
    Carl J. Nordstrom and Emily B. Nordstrom, Appellants, v. Harvey Morehouse and James Morehouse, Respondents.
    Third Department,
    June 29, 1910.
    Beal property— ejectment — proof of ouster— straightening line fence on side hill — when acquiescence in line for twenty years no bar.
    Where the complaint in-an action of ejectment alleges an ouster"of plaintiffs by defendants from a strip of land, which the answer admits, setting up the defendants’ right of possession, and it appears on the trial th$t plaintiffs built a new fence along their line so as to straighten certain crooks made hy the sliding ■ of the old fence down hill, and that defendants tore down a part of' the new fence, claiming it encroached on their land' four or five feet, it is error tó dismiss the' cqmplaint on the ground that the old fence having been acquiesced in for twenty years was the proper boundary, and that the tearing down of the fence was merely a trespass, and that no ouster authorizing an action in ejectment had been.shown. .
    If by reason of the slope of the ground a line fence ón a side hill and through ' woodland has sagged for a few feet, failure to straighten it is not an acquiescence in it as a boundary so as .to bar the right of either owner to rebuild the ■ fence upon the undisputed- legal line, even though by so doing the line of the old fence may be varied for a few feet.
    ’ Appeal by the plaintiffs, Carl J. Nordstrom and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of. the county of Warren on the 30th day of October, 1909, upoh the dismissal of the complaint by direction of the court at the close of plaintiffs’ case on a trial at the Warren Trial Term.
    
      Thomas W. McArthur, for the appellants.,
    Jenkins, Kellogg & Barker [J. H. Barker of counsel], for the respondents.
   Smith, P. J.:

In the complaint in the action plaintiffs claim- title and right to possession to lot 21 in a patent granted to James Abeel, August 14, 1786, excepting, however, a piece of land of fifty acres off the west end of said lot and a piece of land supposed to contain one acre-from the southwest corner of said lot. It is further alleged that on and prior to the lltli of November, 1908, the plaintiffs were in possession of said premises and the defendants entered into and ousted the plaintiffs from a portion of the said premises, to wit: “ A strip along the southerly side thereof, being fifty links wide on the east side of said Lot 21, and gradually tapering as it extends westerly so as to include approximately six-tenths of an acre.” It is alleged that defendants so entered upon and ousted plaintiffs from said strip, claiming a right thereto, tore down a fence which plaintiffs had caused to be built along a portion of the southerly side of said lot 21, and also tore down a portion of fence along the highway on said strip which the plaintiffs had caused to be built and cut down some trees. The complaint demands possession of said premises with $100 damages and costs i of the action. In tire answer the defendants admit “thht on or prior to the 11th day of November, 1908, the plaintiffs were possessed of certain premises northerly of the strip of land which it is alleged in the complaint the defendants ousted, the plaintiffs from, and alleges upon information and belief that at all the times in said complaint mentioned the defendants were and now are in possession of the premises adjoining upon .tile south the premises possessed by .plaintiffs as aforesaid under a contract of purchase from one Lawrence Pratt and Arthur L. Soper, who are seized of said premises in. fee simple absolute, and that -the' strip'of land which it is alleged in the complaint the defendants ousted the plaintiffs from, is a portion of the premises of.which defendants are seized and possessed as aforesaid, and that the fence which it is alleged the defendants tore down was situatpd upon said premises.” In .the third defense the defendants plead adverse possession, and in the fourth paragraph in the answer the defendants plead adverse possession of the said strip of land at the time of the deed-to the plaintiffs.

Upon the trial the proof showed the line as claimed by the plaintiffs. Upon that line was an old fence, which was torn down by the plaintiffs and a new one placed thereupon. This new fence, or part thereof at least, was torn down by the defendants, who claim that it was put over upon- their land in some places - four or ii.ve feet. It seems that the boundary line was through woodland and upon a side hill sloping toward the north, where plaintiffs’ land ivas situated. In some places the fence had slipped-down the hill two, ■ .three, four or five feet, so that the old fence ivas not in a straight line, but was somewhat irregular. In building the new fence the plaintiffs had straightened out the crooks in the line. Under these pleadings and upon these facts proved, the trial court dismissed [he complaint, holding that the old fence had been acquiesced in for over thirty years, and was, therefore, the' boundary line between the premises, and that the act of the defendants in tearing down that part of the new fence which was in fact upon the line was an act of trespass, and that no ouster had been shown which authorized an action of ejectment. "

This ruling of the trial court can hardly be sustained in- view of the pleadings. The complaint alleged an ouster by defendants from a strip of land in lot 21, which was fifty feet on one end and ran to a point upon the other, containing about six-tenths of an acre. This ouster was admitted in the answer, and the defendants claim the right to possess the same. Upon this admission, in . view of the conceded facts on the trial, the plaintiffs were entitled' to a judgment of ejectment, ejecting defendants from this strip of land, and the judgment óf nonsuit must be reversed.

Upon the new trial, which must be ordered, the question will again arise as to the right of the plaintiffs to straighten his line in ■ replacing the old fence with a new fence. A line acquiesced in for more than twenty years is without doubt to be deemed the boundary line between adjoining owners. If, however, by reason of the'slope of the ground, the fence has sagged for a few feet, failure to straighten that fence upon a side hill and through woodland can hardly be deemed such an acquiescence as will bar the right of either party to put the fence upon the undisputed legal boundary line, although the straightening of the line may vary for a few feet the line of the old fence. In other words, it cannot be that in repairing a line fence in such country the new fence must follow all the little irregularities of the old fence, where the line is undisputed and where the line of the old fence has been changed by reason of the falling away of the fence by reason of the irregularity of the1 ground. It is "only these irregularities, however, that can be thus corrected, and only in these minor particulars can the boundary line of the fence, as acquiesced in for twenty years, be departed from. ’

I recommend that the judgment be reversed and a new trial granted, with costs to appellants to abide the event.

All concurred.

Judgment reversed and new trial granted, with costs to appellants to abide event.  