
    Truman Sweet, Resp’t, v. Serena Warner et al., as Executors, etc., App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February, 1888.)
    
    1. Trespass—Boundary line—Acquiescence in—What length necessary TO ESTABLISHMENT.
    This action was brought by an owner of land to recover damages for an alleged trespass by the owner of the adjoining land. The place where trespass was alleged to have been committed, is a strip of land lying between lines claimed, each of which is claimed by one of the parties to be the true boundary between the lots. On the trial, the question as to what was the true line became pertinent to the issue Held, that where there has been a practical location and long acquiescence in a boundary line it will be taken as conclusive proof that the location is correct, but that where such practical location is made by paroi the acquiescence to produce that effect must have continued a long time, and generally at least twenty years.
    2. Boundary line—Establishment of by estoppel.
    When a fairly disputed boundary line is settled by the adjoining owners, acts of adoption of the line being taken upon the settlement, they will thereafter be estopped from questioning the line so adopted.
    3. Same—When written agreement necessary to establish.
    
      Held, that in the absence of proof of a.dispute or uncertainty as to a boundary line, or of proof of long acquiescence on the part of the party sought to be estopped, any agreement relative to the establishment of such a line would come within the statute of frauds and require writing in order to pass title.
    This is an. action brought by the plaintiff to recover of defendant’s testator for a trespass alleged to have been committed upon lands in the possession of the plaintiff. The first cause of action alleged in the complaint, is for a trespass upon subdivision 8, great lot 5, Gen. Bleecker’s & Lansing patent. The second cause of action stated in the complaint is for a trespass alleged to have been committed upon subdivision 2 of great lot 3, same patent; and it is with reference to the evidence offered to support the second cause of action that this opinion relates.
    Subdivision 2 of great lot 3 is a wood lot which has never been fenced, and it was admitted upon the trial, as a fact in the case, that the plaintiff was the owner of the east part of half of said lot, and the defendant the owner of the west half of said lot; the plaintiff procuring his title from one William H. Collins, while the grantor of the defendant was Joseph A. Collins.
    There was no fence separating the part owned by the plaintiff from that owned by the defendant. It appears that there were marked trees at about the location where both sides claim the division line to be. Such marked trees seem to stand for two different lines, although a very few feet apart. The plaintiff claimed that the west line of marked trees was the true boundary line; the defendant, on the other hand, insisting that the east line was the correct one. The trespass alleged to have been committed by the defendant was between these two lines of marked trees.
    Ho proof was offered tending to show where the boundary line was, as established by the conveyance of the Collins’ to the plaintiff and defendant, respectively, or from the grantor of the Collins’ to them. The plaintiff, however, sought to establish the west line as the correct one, by evidence, which he claimed proved an agreement between William H. Collins, plaintiff’s grantor, and Joseph A. Collins, defendant’s grantor, made about nineteen years before the trial of the action, which established such line.
    William H. Sweet testified: “I know defendant and sub-lot 2, great lot 3; know a line of marked trees running through the centre of the lot; was present when that line was made; knew William H. Collins and Anson Collins in their life-time; knew Walter D. Woodworth, also Lodowick Wilson; they were present when that line was made; they were running the fine and I and my father went to where they were, and they run the line across them; Woodworth run it, he was a surveyor; they marked aline;
    I don’t recollect which one marked it, but one of the three marked it; I have known that fine ever since; I have been over it a good many times. Q. What was said on that occasion, after the fine had been run through to the upper end, between the parties ? A. They said they had got the fine through, and each party knew where the fine was; Anson and William H. Colhns said that; think it was about nineteen years ago that I saw Collins and Wood-worth on lot 2; the Collinses and Woodworth and Wilson are all dead; Anson Collins owned one-half and William H. Collins the other.”
    There is no other evidence in the case, than that quoted, relating to the alleged location of a boundary line by William and Anson Collins; neither is there any evidence touching a previous dispute in relation to the fine, or proof of acts tending tó show acquiescence in such fine on the part" of either of the Collins while they were the owners of the premises, of on the part of the defendant, John Warner, after he purchased from Joseph Collins.
    At the close" of the plaintiff’s case, defendant moved for a nonsuit, which was denied. Such motion was renewed at the close of the case, and denied. The court saying, “And as to the other lot (meaning lot in question), I will send it to the jury on the question, which is the correct line; ” to which ruling defendant excepted. The case was submitted to the jury, and resulted in a verdict in favor of the plaintiff.- From the judgment entered thereon, an appeal was taken by the defendant to this court. Subsequent to the taking of the appeal the defendant died; and thereafter, by an order, duly made and entered, these defendants' were substituted as parties defendant.
    
      L. L. Boyce, for app’lts; Lee S. Anibal, for resp’t.
   Parker, J.

We think the refusal to grant a nonsuit as to the second cause of action, was error.

The rule is well settled that where there has been a practical location and long acquiescence in a boundary line, it will be taken as conclusive proof that the location is correct. Baldwin v. Brown, 16 N. Y., 359.

In all cases in which practical locations made by paroi have been confirmed, the acquiescence has continued for a long time, rarely less than twenty years. Reed v. Farr, 35 N. Y., 117, and cases cited.

The evidence upon this subject (which is quoted in full in the statement) contains no proof whatever of acquiescence on the part of the owner of the west half, and the alleged location was not claimed to have been made twenty years before the trial of the action. It is clear, therefore, that the evidence did not justify a finding that the line had been located within the principle established by the authorities quoted.

The doctrine is, also, well-established, that when a fairly disputed boundary line is settled by the adjoining owners, acts of adoption of the fine being taken upon the settlement, they will thereafter be estopped from questioning the line so adopted. Vosburgh v. Teator, 32 N. Y., 561; Wood v. Lafayette, 46 id., 484.

That principle, however, cannot be invoked to aid the plaintiff in this case. There is no pretext of a dispute as to the location of the true fine theretofore, or at the time of the survey, while the facts proved are consistent with a finding that the parties were merely attempting to find where the line was.

Even though it could be held that the facts would warrant a jury in finding that what was done constituted a paroi agreement to establish a boundary fine, still in the absence of proof of a dispute or uncertainty in that respect; or proof of long acquiescence on the part of the party sought to be estopped, the agreement would come within the provisions of the Statute of Frauds, which requires a writing to pass title. Rockwell v. Adams, 6 Wend., 467; Terry v. Chandler, 16 N. Y., 364; Vosburgh v. Teator, 32 N. Y., 561.

There was no question of fact for the jury, and the court should have held, as matter of law, that the evidence was insufficient to establish the correctness of plaintiff’s claim, that the west line of marked trees was the true line, and, therefore, as to the second cause of action should have granted a non-suit.

The judgment must be reversed, and a new trial granted, costs to abide the event.

4 Landón, J., concurs.  