
    Helen A. Selliman, App’lt, v. John W. Paine et. al., Resp’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May, 1888.)
    
    
      Í. Adverse possession—What constitutes.
    An enclosure which excludes the pajrtv claiming possession "by reason of it and admits the other party cannot be called adverse to the admitted party.
    2. Same—Evidence—Weight op.
    When a party and his grantor have openly occupied land claiming' title thereto for nearly twenty years before the commencement of an action to eject him therefrom, and such claim is supported by a practical location and long acquiescence by the party bringing the action of ejectment, Held, that unless this practical location and acquiescence was impeached or explained they would of themselves be decisive in favor of the defendant.
    Appeal from a judgment in favor of the defendants, entered in the Rensselaer county clerk’s office upon the report of a referee.
    The action was ejectment for a strip of land four and one-half inches wide and twenty-eight feet long. The parties owned adjoining lots situate on the westerly side of Congress street in the city of Troy, bounded in front by that street and in the rear by an alley. In 1864 on the rear of each lot stood a barn, one by the side of the other, with a space of about one foot between them. Vail, then the owner and now the grantor of the lot of the defendants, tore down the barn on his lot and erected a new one, leaving only five and one-half inches between his new barn and plaintiff’s old barn. The action was to recover the portion of this space covered by the new barn.
    
      James Lansing, for app’lt; John H. Peck, for resp’ts.
   Landon, J.

The plaintiff, in order to recover, undertook to prove that the barn of the defendant occupied four and one-half inches of width and twenty-eight feet in length of her lot. Her counseLconcedes that he did not locate the north line of her lot as described in her deed with entire accuracy. Her lot is in the interior of a block containing several lots, and the base line for the measurment of any of the lines in the block can only be ascertained with approximate certainty. It is obvious that the base line assumed by the plaintiff’s surveyor, and his method of distributing the actual surplus in the block, over and above the amount all the deeds call for, do not attain to that degree of accuracy which excludes the possibility of an error of four and one-half inches in the location of the line between the plaintiff’s and the defendant’s lots. Hence the referee’s finding that the plaintiff,, has not shown by the location of her north line under her deed that the defendant’s barn encroached upon her lot must be upheld.

The remaining question is, whether she has shown that for the twenty years prior to the erection of the defendant’s new barn, she and her grantors were in the possession or occupation of the strip between the two old barns. The plaintiff’s barn stands near her north line and has stood there for a length of time not ascertained upon the trial. The referee refused to find that it had stood there twenty years prior to 1864. Up to 1864, an old barn stood on the defendant’s lot, twelve inches away from the plaintiff’s barn. The referee refused to find that this barn had stood there for twenty years prior to 1864. The space between the two barns was covered by the projecting cornice of the plaintiff’s barn, and the clap-boards upon her barn extended to the barn on the defendants’ lot. In 1864, the barn on the defendant’s lot was torn down and this intervening space between the two barns was, as the referee finds, first “ disclosed ” to the plaintiff. Defendants’ grantor, Mr. Vail, was about to erect a new barn. He and the plaintiff conferred with each other about the ownership of this disclosed space. Plaintiff claimed it all and warned Mr. Vail, defendants’ grantor, not to encroach upon it with his new barn. Vail inquired if he did not own half of it, but plaintiff said no. Vail procured a survey to be made, and his surveyor located the line so as to divide this space, and thereupon Vail caused his new barn to occupy about one-half of the space between the two old barns. The plaintiff did not know of his survey, and did not observe that the new bam was located nearer her barn than Vail’s old bam was.

Some evidence is given tending to show an acquiescence by the plaintiff in the line as asserted by Vail’s erection of his new barn. This latter line does not appear to have been challenged by the plaintiff until the commencement of this action twenty years less a few weeks from, the erection of the new barn.

This apparent acquiescence is explained by the plaintiff, by alleging her ignorance that the new barn stood nearer to her barn than the old barn did.

Upon all the evidence adduced in the case, the referee reported against the plaintiff. His refusal to find that the old barns had been erected for twenty years prior to 1864, was based upon the fact that no positive evidence was given upon the subject; the evidence was that these barns, in their appearance, method of construction, and the materials of which they were composed, indicated that they were very old. This was vague, to say the most of it.

As the plaintiff’s claim of actual occupation for twenty years prior to 1864, rests upon the assumption that these old barns had stood there during that time, the failure to establish the assumption, leaves the possession which the barns indicate, indefinite as to time, and therefore possibly less than the twenty years essential to her case.

We cannot say that the referee erred in refusing to find what, if true, it is quite reasonable to suppose there was some living witness able to testify to from his own knowledge.

The space between the two old barns may be said to have been boxed up on three sides by the plaintiff, and on one side by the defendant’s grantor, Vail, and was overhung by the projecting cornice of the plaintiff’s barn. Whether there was anjr opening from Vail’s old barn into this space, is not found; it would appear that there was from the fact that the gabel end of Vail’s barn was clap-boarded from its peak down to the cornice of plaintiff’s barn, but not below this cornice. If such were the case, then the enclosure was such as to exclude the plaintiff from the space and to admit Vail.

An enclosure which excludes the party claiming possession by reason of it, and admits the other party, cannot be called adverse to the admitted party.

The finding that when Vail’s barn was torn down, the space was disclosed, appears from the evidence to mean disclosed to the plaintiff. There is no evidence that it was then for the first disclosed to Vail.

What weight should be given to the evidence of this partial enclosure, and the overhanging cornice, was a question to be determined by the referee in connection with the other evidence in the case. When Vail was erecting his-new bam the plaintiff consented that the projections of the cornice should be so far removed as to allow the wall of Vail’s new barn to be carried up. The plaintiff explains this by testimony that Vail said her barn leaned over towards him. After the barn was erected the plaintiff adapted the cornice and clapboards upon the sides of her bam so as to have them closely fit the side of the new bam. A new fence was erected extending from the comer of the new bam nearest to the plaintiff’s barn to the comer of Vail’s wash-house, which was assumed to be at a point on the line between the two lots. Both parties contributed to the erection of this fence and it has been the practical division fence between the two lots since 1864. The referee gave weight to these circustances and attached slight weight to the plaintiff’s explanation of her long acquiescence.

But the referee did not rest his finding merely upon the ground that the plaintiff failed to show her title to the strip between the two barns, but he was convinced that the preponderance of the evidence was in favor of the line occupied by the defendants’ barn. In addition to the evidence already alluded to, the testimony of the two surveyors on the part of the defendants tended to support the defendants’ line. The same criticism applies to this testimony as to that given by the plaintiff’s surveyor.

But it is in support of an open occupation by the defendants and their grantor for nearly twenty years before the commencement of the action. It is supported by a practical location and long acquiescence, which unless impeached or explained would of themselves be decisive in the defendants favor.

The judgment should be affirmed, with costs.

Learned, P. J., concurs; Ingalls, ' J., expresses no opinion. _  