Statement of case. HUGH MCROBERTS, Respondent, v. HENRY S. BERGMAN et al., While in an action of ejectment, plaintiff must recover upon the strength In an action of ejectment to recover possession of a salt meadow, and the beach and shore in front thereof lying next the waters of a salt water bay, plaintiff produced in evidence a deed to J., given in 1756, which conveyed two parcels of land; following the description of the last parcel was the following: "And also a little lot of salt meadow * * * to said lot belonging or appertaining." J. died in 1780, and whatever interest he had became vested, under his will, in his son S. S. died in 1845, and whatever title he had vested under his will in his son J. S., who in 1847 executed a deed to W., purporting to convey a piece of land, commonly called "the little salt meadow," bounded by the "sand beach or shore," and also "all the right, title and interest of the grantor, "which was owned and enjoyed by” S. in his life-time, "in and to the beach shore and waters of the bay in front of the said described premises." The two parcels of land described in the deed to J. were occupied by S. until his death as part of his homestead farm, and his title thereto was not disputed. The salt meadow and beach in question lie near to this farm and were occupied by him in connection with it, his possession was as complete as the character of the land and the uses to which he devoted it rendered practicable, and his ownership was unchallenged. On the trial defendants admitted plaintiff's title to the salt meadow and amended their answer so as simply to deny title to the sand beach. Held, that the identity of the salt meadow in question with that described in the deed of 1756 was sufficiently established. It appeared that the beach and meadow together formed but a single lot, with no artificial boundary between them, bounded by the sea in front and by ditches on each side, and that during living memory the sea had encroached on the land so that the sea is now where the beach once was, and the present beach was once part of the salt meadow. Held, that the presumption was that S. died seized of the locus in quo, deriving title under the deed to his father; that W. acquired a prima facie title under his deed from J. S., which afforded sufficient presumptive evidence of subsequent possession by the grantee, and those holding under him, in the absence of actual proof of a twenty years' adverse possession by a stranger to that title. The deed of 1756, by its recitals, purported to deduce title from colonial grants made in the previous century. Held, that while the recitals were 132 73 143 528 Statement of case. not evidence of the facts recited against strangers to this title they were evidence that the grantors and grantee made a claim of title, and so characterized J.'s original entry. (Argued January 29, 1892; decided March 8, 1892.) APPEAL from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made July 13, 1890, which affirmed a judgment in favor of plaintiff entered upon a verdict and affirmed an order denying a motion for a new trial. The action was ejectment for the recovery of premises in the town of Southfield, on the southerly side of Staten Island, described in the complaint, alleged to contain 8 acres, consisting of a salt meadow and the beach and shore in front thereof, lying next the waters of the lower bay of New York. The answer contained a general denial, alleged title in the defendants by adverse possession, and that the plaintiff's alleged title was void for champerty. At the close of the testimony the defendants amended their answer by leave of the court and abandoned claim to the salt meadow, and