Adams v. Van Alstyne , 35 Barb. 9 ( 1858 )

Gould, J.

Although this case was withheld, from a decision on the argument, for the purpose of more deliberate investigation, I am not able, even on such investigation, to come to any conclusion different from the one intimated by me at the term. Although respective proprietors, owning the whole of two large farms, along the entire line of the original division fence between those farms, had, for sixty years, or more, (by virtue of an agreement not produced, or proved to have existed, not appearing to be under seal, or of record,) maintained each a particular portion of that division fence; and although their children, while still occupying the whole of the respective farms, had continued so to maintain the same several portions of fence, I do not see any such legal presumption of a grant, or deed, as will, when the farms on each side of that old fence come to be divided up, and held by various owners, prevent these various new owners from being bound by the general provisions of the statutes relative to fences between proprietors of adjoining lands. (1 R. S. 353, §§ 30, 33.) The case of Wright v. Wright (21 Conn, Rep. 329,) seems to me to contain the whole doctrine covering the case. So long as the parties to the prescription, or those holding under them, owned the same quantity of land along the fence, the prescription would continue.- At most, it would hind only those who owned the land as it was when the prescription arose. It is not of the nature of a covenant running with the land through all time; hut is temporary, governing only the immediate owners, and the land as it was then owned, ^(a) This is a doctrine of the plainest justice, and the easiest application; and one every way calculated to prevent litigation.

[Albany General Term, March 1, 1858.

I should affirm the judgment of the county court.

Wright, J. concurred.

Hogeboom, J, dissented.

Judgment affirmed.

Wright, Gould and Hogeboom, Justices.]

(a) See 2 Gray, 802.