In this case there have been five trials and five appeals to this court, with one appeal to the Court of Appeals. The property has but little value — probably the costs outvalue it *744several times. There should be an end to the litigation unless some error has been committed which requires a reversal. The facts have been examined, and while a different conclusion might properly have been arrived at we do not favor a reversal of the judgment on the ground that the verdict is against the evidence. There is, therefore, but one question requiring consideration.
The action was for ejectment, and the former litigation in this case had settled the fact that the plaintiffs have the record title and that the defense must rest upon adverse possession by a person claiming title not founded upon a written instrument. Under section 372 of the Code of Civil Procedure defendant must show that the land has been protected by a substantial inclosure or that it has been usually cultivated or improved by him or those to whose rights he has succeeded. His evidence tended to show an inclosure of the premises in dispute by a fence since 1885; that in 1888 a cellar was dug and two or three, years thereafter the old building, called the Waldorf, was moved upon the cellar, covering a great part of the lot, and that it still remains there and has been occupied by his tenants or by himself for storage purposes. The plaintiffs’ witnesses, familiar with the lot, in substance deny that it was fenced. The premises have not been cultivated or otherwise improved, but the defendant’s live stock has pastured upon it.
The charge showed the necessity of proof that since 1885 to the commencement of the action the premises had been actually inclosed or cultivated and improved. It referred to the fences and then referred to the erection of the building called the Waldorf upon the lot; that the digging of the cellar in 1888 was important; that it must appear that there was no substantial break in the fence, but that the defendant occupied the property in the ordinary way that such property is used; that after the erection of the Waldorf it was claimed by the plaintiffs that for many years there was no front fence, while the defendant contended that that fence remained; that the fence must have substantially remained down to 1905 “or, as contended by the defendant, if he occupied it and claimed it adversely by reason of the possession which he asserts here, that that possession must have commenced in 1885 and con-*745tinned, and that ■ such possession must have been notorious. * * * These matters, as to buildings and fences, and as to the occupation that the defendant asserts, are matters of substance in the action.”
The plaintiffs’ counsel asked the court to charge that there was no evidence of the tillage or cultivation of the lot in dispute for twenty years prior to the commencement of the action. The court replied: “ I remember nothing in the way of evidence of cultivation, or occupation in the way of tilling it or using it as farm land, but the jurors will recollect the evidence. Of course if the defendant occupied it by constructing a building upon it and occupying the building, that would be an occupation.” The defendant requested the court to charge “ that if the jury find that the defendant entered into possession of the property in dispute by building a fence around it in the year 1882, and continued to enclose that land by the fence then constructed, or subsequent fences, up to the time of the building of the cellar and the house on there, then that was an enclosure and occupancy within the meaning of the statute. The Court: If the jury should find these facts then they may find that the defendant has held the property adversely against the plaintiff. Otherwise I decline to charge. [Defendant excepts.] ”
The court charged that the defendant was entitled to the benefit of his acts prior to 1885, but that it was only important to show that the acts of ownership commenced in 1885. Defendant’s counsel made the following request: “ To charge * * * that the construction of a building upon this lot was a user, improvement and occupation thereof. The Court: The jury may consider that fact.” Defendant’s counsel: “I except to Tour Honor’s refusal to charge as requested. The Court: It is for the jury to say whether under all the circumstances of this case it was an occupation and user.”
This charge was not excepted to. It is now urged as ground for reversal that the court did not charge that the construction of a building upon the lot was a user, improvement or occupation, but simply gave the jury permission so to find if it thought proper, and that it, therefore, gave them permission to disregard the fact. We do not think that is the proper meaning *746of the charge. The court had already charged that the construction of a building and the occupation of it was an occupation of the lot within the meaning of the statute. It clearly was a user, improvement and occupation of the ground upon which the building stood. It was also an inclosure of such ground. Whether it was a user, occupation and improvement of the whole lot was left by the court to the jury to determine. As a matter of law the defendant was entitled to the charge so far as it related to the part actually occupied by the building, but whether the building was so situated upon the lot that it was an occupation of the whole lot was a question of fact which was properly left to the jury. Perhaps it would have been better if the court had made the charge as requested, with proper explanations, or if the defendant’s counsel had made the request with reference to the ground occupied by the building, and asked proper explanations as to the remainder of the lot. Taking the charge as a whole, we think that no substantial error was committed which calls for a reversal of the judgment. The judgment and order should, therefore, be affirmed, with costs.
All concurred, Woodward, J., in opinion.