
    Robinson vs. Phillips.
    In an action of ejectment, to recover the possession of a strip of land lying between farms owned by the plaintiff and defendant, respectively, the question of fact tried at the circuit was whether there had been such a practical location of the boundary line between the two farms, and such a recognition of that line, or claim and occupation in respect thereto, as to make it the true boundary line between the said farms, independent of the line as indicated by the paper title. The proof showed that the paper title to said strip of land was in the defendant; and the evidence tended to show a location, by agreement, of the boundary line, in 1844, where a fence (afterward removed by the defendant) stood. The judge charged the jury that if the division line was established by C. and B. (grantors of the parties respectively,) or those under whom they claimed, and they possessed and occupied, respectively, up to such line, recognizing it as the true boundary, and such occupation by them and their successors continued twenty years or more, prior to the removal of the fence by the defendant—the plaintiff claiming np to such line—then the plaintiff was entitled to recover; otherwise lie was not entitled to recover. Held that this charge was not erroneous.
    "Where both parties claimed under deeds which they supposed took them to a certain ditch and fence; held that such deeds were respectively sufficient to base a claim on each side to go to such ditch and fence, and to hold adversely up to the same.
    And although it appeared, at the trial, there was a mutual mistake in the construction of the plaintiff’s deed, and that the true line of such deed stopped a little distance short of the ditch and fence; held that the deed, nevertheless, protected the plaintiff’s possession, if he had in good faith occupied according to his fence and such ditch, claiming adversely, for the full period of twenty years before the commencement of the action. '
    And that the judge correctly charged, and held, that such possession must be continued for twenty years to give the plaintiff a valid title by possession of the strip of land in controversy; according to the well settled rule that no location or possession short of twenty years, under claim of title, adversely, will bar an entry.
    THIS is an action of ejectment. The' action was brought to recover a narrow strip of land situate between adjoining farms owned by the plaintiff and defendant respectively, described in the complaint as a strip 114 rods long, and two rods in width, at the south end, and one and a half rods wide at the northerly end, in the town of Conewango, Cattaraugus county.
    The cause was tried at the October circuit in that county, in 1871. The plaintiff proved that his farm, for twelve years, had been in his possession; that it was bounded, when he purchased it, by a ditch and board fence extending south from the road 120 or 125 rods, and from the end of this ditch and fence a rail fence continued south 80 rods, and then a bush fence, further on, to a creek ; that this fence was removed by the defendant in April previously, 42 links at the south end, and 26 links at the north end; and that the defendant was then in possession of the strip of land up to the fence as removed easterly on to the plaintiff’s land.
    The defendant then gave in evidence the deed of her lot, dated December 4, 1867, and also the deed to the plaintiff of his lot, dated April 6,1859 ; and the proofs showed that the paper title to said strip of land was in the defendant.
    Both parties gave evidence in respect to the time of the building of the said fence, so removed as aforesaid ; the situation of the ditch, and the time and manner of the occupation of the plaintiff’s land by him and those under whom he claimed ; and gave evidence tending to show a location, by agreement, of the line, in 1844, where said fence stood ; and the case was then submitted to the jury, who found a verdict for the plaintiff, for the strip of land contained in his complaint.
    A motion was made for a new trial, at Special Term, which was denied, and the defendant appealed to this court.
    • J. V. Goodwill, for the appellant.
    I. The paper title to the land in dispute being in the defendant, the only way the plaintiff could establish adverse possession of such land was by showing a substantial enclosure, or cultivation, or improvement thereof, for the term of twenty years, under a claim of title. {Code, §§ 84, 85.) The Code recognizes two methods of acquiring title by adverse possession, each of which is entirely distinct from the other: 1.- By occupation under a written instrument or judgment, (sections 82,83;) 2. By occupation under claim of title exclusive of any other right, but not founded upon any written instrument or judgment, (sections 84, 85.) Inasmuch as it appears that the land in dispute is not .include^, within the plaintiff’s deed, as is required by section 82, it is obvious that sections 82 and 83 have no application to this case, and such was the charge at the circuit. But the court also refused to charge that the evidence did not show any adverse possession, which in effect was refusing to charge that the evidence did not show any adverse possession under sections 84 and 85. The evidence shows affirmatively and without dispute that the disputed tract has never been protected by a substantial enclosure, and has never been cultivated or improved; hence sections 84 and 85 can have no application. It clearly follows that there was no adverse possession in the case, and that the appellant was entitled to have the instruction to the jury asked for.
