Wendell v. Jackson ex dem. People , 8 Wend. 183 ( 1831 )

The following opinions were delivered :

By the Chancellor.

The people of this state, upon the declaration of independence, succeeded to all the rights of the crown, and they are the owners of all the lands within the limits of the state, except such as have been granted to others, or where their title has been lost by adverse possession. Where lands have never been granted by them, they are presumed to be the owners until the contrary appears; and in such cases, they can give no other evidence of their title than that produced on this trial. The attorney-general proved that the premises in question were vacant and unoccupied- thirty years before the trial, and that the first cléaring thereon was made about 24 years previous to the commencement of the suit, which had been pending four years at-the time of the trial in June, 1829. This was presumptive evidence of right in the people of this state at the "time Ruel, under whom the defendant claimed, went into possession. As that possession had been held adversely to the rights of the people, sixteen years short of the period then limited for the bringing of actions by them, it became necessary for the defendant to show title out of the state to rebut that presumption.

As the patent for the Hoffman township does not profess to be bounded on Road patent No. 2, except at the clump of rocks, it is evident that the premises in question do not lie within the bounds of that township, which must be run according to the courses mentioned in that grant, beginning at the clump of rocks, and terminating the second course at the northeast bounds of township No. 24. Thé plaintiffs were therefore entitled to recover,, unless the defendant succeeded in showing the premises in Road patent No. 2. That tract, as described in the patent to Thurman, begins at the easternmost corner of township No. 24, of Totten aud Crossfield’s purchase, and runs thence along the same, north 31 deg. and 15. min. west, 330 chains; thence north 40 deg. east, 105 chains and 50 links ■ thence south 50 deg. east, 153 chains to ScaroonLake ; thence across the same, south 6 deg. and 45 min. east, 240 chains; thence south 58 deg. and 45 min. west, 50 chains to the place of beginning, containing 3500 acres, exclusive of the waters of the lake. It is evident from the testimony in this case that the patent cannot be'located on the land so as to correspond with the fixed boundaries, the courses, distances and quantity of land mentioned in the description; and even if we adopt the clump of, rocks as the termination of the third course, it will not remedy the diificulty, as that would only control the course and distance of the third line, change the location of the fourth, and the location, direction and length of the fifth. Where the courses, distances and quantity of land contained in a grant correspond with the natural or artificial monuments or boundaries referred to in the description of the premises, there can be no difficulty in making a practical location of the grant; and it makes no difference at what angle of the premises the surveyor begins, or whether he runs backward ór forward, provided he reverses the points of compass when he run's around the land in a different direction from that described in the grant. But when a practical location of the premises cannot be made to correspond with all the calls in the grant, certain legal rules must be observed as to rejecting some calls and retaining others ; and it also becomes necessary to run around the premises in the direction indicated by the description in the grant, especially where some of the angles of-the lot are not marked by natural or artificial monuments.

Where several particulars are given, all of which are necessay to ascertain the land intended to be conveyed, nothing but what will correspond with all those particulars will pass by the grant. Thus, if land is conveyed by metes and bounds, without any other description to ascertain the premises, it must be located by those boundaries, although it contains either more or jegS ttian quantity-supposed to have been con-tained within those boundaries, Jackson v. Sprague, 1 Payne’s R. 494; Powell v. Clark, 5 Mass. R; 355 Jackson v. Barringer, 15 Johns. R. 471; but if there be certain particulars sufficiently ascertained to locate- the grant, the addition of. a false or mistaken particular or boundary may be rejected. Thus, in Jackson v. Loomis, 19 Johns. R. 449, where the lot was described by a wrong number, yet being'also described by fixed and known monuments, this court decided that the number of the lot might be rejected ;■ and in Jackson v. Marsh, 6 Cowen, 281, where the lot was correctly described by its number, but there was a mistake as to one of its bourn daries, the supreme court decided the lot might be located by its number and by the reference to the map on file, and that the mistaken corner might be rejected. Where there is nothing in the conveyance to control the call for course and distance, the land must be run according to the course and distance given in the description of the premises. But all grants or conveyances are supposed to be made with reference to an actual view of the premises by the parties thereto,-and it is therefore a general rule in the construction of grants that both course and distance must give way .to natural or artificial monuments or objects ; and courses must be varied, and distances lengthened or shortenéd, so as to conform to the natural or ascertained objects or bounds called for by the grant. Dogan v. Leekright, 4 Hen. & Munf. 125. Doe v. Thompson, 5 Cowen, 371. McIver’s lessee v. Walker, 4 Wheat. R. 444. And any visible or defined object, fixed upon by the terms of the grant as the boundary or locative call of the premises, such as a marked tree or clearing, the corner of a lot- or the land of another person which is certain-and notorious, must be adhered to in the location of the grant, although it does not correspond with the course, distance or quantity, which must all give way to such known boundaries. Jackson v. Widger, 7 Cowen, 723. Pernam v. Wead, 6 Mass. R. 131.

