6 Wend. 467 | N.Y. Sup. Ct. | 1831
By the Court,
This cause was first tried in 1825, when the jury found a verdict for the defendant, upon testimony very similar to what is now presented in the case before us. On that trial the judge charged the jury that if
The main question now presented to the court seems to me to be the same as when the cause was here before. The rule of law then laid down must be the law of this case: That the acts and declarations of parties as to location may control the courses and distances in their deeds; and, to give operation to such acts and declarations, it is not necessary that their effect should be known to the parties themselves, and that acquiescence in an erroneous location, for a great length of time, shall be conclusive upon the party making or acquiescing in such location. "This principle will be found in the cases referred to by Mr. Justice Sutherland, 7 Cowen, 761, and it is believed there is no inconsistency between this principle and another referred to by the defendant’s counsel, that a man having title shall not be divested of that title by parol declarations. The one affects the estate itself—the quantity of interest which a party has in certain premises; the other ascertains the location upon the ground where such estate is supposed to exist. Reasons of propriety and policy forbid that a party, having located his premises, and thereby
From this brief reference to part of the testimony, it must appear to be a case coming within former decisions, and one proper for the jury to pass upon. The weight of testimony certainly is, that the owners of the 700 acres never claimed south of the line to which the plaintiff now claims. Hoffman first surveyed for them, and he ran no farther south. They all divided upon that basis. The first error consisted probably in locating the south line of the 4100 acre patent about 17 chains too far north. The proprietors of the south part of the 2000 acre patent began at that line, and ran north, and took in their 300 acres. If the fact be that the owners on the north acquiesced in this location, they are bound by it, and their acts are binding upon the defendant. He too, it would seem, was not aware in what the error consisted, until the survey of Webster, though he always said he had not his quantity; but it seems that since that time he has pointed out the line to several of the witnesses, to be, where Hoffman located it.
I am of opinion that there was no error in the judge, or in the jury, the weight of evidence supporting the verdict. The judge was right also in receiving evidence of the possessions of the settlers in the adjacent patent. If they had made an erroneous location, which would be disturbed by extending the defendant’s line, considerations of public policy forbid that such errors should be thus corrected, after so long an acquiescence, where the consequence would be a correspondent change in the possessions of the whole neighborhood. Although there is no improvement upon the l<ne be
New trial denied.