This case has been pending upward of fourteen years, and has been three times tried, and three times before *Page 590 the General Term. If the litigation can be ended upon this appeal, it will be a relief to the courts, if not fortunate for both parties.
The plaintiffs claimed the disputed piece of land as part of the six acre lot to which they showed undisputed title. They claimed it as lying in the southeast corner of that lot, and bounded southerly by the southerly line of the farm formerly owned by David De Freest, and easterly by the easterly line of the six acre lot. As they claimed it, the easterly line was fifty feet long, and the northerly and southerly lines one hundred feet long, and the westerly line twelve feet long; and to the whole of this piece, on the trial, the plaintiffs attempted to establish title. At the close of the evidence the court directed the jury to find a verdict for the plaintiffs for that part of the disputed piece described as follows: "Beginning at a point in the northerly face of the dock where it is crossed by the easterly line of the six acre lot, and running thence southerly along said line twenty-five feet; thence on a line parallel to the south line of the De Freest farm to a point in the northerly face of the dock; and thence along said dock to the place of beginning." This piece was the northerly part (less than half in size) of what the plaintiffs had claimed. The question for us to determine is, whether the facts were so undisputed that the court had the right to take the case from the jury and order this verdict.
I think all the lines of the six acre lot were established with reasonable certainty, so that there could be no question as to them, except the southerly line. It was undisputed that the easterly line extended to the point where the marked hemlock tree mentioned in the lease from De Freest to Brinckerhoof formerly stood, and that the southerly line commenced at the same point. The main controversy upon the trial was as to the precise location of the hemlock tree. The plaintiffs claimed, and gave strong evidence to establish, that it was in the southerly line of the De Freest farm. But the evidence upon this point was not conclusive; and, if the court had ordered a verdict giving the plaintiffs the land down to this *Page 591 line, it would have infringed upon the province of the jury, and committed error which would have called for a reversal of the judgment.
The lease from De Freest to Brinckerhoof describes the hemlock tree as standing on the south side of Wynant's kill, and the southerly line as running down the south side of the kill as it winds and turns. We must infer from this language that the tree was on the bank of the stream. This line run to a marked hemlock tree standing on the south side of the stream, which was shown by undisputed evidence to have been eight or ten feet from the water, and five or six feet from the top of the bank. The hemlock tree at the south-east corner, the location of which is describod in substantially the same language, was probably about the same distance south of the water of the stream, and thus the line would be carried, according to the description, properly and regularly, from point to point; and there is some evidence, though not conclusive, by witnesses speaking from actual observation, that the tree was thus located.
Abraham De Freest, son of David, was a witness upon the trial, and testified that he knew this hemlock tree; that it stood on the side of the southerly bank of the stream, which was at that point fifteen or twenty feet high; that it came out of the bank about six feet below the top, and about ten feet from the water; that he could stand on the top of the bank and reach his hand against the tree. The evidence of several other witnesses, who claimed to have seen the tree, or one resembling it, tends to locate it at or near the same point; some of the witnesses placing it farther south. No witness and no evidence of any kind placed this tree farther north, and hence the court was at least authorized to hold that the east line of the six acre lot extended as far south as the point where the witnesses located the tree, and that the southerly line of the lot extended westerly from that point.
The next question, and the important and controlling one in the case, is whether the land awarded to the plaintiff by the verdict is northerly of this line. *Page 592
The tree stood near the edge of the top of the bank, and the bank, according to nearly all the evidence on both sides, sloped somewhat from the top toward the edge of the stream.
