In the Matter of the Application of Hydraulic Power Company of Niagara Falls, Respondent, to Perpetuate the Testimony of Charles B. Gaskill and Another, etc. Pettebone-Cataract Paper Company, Appellant

In the Matter of the Application of Hydraulic Power Company of Niagara Falls, Respondent, to Perpetuate the Testimony of Charles B. Gaskill and Another, etc. Pettebone-Cataract Paper Company, Appellant. [MAJORITY] — Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Held, the opposing affidavits show prima facie title to the piece of land in question in appellant, the Pettebone-Cataract Paper Company. The land being vacant and uninclosed, possession is presumed to follow the legal title. The Special Term should have denied the application on the ground that petitioner was apparently not in possession at the date of the petition and for one year next preceding as alleged in the petition and as required by section 1688-d of the Code of Civil Procedure. All concurred.