Adams v. Van Alstyne

New York Supreme Court

Adams v. Van Alstyne

35 Barb. 9, 1858 N.Y. App. Div. LEXIS 179

DecidedMarch 1, 1858

StatusPublished

This text of 35 Barb. 9 (Adams v. Van Alstyne) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Adams v. Van Alstyne, 35 Barb. 9, 1858 N.Y. App. Div. LEXIS 179 (N.Y. Super. Ct. 1858).

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Opinion

Gould, J.

Although this case was withheld, from a decision on the argument, for the purpose of more deliberate investigation, I am not able, even on such investigation, to come to any conclusion different from the one intimated by me at the term. Although respective proprietors, owning the whole of two large farms, along the entire line of the original division fence between those farms, had, for sixty years, or more, (by virtue of an agreement not produced, or proved to have existed, not appearing to be under seal, or of record,) maintained each a particular portion of that division fence; and although their children, while still occupying the whole of the respective farms, had continued so to maintain the same several portions of fence, I do not see any such legal presumption of a grant, or deed, as will, when the farms on each side of that old fence come to be divided up, and held by various owners, prevent these various new owners from being bound by the general provisions of the statutes relative to fences between proprietors of adjoining lands. (1 R. S. 353, §§ 30, 33.) The case of Wright v. Wright (21 Conn, [17]*17Rep. 329,) seems to me to contain the whole doctrine covering the case. So long as the parties to the prescription, or those holding under them, owned the same quantity of land along the fence, the prescription would continue.- At most, it would hind only those who owned the land as it was when the prescription arose. It is not of the nature of a covenant running with the land through all time; hut is temporary, governing only the immediate owners, and the land as it was then owned,

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Gould, J.

Although this case was withheld, from a decision on the argument, for the purpose of more deliberate investigation, I am not able, even on such investigation, to come to any conclusion different from the one intimated by me at the term. Although respective proprietors, owning the whole of two large farms, along the entire line of the original division fence between those farms, had, for sixty years, or more, (by virtue of an agreement not produced, or proved to have existed, not appearing to be under seal, or of record,) maintained each a particular portion of that division fence; and although their children, while still occupying the whole of the respective farms, had continued so to maintain the same several portions of fence, I do not see any such legal presumption of a grant, or deed, as will, when the farms on each side of that old fence come to be divided up, and held by various owners, prevent these various new owners from being bound by the general provisions of the statutes relative to fences between proprietors of adjoining lands. (1 R. S. 353, §§ 30, 33.) The case of Wright v. Wright (21 Conn, [17]*17Rep. 329,) seems to me to contain the whole doctrine covering the case. So long as the parties to the prescription, or those holding under them, owned the same quantity of land along the fence, the prescription would continue.- At most, it would hind only those who owned the land as it was when the prescription arose. It is not of the nature of a covenant running with the land through all time; hut is temporary, governing only the immediate owners, and the land as it was then owned,

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Bluebook (online)

35 Barb. 9, 1858 N.Y. App. Div. LEXIS 179, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adams-v-van-alstyne-nysupct-1858.