    The error of the justice at Special Term consists in his supposing that sections 82 and 83 govern the case, he not observing that they could apply only to land included in the plaintiff’s deed, while there is no pretence in this case that the disputed land is so included, or that the “plaintiff’s claim of title is founded on a written instrument.”
    II. The judge at the circuit erred in charging the jury that the evidence did not show any such dispute as to the line as to disturb the question of acquiescence. This charge evidently applies to the survey of 1866 and the dispute and transactions growing out of it. Acquiescence in a boundary line must consist in its recognition by the adjoining proprietors as the true line. There can be no acquiescence, unless both parties assent to the line. It is the opposite, in one view, of adverse possession, which may be established in the face of continual trouble and dispute, while acquiescence, as the plain and obvious meaning of the term requires, can only exist in the total absence of dispute. Acquiescence is always a question of fact for the jury ; and being so, it is equally a question of fact for the jury whether an acquiescence once begun has been disturbed or has continued for less than the period required to bar an entry. If, then, the appellant produced on the trial any evidence, however slight, or however contradicted, tending to establish a non-recognition of the boundary line as claimed by the plaintiff—a dispute instead of an acquiescence—then she was entitled to have that evidence submitted to and weighed by the jury. It can scarcely be said, with any regard for the plain import of words, that Phillips was recognizing the old line as the true line ; or acquiescing in it, at the very time he was taking measures to ascertain the location of the true line and urging to the plaintiff that the old fence was not on that line ; or while he was surveying ; or when he was agreeing with the plaintiff to' divide the fence to be built on the line of the survey. Equally preposterous is it to urge that the defendant and her grantors were acquiescing in that line from 1866 down to the alleged wrongful entry in April, 1871, while during that same period" they were disputing about the line, and claiming to the line of Ellsworth’s survey just the same as she does now. By the .plaintiff’s own showing, the line had certainly not become established in 1866 or 1867, so as to bar the defendant; and no one would claim any acquiescence had the same condition of affairs been shown to have existed as far back as 1848, as is conceded since 1866.
    III. The judge, at the circuit, erred in his charge that if the division line was established by Crooker and Barlow, or those under whom they claim, and they possessed and occupied respectively up to such line, recognizing it as the true boundary, and such possession and occupancy and acquiescence by them and their successors continued for twenty years or more prior to the removal of the fence by the defendant, the plaintiff claiming up to such line, then, the plaintiff was entitled to recover. The effect of this charge is that in the circumstances of this case an acquiescence of twenty years by the adjoining proprietors in an erroneous boundary line bars the defendant of her right of entry. It is conceded that the defendant has the paper title to the land ; that there is no uncertainty as to where the true line between these farms is according to the terms of the deeds of the respective parties ; and that the line claimed by the plaintiff is not coincident with the line called for by the deeds. The proposition as stated by the judge then is : The descriptions in deeds can be departed from by paroi evidence of intent, or acquiescence in another boundary for the term of twenty years. We submit that the true rule is given in the language of the court in Clark v. Baird, (9 N. Y. 204,) which is adopted verbatim in Drew v. Swift, (46 id. 209.) “ That upon principle where the description in the deed designates a piece of land as that conveyed, the description cannot be departed from by paroi evidence of intent or acquiescence in another boundary, unless such an adverse possession be shown as is in itself a bar to an ejectment.” (Adams v. Rockwell, 16 Wend. 285. Clark v. Wethey, 19 id. 320. Clark v. Baird, 9 N. Y. 183. Drew v. Swift, 46 id. 204. Hubbell v. McCulloch, 47 Barb. 287. Emerick v. Kohler, 29 id. 165. Sherwood v. Warren, Gen. Tr. 4th Dept. unreported.] In point as to effect of agreement or acquiescence in case when no uncertainty as to true line.)
