Lamb vs. Coe, 15 Wend. 642

By the Court, Nelson, Ch. J. The only question in this case-is, whether the defendant is concluded, by the practical location and occupation, from moving his fence and placing it upon the true boundary line between him and the plaintiff, under the facts and circumstances of the case.

The entire line between the two farms is about 206 rods in length ; and beginning at the east line and tracing it west, the first 30 rods of fence are on the true line ; here the land is cleared on both sides ; the next 38 rods are also cleared on both sides : here the fence diverges from the true line and encroaches upon the land of the defendant; it then continues 43 rods further along woods on the side of the plaintiff and clearings on the side of the defendant, and here the clearings terminate. The residue is in woods and uncultivated, and no fence between the two farms.

The two extreme corners are well known, and it is conceded the true line is a straight one. There is no distinct boundary by marked trees in the woods. Most of the fence was built by the father of the defendant, which is on the erroneous boundary, some 25 or 30 years ago; and the plaintiff claims that this fence thus built and the occupation according to it, though confessedly erroneous, concludes the defendant.

The circuit judge left the question to the jury, whether the erection of the fence and acquiescence in it as the boundary, was conclusive upon the defendant or not, under the circumstances—intimating at the same time his own opinion it was not. The defendant has the paper title. As to the 43 rods where the old fence was bounded on the north by the wood land of the plaintiff, there seems to be no good reason forbidding the assertion of that title to the true line.

The plaintiff having no permanent or visible occupation upon the opposite side over this line, it cannot with much force be said that the fence had been fixed upon by both parties as the boundary, nor that the defendant had acquiesced in an occupation of his land by the plaintiff for any length of time whatever. He had a right to leave a strip of woods between his fence and the line; and even if it was left by mistake, as it probably was, he did not thereby lose his title to it, nor did the plaintiff acquire it.

The only portion of the 206 rods, in respect to which it can be said with any plausibility that the defendant has acquiesced in a way to prelude his assertion of title to the true line, is the 38 rods: the rest of the distance is either occupied up to the true line, or in a manner not to prejudice the rights of the defendant. In the case of Stuyvesant v. Dunham, 9 Johns.R. 61, 11 id. 569, S.

C. in error, this court refused to straighten a boundary line according to the courses in the deed ,* but there a fence had been built and maintained the whole length of fjie i‘ne foy parties for twenty-five years, and an occupation by the parties or those under whom they claimed during all that time : here but a little more than one-sixth of the line acquiesced in as a boundary on both sides is erroneous, and the plaintiff was the first to dispute it, and insist upon the correction.

True, he supposed the error was against him, but nevertheless his acts and declarations show that he did not believe either party concluded in the matter. These 38 rods were cleared and fenced by the father of the defendant some years before the clearing by plaintiff on the opposite side, and a witness for the plaintiff probably gave the true reason why the fence was built crooked. He supposed it was so made as being most convenient upon newly cleared lands among stumps and other impediments.

The adjoining land being covered with a forest, it was not considered very important to ascertain with precision the true line of the lot. This was omitted till improvements were made on both sides. In 1810 the plaintiff’s farm was cleared up to the fence, and since that time, it may be said, it has been recognized and acquiesced in ás a boundary.

Taking into consideration, however, the situation of the entire line, the trifling variation from the true line for this distance of 38 rods, together with the assertions of the plaintiff himself that it was not fixed and settled, I cannot say that the jury erred in finding that the defendant was not concluded, or the judge in so advising them. It was fairly open to be settled according to the legal title of the parties, as evidenced by their deeds.

The jury might well say the old fence was not intended as a permanent boundary, but was originally built and subsequently maintained as matter of convenience, till the true line should be ascertained. New trial denied.