Jackson ex rel. Johnson v. Tallmadge — 4 Cow. 450

Majority

p. 450

Jackson ex dem. Johnson and others, against Tallmadge.

Headnote

Where a ‘xaet of land ty direction of the surveyor-general, and a yap made, the dicfnot 'agree with the surland was then patented to w. who gave deeds with the butP extensive locations were made and pobsessions taken accordingateto the survey, posféss^onsSUCh should not be disturbed; but that the surticli81 location under it, should thiTmap. °Ter

After the inaticm oTwittriaHs through1 and the counfendantthe has commenced mimming up, it isinthediscrejudge whether he will hear deuce.1 6TI"

Ejectment for land claimed to lie in the northeast section of township No. 10, in Watkins & Flint’s purchase, jn qle COunty of Tioga, tried at the Circuit for that county, J 0 1 <, J 9 July 22d, 1823, before Nelson, C. Judge,

It was admitted, at the trial, that the lessors of the plaintiff owned the northeast section, and the defendant the southeast section, and the only question was as to the true jjne between them. It was admitted that both parties £ claimed title by deed of conveyance from John W. Watkins, the patentee, to which was annexed an original or printed map of the purchase. In 1791, Lawrence Vrooman ' . was employed by the surveyor-general, to run out the tract int0 townships and quarter townships. He employed three assistants, giving them directions how to run. They did not, however, comply with these directions; but the, map was made out upon the supposition that they had run cor- , .A, . J , rectly. This produced a difference between the map and surve7 i but extensive practical locations in the patent were made in disregard of the map, and according to the. survey. The patent to Watkins, was dated June 25th, 1794. The question was, which should prevail, the map or survey; if the former, the plaintiff was entitled to recover j if the latter, the defendant. The premises in question were actually occupied from 15 to 17 years under the survey. A number of witnesses were examined upon the the question, whether the lessors of the plaintiff had acqui- ‘ . esced in the survey.

After the regular examination of witnesses was through; and while the defendant’s counsel was summing up to the jury, the plaintiff’s counsel offered further evidence upon the question of acquiescence, which the Judge refused to receive, on the ground that it was too late.

The Judge charged in favor of the survey and against the map line ; and the jury found a verdict for the defend ant.

p. 451

J. Blunt, moved for a new trial.

As to the effect of the actual location, he referred to, and considered the cases of Davis' Lessee v. Keeper, ( 4 Bin. 161 ,166,) and Jackson v. Cole, ( 16 John. 257 .)

That the further evidence should have been received, he cited Alexander v. Byron, (2 John. Cas. 318,) and Mercer v. Sayre, ( 7 John. Rep. 306 .)

J. Tallmadge, in person, contra,

cited John. Dig. Patent, II. pl. 14, 15, 16, 22, and Jackson v. Freer, ( 17 John. Rep. 29 .)

J. A. Collier, in reply.

The Court thought the verdict should not be disturbed; and

(who delivered their opinion,) after stating the facts, adverted to, and relied on Jackson v. Freer, ( 17 John. Rep. 31 .) He said, the question there, as stated by Spencer, Ch. J. was, “ Which shall prevail, the actual location of the lots on the ground, by marking and numbering trees at the corners, and by marking the lines of the lots, or the courses and distances which the map represents the lots as entitled to 1” The Court decided in favor of the actual location. The survey was considered as the act of the parties, though made by the agent of the surveyor-general, as in this case. In Jackson v. Ogden, ( 7 John. Rep. 241 ,) it was said, that when the map and survey do not agree, a practical location, acquiesced in, is entitled to great weight.

In this case, the evidence of acquiescence m the location by the lessors of the plaintiff, was not very conclusive; and further testimony on that subject might, have been satisfactory. Such was offered after the counsel had commenced summing up, but rejected. It was doubtless, discretionary with the Judge, to receive or reject it; and I cannot say that his discretion was not properly exercised. From the case as it stands, I think a new trial should be refused.

New trial denied.