The question was fairly submitted to the jury in this case to determine whether “ the easternmost corner of township No. 24,” described as the place of beginning in the patent to Thurman, was a certain and ascertained boundary, and I think they could not have found otherwise than they did, from the evidence before them. If this place of beginning is rejected there is nothing in the description which would enable a surveyor to locate the patent. The only legal mode of locating this patent appears to he that adopted by Mr. Webster, the state surveyor. The place of beginning being ascertained, the first line must be run from thence northwesterly, along the line of the township, 330 chains ; and the second line having nothing to control the course or distance, must be run conformably to both. This will necessarily exclude the premises in question, whether the third line is run to the clump of rocks, referred to in the patent for the Hoffman township, or directly to Scaroon Lake in the direction indicated by the patent to Thurman. The judge, therefore, was perfectly correct in telling the jury that the clump of rocks would not control the location so as to affect the premises in question, and it was therefore not necessary for him to decide the question whether the clump of rocks could be considered as one of the boundaries. of road patent No. 2.

Although my present impressions are, that Webster’s survey was correct as to all the lines of this patent, the question as to the correctness of his location of the three last lines does not arise in' this case. It is therefore unnecessary that we should pass upon that question.

I have no doubt of the correctness of the decision of the supreme court in this case, and I shall therefore vote for an affirmance of the judgment

By Mr. Senator Westcott.

The decision of this cause depends upon the construction to be given to the wording of a patent granted to John Thurman, on the 8th day of May, 1795, known as road patent No. 2, in the county of Warren. The first object in settling the location of the patent in question, is to ascertain with sufficient certainty the first station in the lines of the patent, which is described to be at the easternmost corner of township No. 24", of Totten & Crossfield’s purchase. All the testimony which goes to settle the position of the easterly corner of township No. 24, describes it as a stake and stones, or a' marked tree, in an inaccessible swamp, designated on a map produced at the argument as point D; no other location is proved or alleged. If this station be adopted as the beginning of the patent, the length of chain óf the first course given will not reach the land in dispute, and will exclude it from the patent; of course it remains as unsold lands belonging to the state, and leaves Levinus Wendell without title to it. But the defendant objects to the station fixed by the evidence, as to the starting point in the patent, for the following reasons, viz. that it is absolutely impossible to locate the patent according to the courses and distances given, if the survey be commenced at the point D. The first line of north 31 deg. 15 min. west, 330 chains, presents no difficulty. The second line also, of north 40 deg. east 105 chains 50 links, may be found; but the third course on the map from F. to G. being south 50 deg. east 153 chains to Scaroon Lake, is less than 76 chains by actual' measurement, falling short about one half the distance given in the patent. From this ■ station G. on the margin of the lake, the patent directs that the fourth line be run across the lake on a course south 6 deg. 45 min. west two hundred and forty chains, which last mentioned line, if continued far enough, according to the location contended for in behalf of the plaintiffs, would cross the first line before coming to, or opposite to the first station D ; and the last and closing line in the patent being south 58 deg. 45 min. west fifty chains to the place of beginning, is wholly lost. The consequences resulting from these' difficulties are, that- the map cannot be closed according to the description in the patent, and more than one half' the land mentioned in the grant will be lost to the patentee.

The plaintiff in error insists that the true starting point intended in the patent, is about one mile north of station D in the easterly line of township No. 24, and that by adopting that position the whole of the lines may be run in strict accordance with the courses and distances given in Road patent No. 2, and without trenching upon the individual rights of any claimants. But this starting point seems designated by cab culation, and not by any positive or direct testimony. The grounds upon which this station is assumed, result from a description given in a patent bearing date seven days subsequent to the date of road patent No. 2, called the Hoffman patent. The starting point given in the Hoffman patent is described to be a large clump of rocks, on the west bank of the Scaroon Lake, at the north-east corner of the Road patent No. 2, by which it seems probable that the starting station mentioned in the Hoffman grant, and the station G. in Road patent No. 2, is the same, and by running from thence northerly according to the directions in the Hoffman patent, the two patents will be found bounded by each other on the easterly and northerly sides of the Road patent, the two grants agreeing precisely in courses and distances, without the possibility of a gore. By adopting, then, the two first lines in the Hoffman grant, as the third and second lines in the Road patent, the remaining lines of this patent may be run according to the description contained in it; the plot may be closed, and the complement of land included. But upon this hypothesis, the patent would not approach nearer than about one mile to the monument proved to be the easterly corner of township No. 24,in Totten & Cross-field’s purchase, as mentioned in the Road patent.

In deciding this case, it appears to me, two difficulties are presented, wholly irreconcileable. If the station D. be taken as the starting point, the patent cannot be closed, nor more than half the quantity of land included; and if that station be rejected, the proof must be wholly disregarded, so far as regards the location of the corner of township No. 24. By abandoning D. as the starting point, justice may be done to all parties ; by retaining it, injustice will be done to the patentee, or greater violence must be done to the wording of the grant in the description of its lines. Notwithstanding there is some discrepancy in the testimony, I consider the corner of township No. 24 established with reasonable certainty; but at the same time the evidence contained in the patent is, at least, equally entitled to consideration and credit; and where the two are incompatible, it may be safer to rely on a solemn record, than on the less certain testimony derived from recollection, or professional accuracy.

Upon the whole, 1 am in favor of the location contended for by the plaintiff in error; and of course, my opinion is, that the judgment of the supreme court ought to be reversed.

On the question being put, Shall this judgment he reversed ? jive members expressed their opinions in the affirmative, and fourteen in the negative. The members who were in favor of a reversal were Senators Fuller, Rexford, Sandford, Warren and Westcott.

Whereupon the judgment of the supreme court Was affirmed!.