Andrew Brady, Plaintiff and Respondent, v. David A. Hennion, Defendant and Appellant.
1. In an action to recover a strip of land lying along a boundary line, it is not enough for the plaintiff to show, that the defendant’s lot as possessed by him, is wider than the deeds under which he claims describe it to be, by the width of the disputed strip.
2. In such an action,'it appeared that the defendant and those under whom he claimed had been in possession of the strip in question for at least twenty-one years, claiming title, and that after the wall of his building which stood thereon, had leaned over towards his own land, the plaintiff had recently put up a shed, the roof of which extended over to the leaning wall; and that the defendant in rebuilding upon the same foundation occupied by his old building, cut away the shed so as to raise his new wall perpendicularly.
¿eld, That upon these facts, the plaintiff could not recover, although the defendant’s lot, without the strip in question, would have remained as wide as his deeds called for.
3. In an action to recover possession of lands, the plaintiff must recover, if at all, on the strength of his own title, not merely on the weakness of the defendant’s.
*5294, The words “more or less” in the boundary in a deed of land, are merely words of description to prevent the parties from being prejudiced by inaccuracies. They do not have the effect to extend the grantee’s boundary beyond the line fixed by a visible monument, or a map referred to in the deed.
(Before Robertson and White, J. J.)
Heard, March 12 and 13;
decided, October 5, 1861.
Appeal from a judgment entered upon the decision of a Judge, on a trial without a Jury.
This action was brought to recover possession of a strip of laud in the City of Hew York, in the interior of the square or block enclosed by Washington, Amos, Charles and Greenwich streets. Such strip is about oue foot wide by six or seven feet long. The plaintiff and defendants separately owned the land adjoining such strip. The case was tried in Hovember, 1855, before Mr. Justice Hoffman, without a Jury, and judgment was rendered for the plaintiff.
On the trial the plaintiff introduced a deed to himself dated iu March, 1817, from Benjamin Wood and wife, conveying a lot of land on the easterly side of Washington street between Amos and Charles streets, therein described as “ bounded and containing as 'within fence, as follows to wit: ” Commencing at a point on Washington, distant 66 feet from the southeasterly corner of that' street and Charles street, running thence at right angles with Washington street, 83 feet more or less, thence southwardly parallel with Washington street 22 feet more or less, thence westwardly at right .angles with Washington street and to it 83 feet more or less, and thence northwardly along Washington street 22 feet, more or less, to the place of beginning. Being part of a lot known on a map of the estate of Richard Amos, made in 1796, by Evert Bancker, as lot Ho. 13.
Two witnesses (Greer and Catkill) testified that the defendant took off a small part of the rear of a woodhouse on the rear of the plaintiff’s lot, which formed the rear fence of such lot, ran in a straight line and had never been *530altered until such act was committed, and that the defendant built a brick stable partly on his ground, part of which went into and filled up the space so cut away from the woodhouse. The part so cut away was about 10 or 11 inches wide and 10 or 11 feet deep. A surveyor (Ludlam) testified that the woodhouse .was cut out top and bottom, part of the rear was cut to the ground and the space filled up by the brick stable; the gap was about 8 feet by 11 inches; the rest of the rear fence on the plaintiff’s lot being 13 feet 3 inches, was old; and the witness “judged from appearances ” that the plaintiff had possession in a straight line. This witness also testified that the defendant acknowledged he had encroached, promised to take down the brick stable then partially built, and pay his fees, and at a subsequent stage of the trial, that he had measured the “ projection," of the defendant’s brick stable on the plaintiff’s lot at the surface of the ground, and it varied from 9¿- to 10J inches, and it would have beenimjiossible for the fence cut down to have been in a range with that standing, if the old stable had occupied the place of the new one; it would have had to circle round that part of the lot occupied by the stable; he admitted that the rear fence of the plaintiff’s woodhouse was not quite parallel with Washington' street, and that the line of the plaintiff’s lot to the defendant’s brick stable was over 83 feet. Greer also testified that the woodhouse was cut down to the ground so that the coal in ifc fell into the defendant’s lot.
