The cause was tried upon correct legal principles, and the exceptions of the plaintiff present no error.

The questions involved were questions of fact for the determination of the jury, and the verdict in favor of the defendant leaves no scope for the interference of an appellate tribunal.

The judgment and order denying the motion for a new trial on the minutes should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.  