Jackson ex dem. Goodrich v. Ogden

4 Johns. 140 | N.Y. Sup. Ct. | 1809

Spencer, J.

delivered the opinion of the court. The lessors of the plaintiff having, on the trial, deduced a title, in Some of them, to lots No. 15 and 16. in a tract of land originally surveyed for Peter Van Brugh Livingston, and others, lying between the Coquaga branch of the Delaware river, and the Susquehannah river, in the town of Walton, in the county of Delaware, it became the sole question on the trial, how these two lots should be located. On the map of partition between the original purchasers, made prior to the issuing of the patents, it appears that lots No. 15 and 16. adjoin each other, and the, patent for lot No. 15. refers to the map on file in the secretary’s office. It is required to begin at a beech tree, marked 14 and 15. running thence south twenty-eight degrees east, 70 chains and 81 links, to a hemlock tree, marked No. 15 and 16. running thence north 62 degrees east, 34 chains and 32 links, to a beech sapling, marked No. 15, 16. 31, 32. then north 28 degrees west, 70 chains and 81 links to a maple tree,, marked 14,15. 30, 31. and then in a direct line to the place of beginning, containing 243 acres. The patent for No. 16. describes the boundaries as follows, beginning at a hemlock tree, marked No. 15 and 16. and running thence south 28 degrees east, 29' chains to the Delaware river; then up along the same 34 chains and 32 links, measured on a course north, 63 degrees east to a beech sapling, marked No. 16. thence north 28 degrees east, 30 chains, to a beech sapling, marked No. 15, 16. 31, 32. and thence on a direct line to the place of beginning, containing 157 acres. 'From the map, and the description of the lots in the patent, the lessors of the plaintiff have made out a title to the premises in question. It is, however, not to be controverted, that parties, whose rights to real property may be perfect, and the boundaries of which may be susceptible of certain and precise ascertainment, may, by their acts, conclude themselves, by establishing other and different boundaries. Thomas W. Griswold, one of the lessors of the plaintiff, and who must be considered, in 1797, as proprietor of lot No. 16. purchased of the defendants 50 acres of the land which they set up to be vacant, and to lie without both lots, 15 and 16. which was described in the instrument he took, as without the bounds of that lot. The evidence of this purchase, though under seal, was excluded by the judge atthe trial; what other evidence might have been adduced, we cannot pretend to say ; it might have been followed up by acts which would conclude Griswold, and those who derive title under him, from claiming the premises as within either of the lots, and after the rejection of the covenant entered into between Griswold and the defendants, the defendants might well have forborne to offer similar or inferior evidence of acts. In this view, that it was improper to exclude such evidence, and that it should have been submitted to the jury, with such observations as the evidence required, I think there should be a new trial. The rejection of one of the lessors as a witness, I conceive to haye been proper; if his name was used without his consent, it might be struck out on application to the court. The costs must abide the event of the suit.

New trial granted.