The complaint designates the land in dispute as lots 4 and o on the original map of beach lots at Far Rock-away, in Queens county. The survey put in evidence shows it to be a strip of beach land along the Atlantic ocean,, aboiit 1,300. feetffront and 900 feet .deep. The-evidence shows it to be in the main covered witih. small cedars. The plaintiff put in evidence a conveyance of it by Benjamin 0, Lockwood,. Jr., and Elizabeth Carroll, his mother (her second husband also joining), to Charles Donahue, dated January 28th, 1869; also a, conveyance of it by Donahue to the., plaintiff dated j anuary 8th, 1881. This-is all of • the plaintiff’s evidence of paper *373title, except the will of Benjamin Cornwell, dated and pro-hated in 1821. He was the great grandfather of Benjamin C. Lockwood, Donahue’s principal grantor, who claimed the land through the said will, as his deed recites. Such recital is evidence of the claim of title under which he exercised' dominion over the property. McRoberts v. Bergman, 132 N. Y. 73. It was shown by oral evidence that the grandfather of the said principal grantor to Donahue had the land in.question bounded by stakes, claimed to own it, and went upon it continuously and frequently, and cut and took off cedars for posts and fuel. His son also kept it marked by stakes, and used it in the same way. It was generally known and recognized as his, being called after his name, “Ben. Lockwood's Cedars.” Charles McNeil, under, whom the defendant pleads that he claims, always so called it. Ben. Lockwood’s son, the present Benjamin C. Lockwood," kept and used it in the same wav until he conveyed it to Donahue. Hundreds of cedars were taken off by him every year, and every one else who attempted to take any was stopped by him. He lived in the township about two miles away, as did his ancestors, and 'the evidence will sustain a finding that they continually used the land in the way stated, and kept watch and guard over it, and controlled it, to the exclusion of all others, and were generally recognized as the owners. When Donahue took his conveyance in 1869 he also had it marked about by stakes, and cut and took away cedars from it frequently every year, and went upon it frequently, and kept watch of it. He also lived in the vicinity. The land could not be fenced on account of the blowing and shifting of the sands. It was kept and used in the only way it could be kept and used. When the plaintiff took its conveyance in 1881, it entered and put stone monuments around the property, and brought lumber upon it to build. Afterwards the defendant entered. The aforesaid care, use and claim of ownership of the property had been continuous for sixty y ears under the proof, and by-fair inference much longer, before the entry *374of the defendant. The plaintiff rested upon the foregoing-evidence.
. The defendant answered. that Charles McNeil is the owner of an undivided interest in the land in dispute, and that the plaintiff peaceably and ' quietly entered into possession. and. holds as'the tenant of sáid McNeil., He put in evidence the record of a partition by suit of a lai;ge tract of beach in 1809, in. which the land-in dispute was set off as the said lots 4 and 5 to Thomas Bannister in the right of Bache}, his wife. But this record, has no bearing . in the case, as the-defendant did not connect himself with the'Bannister title. In fact, he made no attempt to do so, though the trial was-adjourned to the next day to enable him to.
Upon the last trial it was stipulated that “ the partition suit is the common source of title,” and under the authorities, that-stipulation still subsists,, though objected-to by plaintiff. But-■it is of no effect on this trial, because neither side connected itself with the said partition. The record of another partition action, commenced after this action, was put in evidence-by the defendant; but neither did he connect himself with it.
The sole question therefore is whether the plaintiff has made-out sufficient title to maintain an action of ejectment. If the possession necessary to sustain an action of ejectment be such as would, if continued long enough, make a title by adverse - possession, it may be that the plaintiff cannot recover. But I have never understood such a strict possession to be necessary, and it has been held not to be (Hunter v. Starin, 26 Hun, 529), while I do not think there is any case in this-state directly to the contrary ; and this question was not in the case in the former disposition of it. The facts proved in. the cases of Miller v. L. I. R. Co., 71 N. Y. 380; Thompson v. Burhans, 79 N. Y. 93, and Price v. Brown, 101 N. Y. 669, fall far short of the acts of possession shown in this- case. The case of a vast tract of uncleared land is very different to-this case. Here the fact of possession and control is .easy to-make out, owing to the size of the plot. One person could, stand in the middle of it, and watch and guard it. If some*375one having no title should forcibly eject him, would he not by virtue of his prior possession be able to maintain ejectment to regain his possession ? If one having no title go upon an unfenced city lot, and bring lumber upon it to build, and another who has no title either actually force him off, or take unopposed possession during the night, or while he is absent at dinner, it seems to me that as against him the second occu-. pant is an intruder, and that he may maintain an action of ejectment against him, although his prior possession was not such as would have ripened into an adverse title. It seems to me that the actual going upon a piece of land the size of this, and like this, in that it could not be fenced, and putting stone monuments around it, and bringing lumber upon it to build, is in itself the taking of full possession of it.
