Rouse v. Kline

1 Thomp. & Cook 2

• Court: New York Supreme Court
• Decided: June 15, 1873
• Status: Published

Opinion

Ejectment—change of line fence by parol.

Action to recover six and one-half inches of land.

The line between plaintiff and defendant had, up to 1863, been a certain fence. In 1863 a survey was made, which located the line six and one-half inches on to the lands occupied by defendant.

The fence was moved the six and one-half inches, and a house altered to conform to the surveys. Plaintiff introduced evidence tending to show that the removal of the fence was by mutual agreement between grantors of plaintiff and defendant, and at their mutual expense. This was contradicted Defendant’s deed called for a certain number of feet, which was satisfied without including the six and one-half inches. The jury found for the plaintiff. The judgment upon such verdict was affirmed. Mullin, P. J. holding that the location of the line, in 1863, authorized the jury to find that to be the correct line. Smith and Talcott, JJ., holding that such location prevented the occupation by defendant’s grantor from ripening into a title by adverse possession, and that defendant could claim only what his deed called for. '

Appeal from a judgment in favor of plaintiff upon the verdict of a jury. Motion for a new trial ordered to be heard in the first instance at the general term.