    IY. The justice, at Special Term, in his opinion claims that the charge last above mentioned was not excepted to on the trial. We submit: 1. That the exception taken does cover it. 2. That if it does not, it was unnecessary to except, it being a misdirection which obviously must have influenced the jury. (Benedict v. 
      Johnson, 2 Lans. 94, and cases cited. Lennox v. Hoppock, 1 Sweeney, 466. Archer v. Hubbell, 4 Wend. 514. Harris v. Wilson, 1 511.)
    d 01 Torrance, for the respondent.
    I. The plaintiff in the first instance, at the point of resting his case, had established his cause of action, as alleged in his complaint; by proving his prior possession of the premises in dispute, and that the defendant had removed the division fence, and taken, and then remained in possession of the premises, claiming to be the owner.
    II. In reply to the evidence of paper title produced by the defendant, the plaintiff showed that the division line between his farm, including the disputed land, and that of the defendant, was established in or about 1844, by agreement between Lorenzo Barlow, then owner of the premises now owned by the plaintiff, and George A. S. Crooker, then owner of the premises now owned by the defendant, and that they possessed and occupied up to such division line respectively, recognizing it as the true boundary line, and that such occupancy, possession and acquiescence, by them and their successors, continuéd down to- the time of the removal ,of the fence from such line by the defendant in 1871, a period of twenty-six years or over. This is established by the concurrent testimony of several witnesses. The finding of the jury upon this question being in accordance with the weight of evidence cannot be disturbed.
    III. The facts of the case then are, that though the paper title of the land in dispute may have been in the defendant, the plaintiff and his grantors have for more than twenty years prior to his eviction continuously occupied and possessed the land, with the acquiescence of the defendant, and under an agreement for locating the boundary entered into with the defendant’s grantors.
    IY. These' facts constitute in law a practical location of the plaintiff’s boundary line, which the defendant is estopped from disputing, after an acquiescence of twenty-six or twenty-seven years upon his part and that of Ms grantors; and this is equally true whether there was originally a dispute as to the location of the boundary, and the line located was agreed upon as a settlement of such dispute, or whether it was agreed upon because erroneously supposed by the parties to be the true’line according to the deeds. (Rockwell v: Adams, 7 Cowen, 762.) In that case Sutherland, j., says: “I apprehend that it is not necessary in order to make an actual practical location control the courses and distances in a deed, that the party making such location, or subsequently recognizing it should in all cases know that the effect of it would be to give Mm less land than he would be otherwise entitled to. * * * Where the line has been acquiesced in for a great number of years by all the parties interested, it is conclusive evidence of an agreement to that line.” And in the same case the judge cites Jackson v. Bowen, (1 Caines, 363;) Jackson v. Vedder, (3 John. 8;) Jackson v. Dieffendorf, (Id. 269;) and says: “In each of those cases erroneous locations had been made, and they had been acquiesced in, not with a full knowledge that they were erroneous, but under a belief that they were correct, for from thirty to forty years, and the court held all the parties concluded.” In Adams v. Rockwell, (16 Wend. 285,) the chancellor lays down the rule applicable to cases of this kind, in the following language: “Where there can be no real doubt as to how the premises should be located, according to certain known boundaries described in the deed, to establish a practical location different therefrom, which shall deprive the party claiming under the deed, of his legal rights, there must be either: 1st. A location which has been acquiesced in for a sufficient length of time to bar a right of entry under the statute of limitations, in relation to real estate. 2d. Or the erroneous line must have been agreed upon between the parties claiming the land on both sides thereof; or. 3d. The party whose right is to he thus barred must have silently looked on and seen the other party doing acts, or subjecting himself to expenses, in relation' to the land on the opposite side of the line, which he would not have done if the line had not been so located.” It is submitted that in the present case all three of the elements mentioned by the chancellor combine to establish a practical location of the line between the parties to this action; that is to say: 1st. Occupancy by the respondent and his grantors for a sufficient length of time to bar a right of entry under the old statute, or over twenty years. 