(dissenting):
This is a case of the practical location of, and long acquiescence in, a boundary line. Even admitting the two-inch encroachment, it does not parallel the entire length of the defendant’s lot. It commences with two inches and lessens as the middle of the lot is approached. The line of the wall runs obliquely to the rear of the lot until the encroachment entirely disappears, and finally the defendant’s wall is well within the survey line. The neighbor encroached upon has taken advantage of this deviation to build one and one-half inches on the defendant’s land in the rear of the premises, so that the encroachments are mutual. The doctrine of adverse possession need not be resorted to under such a state of facts. Here is a building which has been standing for over twenty-five years just as it stands to-day. The owner may have lost the one and one-half inches in the rear by his neighbor’s adverse possession, and he may by the application of the same rule have gained the diminishing strip of from two inches to nothing in front. This may or may not be according to the circumstances. But the question of title is settled by the rule with regard to the practical location of boundary lines. If there ever was a proper case for its application *488it is one like the present, where a. trivial deviation or deflection in the wall of a city building has lasted without objection for over twenty-five years. It was held in Baldwin v. Brown (16 N. Y. 359) that practical location and long acquiescence in a boundary line .are com elusive, not upon the theory that they are evidence of a paroi agreement establishing the line, but because they are themselves proof that tire location is correct, of so controlling a'-nature as to. preclude evidence to the contrary. Seldeit, J., speaking for the Court of Appeals, there said: “ The acquiescence in such cases affords ground not merely for an inference of fact to go to the. jury as-evidence of an original paroi agreement, but for a direct legal inference as to the true boundary line. It is held to be proof of so conclusive a nature that the party is precluded from offering any evidence to the contrary. Unless the acquiescence has continued for a sufficient lengtli of time to become thus conclusive, it is of no importance. The rule seems to have been adopted as a rule of repose, with a view to the quieting of titles.” The learned judge added that, if necessary to establish such a line, “ the law will presume a conveyance in accordance with it.”' The practical location there was held to be decisive of the case “ without regard to the question whether the plaintiff’s claim is barred under the statute concerning adverse possession.”
This case was followed, and the language of Selben, J., quoted • with approval, in Reed v. Farr (35 N. Y. 113). The head note correctly condenses the. decision as follows: “ Practical location of a boundary line, and an acquiescence therein of ■ the parties for a period of more than twenty years, is conclusive of the location of the boundary line. Such location and acquiescence is deemed conclusive on the ground -that it is evidence of the correct location of so high a nature as admits of no contradiction.”
It is a rule, as was said by Miller,, J., in Sherman v. Kane (86 U. Y. 73), which “ applies not only to cases of disputed boundary, but to those about which there can be no real question.”
Thus the rule concludes the surveyor. But even if it did not, the surveyor’s evidence here is far from satisfactory even as to the' encroachment upon the frontage. He seems to have been employed to help the plaintiff’s assignor to break his contract. He was” asked this question, and gave this answer: “Q. Wasn’t that a bulge in the *489wall so that from the front the wall extended out two inches, and the bulge didn’t extend back? A. I went there to look for technicalities and I think I found it.” At first he said he did not make the survey. That was made by his former partner, who was dead. He merely measured the frontage of the houses where he found the “ technicality ” of what may have been a two-inch encroachment, or a two-inch bulges He reported accordingly, and his employer promptly rejected the title.
This surveyor acknowledged, however, that the line showed that whoever occupied the house adjoining the rear of the defendant’s lot had built over on that lot one and one-half inches. Thus the parties on both sides of the line acquiesced in the practical location of the defendant’s wall. To condemn a title upon such facts would be a serious inroad upon the rule of repose, and would limit the practical location doctrine to the strict conditions attaching to adverse possession. The former doctrine is quite as important to the quieting of city titles' as it is. with regard to farm lands. It has been applied in the country where the practical location has been fixed by a hedge fence or a row of trees. It may well be applied with equal liberality where the boundary was originally fixed by the solid" wall of a four-story house. _ '
The judgment should be reversed, and a hew trial ordered^ with costs to the appellant to abide the event.
O’Brien, J., concurred.
Judgment and order affirmed, with costs.