Majority
p. 363Jackson, ex dem. Donaldson, against Lucett.
Headnote
The book of the judge of the court of probates, containing the record of the probate of a will, may be given in evidence in ejectment, if it be proved that the original will is lost. Poplope’s Kill, and four chains on each side of it, to a pond of water, over the mountains, and four chains round it, are in the grant of Staats patent. The west line of Staats patent is a lina twenty chains from the river Hudson, from the northwest course of the patent to the head of the Assinnapainck, not in a straight line, but in such a line as that some part of the river may from every point of the line be within 20 chains, though other parts may be further from it.Ejectment for lands in the county of Orange, claimed by the plaintiff, under the Bear Hill patent, and by the defendant under the one to Staats. The facts, as they appeared on the case made, were thfese: ■
In 1712, a patent was granted to Samuel Staats and his heirs forever, of a certain tract of land in the county of Orange, “ Beginning on the west side of Hudson’s river, just, against Anthony’s Hose, at the mouth of a small rivulet, called by the Indians Assinnapáinck, and thence up Hudson’s river, as it runs, a northeast course two hundred chains, which is about four chains to the northward of Prince’s Falls, thence up into the woods northwest twenty chains, to the ^mountain, thence along the said mountain parallel with Hudson’s river, to the head of the said Assinnapainck, thence down the said rivulet, as it runs, to Hudson’s river to the place where it first began, together with a small rock isle, and a small piece of boggy meadow, called John Canton Hook, all which together contain four hundred acres, English measure, all rocks and stones, very little timber or firewood, bounded to the south by the widow Courtland or Assinnapainck rivulet, and the pond, west by- the mountains, north by land unsurveyed, and east by Hudson’s river, together with a small slip of land, four chains broad on each side of a fall of water that falls into a small run of water that comes into Hudson’s river, just below the meadow, at the said John Canton Hook, and up against the stream of the said fall of water, over the top of the said mountain, to a pond of water, and round the said pond, keeping still the said breadth of four chains broad.”
In 1743, a patent, since called the Bear Hill patent, issued in favor of Richard Bradley, 'the then attorney-general for “ a certain tract or parcel of land, lying and being in the county of Orange, on the west side of Hudson’s river, (and within the bounds of the land formerly granted to one Captain John Evans, the patent whereof has since been vacated, and the lands reassumed,) beginning on the north side of a certain brook or creek in the Highlands, called Poplope’s Kill, (falling into Hudson’s river, opposite
p. 364
Anthony’s Nose,) where the line of the west bounds of the land there, formerly granted to Samuel Staats, crosses the-said brook or creek, and runs thence north twenty-eight degrees east, along the said line four chains, then north fifty-five degrees west forty-nine chains, then west thirty-one chains, then south one hundred and seventeen chains, to a certain creek (or run of water) on the west side of a certain meadow called Salisbury meadow, then down along the said creek (or run of water) as it runs to Hudson’s river aforesaid, then up along the said river, as it runs, to the said lands granted to Samuel Staats, then along the bounds there of the same lands to the place where this tract first began, containing eight hundred acres besides the usual allowance for highways, in which last-mentioned tract of land all the said Bear Hill, and part of the said Poplope’s Kill (or Creek) and part of the lands thereto adjoining, remaining yet unpatented, are included.” Bradley, by lease and release, for good consideration, conveyed *to one Roger Tompkins the Bear Hill patent, “ saving and excepting all the said Pop-lope’s Kill, or brook, and all the falls of water therein, and all those lands which lie on each side of the said Poplope’s Kill or brook, within the distance of four chains and a half from the said kill or brook, all the way the same runs through the above released lands, or any part or parcel thereof.” Some time after executing the above conveyance Bradley died, having first duly made and published his will, in which he made no particular mention of the premises, but, after some specific legacies, “ devised all the rest and residue of his estate, both real and personal, whatsoever, to his wife, Elizabeth Bradley, with full power and authority to grant and convey the fee-simple thereof.” In May, 1760, Elizabeth Bradley, by bargain and sale, reciting the deed from her husband to Tompkins, and the reservation therein, in consideration of five shillings, conveyed in totidem verbis, to (William Donaldson, the father of the lessor of the plaintiff, the Poplope’s Kill and land on each
p. 365
side of it, as the same were reserved in the release of Richard Bradley. The patents being admitted, the plaintiff offered, at the trial of the cause, to establish the will of the testator, by the record of the probate in the book of the judge of the court of probates, and showed by evidence that the original will could not be found either in the office of the surrogates- of New York or of Albany. An objection to the reception of this testimony was made and overruled. The conveyance to Donaldson was then substantiated, and the plaintiff called a witness who testified, that if a straight line parallel to the Hudson, or northeast course of the Staats patent, was run from the termination of the northwest course to the head of the Assinnapainck, Bradley’s grant would include the premises in question, but then the line would cross the Poplope’s Kill at only about five chains from the Hudson’s river. That John Canton Hook is an island to the north of Prince’s Palls, on a meadow of about five acres, which joins the land adjacent to Prince’s Palls. That no other lands were known by that name, and that a part of the defendant’s improvements, which were in his possession, were more than 20 chains from the Hudson, or the mouth of Poplope’s Kill. This the plaintiff insisted was not the run of water mentioned in the Staats patent, and the premises being on the Poplope’s Kill, passed by the grant to Bradley, and being reserved in the deed to *Tompkins, were afterwards conveyed to the father of the lessor of the plaintiff, by Elizabeth Bradley, to whom they were devised by the residuary clause in the will of her husband. 'The defendant adduced testimony tending to show an adverse possession, which it is unnecessary to detail; and from the evidence of one witness, who said John Canton Hook extended to the mouth of the Póplope’s Kill, contended the premises were 'within the limits of the subsidiary grant in the Staats oatent, the run of water there mentioned being the Pop-lope’s Kill, and that the line to bé'ru-n from the end of the northwest course of the Staats patent, ought to be a line
p. 366
parallel to the Hudson, in all its sinuosities, so as to be al ways twenty chains distant from the river. The judge having charged for the defendant, the jury found a verdict in his favor, and that the Poplope’s Kill was the stream contemplated in the Staats patent, by which four chains on each side that stream were granted.
