
    Buffalo Creek Railroad Company and Others, Appellants, v. Ann Collins and Others, Respondents.
    
      Adverse possession — when sufficiently established by occupation and improvement, although not founded upon a written instrument — a claim of ownership need not he publicly asserted — a fence may include land not claimed.
    
    Evidence that a person, during his lifetime, and his widow and heirs, after his death, have continuously occupied a lot for a period of upwards of forty years, during which time they have kept it substantially inclosed, improved it and repaired buildings thereon, the foundations of which, being in lowland, 'consisted mainly of posts set in the ground, is sufficient to warrant a jury in finding that such possession, although not founded upon a written instrument, was under claim of title.
    The fact that such persons did not assert in public, in so many words, a claim of ownership,.does not preclude them from setting up an adverse possession; nor is the inclosure by them rendered ineffectual, as to one asserting himself to be the real owner, by the fact that, it includes land not claimed by him.
    Appeal by the plaintiffs, the Buffalo Creek Railroad Company and others, from a judgment of the Supreme' Court in favor of the defendants, entered in the office of the clerk of the county of Erie on the 8th day of July, 1898, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 8th day of July, 1898, as resettled by an order entered in said clerk’s office on the 5th day of August, 1898, denying the plaintiff’s motion for a new trial made upon the minutes.
    The action was commenced on the 14th of January, 1896, and was brought to recover the possession of certain real estate on the easterly side of Cansón street in the city of Buffalo. In the answer of the defendants there is a general denial, and also an allegation of adverse possession for more than twenty years before the commencement of the action. Upon the trial, at the close of the evidence, each side asked the court to direct a verdict in their favor, and neither asked to go to the jury. Thereupon the court directed a verdict in favor of the defendants.
    
      Adelbert Moot, for the appellants.
    
      George M. Browne, for the respondents.
   Merwin, J.:

The main question in this case relates to the defense of adverse possession. The verdict directed by the court is, in effect, the same as a verdict by the jury for the defendants. (Thompson v. Simpson, 128 N. Y. 270.) The question here is whether or not the evidence is sufficient to sustain the verdict.

■ The claim of the defendants was not founded upon a written instrument or a judgment or decree. It was, therefore, incumbent upon them to show that for twenty years before the commencement of the action they, or those from whom they hold, had been in the actual continued occupation of the premises under a claim of title, exclusive of any other right, and for the purpose of establishing such actual occupation it ivas necessary for them to show either that the premises had been protected by a substantial inclosure or had been usually cultivated or improved. (Code Civ. Proc. §§ 368, 371, 372.)

The defendants, who claim title by adverse possession, are the heirs at law and widow of James Collins, who died about 1865. The land in question is on the easterly side of Cansón street, on the island, so called, between Buffalo creek or river and Lake Erie. It is a small lot, being about thirty-six feet and six inches on the street and running back about seventy seven feet. The entire lot as occupied by the defendants contains two small houses, the southerly one extending farther south than the plaintiffs claim to own.

The evidence on • the -part, of the :defendants'.tends-to show that James Collins, forty years ago and upwards, entered into possession of the premises and lived there with his family in a small house up to the time of his death and claimed to own the place; that since his death the defendants have occupied the property; that all this time there has been a substantial inclosure of the lot; that James Collins made repairs upon the house and to some extent filled up the lot; that defendants also made repairs and. improved the lot, and more than twenty years before the commencement of this action moved on to the lot another small house which they or James Collins purchased, and that they afterwards repaired this or built a new front part at considerable expense; that the plaintiffs, or those from whom they hold, never made any claim on James Collins or the defendants or disputed their rights before the commencement of this action.; that James Collins or the defendants never recognized any other title or disclaimed ownership; that the lot was low land and the foundation of the buildings consisted mainly of posts set in the ground ; that some portion of the premises was used as a garden or for trees.

It does not appear who was in possession before James Collins, or how he came to take possession. The defendants have never paid taxes on the property ; they have not been called upon to do it, and it has never been assessed to them. It seems to have been included in a tract of property assessed as a whole to plaintiffs or their predecessors in interest. Ganson street was laid out in 1871. The deed of this and other property to the plaintiff, the Buffalo Creek Railroad Company, bears date September 1, 1879, and is in performance of a contract given September 1, 1869.

The circumstance that James Collins or the defendants may not have asserted in public in so many words their claim of ownership does not necessarily preclude them from claiming adverse possession. A claim of title may be made by acts as well as by assertions. (Barnes v. Light, 116 N. Y. 34; N. Y. Central & H. R. R. R. Co. v. Brennan, 12 App. Div. 103.) In the case last cited, as here, it did not appear under what right or authority the party at first took possession. In the Barnes case it was said that “ possession, accompanied by the usual acts of ownership, is presumed to be adverse uiitil: shown to be • subservient to the title of another.” “ The character of adverse possession is given, not by proving notice to persons interested, but by the nature of the acts done by the party.” ■ (Sergeant, J., in Lodge v. Patterson, 3 Watts, 77.) Whether there be an adverse possession is a question of fact. (Clapp v. Bromagham, 9 Cow. 530; Whiting v. Edmunds, 94 N. Y. 309, 316 ; Clark's Lessee v. Courtney, 5 Pet. 354.)

Upon the part of the plaintiffs it is argued that James Collins and his heirs and widow after him were but squatters, and never were in under a claim of title, and in this view significance is sought to be given to the character of the locality and of the buildings and their foundations. The proper inference, however, to be drawn from these circumstances, in connection with all the other circumstances in the case, was one of fact. The length and permanency of an occupation are quite material elements on the question. It should not be said, as matter of law, that the defendants were not in under claim of title.

It is to be observed that the claim of the Buffalo Creek Railroad Company, which now claims to be the owner of the fee. dates from the year 1869. Still, until the commencement of this action, no claim was made against the defendants, although all this time the defendants were in the sole, undisputed and valuable occupation, and the premises were, as the jury might find (Trustees, etc., Town of East Hampton v. Kirk, 84 N. Y. 215, 220), protected by a substantial inclosure within the meaning of the statute. Presumptively, the company had notice of conduct that did not recognize its ownership. The fact that the inclosure may have also included some land not claimed by plaintiffs does not render the inclosure ineffective as to the plaintiffs.

. The question of adverse possession was for the jury to determine, and the evidence was, we think, sufficient to sustain a verdict for the defendants. The direction of a verdict should not, therefore, .be disturbed.

All concurred.

Judgment and order affirmed, with costs.  