Jackson ex dem. Eyck v. Frost

5 Cow. 346 | N.Y. Sup. Ct. | 1826

Curia, per Savage, Ch. J.

The only difficulty in locating the patent, arises from the last course running from the Mohawk river to the Hudson. The commissioners ran a straight line to the Hudson, at the mouth of Anthony’s kill, bywhich they disregarded the course, “ up alongst by the said streams of water, and thence” to the North River. It is perfectly well settled, that natural objects must control courses and distances. Although, therefore, the course is, “ and so strikes presently eastwardyet, we must take the whole together, adding, “ up alongst by the said streams of water.” What streams 1 Not the Mohawk, for the course leaves it: not the Hudson, for it ends there, after passing “ up alongst by the said streams.” The only other stream is Anthony’s kill. I think,’ therefore, the plain location is as if the words, “ presently eastward,” had been omitted. It would then be, “and so strikes up alongst the said streams of water, and thence to the North river.” Had such been the language, it seems to me, there would be no dispute about the location. The line must run to the source of Anthony’s kill. The premises in question are, of course, included.

The Judge was correct in excluding the map of the Kayaderosseras patent. The introduction of it would only show that the proprietors of that patent claimed to the commissioners’ line; and after the award in their favor, they were justified in so claiming, against all who entered into the submission ; but surely not against such as never assented to it. The legislature never intended, that the award should be valid against those who held property in severalty, in the disputed tract, but had not signed- the netition. (Jackson v. Davis, 5 Cowen, 135.)

But even had the legislature undertaken to settle this con troversy themselves, without any submission, it will not he contended, that they had power to do so. If the grant conveyed to Halfmoon the territory in dispute, the proprietors had a vested interest, which the legislature could not divest, without their consent. If they had not this power as to the whole collectively, they had it not as against a single individual. The only object which the legislature could have had, was to give their sanction to the acts of the parties. If they attempted any thing more, they clearly were assuming powers, which belonged to another branch of the government. If they converted themselves into a court of law, their acts, in that assumed capacity, were unauthorized by the constitution, and of course not binding on the parties.

The lessors of the plaintiff, then, having shown the legal title to be in them, and having never consented that their rights should be adjudicated upon, or interfered with, by the commissioners, or any body else, come now to'demand their property, as if no such proceedings had ever taken place ; and they are entitled to have it restored, unless they are barred by the statute of limitations.

' The defendant, and those under whom he claims, have had possession for a sufficient length of time. The only difficulty is, as to the character of that possession. Was it adverse ? M’Alpin was the first possessor; he claimed it as his own. Why ? It was a gore : no rent had been demanded ; and it of course belonged to the settlers. This amounts to saying that he claimed it, because he had no title ; for if it was a gore, then the land belonged to the state. The idea that rent could be demanded, presupposes a landlord, and of course, an owner. The deed to Miller was given with this parol abstract of the title; it was not that he owned the land, because the fee was vested in him by purchase, or descent; but it was his, because there was no other owner. This is no title on which to rest an adverse possession. The purchaser, who took such a deed, knew that what he purchased amounted to nothing; for he was bound to know it.

I am aware that it was said in the case of Jackson v. Thomas, (16 John. 301,) that “ if a man enters on land. without claim or colour of title, and no privity exists between him and the real owner, and such person afterwards acquires what he. considers a good title, from that moment his possession becomes adverse.” This doctrine must not be understood as authorizing the purchaser to consider a naked possession a good title. It must he, as I understand the law, such a title as the law will, prima facie, consider a good title. Otherwise there would be no uniformity. The character of the possession might be made to depend upon the understanding of the tenant; and the same possession, which would be a good defence to one, would be worthless to another. And hence a possession under a French grant was held not to .be adverse, because such a grant could not possibly be the source of a good title.

The possession of Miller, therefore, seems to me to be , merely a continuation of M’Alpin’s possession, with no greater rights, but precisely of the same character. Admitting, therefore, that the possession of Miller’s grantee was adverse, the length of time is not sufficient to bar the plaintiff.

In my opinion, the plaintiff is entitled to judgment.

Judgment ‘for the plaintiff.