Colden moved to set aside the verdict,
as being against evidence. He argued from the impossibility of running the west line of Staats patent exactly parallel to the sinuo sities of the Hudson: and, with respect to the propriety of receiving the record of the probate of Bradley’s will, he laid down these positions: When an original instrument is not found, where by law it ought to be, it must be presumed to be lost. That slight evidence of the loss of a paper is sufficient. Livingston v. Rogers, 1 Caines’ Cases in Error, 27. That there is a distinction between the record of the probate, and the probate or letters testamentary, which are no more than a copy of that record. The first is evidence, the second not. See Doe v. Calvert, 2 Campb. 889, evidence of the original will being lost, the probate held inadmissible to prove its contents. 1 Gilb. Law Ev. by Loft, 70 ; Pow. on Dev. 706; Skin. 174; 1 Ld. Raym. 731.
Smith, contra,
insisted that the proof of the loss-of the original will was not sufficient, and that the west line of the Staats patent must be nowhere less than 20 chains from the Hudson. The plaintiff’s construction is, therefore, erroneous, and the verdict of the jury conclusive.
delivered the opinion of the court. In our view of this case, it is unnecessary to enter into minute consideration of the evidence as to the adverse possession of the defendant, or the situation of John Canton Hook, or the probabilities whether Prince’s Palis or Poplope’s Kill were intended by the subsidiary grant in the Staats patent, The premises in question lie on Poplope’s Kill, and
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it appears to us the plaintiff failed *in the outset, in locating the premises within the patent to Bradley. The will we consider as properly in evidence. The facts proved were sufficient to induce a presumption of the loss of the original, and on the authority of the case of Livingston v. Rogers, decided in the court for the correction of errors, when evidence sufficient to induce the presumption of a loss of a deed is exhibited, either parol proof may be given of the contents, or a copy may be received. We are satisfied, therefore, as to the plaintiff’s deduction of title, and shall rest our opinion solely on his locating that title. Staats patent is the anterior one, and must be first satisfied. It begins at the mouth of the As-sinnapainck, and then runs up the river, as it runs, four chains'to the north of Prince’s Palis, then into the woods northwest twenty chains to the mountains, then along the said mountains parallel with the river to the head of the Assinnapainck, then down the same to the place of beginning. The plaintiff’s surveyor, to ascertain this tract, ran a. straight line from the termination of the twenty chains mentioned in Staat’s second course, to the head of the As-sinnapainck, disregarding the expressions in the patent, which required him to consider the twbhty chains as terminated at the mountains, and to run along the mountains, and parallel with the river. It is in vain that the plaintiff proved that some part of the defendant’s possessions were more than twenty chains from the river, because the distance of chains is to be rejected where an object is pointed out, and because too in running lines parallel with a river it is only requisite that the distance, where that is to control, should be such that the river in some one point is not further off than is required.[1] In other words, the west-line of Staats patent, without reference to the mountains, if run parallel with the general course of the river, might, in some places, be at a greater distance than the twenty chains, and still be correctly run. In our opinion, therefore, the plaintiff wholly failed in showing himself entitled to any part of the lands in the defendant’s possession. As to the fact whether the Poplope’s Kill was the run of water intended in the second tract granted to Staats, it was a question fairly submitted to the jury, and the court can see no reason for disturbing their verdict in that respect. On the whole, we are clearly of opinion that on no principle is the plaintiff entitled to a new trial. He, therefore takes nothing by his motion.
Hew trial refused.
(a) (a) Ante, 177. The same principle adopted in the location of the Hosiek patent. Jackson, ex dem. Quackenbush, v. Dennis.