#### Emily Wiechers, Respondent, v. Robert McCormick and Others, Appellants.

Second Department,

December 23, 1907.

Real property — adverse possession of uncultivated lands—facts not showing occupancy—prerequisites to action to quiet title — stipulation as to defendant’s title construed — when proof of grant'from sovereign power not necessary. *-*

Adverse possession for twenty years of uncultivated and uninclosed lands, under color of a void tax deed, is not established by mere .proof that the claimant, who never occupied the premises, but lived on a neighboring farm, occasionally cut Are wood thereon for use on his farm, and occasionally sold wood therefrom to others.

Subdivision 3 of section 369 of the Code of Civil Procedure, providing that lands are deemed to have -been held adversely where, although not inclosed, they have been used for the supply of fuel or of fencing timber, either for the purposes of husbandry or for the ordinary use of ‘ the occupant,' requires a con*861tinuous *occupation*and possession oí the premises or some part thereof for twenty years.

The possession and occupation required by the Code is an actual occupation of the premises or some part thereof, and not an occasional entry for the purpose of cutting wood and drawing it away. Such acts do not constitute occupation and possession of any part of the premises; they are rather in the nature of a trespass.

Such claimant not having been in'actual possession for a year prior to an action to quiet conflicting claims to lands, as required in section 1638 of the Code of Civil Procedure, and having no record title other than the void tax sale or legal seizin so as to constitute constructive possession, is not entitled to maintain such action, no matter how defective the defendant’s title may be.

When in such action the piaintifE stipulates that the defendant’s predecessor in title “conveyed the property described in the complaint,” the stipulation will be construed not simply as an admission that the deed described the property, but that it was actually transferred'thereby, and, hence, there is no burden on the defendant to trace his title to a grant from the sovereign as is ordinarily required in the case of unoccupied lands.

Appeal by the defendants, Robert McCormick and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 20th day of February, 1907, upon the decision of the court rendered after a trial at the Suffolk Special Term.

*Charles S. Taber [Donald F. Ayres*with him on the brief], for the appellants. .

*Henry E. Wilke [Rowland Miles*with him on the brief], for the respondent.

Woodward, J.:

This action was brought for the purpose of quieting conflicting claims to the title to about sixty acres of land situate in the town of Brookhaven, Suffolk county, N. Y.

During all the period involved in this litigation, the property has been wild land, covered with a growth of oak and chestnut in the northerly part, and with pine and scrub oak in the southerly part. In May, 1882, the county treasurer of Suffolk county, for the consideration of thirteen dollars and forty-one cents, executed to one Charles W. Hawkins a deed of property described as *“*bounded North and East by lands of J. H. Puleston, South by Long Island Railroad, and W est by Islip and Brookhaven line.” This deed *862recited that'it was given in pursuance of a tax sale in May, 1882, for unpaid taxes for the year 1878.

The trial court held that the assessment and sale upon which the tax deed was based were illegal and void, and that Charles W. Hawkins acquired no title under them.

The plaintiff, who derives her rights under and through Hawkins, contends, however, that notwithstanding the fact that the deed was void and conveyed no title, yet that Hawkins went into the possession of the property in question, and for more than twenty years occupied the same under an adverse claim of title, and that any rights- the defendants had in the premises have become barred by adverse possession and the Statute of Limitations.

'The appellants claim not only to be the owners of the legal title as heirs and devisees of one John H. McCormick, but also claim they are entitled to the possession of the land in question,.and that their rights have not been barred or defeated by adverse possession by the plaintiff or her grantors.

The trial court found the plaintiff the owner in fee of the premises in dispute and the defendants’ interest barred, by reason of adverse possession of the premises in dispute for more than twenty, years. The respondent’s right to an affirmance of that judgment turns upon the question whether the acts relied- on to constitute adverse possession make out such a case within the provisions of the Code of Civil Procedure. Although .other numerous exceptions have been argued on this appeal it will be unnecessary to refer to any of them if it should be determined that no case of adverse possession has been established by the evidence in the case.

This brings us at once to a statement of the essential facts relied on by the plaintiff to establish • adverse possession' against the defendants. „

. It- is conceded that the lands in dispute' were wild, uncultivated lands; that they were never fenced or inclosed saving that very recently a single wire was strung on two sides of the property. Ho buildings were ever erected on the property. ' Charles W. Hawkins, the grantee in the tax deed, lived on-a farm some, two and a half miles distant from this tract. The evidence, however, tends to show that at various times from 1882 down to 1906 Hawkins cut fire wood fro-m the tract; that this wood was not used on the *863property in question, but drawn two and a half miles away to Hawkins’ own farm, of which the property in question never formed a part. The evidence also shows that some bean poles were cut and that some cord wood was sold to others.