The defendant built its dock upon the disputed piece in 1844, and the following is the evidence of plaintiff's witnesses as to the extent that the dock was built out from the bank toward and into the stream:
Winslow, who became acquainted with the location in 1837, testified that he saw the dock built, and that it was built out from the bank fifteen to twenty feet at the base, and from twenty to twenty-five feet at the top; at the farthest point twenty-five feet. Snyder, who had been familiarly acquainted with the premises since 1835, testified that he saw the dock built, and that at the base the timbers extended into the stream from fifteen to twenty feet. Fellows testified that he had been acquainted with the location since 1825, that he built the dock for defendant, and that the face of the dock was thirty or forty feet at the top from the natural bank. Franks testified that he had been acquainted with the property since 1817, and that the dock was built out twenty-five or thirty feet from the original bank; and Hitchcock, who had known the premises since 1810, testified to the same thing. Edmunson testified that he had known the premises since 1818, and that the dock was built out from the original bank twenty-five feet, or about that distance. Groudy, who had known the premises since 1814, testified that the dock was built out into the stream about thirty feet at the east line of the lot; and Williams, who had known the premises about the same length of time, testified that the dock was built out at the same place from twenty-five to thirty feet. Hunter, who had known the premises since 1820, testified that the dock was built out into the stream at the bottom fifteen or twenty feet; and Luce, who had known the premises since 1832, testified that the dock was built out into the stream twenty or twenty-five feet.
These witnesses all speak of the dock upon the disputed premises, and, so far as I can discover, there was no pretence *Page 593 or claim to the contrary upon the trial. They had all been familiarly acquainted with the premises for many years, and had abundant means of knowing the facts to which they testified. The dock upon the disputed premises was widest at the easterly line and wider at the top than at the bottom. If, therefore, the witnesses can be relied on, there can be no reasonable question that the dock encroached upon plaintiff's land, at least, to the extent determined by the verdict.
On the part of the defendant, Henry Burden, the principal witness for the defence, who had been superintendent of defendant's works, since 1823, excepting one year, and who caused the dock to be built, did not materially contradict the evidence on the part of the plaintiff, as to the extent the dock had been built out from the bank. He testified that the line of the dock pursued the course of the bank, and that the face of the dock was on a line with the face of the bank, but not that the dock did not extend into the stream from the bank. He also testified that there was a stone wall two feet high, made of boulders, placed in the stream, to protect the bank and the mouth of a tunnel, before the dock was built, and that the dock was built just inside of the wall, but he did not testify that the stone wall was at the base of the bank or the edge of the stream. He admits that the dock was built across the curve in the stream, and the maps annexed to the case show that most of the curve was westerly of the easterly line of the disputed premises.
William F. Burden, who was a lad about fourteen years old when the dock was built, testified that he saw it built and that it did not extend out beyond the face of the bank, except, as I infer, at the curve in the stream. No other witness gave any material evidence on the part of the defence contradicting the case on this point, as made by the witnesses on the part of the plaintiff. These ten witnesses testified as to facts in reference to which they could not well be mistaken. They spoke of the length of the timbers placed out from the bank in the bed of the stream. If they were mistaken, it seems to me, that it would have been easy to have found many witnesses *Page 594 to have contradicted them. It would be a mockery of justice to hold that, upon the evidence on the part of the defence, mainly that of a single witness, a jury could properly have found for the defendant against the numerous witnesses upon the other side. If the plaintiffs had simply sued for the piece of land which they were allowed to recover, and after such evidence, the jury had found for the defendant, it would have been the duty of the court to have set aside the verdict; and that being so, it was right in ordering a verdict for the plaintiff. In all cases where it would be the duty of the court to set aside a verdict against a party as against evidence, it is authorized to order a verdict in favor of that party, without submitting the facts to the jury. The court is authorized to set aside the verdict of a jury, not only where it is against all the evidence, but when it is so clearly and plainly against the weight of evidence as to show that the jury were mistaken or influenced by prejudice, passion, or some other improper motives.
Aside from the evidence already alluded to, I can find no circumstances in the case materially affecting the evidence on the part of the plaintiff. On the contrary, the most of the other evidence in the case tends to show that the southeast corner of the six acre lot was still farther south in the southerly line of the De Freest farm. The length of the easterly line, as laid down in the various deeds put in evidence, calls for a termination of that line, at least, as far south as it was established by the verdict of the jury.
