Eugene Race, Appellant, v. John W. Stewart, Respondent

Eugene Race, Appellant, v. John W. Stewart, Respondent. Bject-meut — courses and distances — when not controlling — what evidence of possession requires the submission of the case to the jury. In an action brought to recover the possession of a strip of land situate between lot No. 10, owned by the plaintiff, and lot No. 12, owned hy the defendant, in the village of South Glens Tails, it appeared that in the deed under which the plaintiff claimed, executed hy the common grantor in 1860, lot No. 10 -was described as tbe “brick store lot,” and as being seventy-two and one-lialf feet wide, bounded upon tlie south by lot No. 12. The plaintiff claimed that, notwithstanding the description in this deed, lot No. 10 was, in fact, seventy-seven and one-half feet wide, and embraced the strip in question, five feet wide, of ■which the defendant had taken possession. Some years before this conveyance was executed there was a brick store upon lot No. 10 and a fence at the place which the plaintiff contended was the true division line, which had remained there for more than twenty-four years, and until the defendant tore it down. There was also a shed in the rear, used in connection with the store, which stood within a foot of the fence. Tlie court directed a verdict for the defendant. Held, that the distances named in the deed did not necessarily control; That there was evidence from which the jury might have found that the owners of lot No. 10 had used and occupied the land up to the fence for a period of years, from which the jury might have found a practical location of the line, or a possession hy the plaintiff and his grantor for such a period as would sustain the action; That the direction of a verdict was improper. Appeal by the plaintiff, Eugene Race, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 23d day of February, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the Saratoga Circuit. The action was' in ejectment to recover the possession of a strip of land situated between lots owned by tlie plaintiff and the defendant. J. W. Houghton, for the appellant. T. D. Trumbull, Jr., for the respondent. [MAJORITY — Putnam, J.:] Putnam, J.: The plaintiff is the owner of lot No. 10 and the defendant of lot Ho. 12 on a map of village lots of South Glens Falls. One Julius H. Rice was the former owner of both lots. The plaintiff claims under a deed from said Julius H. Rice to Charles Rice et al., dated May 10, 1860. In that conveyance lot 10 is described as situate on Main and Water streets in said village, and as 72½ feet wide and 150 feet deep. The lot is also described as bounded southerly by lot Ho. 12 now owned by the defendant, and as being called the “brick store lot.” The plaintiff claimed that although in said deed 'the lot is described as running seventy-two and one-half feet along Main street, it was in fact seventy-seven and one-half feet in width, and embraced a strip of about three feet on the southerly line, of which the defendant took possession shortly before the commencement of the action. The trial judge directed a verdict in favor of the defendant. Some years prior to the aforesaid conveyance from Julius H. Rice to Charles Rice and others, there was a brick store on lot No. 10, and a fence at the place which the plaintiff contends is the true line between his premises and those of the defendant. At the rear of the store, and within a foot of this fence, was a shed used in connection with the store. It was shown that the lot north of the fence was called the “ brick store lot.” That fence remained there about twenty-four years and was then taken down and a new one erected in its -place, which, or a portion of which, remained until the defendant tore it down, shortly before the commencement of this action. There is evidence from which a jury might have found that the owners of lot No. 10 used and occupied, in connection with their store, the land up to this fence for a period of over thirty years. As the evidence, therefore, would have sustained a finding that the plaintiff and his grantors had occupied lot No. 10 up to the said fence for a period of about thirty years, we are of the opinion that the case should have been submitted to the jury, who could have found a practical location of the line between the plaintiff and the defendant, or a possession by the former and his grantors of the premises in dispute for such a period as entitled him to maintain the action. (See Reed v. Farr, 35 N. Y. 113; Baldwin v. Brown, 16 id. 359; Hill v. Edie, 17 N. Y. St. Repr. 255-257.) The distances named in the description in the deed do not necessarily control. (Robinson et al. v. Kime, 70 N. Y. 147.) The premises conveyed by the above-mentioned deed, being described as the “ brick store lot,” a finding could have been properly made that the grantor intended to convey the lot fenced, used, occupied and known by that name. Again, the witness Arnold made a survey of lots 10 and 12. In doing so he used the map of South Glens Falls, and made a survey in accordance therewith. No question seems to have been raised on the trial as to the authenticity or authority of this map. No objection was interposed that it was not the map mentioned in the deed from Julius IT. Rice to Charles Rice and others. The evidence of Arnold was to the effect that the plaintiff’s lot was seventy-seven and one-half feet wide, and that of the defendant sixty-four feet, and that the plaintiff, as the owner of lot No. 10, was entitled to the strip of land he seeks to recover in this action. If the evidence of this witness was to be relied upon, the deed under which the plaintiff claimed conveyed to his grantor the premises in question. The evidence above mentioned, and other testimony in the case, we think raised a question of fact which should have been submitted to the jury. The judgment should be reversed and a new trial granted, costs to abide the event. All concurred. Judgment reversed and a new trial granted, costs to abide the event.