There is some dispute as to the amount of wood cut and taken from the tract, but the most favorable view does not disclose that any very considerable quantity was cut, and in some years the evidence indicates none whatever was taken. Most of the cutting was done during the-years between 1882 and 1891. The only other thing tending to show any improvement of the property is the *fact that*a road was cut through the premises.

. These facts bring us to the consideration of the clear-cut • proposition of law as to whether a case of adverse possession under the law has been established. We think the plaintiff has signally failed in this regard;

Section 369 of the Code of Civil Procedure provides: “ Where the occupant, or those under whom he claims, entered into the possession of the premises, under claim of title, exclusive of any other ■ right,' founding the claim upon a written instrument, as being a conveyance of the premises in question, or upon the decree or judgment of a competent court; and there has been a continued occupation and possession of the premises, included in the instrument, decree, or judgment, or of some part thereof, for twenty years, under the same claim; the premises so included are deemed to have been held adversely; except that where they consist of a tract, divided into lots, the ■ possession of one lot is not deemed a possession of any other lot.”

Section 370» defines what acts are necessary to constitute adverse possession as follows:

> “ For the purpose of constituting an adverse possession, by a person claiming a title, founded upon a written instrument, or a judgment or decree, land is deemed to have been possessed and occupied in either of the following cases:

> *“*1. Where it has been usually cultivated or improved.

> . “ 2. Where it has been protected by a substantial inclosure.

> *“*3. Where, although not inclosed, it has been used for the supply of fuel, or of fencing timber, either for the purposes of husbandry, or for the ordinary use *of the occupant.*

> *864
>       *“*Where a known farm or a single lot has been partly improved* the portion of the farm or lot that has been left not cleared, or not inclosed, according to the usual course and custom of the adjoining . country, is deemed to have been occupied for the same length of time, as the part improved and cultivated.”

There must, therefore, be a continuous *occupation*and possession of the premises included in the' instrument or of some part thereof for twenty years. .

The evidence in this case shows neither actual-nor constructive-• adverse possession. It shows no occupation whatever. . In certain cases the statute dpes not require that the premises should be actually inclosed to make out case; as, to wit:

> *“*Where, although not inclosed, it has' been used for the supply of fuel, or of fencing timber, either for the jmrposes of husbandry,' or for the ordinary use of the occupant.”

There must, however, be an *“*occupant,” not necessarily of the entire tract, but of some part' of the land claimed to be held adversely.

The possession and occupation referred to in the sections of the ' Code is actual occupation- of the premises or of some part of them, and not the occasional going upon the premises for the purpose of cutting wood and drawing it off. These acts do not constitute occupation and possession of" any part of the premises. They partake rather of the nature of trespass on real property.

To constitute adverse possession the Legislature contemplates an actual and continued occupation of at least' some part of the prem- - ises under a claim of title to it all, and where there has. been no actual occupation of any part, and no inclosing, there can be no. constructive adverse possession.

This view has been repeatedly enunciated by the Court of Appeals.

A leading case is that of *Thompson*v. *Burhans*(79 N. Y. 93), where the plaintiff claimed a tract of 6,300 acres under a void tax deed. He showed that he had erected upon the property in dispute a log shanty and barn and cleared a quarter of an -acre around there and had cut 3,000 or 4,000 logs from the uncleared land. Eabl, J., in discussing the claim of adverse possession, said : “ That there was any actual possession of the land recovered cannot -be *865well claimed. It was not inclosed. Mo part of it had ever been cultivated or improved. Whatever was done upon it was to take value from it, not to put value into it. It does not even appear that any one ever lived in the shanty, and no one representing the plaintiff was upon the land at the time of the alleged entry of the defendants or for some months before. Payment of taxes, surveying and assertion of right, do not constitute possession. • They merely show a claim of title, and whenever it is important to show that, they are material. Going upon land from time to time and cutting logs thereon, does not give possession. Such acts are merely trespasses upon the land against the true owner, whoever he may be. Any other intruder may commit similar trespasses, without liability to any other trespasser. Such acts do not constitute a disseizin of tile true owner. One may gain actual possession of land by fencing it, or by cultivating and improving it, or by building upon it; and then he will have possession of as much as he has fenced, or cultivated and improved, or built upon with some land around and necessary for the buildings. * * *

