Tindale v. Powell

New York Supreme Court

Tindale v. Powell

34 N.Y.S. 659, 88 Hun 193, 95 N.Y. Sup. Ct. 193, 68 N.Y. St. Rep. 622

DecidedJuly 5, 1895

StatusPublished

This text of 34 N.Y.S. 659 (Tindale v. Powell) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Tindale v. Powell, 34 N.Y.S. 659, 88 Hun 193, 95 N.Y. Sup. Ct. 193, 68 N.Y. St. Rep. 622 (N.Y. Super. Ct. 1895).

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Opinion

HARDIN, P. J.

Upon all the evidence found in the appeal book, we are inclined to the opinion that the case should have been submitted to the jury. We think the evidence warranted a finding upon the important questions relating to adverse possession. It is provided in the Code that, for the purpose of constituting adverse possession, land is deemed to have been possessed and occupied where it has been protected by a substantial inclosure, or where it has been actually cultivated and improved. The evidence discloses an actual occupation for over 20 years. Barnes v. Light, 116 N. Y. 34, 22 N. E. 441; Woodruff v. Paddock, 130 N. Y. 618, 29 N. E. 1021.

It was claimed during the trial by the plaintiff that circumstances were such as to rebut the presumption of adverse possession arising from the occupation by Philo Powell. With a view of establishing an explanation of the possession or claim of ownership of Philo, it was shown that, in 1875, Liberty Powell built a house upon the premises. At. that time he was a man of wealth, and his brother seems to have been in moderate circumstances; and it is a question, upon the whole evidence, whether it was a brotherly act without pay, or whether it was an advancement upon the property by Liberty, with the knowledge on the part of Philo that ultimately the expenses for building the bam were to be accounted for. There was some considerable evidence as to why the building was erected; and some evidence was given tending to show it was erected by Liberty Powell because he was the owner of the premises, and that Philo assented to the idea that he was the owner of it. To meet that evidence, the defendant offered to show that, at the time, Liberty Powell acquiesced in the fact that Philo Powell owned the premises, and was building the house there for Philo. The evidence was excluded, and an exception was taken.. At a later stage of the case, the defendant, in effect, offered to show by a witness “that he was riding with Liberty Powell, and the latter told him that he was building the house for his brother Philo.” The evidence was excluded, and an exception taken. We are inclined to think that, as the issue then stood, the offer ought to have been received to explain the relations of the parties to it. We think there should be a new trial.

Judgment and order reversed, and a new trial ordered, with costs to abide the event. All concur.

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HARDIN, P. J.

Upon all the evidence found in the appeal book, we are inclined to the opinion that the case should have been submitted to the jury. We think the evidence warranted a finding upon the important questions relating to adverse possession. It is provided in the Code that, for the purpose of constituting adverse possession, land is deemed to have been possessed and occupied where it has been protected by a substantial inclosure, or where it has been actually cultivated and improved. The evidence discloses an actual occupation for over 20 years. Barnes v. Light, 116 N. Y. 34, 22 N. E. 441; Woodruff v. Paddock, 130 N. Y. 618, 29 N. E. 1021.

It was claimed during the trial by the plaintiff that circumstances were such as to rebut the presumption of adverse possession arising from the occupation by Philo Powell. With a view of establishing an explanation of the possession or claim of ownership of Philo, it was shown that, in 1875, Liberty Powell built a house upon the premises. At. that time he was a man of wealth, and his brother seems to have been in moderate circumstances; and it is a question, upon the whole evidence, whether it was a brotherly act without pay, or whether it was an advancement upon the property by Liberty, with the knowledge on the part of Philo that ultimately the expenses for building the bam were to be accounted for. There was some considerable evidence as to why the building was erected; and some evidence was given tending to show it was erected by Liberty Powell because he was the owner of the premises, and that Philo assented to the idea that he was the owner of it. To meet that evidence, the defendant offered to show that, at the time, Liberty Powell acquiesced in the fact that Philo Powell owned the premises, and was building the house there for Philo. The evidence was excluded, and an exception was taken.. At a later stage of the case, the defendant, in effect, offered to show by a witness “that he was riding with Liberty Powell, and the latter told him that he was building the house for his brother Philo.” The evidence was excluded, and an exception taken. We are inclined to think that, as the issue then stood, the offer ought to have been received to explain the relations of the parties to it. We think there should be a new trial.

Judgment and order reversed, and a new trial ordered, with costs to abide the event. All concur.

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34 N.Y.S. 659, 88 Hun 193, 95 N.Y. Sup. Ct. 193, 68 N.Y. St. Rep. 622, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tindale-v-powell-nysupct-1895.

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