limited their defense to the sand beach or shore in front thereof, being a strip of land about 940 feet in length along high-water mark, and about 240 feet in width. Upon this strip the defendant, Henry Bergman, had made valuable improvements at an expense of about $11,500. Further facts are stated in the opinion. E. Louis Lowe for appellants. Plaintiff must recover upon the strength of his own title and not upon the weakness of his adversaries. (Roberts v. Baumgarten, 110 N. Y. 380.) Plaintiff failed to prove a title. (Wheeler v. Spinola, 54 N. Y. 377; Bliss v. Johnson, 94 id. 235; Tracy v. N. & W. R. Co., 39 Conn. 382; Miller v. L. I. R. R. Co., 71 N. Y. 380; Price v. Brown, 101 id. 669.) The charge of the court was erroneous. (Code Civ. Pro. § 378; Laws of 1878, chap. 190; Laws of 1886, chap. 187; Roe v. Strong, 119 N. Y. 316.) It was error for the court to charge that all the deeds from Statement of case. Keteltas to White and from the Whites to the plaintiff, by reason of the word "beach" therein, purported on their face to convey all the land to high-water mark, including the premises in controversy. (Trustees, etc., v. Kirk, 68 N. Y. 457, 463; People v. Jones, 112 id. 597, 605.) Assuming, as defendants contend, that the deeds from Keteltas and the Whites conveyed no part of the premises in controversy, and that they gave no color of title thereto, then and in that case it was incumbent upon the plaintiff - if the taking of sand be evidence of possession-to show where upon the beach he took sand for twenty years continuously, and where and in what place he acquired actual possession by such taking. A party without color of title can only recover what he has had actual possession of, and no more. (Gardner v. Hart, 1 N. Y. 528; Pope v. Hanmer, 74 id. 240; Thompson v. Bur hans, 79 id. 93; 61 id. 52; 4 R. S. 2453, § 147.) The defenders were not mere intruders. (Thompson v. Burhans, 61 N. Y. 52.) The plaintiff is estopped from asserting title or claiming the premises in controversy as against the defendant Bergman. (Brown v. Bowen, 30 N. Y. 519; 3 Washb. on Real Prop. 73.) Defendants' exceptions were well taken. (2 Devlin on Deeds, § 1020; Kellogg v. Kellogg, 6 Barb. 116; Bradt v. Church, 39 Hun, 262.) Wm. M. Mullen for respondent. The plaintiff's possession from the year 1862 to the year 1875, under the lease from White, who claimed title to the premises in question through the deed from John S. Keteltas as executor of Stephen Keteltas to him, is to be deemed the possession of his said landlord or lessor. (Code Civ. Pro. § 373; Church v. Schoonmacher, 115 N. Y. 570; Becker v. Church, Id. 562; Bradt v. Church, 110 id. 537; Jackson v. Harrison, 7 Cow. 323; Whiting v. Edmunds, 94 N. Y. 309; Sands v. Hughes, 53 id. 293.) The acts of ownership exercised by the plaintiff over the premises in question was sufficient to constitute an adverse possession by the plaintiff to the lands in question. (Code Civ. Pro. §§ 370, 372; LeFrombois v. Smith, 8 Cow. 589; Statement of case. Corning v. T. I. & N. Foundry, 44 N. Y. 577; Monroe v. Merchant, 28 id. 9; Mayor, etc., v. Carleton, 113 id. 285; Town of East Hampton v. Kirk, 84 id. 215.) In order to constitute a substantial inclosure under the meaning of the statute, it is not necessary that a fence should be erected standing above the ground, but that any other obstacle or barrier which is interposed or constructed around the land sufficient to keep out. cattle or other domestic animals, constitutes an inclosure within the meaning of the statutes. (Wait's Act. & Def. 329; Town of East Hampton v. Kirk, 84 N. Y. 215; Jackson v. Schoonmacher, 2 Johns. 