“Mor did the plaintiff have any constructive possession of the land. Constructive possession is based upon a written title, which may be valid or invalid. The person having the valid title is always in law in the constructive possession of the land, unless he has become disseized. But a person claiming land under a defective conveyance must have actual possession of part of the land, and that gives constructive possession of other land contained in the conveyance. In other words, he must have a written conveyance of land, and he must enter, in to actual possession of a part thereof, claiming the whole, and then he may, under certain circumstances, have constructive possession of the whole. Constructive possession arises in no other way than this. But the definition I have given is not yet complete. The part not actually possessed must be for use with or subservient to that actually possessed, and have some necessary connection therewith. One may purchase and take a conveyance of land for a farm and have actual possession of but a small part thereof, and the balance,' uninclosed, may be kept for future improvement, and for fire-wood and fencing and building timber, and he will have constructive possession of such uninclosed land. *866But such constructive possession will extend only to such land as is jised in .connection' with the improved land actually possessed, and to only so much as is- reasonable and proper for that purpose, according to the custom of the country.”

In *Bliss*v. *Johnson*(94 N. Y. 235, 242) Chief Judge Ruger said: “ The settled principles of law require courts to consider the true owner as constructively in possession of the land to which beholds the title, unless they are in the actual hostile occupation of another under a claim of title; and this rule is still more imperative in the case of wild and uncultivated tracts or lands which are not legally susceptible of actual occupation and cultivation. *(Doe*v. Thompson, 5 Cow. 371 ; *Thompson*v. Burhans, 79 N. Y. 99.) This possession is deemed to continue until there is an actual disseizin and expulsion of the true owner from the land.”

In *Price*v. *Brown*(101 N. Y. 669, 671) the court said : “A person cannot acquire title to an uninclosed,, unoccupied, unimproved parcel of land by taking a deed thereof from one not the owner, and then merely going upon the land and there asserting his ownership ; nor can he acquire the title by taking such .a deed and then making an occasional foray upon the land for grass or sand, and thus committing trespass against the real owner. *(Miller*v. *L. I. R. R. Co.,*71 N. Y. 380.) ”

In *Mission of the I. V.*v. *Cronin*(143 N. Y. 524) the property in dispute consisted of thirty acres of land on Roelfaway Beach. It was uncultivated, unimproved and unoccupied. Eabl, J., there said : *“*The plaintiff and its predecessors had exercised some acts of apparent ownership upon the land. They had claimed title to the land, surveyed it, marked the boundaries thereof by monuments, from time to time cut trees .upon it, and for a few years paid the taxes thereon. All these acts, as we have frequently held, fall short of showing adverse possession as defined in the Code. (Sec. 272*; *Wheeler*v. *Spinola,*54 N. Y. 377 ; *Thompson*v. *Burhans,*61 id. 52 ; *Miller*v. *Long Island R. R. Co.,*71 id. 380 ; *Thompson*v. *Burhans,*79 id. 93 ; *Price*v. *Brown,*101 id. 669.)

“ The plaintiff cannot claim. constructive possession .of the land under section 370 of the Code, because no part of the tract was *867improved, and the trees cut therefrom were not cut for use upon the tract, but for use upon other land at least two miles distant.”

We have no hesitation, therefore, in saying no case of actual or constructive adverse possession "was made by the plaintiff, and the title of the defendants to the property in question remains unimpaired by any of the acts of the plaintiff or of her predecessors in title.

Having no title, and no’right to occupation by adverse possession, and not being in actual possession, the plaintiff is entitled to no judgment in this action, however defective the defendants’title may prove. The plaintiff was -entitled to maintain an action of this character only where for a year prior to the commencement of the action she had been “ in possession ” of the real property in dispute. (Code Civ. Proc. § 1638.) The plaintiff held no record title or legal seizin of the premises in dispute so as to constitute constructive possession. Neither had she actual occupation of the land. Her right to a standing in court under the provisions of the section quoted failed.

It is asserted by the plaintiff that the defendants have established no title because they have failed to trace back their title to the sovereign power. This is ordinarily required to establish title to unoccupied lands. *(Greenleaf v. B., F. & C. I. R. Co.,*141 N. Y. 395.)

In this case, however, it was expressly stipulated -that one Martha A. Smith in 1858 *“conveyed*the property described in the complaint ” to one of the defendants’ predecessors in title, and through whom the defendants claim. We construe this stipulation to fairly mean, not simply that Martha A. Smith executed a deed describing the property, but that by the instrument she actually transferred the title to the property described. This concession having been made by stipulation, there remained no necessity of tracing the defendants’ title back to the sovereign source.

The judgment should be reversed and a new trial.granted) costa to abide the final award of costs.

Jerks, Gay nor, High and Miller, JJ., concurred.

Judgment reversed and new. trial granted, costs to abide the fina* award of costs.

*Sic,*See Code Civ, Proc. § 372.—[Rep.