One of the plaintiff’s witnesses, (Oathill,) who owned the lot adjoining the plaintiff’s, northwardly, testified, that the old stable on the defendant’s lot, was there when he first went there twenty-six years before the trial (1829). Another witness, (Peter P. Stephens,) to whom the defendant’s lot had been conveyed in 1836, by a deed describing it as being nine feet in the rear, testified, that the old stable was standing there when he bought the lot, that he measured it because his deed was “more or less,” and it was nine feet in width.. Another witness, a surveyor, *531(Serrell,) testified, that he measured it in 1853, and it was still • nine feet in width. This testimony was uncontradicted.
One witness, (Peter P. Stephens,) testified, that the defendant’s stable had sagged eastwardiy a foot and a half in 1836, and pressed against a stable in the next lot, (owned by Mr. Van Pelt,) and inclined that to lean over. This testimony is corroborated by that of Butler,—who occupied the house on Brady’s lot, and who testified, that the fence was sagged also,—by Van Pelt, the owner of the adjoining lot, and by the surveyor, (Serrell.) The old stable had been built upon sills laid in trenches in the ground; they were 16 inches thick, and 40 to 50 feet long; the foundation of the westerly wall of the brick stable, was placed in those trenches after the sills were taken up, and it was built perpendicularly therefrom, so as to fill up the space cut out from the roof of the woodhouse.
Two Avitnesses, occupants of the plaintiff’s lot, (T. M. & T. 0. Butler,) testify, that the rear fence of that lot, formed the back of the woodhouse. The surveyor, (Serrell) and two others who assisted him (Ogden and McSorley), testified that only the roof of the woodhouse was cut off and no part of the bottom, and that it Avas only cut doAvn to the sill of the stable, not beyond. It appeared by the testimony of Oathill, that the roof of such Avoodhouse was only put on two or three years before the trial, and it appeared by other proof that such roof joined up against the defendant’s old stable.
Both Butler, the occupant of the plaintiff’s house, and Stephens, the owner of defendant’s lot, testified that the Avhole of the rear fence on that lot was so sagged as to be perceptible to the eye, and Butler says the rest of the fence to Charles street was old and out of repair.
The occupation, deeds and claim of the OAvners of the lots adjoining the plaintiff on both sides extend only 83 feet from Washington street. A deed executed in 1813, under which the defendant claims, leaves the rear dimension of his lot in blank, although five subsequent deeds in *532his chain of title, executed respectively in 1836,1840,1841, 1844 and 1852, give it as nine feet; but make the point of commencing the boundaries on Amos street only 119 feet east from the corner of Washington street.
The surveyor, Serrell, testified that the number of feet between Washington and Greenwich streets was one more than the Amos map called for. He measured from the front of the plaintiff’s lot to the sills of the old stable and found the distance to be 83 feet. They were an inch nearer to Washington street than the new brick stable; he adjusted a plumb line to such sill and plumbed up to the room and cut away downwards in a perpendicular line from the top. The present stable is only eight feet eleven inches wide.
The other surveyor (Ludlam) also measured the distance from Greenwich to Washington street on an irregular line, and made the distance greater than required by the Amos map, by making the plaintiff’s possession 84 feet; he reduced the defendant’s to 8 feet. According to his testimony, he commenced his survey at some unknown point on Greenwich street and ran a line 88 feet 7 inches to a line parallel with Amos street, distant 95 feet therefrom, being the rear of the lots on that street, from which point he made the distance 106 feet to the rear of the plaintiff’s lot, which he made 84 feet from Washington street; all his dimensions differ from those on the Amos map except one lot. Ho evidence was given to show he made any measurement of the distance between Washington and Greenwich street on Amos street.
The testimony of the witness, Ludlam, as to the defendant’s admission and promise in reference to putting up his stables, is directly contradicted by Greer, who was also present. The plaintiff had put up the roof of his woodshed which joined the defendant’s stable only two or three years before the trial.
A. G. Rogers, for defendant, appellant.
I. This being an action of ejectment, the plaintiff must *533recover on the strength of his own title, and not on the weakness of the defendant’s; and if he shows no paper title to the strip claimed, he cannot recover, though the defendant should show none on his part.
II. The plaintiff must show affirmatively either a paper title to the strip claimed, or a title acquired by possession without paper title; and he has shown neither.
