Ambler v. Cox

20 N.Y. Sup. Ct. 295

• Court: New York Supreme Court
• Decided: February 15, 1878
• Status: Published

Opinion

Barnard, P. J.:

The plaintiff and defendant are adjoining owners of land. The plaintiff’s lands lie on the north and the defendant’s on the south side of the division line. Both pieces touch the Hudson river, and the question is as to the true location of the boundary line from the Hudson river west to Piermont road. The case seems to have been tried on both sides on the assumption that the boundary line in question was a disputed, indefinite and uncertain line. The plaintiff’s husband, who appears to have acted for plaintiff, and the defendant each testified that it was a disputed, indefinite and uncertain line, and the defendant gave evidence tending to show that the only way to settle the line was by agreement. He says: “Isaw we would have to agree upon the line, as the line between us was quite indefinite.” Evidence was given tending to show the establishment of a line between the Hudson river and the Piermont road by mutual agreement; that the defendant built a fence in accordance with such agreement — a strong, stone fence. Some months after so building the fence the defendant built another fence to the north of this fence, and the ground covered by this last fence is the subject of the dispute in this action. The defendant denied the agreement to establish the line, saying that the plaintiff refused to agree to it. Evidence on each side was given, tending to show that the true line would go beyond the line of the alleged agreement. Under this state of the proof the court charged the jury to pass upon the question of the agreement to establish the line. If they found the agreement, and that the defendant built his fence upon it, that plaintiff was entitled to recover, if the new fence was north of the agreed line. The defendant excepted to the charge because the court submitted the parol agreement to the jury, and the fact of building the fence on the line so fixed by parol. The defendant requested the court to charge the jury that if the true line was north of the new wall, the defendant was entitled to recover. This was refused. The only questions presented aro as to these exceptions. I suppose the law to be well settled that an uncertain, indefinite and disputed line may be agreed upon and established by parol. (Vosburgh v. Teator, 32 N. Y., 561, and cases cited in the opinion of Judge Potter.) If the parties could agree in this case the agreement became valid, and the parties could not afterward deny it.

There was no request by the defendant that the court submit the question whether there was a disputed, uncertain and indefinite line to the jury. Such a request would have been proper. The defendant seems to have based his exception solely upon the proposition that a parol agreement can settle no line. I suppose the law to be otherwise. The judgment should be affirmed, with costs.

Gilbert,. J., concurred; Dykman, J., not sitting.

Judgment and order denying new trial affirmed, with costs.