7 Cow. 761 | N.Y. Sup. Ct. | 1827
The jury, I think, would naturally infer from the charge, that though the defendant had, in the first place, established, and subsequently, uniformly recognized the line set up by the plaintiff, yet if he was ignorant at the time, that it would give him short of what his deed would warrant, he was not bound to abide by it, unless he had expressly agreed so to do.
Now I apprehend that it is not necessary, in order to make an actual practical location control the courses and distances in a deed, that the party making such location, or subsequently recognizing it, should, in all cases, know that the effect of it would be to give him less land than he would otherwise be entitled to ; nor that there should be an express agreement to abide by such line. An acquiescence for a length of time is evidence of such agreement. Where the line has been acquiesced in for a great number of years by all the parties interested, it is conclusive evidence of an agreement to that line; as in Jackson v. Bowen, (1 Caines, 363;) Jackson v. Vedder, (3 John. 8;) and Jackson v Dieffendorf & Zoller, (3 John. 269.) In each of these cases erroneous locations had been made; and they had been acquiesced in (not with a full knowledge that they were erroneous, but under a belief that they were correct,) for from 30 to 40 years; and the court held all the parties concluded. Van Ness, J., in Jackson v. Ogden, (7 John. 245,) thus states the principle applicable to this subject: 11 When two persons already having a title, have settled the line of division between them, or where one having title, has made an actual location according to what he supposed to be his true line, and his neighbors have acquiesced in such location, for a considerable length of time, the boundary thus established shall remain undisturbed.” He dissented from a majority of the court in that case, because he supposed they went beyond the rule which he thus laid down. (And see 8 John. 367; 9 John. 100; 17 John. 29.)
New trial granted.