Nor should the question here involved be confpunded with the question of the presumption of a grant. That presumption arises only in the case of an adverse possession long enough continued to make a title ; unless it may arise in an exceptional casé (Roe v. Strong, 119 N. Y., at p. 322), where a strict possession is impossible. In an action of ejectment where a paper title is not produced, and a title by adverse possession is not made out, the question of such presumption does not arise. The plaintiff may concede there was no grant;, for prior possession under claim of ownership is enough to' maintain ejectment against one claiming right of possession only under a later possession. Day v. Alverson, 9 Wend. 223: Mayor v. Carleton, 113 N. Y. 284; Newell on Eject, -chap. 13, § 14.
This case was decided in the Court of Appeals after the first trial solely upon the propositions,
1. That both sides claimed title from a common source, viz., the partition of 1809.
2. That the defendant was in possession “ as lessee ” of a descendant of the Bannisters, to whom the land in dispute was allotted in such partition.
3. That, therefore, the plaintiff having no paper title had to make out title by adverse' possession; but that its proof *376was insufficient for that purpose,, or to raise a presumption of a grant-to the plaintiff or its predecessors.
No".such case as this is now presented.. The claim of the defendant that he is connected -with the Bannister title as lessee was not made out on the present trial. The defendant was not therefore put to any proof or" claim of title1 by adverse possession; or to the presumption of a grant, which is the same thing." The plaintiff now makes no claim of title by adverse possession, or by presumption of a grant, if these two things may be separated. That they cannot be- is plainly stated by the Court of Appeals in disposing of this case when ■ it was before it. ' Its opinion says : “ If upon such facts as exist here a grant could be presumed, it would be easy for a claimant to land to get around the careful provisions of law as to adverse possession. If he failed to show facts sufficient for "adverse possession, he could yet use the same inadequate facts to raise a-presumption of a grant.”
" The decision of the'Court of Appeals proceeded upon the statement that the defendant was lessee under the Bannister title. That was acquiesced in and accepted as the "fact. That put the plaintiff to proof of a paper title, or else of title by' adverse possession. The case now stands upon "a1 finding of fact that the defendant is not connected with "the Bannister title, but is an intruder," and claims under his possession alone. The question upon which the case is now "decided was not before the Court of Appeals,, or considered by it. Under, the then acceptance as fact" that the defendant was lessee under the Bannister title, the plaintiff claimed title by adverse possession, and failed. • Under the present finding of fact that the defendant is an intruder, and claims Under his naked possession only, the prior possession of the plaintiff enables it to prevail, regardless of whether there be an outstanding. title. That defense is not open to an intruder. Jackson v. Harder, 4 Johns. 211; McRoberts v. Bergman, 132 N. Y. 73; Whitney v. Wright, 15 Wend. 172.
A much stronger case of possession was made out in this. case than in Roe v. Strong, 107 N. Y. 350; 119 id. 316. The *377allowing of a presumption of a grant in that case was upon ■the fact that the property was .not capable of “a technical adverse possession,” and that the plaintiff and his predecessors .had exercised over it all the acts of - ownership “which, considering the nature and situation of the property, could be exercised.” The rule in respect of adverse possession could, not have been contemplated for such property. I do not see how that case can be fairly distinguished from this. ' There was no constructive possession there any more than here, for the land there in dispute was not embraced in the deed of the upland to the plaintiff.
Judgment for plaintiff.