Jackson ex dem. Gee v. Oltz

8 Wend. 440

• Court: New York Supreme Court
• Decided: January 15, 1832
• Status: Published

Opinion

By the Court, Savage, Ch. J.

On the question reserved, there cannot be much doubt. John Gee took possession of the whole lot, claimitig it as his own, under a patent from the state for the whole lot. To constitute an adverse possession there must in all cases be a claim of title—a deed need not be shewn as evidence of that title ; but where there is no paper title, there must be a "pedis possessio—an actual occupancy—■ a substantial enclosure. Where a party claims to hold adversely a whole lot, by proving actual occupancy of a part only, his claims must be under a deed or paper title. Color of title under a deed, and occupancy of part, is sufficient proof as to a single lot, to the extent of the bounds of such lot; unless, indeed, the paper title include a large patent or tract, much more than can be necessary for the purposes of cultivation. 1 Cowen, 276, 609. In this case we may be supposed to know that a lot in the military tract contains 600 acres. How much the lessor had sold does not appear, nor how much he reserved for cultivation; but it does appear that the premises in question had been appropriated as a wood lot, and were expressly claimed by the lessor as belonging to him. This was, under the circumstances of this case, all the possession which was required to constitute an adverse possession. If the possession Was adverse, and had been so for more than 20 years, as it had in this case, then that possession ripened into a title, and the plaintiff must recover against the defendant, though the paper title to the 50 acres is in reality not in him.

The plaintiff’s possession being adverse in 1811, when Robert Dill conveyed to John Dill, that conveyance is inoperative and void.

On both grounds, therefore, the plaintiff is entitled to judgment.