This is an action for damages for trespass on unoccupied lands in Suffolk county by cutting timber thereon. The court directed a verdict for the plaintiffs. The. complaint describes the-lands particularly, and also as being lot 29 in the West Meadow Division of the township of Brookhaven, alleges title- thereto in the plaintiffs and the trespass by the defendant on specified dates. The answer admits that the defendant on the said dates “ entered upon the lands and premises described in the complaint and cut down some stands ing trees and timber thereon ”, but alleges as a defence that the said lands were then and are the lands of one Hawkins, and that such entry of the defendant was by her consent and authority.
There was therefore no dispute in respect of the locus in quo, it. being admitted by the answer that the entry was made upon the- lot described in . the complaint. The only' question therefore was whether the plaintiffs or the defendant’s licensor owned'it. By section 960 of the Code of Civil Procedure proof in an action for trespass upon unoccupied lands of an unbroken chain of title in the plaintiff for thirty years next preceding the trespass is presumptive evidence of his ownership. The alleged trespass was in 1906, and the plaintiffs proved an unbroken chain of title to the said'lot 29 -from thence back to 1745, having first put in evidence the town record of a written instrument made by a committee of the trustees of the common laridsof the-town of Brookhaven in 1738 of the division of the West Meadow lands into 46 lots and giving the boundaries of each. The course of the trial, including the failure of the defendant to move to dismiss, shows that there was no question that each conveyance in the plaintiffs’ chain, conveyed the land described in the complaint,, and the br-ief for the defendant on this appeal expressly *17admits that to be the fact in these words : “ The plaintiffs trace a record title of a certain lot number 29 in that division down and into themselves” ; and then follows a statement of the defendant’s theory of the plaintiffs’ case.
The defendant putin evidence a.chain of conveyances beginning in 1828 and terminating in his licensor. If it should , be conceded that the land thereby conveyed was the locus in quo, i. e., lot 29 (which does not seem to haye been either proved or claimed), it would not help, the defendant, for the title proved by the plaintiffs, and which is presumptively good, runs back S3 years further than the chain of conveyances proved by the defendant.
The learned counsel for the plaintiffs' called a surveyor to prove a map- which he had made to show the boundaries and location of lot 29, and it may be he failed to do so. " But there was no need of such a map, and the mind of the learned trial judge was not misled by the pother about it.
The judgment should be affirmed.
Woodward and Miller, JJ\, concurred; Rich, J., read for reversal; Hirschberg, P. J., not voting.