Smith v. Reich , 80 Hun 287 ( 1894 )

BROWN, P. J.

This action was in ejectment for' a small tract of land in the town of Islip, Suffolk county. The answer admitted possession, denied the plaintiffs’ title, and alleged that defendant and her grantors had been in uninterrupted, adverse possession for more than 20 years prior to the commencement of the action. In January, 1875, defendant purchased about 100 acres of land from Mary H. Cordts, and at that date took possession of the lands in dispute. The plaintiffs were the owners of several hundred acres lying east of the defendant’s land, and it was their claim that the disputed land was a part of their tract. It was conceded that the westerly boundary of the plaintiffs’ lands and the easterly boundary of the lands described in the deed from Cordts to defendant was the east line of the Mowbray patent, and the location of that line was the main question of fact litigated upon the trial. Under a charge to which, in this respect, no exception was taken, the jury determined the line of the Mowbray patent to be as claimed by the plaintiffs, and, consequently, that the land in dispute was not included in the conveyance to the defendant. The question presented upon this appeal is whether evidence offered by defendant, and which she claims tended to establish possession adverse to the plaintiffs, was improperly excluded.

Lorenzo Reich, the defendant’s husband, testified that, in company with his wife, he visited the property in 1871; that he also saw it in 1874. And he was asked whether, at those visits, the premises were cultivated, and, if so, by whom. These questions were objected to, and excluded, to which defendant excepted. Similar questions were asked of the defendant and of William Boland, and excluded, over the defendant’s objection and exception. Boland testified that he saw the premises in 1867, and nearly every summer thereafter. The defendant’s title did not rest upon a written instrument, and hence it was necessary for her to show actual, continued occupation of the premises under a claim of title exclusive of any other right. Pope v. Hanmer, 74 N. Y. 240; Code Civ. Proc. § 371. Under such circumstances, land is deemed to be held adversely when it is usually cultivated or improved. Id. § 372. While it was a fact material to the defendant’s case to show that, for the period of four or five years prior to her occupation, the lot was cultivated, that evidence, of itself, was insufficient to establish an adverse holding. It was essential that it should appear that such cultivation existed under a claim of title by the occupant, and that defendant had succeeded to that title. It did not appear that any person in defendant’s chain of title ever had occupied the land, and no offer to show that fact was made. Nor did it appear that defendant had any other claim to the lot than under her deed from Cordts. Assuming, therefore, that Lorenzo Eeich had answered the question asked him by saying that the premises were cultivated in 1874 by Mary Cordts, or that it had appeared that her grantors had occupied them, it would not afford sufficient ground to reverse the judgment. Mary Cordts was not called to prove the character of her possession, and under her deed there was no privity between her and defendant with respect to the lot in question. Adverse possession must be continuous. Code Civ. Proc. § 371. And, when one person seeks to unite to his own possession the possession of prior occupants, the several titles must be connected by purchase or descent. Without some privity between the successive occupants, the several possessions cannot be tacked together so as to make continuity of possession. Doe v. Campbell, 10 Johns. 475; Simpson v. Downing, 23 Wend. 316; Melvin v. Proprietors, 5 Metc. (Mass.) 15; 1 Am. & Eng. Enc. Law, p. 269; Ang. Lim. § 413. If Mary Cordts had been shown to have occupied the land in dispute, Mrs. Eeich could not avail herself of that occupation to make up the 20 years necessary to establish an adverse possession, for the reason that the description in her deed excluded the land, and consequently she had not acquired Mrs. Cordts’ title. A different case would have been presented, had the description in that deed included the land in question. The defendant relies upon Barnes v. Light, 116 N. Y. 34, 22 N. E. 441. There was no question in that case of continuity of possession. Isaac Barnes, the plaintiffs’ predecessor in title, received his deed in 1823, and occupied the land for upwards of 20 years, and the plaintiffs had succeeded to his title. That case does not conflict with the rule here applied. We are of the opinion that no error was committed in the exclusion of the evidence referred to, and the judgment must be affirmed, with costs. All concur.