Opinion
December 29, 1949.
Appeal from Supreme Court, Broome County.
Present — Foster, P.J., Heffernan, Deyo, Santry and Bergan, JJ.
The action is to determine the boundary line between parcels of land of the parties. The location of the principal line in dispute rests upon language in a deed which describes the line as beginning in the center of a road 273 feet from the point where another boundary crosses the road. The deed also describes the line as running "west of a certain row of apple trees to a stake." An engineer located the main boundary to which this description had referred, by certain physical indicia, and measuring 273 feet from the point it crossed the road, he expressed strong opinion as to the location of the line between the parties. As thus located, the line ran through a small portion of a house built on defendants' land. Another surveyor called by the plaintiffs also located the line between the parties as running through the house, but his opinion was in large part founded on a map made after the deed on which the line depended. Defendants swore no surveyor, but they adduced testimony showing the location of a row of apple trees and a stake at the time the deed was given which would place the line away from the house. Defendants also showed that for a period of some twenty years before the action was commenced the defendants, or parties holding under them, had cultivated the land to the line of the apple trees. Since the description referred to physical objects as well as measurements based on other lines, the court could have accepted one reference as a more reliable guide to actual location on the land than the other, and could have also found that such a line was fixed by adverse possession. The secondary line between the parties, which was fixed by a later conveyance based on a map, is conceded to be a straight continuance of the primary line, and if one part of the straight line is accurately fixed between the parties it is a sound basis for the location of the rest of it. Judgment unanimously affirmed, with costs.