3d. Agreement between the parties owning the land. 3d. Acquiescence by the appellant, while the respondent cleared and improved the land. In many of the cases which established a practical location, occupancy had been had for a longer period than twenty years, as thirty-eight years in Jackson v. Dieffendorf (3 John. 269;) forty-one years in Jackson v. McCall, (10 id. 377.) Unquestionably a much shorter period, in analogy to the statute of limitations, will be sufficient to conclude the parties. (Will, on Real Estate, 406.) In Jackson v. Widger, (7 Cowen, 723,) an acquiescence of twenty years in the location of a line by the surveyor, was held to conclude the plaintiff from disputing it. And the court puts it upon the ground that the plaintiff located the line, by the surveyor as his agent. A point decided by the Court of Appeals, in Baldwin v. Brown, (16 N. Y. 362,) is almost identical with the question in this case, except that the length of time during which the line was acquiesced in was in that case forty years. The court said : u During this entire period the original parties, and those succeeding to their rights, treated the fence as the true division line between them, and occupied and cultivated their respective lands accordingly. These facts would seem to bring the case clearly within the settled rule in this State, which forbids the disturbanee of a practical.location which, has been acquiesced in for a long series of years.” As to the time of acquiescence necessary to conclude the parties, the court further say, (Id. 363 :) “The rule seems to have been adopted as a rule of repose, with a view to the quieting of titles, and rests upon the same reason as our statute prohibiting the disturbance of an adverse possession—• possession which has continued for twenty years. In all cases in which practical locations 'have been confirmed upon evidence of this kind, the acquiescence has continued for a long period ; rarely less than twenty years.” In Pierson v. Mosher, (30 Barb. 81,) it is held that actual location and long acquiescence in a boundary line are conclusive, because they are controlling evidence that the line as located is correct. And in Ratcliffe v. Gray, (3 Keyes, 513,) the court say: “It was held in Baldwin v. Brown, (16 N. Y. 359, above cited,) that practical location and long acquiescence in a boundary line are conclusive, not upon the notion that they are evidence of a paroi agreement establishing the line, but because they are themselves proof that the location is correct; that the rule seems to have been adopted as a rule of repose, with a view to the quieting of titles, and rests upon the same reason as our statute prohibiting the disturbance of an adverse possession which has continued for twenty years.” “When adjacent owners unite in surveying their respective lots, and in making a line upon the ground between them, such survey would doubtless constitute and be evidence of a practical location, and the line thus fixed, after a sufficient length of acquiescence, would, it seems, control the courses and distances in the deed.” The case of Coon v. Smith, (29 N. Y. 392,) has no application to this class of cases, and Johnson, J., says as much, in the opinion. (Id. 395.) The line in that case was located upon a mistake in counting the chains upon the survey, and there was even evidence in the case tending to show that the plaintiff knew, and fraudulently concealed, the fact of such mistake.
    Y. The charge of the court to the jury, that “if the division line was established by Crooker and Barlow, or those under whom they claimed, and they possessed and occupied, respectively, up to such line, recognizing it as the true boundary, and such possession and occupancy, and acquiescence by them and their successors, continued for twenty years or more, prior to the removal of the fence by the defendant, the plaintiff claiming up to such line, then the plaintiff is entitled to recover, otherwise he is not entitled to recover,” was not excepted to by the defendant, and would afford no ground for a new trial, even if it were not, as it is, in accordance with the whole weight of authorities, as the law in this State. The whole theory of the plaintiff’s case, as urged by him, both as to facts and law, is presented in this portion of the charge, to which the defendant took no exception. The state of facts, supposed by the court in this charge, was found to exist by the jury, and upon evidence amply sufficient to support such finding; and their verdict is, in accordance with the law, correctly charged, and not even excepted to as incorrect by the defendant.
    vi. An exception was taken by the defendant to that portion of the charge holding that the statute relating to adverse possession, founded upon a deed or other written evidence of title, has no application to this case. It is submitted that this charge was correctly made, and if not, could not have prejudiced the rights of the defendant ; for if such statute had application to this case, and the court had so charged, the jury finding the fact as they did, that such possession by the plaintiff had continued more than twenty years, they must have rendered a verdict for the plaintiff.
   By the Court, E. Darwin Smith, J.

