Patterson, J.:
As this cause was tried and under the issues framed by the pleadings, the right of the plaintiff to the relief demanded in the complaint depends upon its establishment of title and the right to the exclusive possession of the premises described in the complaint, which, through the record, are referred to as plot A, and which, for convenience, we will continue to so designate. The court at Special Term decided that the plaintiff purchased in July, 1888, certain real estate now in the city of New York (but which at that time was in the county of Westchester), consisting of about 119 acres of land, and also a certain plot consisting of 1T7T8T acres, being plot “ A,” bounded on the west by lands of William Laytin, deceased, on the south by the town road leading to the town dock, on the east by Pelham Bay, sometimes called Long Island Sound, on the north by the lands of the plaintiff.
The plaintiff purchased from Henry L. P. Boehme. The court, at Special Term, also found that the plaintiff went into possession of the loans in quo, and in the month of'June, 1896, built a fence on the line dividing it from the town dock road, which is the southeasterly boundary of said plot; that in June, 1858, one Laytin became seized and possessed of certain real estate situate to the westward of the plot involved in this action, receiving a conveyance' from one Abraham B. Cox; that Laytin died in 1874, leaving a last will and testament wherein he devised the premises to the westward of said plot to his executors for certain trust purposes; that the defendant Jenkins is the sole surviving executor and trustee under the will of said Laytin; that in 1896 the defendant Lohbauer leased the whole of the Laytin property from the defendant Jenkins and went into possession thereof, and that, after taking possession, he occupied a house on the Laytin property and then entered upon and continued to use plot “ A ” in connection with the business he carried on, which was that of a house of public entertainment; that Lohbauer broke the lock upon a gate in the fence, which the plaintiff had erected as above stated, and committed various trespasses upon the property plot A, and put upon such premises a boat house or building, and that neither the defendant Lohbauer nor Jenkins Lave any right whatsoever to interfere with the possession and occupancy of the plaintiff. The court determined as matter of law that [308] the plaintiff was entitled to an injunction perpetually restraining the defendants from entering or trespassing upon the premises plot A, and granted other relief, all of which is necessarily based upon an" adjudication that the plaintiff was the sole owner of the premises and entitled to the exclusive possession thereof.
The defendants by their answer put in issue the plaintiff’s title and right to possession, and-affirmatively claimed title in themselves to the extent, at least, of the undivided ownership of one-half of the locus in quo.
The record before us consists of a great number of documents, iiamely, deeds, wills and maps' containing descriptions: of lands granted or devised, and to which documents the respective parties appeal to substantiate their claims.
The plaintiff, as the source of its title, resorts to the will of one James Ferris, who died in 1747. In that will the testator devised to his son James Ferris all his lands, meadows, houses and improvements, together-with “privileges of commonage,” etc. .James Ferris," the devisee, and who was the eldest son of the testator, died in 1783, leaving a will by which he devised to his two sons, James Ferris and David Ferris, all his lands and meadows lying in Throggs Neck in the borough of Westchester, with all the houses thereon and the appurtenances thereunto belonging; and “ also all - my right and interest in the commonage of Westchester to be equally divided between them, share and share alike.” The plaintiff’s contention is that plot “ A ” is included within what is mentioned in. these two wills as commonage right.
There is nothing up to this point which locates or fixes in any way the boundaries of .land in which either of these testators had a right of commonage. In 1819 á suit in partition of the real property of James and David Ferris was brought) and. commissioners, appointed in that suit for the purposes of partition, conveyed certain land'to George Ferris, who was the brother of James and David Ferris. That deed was dated February 20, 1819, but was not recorded until April' 30, 1857. Three parcels of land were conveyed thereby. It is the first instrument in plaintiff’s chain of title that gives boundaries of any lánd. Upon a map introduced by the plaintiff in evidence, there are two large parcels marked Nos. 1 and 3, which undoubtedly'passed under that deed in'partition.. -There [309] is lying between them and west of the sound or Pelham Bay, a tract which will hereafter be referred to as the. Heaton uplands." Those uplands did not extend to the shore of Long Island Sound, but between them and the shore, as shown on the map referred to,, is a parcel No. 2 mentioned in the partition deed; and. the plot “A,” the subject of dispute in this action, lies at the north end of the strip referred to, and immediately adjoins No. 1, which passed under the commissioners’ deed to George Ferris. In this commissioners’ deed parcel No. 2 is conveyed to George Ferris, and we find in it for the first time a description which would bring the strip No. 2 in the chain of title under which the plaintiff claims, and that description would include plot “A.” Although parcel No. 2 is described by metes and bounds in this commissioners’ deed and plot $6 A” is a part thereof, the title passing by that conveyance would be no greater or other than James Ferris and David Ferris had at the time the partition was made. There is nothing in any anterior muniment of title appearing in the case to show that their interest in parcel No. 2 was other than in commonage or undivided lands.
