Pierson v. Mosher

30 Barb. 81, 1859 N.Y. App. Div. LEXIS 68

• Court: New York Supreme Court
• Decided: September 5, 1859
• Status: Published

Opinion

By the Court, T. R. Strong, J.

From the manner in which this case was submitted to the jury by the charge, the verdict must be deemed to establish that the line fence built in 1815, on the division of the fifty acre lot, was kept up and acquiesced in by Mosher, the owner of the east half, for more than forty years. Now assuming that the fence was originally put up under an agreement that it was to be altered at some future time, in case it should be found, upon actual survey, not to be on the true line, that would not vary the law of the case. The agreement as such would have no force in reference to fixing the line; each party would have the same right to remove the fence, without as with the' agreement; and the agreement could have no effect, except as evidence upon the question of acquiescence in the line as then adopted, and on which the fence was placed. The facts of the existence of the fence as a line, and the acquiescence in it as such for such a length of time being proved, notwithstanding the agreement, the law would determine the line of the fence to be the true line between the parties.

It is the long acquiescence which renders the practical location conclusive. In Baldwin v. Brown, (16 N. Y. Rep. 359,) the court say, “ the acquiescence in such cases affords ground, not merely for an inference of fact, to go to the jury as evidence of an original parol agreement, but for a direct legal inference as to the true boundary line. It is held to be proof of so conclusive a nature that the party is precluded from offering any evidence to -the contrary. Unless the acquiescence has continued for a sufficient length of time to be thus conclusive, it is of no importance. The .rule seems to have been adopted as a rule of repose, with a view to the quieting of titles; and rests upon the same reason as our statute, prohibiting the disturbance of an adverse possession .which has continued for twenty years.” In all cases in which practical locations have been confirmed upon evidence of this kind, the acquiescence has continued for a long period, rarely less than twenty years.

No error, therefore, was committed by the refusal to charge as requested; and the charge was fully warranted by the case cited.

The fact of the plaintiff having removed the fence on the south side of the fifty acres, to conform to the survey of the south line made in 1857, had not, I think, any materiality in this case. It would not have tended to prove any thing as to the line between the east and the west half of' the fifty acres, or on the question of acquiescence in the line, according to the fence.

[Monroe General Term, September 5, 1859.

It follows that a new trial should be denied.

T. R. Strong, Smith and Johnson, Justices.]