III. Though the plaintiff failed to show any paper title to this strip, the defendant showed a paper title to it as far back as February 9th, 1813, which, while it does not limit the defendant to 8 feet on the rear of his lot, yet conveys up to the rear of the plaintiff’s lot; that is, up to the dividing line; and if the deed, referring to the map, which marks it as 8 feet, would confine the defendant to 8 feet, so the map limiting the plaintiff to 83 feet must, for the same reason, confine him to 83 feet.
IV. The plaintiff showed no possession whatever of' this strip; while the defendant showed a clear and uninterrupted possession of it, by uncontradicted testimony, for thirty years and upward.
Y. We do not seek to reverse the judgment as against the weight of evidence, but as against evidence; claiming that there is, in fact, no contradictory testimony; that the testimony of plaintiff’s witnesses is merely inference founded on a supposed state of facts, which did not, in fact, exist; and that the Judge at Special Term mistook the facts, and overlooked one so material as in itself to be décisive of the case.
VI. The possession by the defendant of this strip of ground, continued uninterruptedly for thirty years, gives the defendant a complete title by possession, irrespective of paper title; and if the overhanging of the plaintiff’s shed were a possession, it is one of three years’ duration only, and cannot avail against such prior and longer possession; but such overhanging was, in fact, no legal possession at all.
VII. This possession of defendant, by his old stable, shows the plaintiff never had a paper title even, because *534the very deed under which he claims, bounds his lot by this old stable.
Moses Ely, for the plaintiff, respondent.
By the Court—Robertson, J.
Even if the defendant were entitled to a lot of only eight feet wide in the rear either by the conveyances to him, or by his possession, it would not follow that the plaintiff was entitled to take a strip off the easterly side of his lot, one foot in width, to have it reduced to the required dimensions; the defendant may have acquired title to a strip of land in the westerly side of his lot, of a foot in width, without conferring any title on the plaintiff to trespass upon his lot, for an equal distance on the easterly side. It is established by uncontradicted evidence, that the easterly corner of the defendant’s lot on Amos street, as now possessed by him, is distant 120 feet eastwardly from the present northeast corner of Washington and Amos streets; and it is equally plain, that in the conveyances through which he claims title, such corner is distant only 119 feet from the .corner of such streets. He may, by possession, have acquired title to this strip of one foot, or he may be a trespasser on the land of the owner of the lot adjoining eastwardly; neither predicament confers any new right on the plaintiff. It was proved by Oathill, one of the plaintiff’s witnesses, that the old stable stood on the defendant’s lot as far back as 1829; and it was also proved by Peter P. Stephens, from whom the defendant derived title, that it stood there in 1836, when he bought the lot on which it stood; that he measured it then because his deed said “ more or less,” and it was nine feet in width inside of the sills; and that the front of the lot was one foot wider than was mentioned in the deed to Mm. Serrell, the surveyor, measured the stable in 1853, just before the trespass complained of, and its width was then nine feet. Ho evidence was offered to contradict this. On the surface of the ground, therefore, the possession of the defendant, and those under whom he claimed, *535was of a lob nine feefc wide in the rear, since 1829 at least.
Three witnesses testify, that the site of the westerly wall of the present brick stable on the defendant’s lot, is the same as the sills on which the westerly side of the old stable was erected, and one witness testifies, that the foundation was laid in the trenches in which such sills were laid. It is conceded, that the wall of such brick stable is perpendicular, and that it fills up the space which was cut out of the roof of the old woodshed on the plaintiff’s lot, which is the trespass complained of.
It is proved that the old stable, which reached across the defendant’s lot, sagged down at one end, as long ago as 1833, so that the roof projected nearly two feet eastwardly towards Greenwich street; that the roof of the woodhouse, on plaintiff’s lot, was attached to the side of such stable, and the fence to which it was attached sagged also eastwardly towards Greenwich street; and four witnesses, (one of them a surveyor who was brought for the purpose,) testify, without contradiction, that only the roof of the wood-house, which projected over the sills of the stable, was cut off one foot, to allow the wall of the new stable to be erected perpendicularly on the sills of the old stable.