This case comes before us not professing to set out the full evidence or proceedings at the circuit, and presenting but a brief statement of the charge of the judge, with a single exception to his refusal to charge as requested. The question of fact tried at the circuit was simply whether there had been such a practical location of the boundary line between the two farms, and such a recognition of such line, or claim and occupation in respect thereto, as to make it the true boundary between the said farms, independent of the line as indicated by the paper title. The circuit judge charged the jury that if the division line was established by Crooker and Barlow, (grantors of the plaintiff and defendant, respectively,) or those under whom they claimed, and they possessed and oQcupied respectively up to such line, recognizing it as the true boundary, and such occupation and acquiescence by them and their successors continued twenty years or more prior to the removal of the fence by the defendant— the plaintiff claiming up to such line—then the plaintiff was entitled to recover: otherwise he was not entitled to recover.

The court further charged that the evidence did not show any such dispute as to the line as to disturb the question of acquiescence.

The counsel for the defendant then requested the judge to charge that the evidence did not show any adverse possession on the part of the plaintiff. The court refused so to charge, and the defendant’s counsel duly excepted thereto. This is the only exception in the case.

The judge could hardly be expected to charge in a general form or phrase as the request asked. He could not truly have said there was no evidence tending to establish an adverse possession; nor could the judge properly have passed upon the force of the evidence and charge that it did not show any adverse possession.

The request virtually asked the judge to take from the jury the very question he had just submitted to them. But obviously this was not the view of the counsel. The request was doubtless based upon his view of the law in respect to what constituted an adverse possession in such case. It was admitted, at the trial, and the judge had charged, that the paper title to the strip of land in question was in the defendant. This fact it was admitted was established by the surveys as applied to the description in the deeds produced at the trial. The defendant’s counsel argued from that fact, probably, at the circuit, as he does here, that the strip of land 'in dispute not being covered by the plaintiff’s deed, there was no basis for the claim of an adverse possession, under sections 82 and 83 of the Code.

This, I think, was the mistake of the counsel. The plaintiff did claim, under a deed, as much as the defenfendant. He and his grantors had claimed since 1843 or 1844, as I understand the facts, that the ditch which separated the two farms part of the. way, and the rail fence that was constructed in continuation of such ditch, built by Barlow, the plaintiff’, s grantor, with or by the consent and direction of Crooker, the defendant’s grantor, in 1843 or 1844, was on the true line between such farms. The deeds of both parties, it was then considered, if the witness Lorenzo Barlow was to be believed, took the respective parties to this ditch. Both parties claimed under deeds which they supposed took them to this ditch. These deeds were, in this view, respectively sufficient to base a claim on each side to go to such ditch, and to hold adversely up • to the sanie. It appears from the result of this investigation, at the trial, that there was a mutual mistake in the construction of the plaintiff’s deed, ■and that the true line of the deed stopped a little distance short of the ditch. The deed nevertheless protects his possession if he had in good faith occupied according to his fence and this ditch,‘claiming adversely, for the full period of twenty years before the commencement of this action. (Baldwin v. Brown, 16 N. Y. 363.) The judge correctly charged and held that such possession must be continued for twenty years, to give him a valid title by possession of the strip of land in controversy, according to the well settled rule that no location or possession short of twenty years, under claim of title, adversely, would bar an entry. (Clarke v. Baird, 9 N. Y. 204. Drew v. Swift, 46 id. 309.) I think the judge at the Special Term correctly disposed of this question; and that the order made by him denying a new trial should be affirmed.

[Fourth Department, General Term, at Buffalo,

June 3, 1873.

Mitllin, Taicott and E. J). Smith, Justices.]  