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Patterson, J.:
As this cause was tried and under the issues framed by the pleadings, the right of the plaintiff to the relief demanded in the complaint depends upon its establishment of title and the right to the exclusive possession of the premises described in the complaint, which, through the record, are referred to as plot A, and which, for convenience, we will continue to so designate. The court at Special Term decided that the plaintiff purchased in July, 1888, certain real estate now in the city of New York (but which at that time was in the county of Westchester), consisting of about 119 acres of land, and also a certain plot consisting of 1T7T8T acres, being plot “ A,” bounded on the west by lands of William Laytin, deceased, on the south by the town road leading to the town dock, on the east by Pelham Bay, sometimes called Long Island Sound, on the north by the lands of the plaintiff.
The plaintiff purchased from Henry L. P. Boehme. The court, at Special Term, also found that the plaintiff went into possession of the loans in quo, and in the month of'June, 1896, built a fence on the line dividing it from the town dock road, which is the southeasterly boundary of said plot; that in June, 1858, one Laytin became seized and possessed of certain real estate situate to the westward of the plot involved in this action, receiving a conveyance' from one Abraham B. Cox; that Laytin died in 1874, leaving a last will and testament wherein he devised the premises to the westward of said plot to his executors for certain trust purposes; that the defendant Jenkins is the sole surviving executor and trustee under the will of said Laytin; that in 1896 the defendant Lohbauer leased the whole of the Laytin property from the defendant Jenkins and went into possession thereof, and that, after taking possession, he occupied a house on the Laytin property and then entered upon and continued to use plot “ A ” in connection with the business he carried on, which was that of a house of public entertainment; that Lohbauer broke the lock upon a gate in the fence, which the plaintiff had erected as above stated, and committed various trespasses upon the property plot A, and put upon such premises a boat house or building, and that neither the defendant Lohbauer nor Jenkins Lave any right whatsoever to interfere with the possession and occupancy of the plaintiff. The court determined as matter of law that [308] the plaintiff was entitled to an injunction perpetually restraining the defendants from entering or trespassing upon the premises plot A, and granted other relief, all of which is necessarily based upon an" adjudication that the plaintiff was the sole owner of the premises and entitled to the exclusive possession thereof.
The defendants by their answer put in issue the plaintiff’s title and right to possession, and-affirmatively claimed title in themselves to the extent, at least, of the undivided ownership of one-half of the locus in quo.
The record before us consists of a great number of documents, iiamely, deeds, wills and maps' containing descriptions: of lands granted or devised, and to which documents the respective parties appeal to substantiate their claims.
The plaintiff, as the source of its title, resorts to the will of one James Ferris, who died in 1747. In that will the testator devised to his son James Ferris all his lands, meadows, houses and improvements, together-with “privileges of commonage,” etc. .James Ferris," the devisee, and who was the eldest son of the testator, died in 1783, leaving a will by which he devised to his two sons, James Ferris and David Ferris, all his lands and meadows lying in Throggs Neck in the borough of Westchester, with all the houses thereon and the appurtenances thereunto belonging; and “ also all - my right and interest in the commonage of Westchester to be equally divided between them, share and share alike.” The plaintiff’s contention is that plot “ A ” is included within what is mentioned in. these two wills as commonage right.
