Van Wyck v. Wright & Johnson , 1 Lock. Rev. Cas. 126 ( 1799 )

The Supreme Court refused a new trial. Nelson, J., delivering the opinion of the court, (see 18 Wend. 162-4,) says, “ without going into a minute examination of the facts disclosed in this case, it is entirely clear that the line claimed by the plaintiff to be the true east and west line, between the quarter sections of township No. 10, was originally run and marked through mistake, and was obliterated and abandoned when the mistake was discovered.”—“But it is said that the (Sabin) line is clear and perfect through the sections of lot No. 10, and that the purchasers of these sections are bound by it; though as a line dividing east and west this tier of townships on the tract, and for which purpose it was run, it was also abandoned.

“ It was not understood or believed at the trial of Jackson v. Johnson, 4 Gow. 450,^* that this line of itself was conclusive upon the parties, nor is any such opinion intimated or expressed by the Chief Justice at bar. It was decided upon the ground frequently considered and approved by this court, that where the marked line has been erroneously run, and the one on the map and in the field book is correct, and there has been an actual location and possession for years, according to the ground line,-acquiesced in by the adjoining owners, the latter shall not be allowed even to correct the line, and thereby break up such line and deprive the party of his improvements, and this principle aside from any other, is conclusive against the plaintiff. For, if a location and possession acquiesced in for years, upon an erroneous line of marked trees, will prevail over the true one given by the map and field book, can it be pretended that a like possession and acquiescence according to the true line of the map and field book, will not prevail over an erroneous ground line. The defendant, Wright, has been in possession upward of 12 years under this line.” A new trial was accordingly denied, and the plaintiff now brought error.

The Court of Errors reversed the judgment of the Supreme Court, Walworth, Chancellor, delivering the only opinion reported. He says, in the course of it, after stating that the only important question in the case is: “ Whether the deed from Robert C. Johnson, to Suydam, (in 1795,) from whom the plaintiff derives title, conveyed the southwest quarter of township No. 10, as the same was actually run and marked upon the land at the time of conveyance, or only conveyed it as it would have been run if Sabin had run the line back from where he made the offset, 6J miles west of this section ?”

“ What would he the first legal resort of the grantee (Suydam) and those claiming under him, to ascertain and locate the premises thus granted ? Certainly it was to ascertain if the two quarter sections granted were actually run out and marked or located upon the land at the time of the conveyance, bounded in the manner described in the deed. And certainly there can be no doubt whatever, that if the purchaser had gone to the land at the time he took the conveyance, or before, and such is the legal presumption as to the location calls in thezdeed, he would have found every quarter or section adjoining the two conveyed to him actually located on the land, and those on the north and east and West, with their comers distinctly marked on the Sabin line.”—“It would have been necessary for him to travel 6J miles from the lands granted to him, to have found the obliterated corner upon the north line of No. 6, even if he had had an inti, mation that there was a mistake. Such a constructive notice of a mistake it would be very unreasonable to enforce against the settlers in a new country.”—“Again; this 'quarter or section had been actually subdivided into lots bounding upon the Sabin line before the conveyance to Suydam.” “ The other undivided half of this section was conveyed to the plaintiffs with express reference to it.”

Judgment reversed 12 to 6.

* By the case of Jackson v. Johnson, 4 Cow. 450,) as cited above by Justice Nelson, is meant the case there reported under the correct title of Jackson ex dem. Johnson and others v. Tallmadge, 4 Cow. 450. The same question on the same facts, in substance there arose.

That was an action of ejectment by Johnson, the defendant in this case, to recover a part of the same disputed premises against a defendant claiming under the ground line. The cause was tried in 1823, before Nelson, Circuit Judge, who then charged the jury in favor of the ground line and against the map line, and the jury found a verdict for the defendant. On the motion for a new trial, the following opinion was delivered by

“ Savage, Ch. J., who after stating the facts, adverted to and relied on Jackson v. Freer, (17 J. R. 31.) He said the question there as stated by Spencer, Ch. J., was “ which shall prevail, the actual location of the lots on the ground, by marking and numbering trees at the corners, and by marking the lines of the lots ?—or, the courses and distances which the map represents the lots as entitled to?” The court decided in favor of the actual location. The survey was considered as the act of the parties, though made by the agent of the Surveyor General, as in this case. In Jackson v. Ogden, (7 J. R. 241,) it was said that where the map and survey do not agree, a practical location, acquiesced in, is entitled to great weight.

“In this case, the evidence of acquiescence in the location by the lessors of the plaintiff, was not. very conclusive; and further testimony on it might have been satisfactory. Such was offered after the counsel had commenced summing up, but rejected. It was, doubtless, discretionary with the judge to receive or reject it; and I can not say that his discretion was not properly exercised. From the case as it stands, I think a new trial should be refused.” New trial denied.

IB” It is believed that the- learned reader who shall attentively examine the facts and circumstances of the foregoing case, and the cases of Jackson v. Hunter, 1 J. R. 495 ; Jackson v. Cole, 16 id. 257; and Jackson v. Freer, 17 id. 29 ; will hesitate before be assents implicitly to the conclusions of the Chancellor in Van W:yck v. Wright and Johnson. In one thing he is most cm-

tainly mistaken. He asserts that the case of Jackson v. Hunter was overruled in the case of Jackson v. Cole. But is this sot Let Spencer, Ch.J., who delivered the opinion of the court, decide the question. He says, (16 J. R. 263,) “ I am free to declare that upon further consideration, I am satisfied that the opinion delivered in Jackson v. Hunter, can not be supported; and that it was founded upon too narrow a view of the act; (act in relation to military lands of 6th April, 1790.) I am not authorized to say that my brethren fully and explicitly renounce the opinion delivered in Jackson v. Hunter, though I understand them to incline to consider it incorrect. They do not consider this case as requiring them expressly to overrule that case.”