
    (87 Hun, 580.)
    CARTER v. PITCHER.
    (Supreme Court, General Term, Fifth Department.
    June 21, 1895.)
    1. Evidence—Best -and Secondary—Title to Land.
    Title to land cannot be proved by parol evidence.
    2. Same—Presumptions—Possession of Land.
    The sale of trees growing on land does not raise a presumption that the vendor was in possession of the land.
    8. Measure of Damages—Cutting Trees.
    The measure of damages for cutting trees is the value of the land before and after the trees were cut.
    Appeal from Allegany county court.
    Action by Ellen D. Carter against William Pitcher for trespass. From a judgment of the county court affirming a judgment of a justice of the peace in favor of plaintiff, defendant appeals.
    Reversed.
    Argued before LEWIS, BRADLEY, WARD, and WERNER, JJ.
    E. C. Olney, for appellant.
    Charles D. Newton, for respondent
   WERNER, J.

The trespass complained of was that the defendant entered upon the premises of the plaintiff in the town of drove, Allegany county, and wrongfully cut down and carried away 10 apple trees which were the property of the plaintiff. The defendant’s answer was a general denial. This put in issue, not only the alleged trespass, but the ownership of the premises upon which it took place.

The evidence discloses that on or about the 2d day of January, 1894, the plaintiff and the defendant entered into a contract under which the defendant was to cut down certain apple trees upon the premises in question, and pay the plaintiff 75 cents a cord for the wood. The trees with reference to which this contract was made were situate in a pasture, to which plaintiff claims title, and about 40 rods distant from the trees which it is claimed the defendant wrongfully cut down and carried away.

The appellant relies upon certain exceptions taken at the trial, which we will proceed to consider. The plaintiff was asked the question, “Do you' own the farm?” This question was properly objected to. It appeared upon the trial that the plaintiff was not in actual possession of the farm in question, and that she resided in the town of Nunda, in Livingston county. It was evidently considered necessary for her to prove title in order to raise the presumption of possession which such proof creates. While it was therefore competent for the plaintiff to attempt to prove her title, it was essential that this should be done in the proper way. Parol evidence was not competent to make this proof (Miller v. Railroad Co., 71 N. Y. 385), and it was error for the court to permit the plaintiff to testify orally as to her ownership of the premises in quéstion.

In answer to respondent’s proposition that the right to maintain an action of trespass depends not upon" title, but upon possession of the premises, and that proof of title is in some cases presumptive proof of possession, we are confronted with another difficulty which stands in the way of an affirmance of this judgment. ’ The case is barren of evidence tending to show who was in actual possession of the premises. It clearly appears that the plaintiff did not reside there. It also appears, by inference at least, that the premises were not vacant; and therefore the plaintiff is not entitled to maintain the action, under the rule laid down in Randall v. Sanders, 87 N. Y. 578, that an owner of premises not actually occupied has constructive possession, which enables him to maintain trespass. The question was asked the plaintiff, “Who lives upon your premises?” To this question the defendant objected, and the justice, with the same misapprehension as to the rules of evidence in such cases which led him to receive the oral testimony of the plaintiff as to the title of the premises, excluded the evidence offered to show who was in possession. It was incumbent upon the plaintiff to show that she was in actual or constructive possession, and consequently had the right to maintain this action. Wood v. Lafayette, 68 N. Y. 181. The latter ruling of the justice made it impossible for her to produce the evidence from which it might appear that she had such possession. This proof was essential, in the absence of evidence of a title from which possession could be presumed.

It is also argued that the sale of a portion of these trees by the plaintiff to the defendant is sufficient to raise the presumption of possession of the premises in the plaintiff; but the difficulty is that all the evidence negatives any such presumption. For aught that appears, the plaintiff may have been as much of a trespasser as the defendant. If such were the case the defendant would certainly not be precluded from urging that as a reason why the plaintiff should not maintain this action. It was incumbent upon plaintiff to show the facts upon which the right to maintain the action rested, and this she failed to do.

It is further claimed for the defendant that fatal errors were committed in the rulings relating to the admission of evidence upon the question of damages. We think that the proper measure of damages was applied. Sedg. Dam. (8th Ed.) § 933. That is the difference between the value of the premises before the injury and their value thereafter. But the trial court seems to have utterly disregarded defendant’s objection that none of the witnesses who were cálled upon the question of damages were shown to be competent or qualified. Not one of the witnesses who were called to testify upon the question of damages was shown to have any knowledge upon the subject. We have simply their naked statements as to their idea of the extent of the damage.

It is, of course, well settled that a judgment rendered in the justice court will not be reversed for the admission of improper, irrelevant, immaterial, or cumulative testimony, when there is abundant competent evidence to sustain it, and the court can see that no injury has been occasioned to the party complaining (Milliner v. Lucas, 3 Hun, 496); but it is also equally well settled that: “Buies of evidence are rules of law. They are of imperative obligation, and are not to be put aside in the discretion of the court, from solicitude for the supposed interests of justice. The only justice known to the courts is such justice as is ascertained and certified by legal evidence; and the rules may not be disregarded but at the risk of a reversal of the judgment that proceeds in disregard of them.” Mt. Morris Electric Light Co. v. United States Horse & Cattle Show Soc. (Com. Pl. N. Y.) 29 N. Y. Supp. 584. However just, therefore, this judgment may in fact be, it is not sustained by competent evidence. On the contrary, when we exclude the incompetent ¿vidence in the case, there is nothing whatever to support the judgment of the court below. The judgment of the court below must be reversed with costs. All concur.  