There is nothing up to this point which locates or fixes in any way the boundaries of .land in which either of these testators had a right of commonage. In 1819 á suit in partition of the real property of James and David Ferris was brought) and. commissioners, appointed in that suit for the purposes of partition, conveyed certain land'to George Ferris, who was the brother of James and David Ferris. That deed was dated February 20, 1819, but was not recorded until April' 30, 1857. Three parcels of land were conveyed thereby. It is the first instrument in plaintiff’s chain of title that gives boundaries of any lánd. Upon a map introduced by the plaintiff in evidence, there are two large parcels marked Nos. 1 and 3, which undoubtedly'passed under that deed in'partition.. -There [309] is lying between them and west of the sound or Pelham Bay, a tract which will hereafter be referred to as the. Heaton uplands." Those uplands did not extend to the shore of Long Island Sound, but between them and the shore, as shown on the map referred to,, is a parcel No. 2 mentioned in the partition deed; and. the plot “A,” the subject of dispute in this action, lies at the north end of the strip referred to, and immediately adjoins No. 1, which passed under the commissioners’ deed to George Ferris. In this commissioners’ deed parcel No. 2 is conveyed to George Ferris, and we find in it for the first time a description which would bring the strip No. 2 in the chain of title under which the plaintiff claims, and that description would include plot “A.” Although parcel No. 2 is described by metes and bounds in this commissioners’ deed and plot $6 A” is a part thereof, the title passing by that conveyance would be no greater or other than James Ferris and David Ferris had at the time the partition was made. There is nothing in any anterior muniment of title appearing in the case to show that their interest in parcel No. 2 was other than in commonage or undivided lands.
It was necessary for the plaintiff to show that it had become the sole owner of plot A, a part of parcel No. 2, in order to maintain this action or one in ejectment against another party claiming an interest in the premises and a right to their use. That is the exact claim made by the defendants, and they have introduced in evidence conveyances running back to 1792, from which conveyances it may fairly be deduced, notwithstanding the vagueness of some of the descriptions, that the title to an undivided one-half interest in parcel No. 2 has devolved upon the defendant Jenkins, as trustee, from one John Ferris, an original grantor of that undivided half. While it does not appear who this John Ferris was, yet it is shown that on March 28, 1792, by a conveyance recorded August 22, 1792, he conveyed to Robert Heaton certain uplands, heretofore referred to, and the description in the deed to HeátOn locates those uplands as being situated between parcels Nos. 1 and 3, belonging to James Ferris, in whose will the plaintiff claims its title to have originated. The location of the uplands results from the fact that by the description in the Heaton deed they are bounded on the north and south by lands of James Ferris, and there are no other lands so situated with reference to the north and south properties of James [310] Ferris, as shown in the deeds and maps before us, than those uplands conveyed to Heaton. In the deed to Heaton there is contained the following .in the granting clause : “ Also the.full and equal undivided. moiety or half part of the aforesaid undivided lands which are bounded on the north and on the south by two cross fences that extend into the Sound; easterly by the Sound and westwardly by the premises hereby granted.” Locating the uplands and the undivided moiety of other lands granted with the uplands, we find nothing that would answer the description of these undivided lands except the strip No. 2, which includes plot “ A.” This makes as definite a location as can be made of certain lands, the one-half ownership of which was conveyed in 1792 to Heaton, and there is a direct devolution of the title to that undivided one-half down, to Jenkins, trustee, and Lohbauer as lessee.
Thus we find as far back as 1792 the land, the exclusive ownership of which the plaintiff claims, was contained in a parcel-in respect of-which there was an undivided interest assumed to be in John Ferris, and which he conveyed, and that from that date to the present time there is a chain of title which preserves the continuity of. the devolution- of that one-half interest until it reached Jenkins, trustee; there is also proof of possession by Laytin under a deed in that chain of title made to him by Cox and wife, recorded June 17, 1858, and there is no adverse possession on the part of the plaintiff or its predecessors in title shown which would be a basis of a claim to an exclusive right to possession as against the grantee of the undivided interest which is traced to John Ferris at the time he conveyed to Heaton.
Therefore, we conclude that the learned court at Special Term erred in the finding it must have reached respecting the plaintiff’s right. No such ownership has been shown as would entitle the plaintiff to maintain ejectment against these, defendants, but such ownership to an undivided interest has been shown by the defendants as would prevent the plaintiff recovering either in ejectment or in this action. .' .
■ The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event.
Rumsey and Hatch, JJ., concurred; Van Beunt, P. J., and Ingkeaham, J., dissented, .