229; Jackson v. Halstead, 5 Cow. 216; Becker v. Von Volkenburg, 29 Barb. 319.) The defendants, by their amendment to the answer, having relinquished all claim to meadow land, and rested their claim solely upon that portion of the property in question, which consisted of sand beach or shore, were not entitled to any part of the premises in question as they existed at the time of the commencement of this action. (Town of East Hamp ton v. Kirk, 84 N. Y. 215; In re II. & S. R. Co., 5 M. & W. 327; 2 Black. Comm. 262; Code Civ. Pro. §§ 370, 373.) The rule that the declarations of a person in possession of land as to its title are admissible evidence against him and all persons claiming under him is well settled. (Dickinson v. Barton, 4 Johns. 230; 1 id. 343; 1 Esp. 458; 2 T. R. 53; Jackson v. Bond, 4 Johns. 230; Pitts v. Wilder, 1 N. Y. 525; Abeal V. Von Gilder, 36 id. 513; Vrooman v. King, Id. 477; Norton v. Pettibone, 7 Conn. 719; Keaton v. Dimmock, 46 Barb. 158; Varick v. Briggs, 6 Paige, 323; 22 Wend. 543; Featherly v. Waggoner, 11 id. 599; Smith v. Wait, 4 Barb. 28.) If the defendant Burke had any interest in the premises other than she derived from or through the Stilwell and Tucker deed, it was incumbent upon her to show that interest. (Bedell v. Shaw, 59 N. Y. 46; Pierce v. More, 114 id. 256; Bliss v. Johnson, 94 id. 235.) The deed from Stilwell and Tucker to Burke was absolutely void on the ground of champerty, the the plaintiff, McRoberts, being in possession of the premises in question as a lessee of White at the time the deed was delivered. Statement of case. (Becker v. Church, 115 N. Y. 562; Church v. Schoonmacher, 115 id. 570; Whiting v. Edmunds, 94 id. 309; Sands v. Hughes, 55 id. 293; Dawley v. Brown, 79 id. 390; Fish v. Fish, 39 Barb. 513; Ellsworth v. Northrup, 106 N. Y. 172.) The existence of a fence, presenting a question of fact, was fairly submitted to the jury by the judge in his charge. This question of fact will not be disturbed upon this appeal. (Cross v. Mowers, 16 N. Y. S. R. 425; Cheney v. N. Y. C. & II. R. R. R. Co., 16 Hun, 415; Seneca Nation v. Hugaboom, 30 N. Y. S. R. 586.) The deed from Stilwell and Tucker to the defendant Burke being void for champerty, her possession of these lands is not adverse to the title of the plaintiff. (Dougherty v. Maxwell, 24 J. & S. 76; Price v. Brown, 101 N. Y. 669.) Defendants' exceptions to the admission of evidence was not well taken. (Sheldon v. Wood, 2 Bosw. 269; Bergman v. Jones, 94 N. Y. 51; People v. Beach, 87 id. 508; Turner v. City of Newburgh, 109 id. 301; Ward v. Kil patrick, 85 id. 413; N. Y. S. Co. v. Mayor, etc., 109 id. 621 ; Carr v. Ilch, 12 N. Y. S. R. 569; Denise v. Denise, 110 N. Y. 562; Daniel v. Patterson, 3 id. 47; Durgen v. Ireland, 14 id. 322; R. Seminary v. McDonald, 34 id. 369; 20 Johns. 347; 5 Barb. 398; Potter v. Ellice, 48 N. Y. 321; Schile v. Brokhaus, 80 id. 614; Fills v. Jones, 2 Abb. Ct. App. Dec. 121; Wallis v. Randall, 81 N. Y. 164; Trustees, etc., v. Kirk, 84 N. Y. 215; Corning v. T. I. & N. Factory, 44 id. 577; Wheeler v. Spinola, 54 id. 375; Thomson v. Burhans, 61 id. 52; 79 id. 100; Barnes v. Light, 116 id. 34; Roe v. Strong, 29 N. Y. S. R. 506; Machin v. Geortner, 14 Wend. 239; Jackson v. Woodruff, 1 Cow. 276, Munroe v. Merchant, 28 N. Y. 9, 44; Van Wyck v. McIntosh, 14 id. 439; White v. Madison, 26 id. 117; Stowell v. Hazelett, 66 id. 635; Cushman v. U. S. L. Ins. Co., 70 id. 72; Tooley v. Bacon, Id. 34 ; Hoffman v. Connor, 76 id. 121; Code Civ. Pro. § 370; Argotsinger v. Vines, 82 N. Y. 398; Sherman v. Kane, 86 id. 57; Swellenham v. Leary, 18 Hun, 284; Miller v. S. & R. R. Co., 71 N. Y. 380; Ensign v. McKinney, 12 Abb. [N. C.] 463 ; Enders v. Sternberg, 1 Keyes, 264; McKinnon v. Bliss, 21 |