I dissent upon the ground that the right of the State has been barred by the forty-year Statute of Limitations. As to the east five feet the right of action accrued upon the death of Campbell in 1849. As to the north half of the west thirty feet the right of action accrued upon the expiration of the four-year lease by the executor of Campbell to Smith. As to the south half of the west thirty feet the State never acquired any interest by escheat. The premises have been in the physical occupation of Smith and his successors in title for more than forty years, under claim of title, exercising acts of ownership and dominion over the same, and there being no evidence that the lands were vacant or unoccupied during that period of time, no presumption arises in the absence of proof to the contrary that the State has received any rents, issues or profits from the lands within that period of time. (People v. Rector, etc., of Trinity Church, 22 N. Y. 44; Genesee Valley Canal R. R. Co. v. Slaight, 49 Hun, 35, 38; People v. Van Rensselaer, 9 N. Y. 291, 328, 340 et seq.).
I think the judgment should be affirmed.
McLennan, P. J., concurred.
Judgment reversed and new trial granted, with costs to appellant to abide event.