
    Mary S. Eldridge, Resp’t, v. Charles E. Kenning, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 23, 1891.)
    
    1. Adverse possession—What necessary to constitute.
    Such adverse possession as will ripen into title in twenty years need not . be under color but only under claim of title.
    3. Same.
    Forty years before the commencement of this action plaintiff’s father . purchased from the common source of title the east half of a certain lot of land, and immediately proceeded to enclose it by a substantial hoard fence; hut in doing so, by mistake, he included therein a strip of land on the west of his purchase. Since that time said land- and strip have continued in the possession of plaintiff and her father, claiming to be the owners thereof, and has been occupied and cultivated by them. Defendant, who owned the west half of such lot, attempting to remove the fence between them, this action was brought to restrain him from so doing. Held, that plaintiff’s possession was adverse under the statute.
    Appeal by the defendant from a judgment entered on the findings and decision of the court at special term.
    
      F. L. Durand, for app’lt; Theo. Bacon, for resp’t.
   Dwight, P. J.

The action was for an injunction to restrain "the defendant from tearing down a fence claimed by the plaintiff as marking the west line of premises owned and occupied by her on the south side of Court street in the city, of Rochester, and from erecting any building or" other structure on a strip of land lying east of such fence. The question involved was of the title to the strip of land mentioned. Judgment was for the plaintiff, adjudging her to be the owner of the strip of land in question, and requiring the defendant forthwith to remove therefrom that portion of the building (erected by him after the commencement •of the action) which encroached upon the plaintiff’s premises, and to rebuild the fence which had been removed or destroyed by him.

The judgment, and the conclusion of law upon which it was based, necessarily resulted from the facts found by the court, and those, in turn, seem to have been well supported by the evidence. They were to the effect that more than forty years before the commencement of the action the plaintiff’s father purchased by warranty deed, from the common source of title of the parties to this action, and went into possession of lot No. 48 and the east half of the adjoining lot No. 4, of a certain tract in the city of Rochester; that immediately after taking such conveyance and possession he proceeded to enclose hi$ purchase by a substantial board fence; but that by mistake in respect to the true location of the lines of those lots, the fence on the west side of the premises so enclosed was placed so far west of the true center line' of lot 4 as to include between it and such true line the strip of land in question, being one foot and a half in width on Court street, .and two feet and a quarter wide on an alley in the rear; that from the time of the erection of such fence down to the time of the defendant’s interference therewith, complained of. “ the said strip of land so enclosed continued to be in the actual, exclusive, adverse and notorious possession of this plaintiff and her grantors claiming to be the owners thereof, and occupying and cultivating the same as a part of the homestead lot of the plaintiff’s father and his family and the plaintiff.”

There is no substantial conflict of evidence in respect to the elements strictly of fact which enter into this finding. The real contention on the part of the defendant is that the facts established do not constitute such an adverse possession as will ripen into title by prescription, because such possession was not held under color of title. It is said that the conveyance under which the plaintiff claims did not purport to include the strip of land in question, but, in terms, conveyed only the east half of lot Eo. 4, and, therefore, bounded the land conveyed by the true center line of that lot, which is conceded to be the east line of the strip in question. All this is true, but it does not render the plaintiff's possession any the less adverse, within the meaning of the statute of limitations, upon the undisputed facts of this case. Such adverse possession as will ripen into title in twenty years need not be under color but only under claim of title. Section 372 of the Code of Civil Procedure prescribes what is necessary to constitute an adverse possession. in favor of one whose claim is not founded upon a conveyance or decree which actually includes the premises in question. The provision is as follows: “ For the purpose of constituting an adverse possession ' by a person claiming title not founded upon a written instrument, or a judgment or decree, land is presumed to have been possessed and occupied-in either,of the following cases * * * : (1). Where it has been protected by a substantial enclosure; (2), where it has been usually cultivated or improved.’’ In this case both of the conditions.prescribed concur, and an undoubted case is made of a possession in the plaintiff and her grantors, adverse to the legal title, for a period of more than forty years. Whereas, by § 368 of the same statute, such a possession for the period of twenty years is sufficient to overcome the presumption in favor of the owner of the legal title.

The case at bar seems to be precisely within the doctrine declared, per Selden, J., in Crary v. Goodman, 22 N. Y., 170, 175, viz.: “ that where a grantee in talcing possession under his deed goes unintentionally and by mistake beyond his proper boundaries and enters upon and actually occupies and improves land not included in the deed, claiming and supposing it to be his, this occupation is to be deemed adverse within the meaning of the statute of limitations, and if continued for twenty years would bar the right of the true owner.”

The doctrine of title by practical location of a boundary line under which many cases of this character have been decided, has sometimes been treated as independent of the doctrine of title by prescription under the statute of limitations; but it probably differs from the latter rather in the mode of its statement than in the principle involved. Certainly no title is gained by practical location'in any less period than under the statute of limitations, and evidence of the agreement or acquiescence under which such location is established, seems to be only another mode of proof of the adverse possession necessary to a title by prescription. But however this may be, the practical location of a boundary line either agreed to or acquiesced in, and so maintained for the period of twenty years, constitutes evidence of title of the highest character. In Baldwin v. Brown, 16 N. Y., 359, it is said to be evidence of so conclusive a nature as to preclude evidence to the contrary; and in Reed v. Farr, 35 N. Y., 113, the court say “the evidence, so furnished, of the correct location of the line, is of so high a character as to admit of no contradiction.”

We regard the plaintiff’s case in this action as fully established by evidence of the character referred to, and conclude that the judgment appealed from must be affirmed.

Judgment appealed from affirmed, with costs.

Macomber and Corlett, JJ., concur  