Travis v. Post 68 N.Y. St. Rptr. 882

Pratt, J.

— This action was brought, apparently, and tried under those pro*883•visions of the Code relating to actions to compel the determination of claims to real estate. The parties own adjoining farms, and the only claim litigated was as to the precise line on which the division fence ought to be located. The defendant denied that he made any unjust claim to any of the plaintiff’s farm, and that was the issue submitted to the jury, as was proper in this form of action. It seems the plaintiff had put up a fence, and the defendant took it down, claiming it encroached upon his land. Trespass would have been a form of action, but, the case having been tried under another form, it must be determined as it is presented at the present time. The complaint did not describe the property which was said to be claimed by the defendant, as prescribed in this form of action (% 1511, Code), but it really alleged acts of trespass. The case was submitted to the jury, as I have before stated, under a charge which was not excepted to, and the verdict must stand, unless it appears that some error was committed upon the trial. The deeds of both parties coincided in their descriptions, but two surveyors, one on each side, disagreed as to a proper location of the lines, according to the courses and distances stated in the deeds, and the jury had to grope their way through the fog of expert testimony. The plaintiff insists that the verdict is against the undisputed facts. This claim cannot avail him, as the defendant testified that he made no claim except that fence was not located on the right line, and until the plaintiff established the fact that it was not located over npon the defendnnt’s land it could not be said that defendant claimed any of the land of the plaintiff. The plaintiff makes no points in his brief upon any exception taken upon the trial, and I assume they are abandoned. Judgment affirmed, with costs. All concur.