#### James Rock, Resp’t, *v.*John Doerr, App’lt.

*(Supreme Court, General Term, Fifth Department,*

*Filed June 2, 1891.)*

Deeds—Boundaries—Acquiescence.

One who was owner of a tract of land sold a lot to plaintiff and built a fence as marking the line between his property and the rest of the tract. Subsequently he sold the adjoining lot to another person, from whom by *mesne*conveyances it came to defendant. This line had been acquiesced in for thirty years, when defendant attempted to change it, upon the ground that plaintiff's deed did not call for the frontage which he actually occupied, *field,*that acquiescence for such a period would control rather than the measurement in the deed.

Appeal by the defendant from a judgment entered on the report of a referee.

*P. P.*Dickinson, for app’lt; *Q. Van Voorhis,*for resp’t.

Dwight, P. J.

The action was ejectment for a gore of land six inches wide in front and running to a point at the distance of about thirty feet to the rear, on the division line of lots of the plaintiff and the defendant.

In 1851 Martin Gralusha was the owner of lot Ho. 13 in the northeast comer of what was known as the Shamrock tract in the city of Eochestcr. In that year he sold a building lot off the •east end of lot 13 to the plaintiff. That lot was described in the deed as bounded on the east by the east line of the Shamrock tract, on the south by lot 15, on the north by Hand street and on the West by a line parallel with the first line, and as being thirty-three feet wide front and rear. The lot was sold under an agreement of Gralusha to build a house on it for the plaintiff. The house was built and before possession was delivered to the plaintiff Gralusha staked out the west line, dividing the plaintiff’s lot from his own land, and caused a fence to be built on it and also on the front on Hand street, for which the plaintiff paid, under his agreement with Gralusha. The front and side fences met in a corner marked by a square post into which the rails, for pickets, were set.

In 1865 Gralusha sold a lot next west of the plaintiff’s to one Schmidt by a deed which described the land as bounded on the *724east by land conveyed to the plaintiff. The defendant took his, title to the last mentioned lot, by mesne conveyances, in 1872.

In 1869, Schmidt being in possession of the last mentioned property, and having always acquiesced in the location of the line-between the two lots, the plaintiff took down the division fence built by Gralusha, back as far as the rear end of his house, which stood within about eighteen inches of the line, leaving the corner post and the front fence standing where it was set by Gralusha. So the fences and the possession remained until 1882 when the defendant sawed off six inches of the plaintiff’s front fence, took up his corner post and set another post six inches further to the east and extended his own tight board fence in front of his lot up-to the new post; by this means intending to assert his title to the gore in question and to assume possession thereof. This he did upon ascertaining that, as he says, and as the evidence tends to-show, the plaintiff’s lot as fenced was thirty-three feet and six inches wide in front, whereas his deed described it as thirty-three feet in width.

The case is plainly one of the practical location of a boundary line agreed to and established by the plaintiff’s grantor, who at the time was the owner of the entire tract, and acquiesced in by his grantees of the premises subsequently conveyed, on the other side of the line, for a period of more than thirty years. This establishes title up to such line, in the first grantee, by evidence of' the most conclusive character, and overrides the evidence contained in the deed of the supposed measurement of the lot intended to be conveyed. *Baldwin*v. Brown, 16 N. Y., 359; *Reed*v. Farr, 35 id., 113; *Eldridge*v. *Kenning,*35 N. Y. State Rep., 190, and the cases cited.

We have examined the exceptions taken on the tidal and find none which vitiate the judgment The judgment appealed from, should be affirmed.

Macomber, J., concurs.