Kipp v. Den ex dem. Van Blarcom

The opinion of the court was delivered by

This was an action of ejectment, to recover possession of a dock and the ground adjacent to it, situate on the west side of the Passaic river, just below the bridge, at Acquaekanonck. The lessors of the plaintiff showed a regular title, by wills and releases, from Garret Van Wagoner, through his son Harmonus, to a farm of about two hundred acres, said, by one of the witnesses, to have been in the family at least two hundred years. Roelof, son of *857Harmonus, was shown to have been in possession of it until his death, in 1816, when it descended to his grandson «John, then about seventeen months old, son of Harmonus Van Wagoner the younger, who died in 1815. The will of Garret was dated in 1769, and that of Harmonus the elder, in 1789, and proved April eighth, 1794. Vo title deeds were produced defining the boundaries of the farm. It was claimed, on behalf of the plaintiifj that it extended to the river, but of this, there was no positive proof. An old road ran along the margin of the river, at the place where the dock was built, and the farm was enclosed to the west side of that road, there being a lane leading to a watering place a little below the dock.

About the year 1790 or 1791, and, as it would seem, just before the death of Harmonus Van Wagoner the elder, Abraham Ackerman, from whom the defendants deduce their title, owned a store a little north of the Van Wagoner line, called the north-west line, because it ran far up into the country, a north-west course; and built the dock in question, on the shore of the river, principally south of that line, and so that if that line was extended to the rivei, the greater part of it was on the same side of it as the Van Wagoner farm. This dock Ackerman occupied as his own, and it was usually called by his name. About the year 1804, he rented the store and dock to one John M. Ryerson, and subsequently to one Van Houten until 1817, and after that to others, receiving the rent. About the year 1812, a public road W'as laid out, a little farther from the river than the old road. Vo possession of the dock, or of the place where it was built, was shown in any of the Van Wagoners. There was evidence that Roeloff, and his widow, as w'ell as others, used it, in conjunction with Ackerman and his tenants, for loading and unloading wood and hay. Mrs. Jane Shelp, a witness on the part of the plaintiff, testified that when she was the wife of Harmonus Van Wagoner the younger, and, as she thought, before her son John was born, which would make it about the year 1814, more than twenty' years after Ackerman built the dock, that one morning *858Ackerman came to Roeloff and said, I. understand you mean to unload a flat of hay at the.dock. Roeloff said, yes. Ackerman said, no you won’t; if you bring the float of hay to the dock I will cut the rope. Roeloff said, I would like to see you try that; you talk as though .the dock belonged to you; you have not paid up the rent for the time you have had it. Ackerman said, Mr. Van Wagoner, I want to buy the dock of you. Van Wagoner replied, as soon as you pay the rent I’ll talk about it. This is the substance of the conversation, which the witness repeated with some variations, but not stronger for the plaintiff than is above quoted. She further stated that Roeloff unloaded his hay at the dock first, before Ackerman’s boat j Roeloff had a scow and Ackerman a sloop; Roeloff would unload his hay first.

The case having been submitted to the jury, the court, after stating the evidence of title in the lessors of the plaintiff, by will and descent, charged the jury that, “ this vested the title of the farm in them, as against any who do not show a better or older title. The N. W. line is shown to include the principal part of the premises in question, and if the witnesses are credible, the proof is such as entitles the plaintiff to recover, unless the defendants have shown a better title.” Exception was taken to the charge in this particular, and error being now assigned upon it, the question before us is whether it was correct.

Upon a careful examination of the evidence, I do not find that the north-west line was shown to run down to the low water'of the river, so as to include the principal part of the premises in question, nor do I think it was correct to state, as a necessary and legal result of the testimony, admitting the witnesses all to be perfectly credible, that the plaintiff was entitled to recover, unless the defendants, had shown a better title. Had the plaintiffs. shown a' paper title covering the premises, or an undisputed possession, this might have been correct. But it was, to say the least, doubtful whether the Van Wagoners ever occupied, or even claimed the shore, where the dock was built. Perhaps the circumstances proved, including Mrs. Shelp’s *859statements, were sufficient to have justified the court in submitting it to the jury as a question of fact, that the property did belong to them; and the jury, in so finding. But they did not warrant the assuming it, as a thing to be taken for granted, and thus shifting the burden of proof to the great, prejudice of the defendant. Ackerman had built the dock more than sixty years before the trial, partly on the siiore of the river, and partly in the road, below the enclosures of the farm, and so far as appeared, without consulting Yan Wagoner, or any acknowledgment of bis right there. His subsequent occupation was open and notorious, and with all the indicia of ownership. He rented it out to others, without question, and there is no evidence of any claim to it on the part of Van 'Wagoner, until the conversation testified to by Mrs. Shelp. This was submitted to the jury in the light of evidence, tending to prove a tenancy so as to prevent the bar of the statute of limitations, upon the assumption that the’ title was clearly in Yan Wagoner, when Ackerman commenced his occupation, instead of being evidence necessary, first, to be considered in connection with the other circumstances, upon the question, whether Yan Wagoner ever owned the property. It cannot be doubted, I think, that this substantially varied the true question before the jury, and may have produced a very different verdict from that which would have been rendered, had the case been properly submitted to them. This objection applies, however, only to the doek and not to the adjacent ground, which was shown to have been a part of the Yan Wagoner farm, and occupied by its owners.

Exception was also taken to another part of the charge, in relation to the testimony of Mrs. Shelp. The jury were told that, “if in this conversation, Ackerman assented to the right of Boeloff to unload there, or that he owed him for rent of the dock, it is sufficient to show that lie held the dock as tenant of Boeloff.” In this, I think, there was error. Boeloff might have had a right to unload at the dock, to which Ackerman may have assented, and which was perfectly consistent with the latter being the owner of *860it, and which had no tendency to show that he was a tenant. This right might have arisen from an express contract between them, or from the fact that it was a dock on a navigable stream, where the public may have had a right to load and unload, upon payment to the owner of reasonable compensation. Such a broad, unqualified statement of the effect of an acknowledgment of Roeloff Van Wagoner’s right to unload his hay, however inadvertently made, may have materially prejudiced the defendants’ case, and not being warranted by the law applicable to the case, was erroneous.

For both of these errors in the charge, I am of opinion the judgment should be reversed, and the record remitted to the Supreme Court, with directions to award a venire de novo.

Judgment reversed.

For Reversal — The Chancellor, The Chief Justice, and Judges Elmer, Arrowsmith, Ogden, Risley, Huyler, Potts, Valentine and Wills.

For Affirmance, — Judge Cornelison.