Seader v. Zito

Lambert, J. (dissenting):

The dispute is over a boundary line between lands of the plaintiff and defendants consisting of a small piece of land in the form of an isosceles triangle, with a base of eight-tenths of a foot on the southerly side of Baden street (formerly McDonald avenue) in the city of Rochester, and the sides of which extend southerly for a distance of about forty feet.

The complaint in its allegations of ownership presents but two issues. The first is the allegation of ownership to the specific lands described by metes and bounds. Second, the allegation of adverse possession of the same land. These allegations are put in issue by the answer by appropriate denials and covered by allegations of ownership in the defendants.

The decision has gone for the plaintiff. The judgment rendered is predicated upon findings of fact justifying practical location. Practical location rests in an agreement, express or implied and recognized for a period of twenty, years, unless estoppel arises by reason of changed relations induced thereby. (Corning v. Troy Iron & Nail Foundry, 44 N. Y. 595; Bell v. Hayes, 60 App. Div. 382; Katz v. Kaiser, 154 N. Y. 294.) The allegations of the first count of the complaint tender the issue of ownership in fee simple of the premises described by metes and bounds. When the lands thus described are located on the ground by reference to the metes and bounds, then we have the premises claimed by the plaintiff. The second count of the complaint tenders the issue of adverse possession of the identical premises described in the first cause of action. The remaining counts purport to allege the wrongful acts of the defendants and their predecessors in title in depriving the *414plaintiff and her predecessors in title of the possession and use of the lands thus described. The doctrine of adverse possession is divergent in principle from that of practical location. Practical location is founded upon mutual acquiescence. Adverse possession, on the other hand, is based upon the assertion of a claim of- title hostile to all others.

I am unable to discover any allegations of this complaint setting forth an agreement of the respective owners of the disputed lands, either express or by implication, that a line between these adjoining lots had been made or acquiesced in for the period of twenty years or any other specified time, and for that reason I think this judgment ought not to stand. It was hot tried upon the theory of practical location. The trial court, however, at the close of the evidence, applied that doctrine and rendered the judgment from which this appeal is taken. I do not think it ought to stand.

The remaining question is whether the judgment can be upheld upon the issues tendered by the pleadings.

Treating first of the theory of adverse possession, we find that the plaintiff acquired her title in 1915. Twenty years’ possession is a prerequisite. In realization of this, she seeks to tack her possession to the possession of her predecessors in title, and in that way establish a continuous possession in the same chain of title for the requisite twenty years. Under the circumstances of this case that she cannot do. There is no privity between the successive owners, either by way of deed or dissent. (Smith v. Reich, 80 Hun, 287; Brainin v. N. Y., N. H. & H. R. R. Co., 136 App. Div. 393; Staples v. Schnackenberg, 148 id. 161.)

In the case at bar there is no suggestion of any privity by dissent and hence the doctrine of adverse possession is unavailable to the plaintiff. This sends us to the final question, whether the disputed lands are within the plaintiff’s deed. If the premises are not within the deed lines, then plaintiff has neither proven record title in herself, nor can she make available adverse possession.

The common source of title to the lands of both parties is McDonald, who, in 1850, plotted a tract including these lands, known as the Gorham tract, and filed a map thereof in the clerk’s office of Monroe county. Lots 9 and 11 upon the *415McDonald map were first conveyed by McDonald to Hart in 1855, and that deed makes explicit reference to the map in such a way as to read the map into the conveyance. In 1856 Hart conveyed the same lots to Kuhn who, in 1857, conveyed them to Bahde with like reference to the map. In 1864 Bahde conveyed both the lots by like conveyance to Guenner. In 1864 Guenner conveyed to End the westerly eight feet of lot 9. In 1867 Guenner conveyed to Meyering the easterly thirty and one-half feet of lot No. 11. The conveyance to End of eight feet off the westerly side of lot No. 9, and the conveyance to Meyering of the easterly thirty and one-half feet of lot No. 11 left the total frontage, according to the map, of lots 9 and 11 as follows:

Frontage of lot 9 as shown on map.... 35 feet

Frontage of lot 11 as shown on map. .. 35 feet

- 70 feet

Conveyed to End.................... 8 feet

Conveyed to Meyering............... 30| feet

- 38f feet

Frontage as shown on map..................... 70 feet

Frontage as conveyed to End and Meyering...... 38f feet

Balance unconveyed....................... 31§ feet

This remaining portion of lots 9 and 11 was conveyed by Guenner to Frommherz by mesne conveyances to the plaintiff. That deed does not describe frontage of thirty-one and one-half feet, but gives the frontage as being about thirty feet.

As described in the complaint, the lands to which the plaintiff now makes claim, and which are in dispute, are tied by their description to the angle in the southerly fine of Baden street. That point is also a tie point upon the map, evidencing the survey of McDonald’s allotment in the Guenner tract.

According to the map the northwest corner of the plaintiff’s land should be given a distance from that angle as follows: Distance on lot 2, fifty-seven and one-half feet; distance on lot 7, forty feet; distance on lot 9, six feet; total, one hundred and five and one-half feet.

*416The distance to that corner as set forth in the complaint is only one hundred and one-half feet. Thus, apparently, the plaintiff seeks to establish a location of her northwest corner some five feet further west than is called for by the map. The engineer, Lozier, of the plaintiff and the defendants’ •engineer adopted the same starting point, the angle in Baden street. Lozier then measured the fifty-seven and one-half feet cafied for by the map upon lot 2, thirty-five feet for lot 7, thirty-five feet for lot 9, and thirty-five feet for lot 11, thus estabfishing what he claims to be the northeast corner of lot 11. From this point thus located he then measured back west the respective widths of lots 9 and 11 and making aEowance for the eight feet sold from the westerly side of lot 9 and thus fixed plaintiff’s northwest corner.

Obviously, the trouble with such measurements is that there is a shortage of land in these particular lots. By thus estabHshing the northeast corner and laying off the lots to the west, plaintiff puts all the shortage upon the defendants. The map is not laid out that way. The complaint does not describe the land with any such location in the mind of the pleader. The map and the complaint tie to the angle in Baden street, the location of which is not uncertain, either on the map or on the ground. Such location presents no dispute in this record.

It must be conceded that the defendants’ title is not without question, but that is not important here. In this kind of an action, as in straight ejectment, the plaintiff cannot recover upon any weakness in the defendants’ title. The strength of her own title is all that can avaE her. (Roberts v. Baumgarten, 110 N. Y. 380; Aubuchon v. N. Y., N. H. & H. R. R. Co., 137 App. Div. 834.)

As I understand the record, the plaintiff has not shown the lands described in the complaint, or any part thereof, as being in the possession of the defendants to be within her deed line. She has thus faffed to show any record title in herself. For the like reason she cannot resort to the doctrine of adverse possession, since, as to such lands, there is no privity as between her and her predecessors in title. The plaintiff’s title is within lots 9 and 11 as indicated on the McDonald map, and lots 9 and 11 do not cover or contain the disputed land.

Admitting I am wrong in the conclusions reached, I still *417feel that this judgment should not stand. Our courts have, in similar cases, applied an equitable doctrine in relief of harsh results by refusing mandatory injunction in these cases and granting relief in lieu thereof of money damages. This rule of equity is well stated by Mr. Justice Clarke in Goldbacher v. Eggers (38 Misc. Rep. 36). The doctrine of that case should be here applied. Here the injury to the defendants resulting from the removal of a portion of their building would be great, and the corresponding benefit to the plaintiff small. I think the judgment should be reversed and a new trial granted.

Hubbs, J., concurred.

Judgment affirmed, with costs.