The southerly line of the disputed piece, as established by the verdict ordered, is a straight line running a distance of sixty-five or seventy feet to a point in the northerly face of the dock, constantly approaching the margin of the stream. It is claimed on the part of the defendant that this was error, because the line, as described in the lease, was one running along the south side of the stream as it winds and turns. There was no evidence, and no claim at the trial, that there was any turn to the north in the stream for this brief space of sixty-five or seventy feet, and it is not apparent how a *Page 595 line, assuming that it started right, which constantly approaches the stream, can do any injustice to the defendant. This straight line is an arbitrary one assumed by the judge at the trial by the consent of the plaintiffs, not as absolutely correct, but as sufficiently favorable to the defendant. It did not extend to the westerly end of the dock, where there was some evidence that the face of the dock was a little south of the brink of the embankment, but it terminated twenty-five or thirty feet easterly from the west end, and, as I understand it, there is no claim that the face of the dock is not, at that point, out as far at least as the brink of the embankment.
I am, therefore, of the opinion, that the court committed no error in holding upon the evidence, that the piece awarded to the plaintiffs was part of the six acre lot; and I will proceed to examine the other questions raised by the learned counsel for the defendant.
He claims that the disputed piece was a part of a certain one acre piece of land reserved in the deed from Lansing to De Freest, and became such by practical location. In order to establish a line by what is called practical location, it must actually be located, and must be acquiesced in for a long time, probably, at least, twenty years, unless there is an element of estoppel in the case. (Baldwin v. Brown, 16 N.Y., 359; Reed v. Farr, 35 N.Y., 113; Emerick v. Kohler, 29 Barb., 165;Hubbell v. McCulloch, 47 Barb., 287.) To constitute a practical location of a line or a lot requires the mutual act and acquiescence of the parties. Here there is no evidence whatever that the plaintiffs ever participated or acquiesced in the location of the one acre lot, so as to include the piece awarded to them, or that they ever knew that it was so located. There can be no claim that any line was practically established before the dock was built, and when that was built, the plaintiffs objected, and there is no proof that they ever acquiesced in it. On the contrary, they objected, and within thirteen years commenced this action.
It is further claimed, that the plaintiffs are estopped from *Page 596 claiming the piece of land, on the ground that they and those under whom they claim have encouraged and permitted the defendant to make its valuable improvements near their premises. The only improvement or erection that the defendant ever made upon their premises was the dock, and this the plaintiffs objected to at the time, except the tail race, and that was saved to it in the verdict and judgment; and hence this is not a case where it was induced, encouraged or permitted without dispute or objection, to make valuable improvements upon the land claimed. If the plaintiffs did not own the land south of the line established by the verdict, they had no right to object to any erection south of that line. Besides, there is no proof that the piece of land recovered by the plaintiffs is essential to the enjoyment by the defendant of its lands south of it, or that its recovery and possession by the plaintiffs will materially interfere with defendant's valuable improvements. In any event the plaintiffs could not be estopped from claiming this piece, simply because it was convenient or even beneficial to the defendant. It must be so far essential, if the doctrine of estoppel is to apply, that it would work material and serious mischief to the defendant, if they were permitted to take and claim it. I am, therefore, quite clear that there was nothing upon this question of estoppel to submit to the jury, and nothing in it to bar plaintiffs' recovery.
The only remaining question is that of adverse possession. The piece of land awarded to the plaintiffs was never fenced or cultivated, and prior to the erection of the dock was never in any sense improved. It was included in no paper title held by the defendant, and there was no continued occupancy by the defendant. Its servants and agents occasionally, and it may be frequently, passed over it, and old wheels and other material were sometimes deposited upon the slope of the bank. But all these acts and circumstances were far from sufficient to constitute an adverse possession.
I have now, as fully as necessary, examined all the questions argued before us with much learning and ability, and the best consideration I have been able to give the case has *Page 597 brought me to the conclusion that the judgment should be affirmed, with costs.
All concur for affirmance.
Judgment affirmed, with costs.