The witness Ludlam does not appear to have been on the premises until the defendant’s old stable was down and the new one partly erected, and his testimony as to possession is mere matter of inference on his part. He is contradicted by three witnesses—one of them a surveyor who superintended the work—as to the woodhouse being cut out at the bottom as well as the top; he is also contradicted as to admissions of the defendant in the conversation with him: he also undertook to verify the accuracy of the Amos map in reference to the amount of land in the block between Washington, Greenwich, Amos and Charles streets, but confined his labors to measuring an irregular line from Greenwich to Washington street, running in the rear of lots facing on Amos street: he also speaks of the brick perpendicular wall of the stable pro*536jecting some inches on the plaintiff’s lot; whether he meant hy this that it leaned over it, or merely intruded on it, is- not very clear. His testimony is, therefore, of no assistance in determining the rights of parties, at least, so far as they arise from possession.
It is plain, therefore, that the defendant and those through whom he claims, were in uninterrupted possession of a lot 9 feet wide in the rear, including the premises in controversy, by means of the enclosure of the old stable, from, at least the year 1829, to the year 1853, being twenty-four years. It was in evidence that the plaintiff did not put up his woodhouse, whose roof projected beyond the sills of the defendant’s stable, and constituted an invasion of his possession, until two or three years before the trial.
It appears, therefore, by greatly preponderating testimony, that the defendant and those through whom he claimed, were in possession for at least twenty-one years, of the premises in controversy; that the plaintiff invaded that possession for two or three years; and the defendant resumed it in 1853.
As the plaintiff, however, is bound to recover by the strength of his own title, and not the weakness of the defendant’s, and as the latter had been in possession some time when the former dispossessed him, it may be proper to examine the plaintiff’s paper title to see whether he was actually resuming possession of what belonged to him.
The map of the Amos farm makes the line forming the rear of the lots fronting on Washington street a straight line from Amos to Charles street, running parallel to the easterly side of Washington street, and distant 83 feet therefrom. The deed to the plaintiff adds the words “ more or less,” to the 83 feet, as the dimension of the northerly and southerly boundary lines • of his lot. Conveyances by Amos and wife of lots Hos. 11 and 12 convey them as being 83 feet in length. His conveyance of lot Ho. 13 with 14 and 15 adds the words “ more or less ” to the 83 feet, but describes them as bounded south by lot Ho. 12, and eastwardly in the rear by lots 31 and 47. With*537out the land now claimed by the plaintiff his lot would be 83 feet 3 inches long, and with it 84 feet two inches. The words “ more or less ” do not have the effect of conveying an indefinite quantity, they are merely words of description to prevent the parties from being prejudiced by the dimensions being inaccurate. (Mann v. Pearson, 2 J. R., 37.) All the conveyances refer to the Amos map, and each lot conveyed is bounded by lots as designated on such map. The line of Washington street was fixed, (as testified to by Ludlam,) by Hr. Amos by a deed of cession to the Corporation of Kew York, that could not vary; and the description of the premises conveyed by Amos, on that street, was controlled by its location. If, therefore, there was more land between Washington and Greenwich streets than was laid down on the Amos map, the grantors of land on Washington street could not have the benefit of it; if Greenwich street was located with equal certainty, and the lots fronting on it were described so as to be controlled by such location, the error would be for the benefit of the heirs of Amos or the grantees of the intermediate land.
It is also to be remarked that the deed to the plaintiff is of a lot as then (1847) “ivithin fence;” his woodshed was not then roofed, and the side of the defendant’s stable formed the rear fence of the lot conveyed: the plaintiff, therefore, could not, by such deed, acquire title to what was outside of the fence. In every view, therefore, the plaintiff acquired no title to the premises in controversy, by the deed to him, whatever the defendant’s rights may be.
It has been suggested that all the deeds under which the defendant claims make the easternmost corner of his lot one foot nearer to Washington street than the actual possession of the grantors of such deeds, and that the distance of nine feet in the rear given in one of them in 1836, although corresponding with the possession, would not correspond with the dimension of such front. But the grantor in such deed made the measurement, and *538found the lot to be one foot wider on the front than the deed described it, and it may he that previous owners had only measured the rear, where wooden fences are often displaced by storms, decay, or sagging by shifting of the soil.
In the absence of any finding of facts by the Judge before whom the ease was tried, I have been unable to find any view of it, which would enable the plaintiff to recover. The decision of the Oourt was in a general form, and an exception was taken to the whole of it, and if I am correct it cannot be sustained.
The judgment must therefore be reversed, and a new trial had, with costs to abide the event.