
    The People of the State of New York, Appellant, v. Charles H. Bennett, Respondent.
    Third Department,
    November 10, 1909.
    Beal property — trespass — proof of ownership.
    Action for trespass in cutting timber upon State lands. Evidence examined, and held, that it was error to nonsuit on the ground that the State had not shown title to the locus in quo. '
    Appeal by the plaintiff, The People of the State of Hew York, from a judgment of the Supreme Court in favor of the defendant, ■ entered in the office of the clerk of the county of Fulton on the 24tli day of October, 1908, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Fulton Trial Term.
    
      John K. Ward, for the appellant.
    
      C. D. Adams [Andrew J. Nellis of counsel], for the respondent.
   Kellogg, J.:

The State, by several tax deeds, obtained title to an undivided one-half of 7,000 acres in the northerly part of township 40, Totten and Crossfield’s purchase, in the town of Long Lake, Hamilton county. The eastern boundary of the tract sought to be conveyed was Raquette lake, and there was to be embraced within the boundaries 7,000 acres after deducting 50 acres “ on the east end of Indian Point, now or formerly owned by William Wood and Matthew Beach, and deducting also a piece of land on the east end of Land or Sand Point on which taxes have heretofore been paid by Wm. Constable.” The description of the Constable lot is the only one needing consideration. The remaining one-half of the 7,000 acres was owned by two other parties, one of whom brought an action of partition which resulted in the sale of the premises, and the State became the purchaser, and the deed in partition, July 24, 1884, conveyed the premises by substantially the same description as the former tax deed to the State, except with reference to the Constable lot, and in that respect it provided, “ and deducting a piece of land on the east end of Sand Point heretofore sold to William Constable.” The defendant holds by mesne conveyances 50 acres of land on the westerly side of the lake, upon what is known as Land or Sand Point, and the deed from William Constable to the defendant, dated November 29, 1884, describes the 50 acres by metes and bounds, and then recites : “ Being the same parcel of land conveyed by Farrend N. Benedict, his wife, and others, to William Constable, party of the first part, by deed bearing date 31st day of October, 1851, and now commonly known as Constable Point.”

The nonsuit was granted apparently upon the ground that the plaintiff had not shown title to the locus in quo, and that it did not appear but it might be a part of the land upon which William Constable formerly paid taxes, which was, therefore, excluded from the deed to the State. It seems clear that the reference in the partition deed to the land sold to Constable refers to the same land which was conveyed by Benedict to Constable in 1851. But upon the trial this matter was not left to conjecture. The defendant pointed out to the agent of the State his westerly line, and practically conceded that the timber cut was upon the land of the State. We need- not discuss the terms of the concession, for at least it was sufiicient to warrant the jury in saying that the defendant had indicated the party line between him and the State, and shown that the trespass was committed upon the State’s land. The admission of the defendant as to the location of the line between him and the Staté was some evidence in the action against him as to the State’s title to the locus in quo.. I think, therefore, there was evidence upon which it might have been found that the defendant committed the trespass upon the lands of the plaintiff. The judgment should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

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