Majority
p. 346Jackson, ex dem. Schenck and others, against Wood.
Headnote
in oiicieut patents; where the . description and the coniteUtt’Sf'the’’ orr*ov('imn?!’;c chiming índl? t!n°¿“inare weight in-the lo-grant.'Boundary,ot the Jtwnbaul patént. 5s an east and
boundary of°*hé «‘“the* jp0ft?Kiiíyp°ate?te gorrinlunpatlnt? SwepBmt»!611 1
. THIS was ah action Pf.eiectmentfor lands,iri the1 tbwn of Fish* . ° : • :]cill, in the county .of Dvtctless»' The cause was .tried1 before Mrs J. Van 'Hess, at the Dutchess' circuit, in August,, 1-815.
■' lessors of the plaintiff' 'claimed. Under1 the RuynbouG or. 'Fishk-ill, patent, dated the 17th of October, 1685, to Francis Rúriibúut, Jacobus. K;ipp=, OndStephanus ’’Fan Cottlandf. 'The; Whose. only right Consisted in -.a .possession ,'of -ten ©r twelve years epritinuahee, resisted the .plaintiff’s claim, on the ground that the premises were situated in agoré, or piece of Urn patented land alleged W lié between the Runlbout -aod Phillips * ’ lLJ . . > • . patents.-■ , ; , - -
By Rumbout patent .was. granted' “ All that tract or' parcel laM-lymg'and'being on ;the>east side'of Hudson's five?; at ihe north side’of the Highlands, beginning from the sóüth-side of á érépk called tito'FishHU,'aod, by. the Indians, Matteápan, and from'thence, northward, along said'i?udsonh river,-500 roods be jdndÚiéúreatWappins kill', called by the Indians fMawenawct^ sigh, being the. northerly bounds, and from thence 'intd the wopds ■ -4 hours gding, that is to say, 1-6 A mi;les¿ always keeping 500.rood's distant from the; nottli side of said Great Wappinger’s .-.creek,; however, it tuns,r as 'also from /the said Fishkill' or , creek, ■Mcdteawdn, along ' the said -Fish, creek >into the woods'
p. 347
at the foot of the said high hills, including all the reed or lowlands, at the south side of said creek, with an easterly line four hours going, that is to say, 16 English miles into the woods, and from thence northerly-to the end .of the four hours going, to wit, 16 English miles, on a line drawn'at the north side of the 500 roods beyond the Great Wappinger creek, or kill, called Mawena:wasighMadame Britt was the heir .at,, law of Francis Bum-, bout.. Francis Britt was her heir at law, who, on the 10th of May, 17-94, conveyed his part.of the patent, which was the south third of the patent, to Henry, Schenck, of whom the lessors of the plaintiff are the heirs at law. The Rumbout patent is bounded on the south by the Phillips patent.
The patent to Adolph Phillips, dated the 17th of June, 1697, contained the following description : “A certain tract of land in ,our Dutchess county, situate, lying, and being, in the Highlands,, on the east side of Hudson’s river, beginning at a certain red cedar tree, marked; on the north side of the hill, commonly called Anthony’s Nose, which is, likewise, the north bounds of Colonel Stephanus Corilandt’s land, or his ‘manor- of Cortlandt, and from thence bounded by ’the said Hudson’s river, as the said river runs, northerly, until it comes to the creek, river, or run of water, commonly called and known by the' name of the great Fishkill, to the northward and above- the said Highlands, which is likewise the southward bounds of another tract of land belonging unto-the said Colonel Stephanus Cortlandt and - company, and so easterly along, the said Colonel Cortlandt’s line, and the south-bounds of Colonel Henry Beekmaiirv,nti\ it comes twenty miles, or until the • division -or partition line between our colony of .Connecticut,, and our said province, and easterly by the said division line, being bounded northerly and southerly by east and west lines, unto the said division line between our said colony of’ Connecticut, and this our province .aforesaid, .the whole-being bounded westward by the said Hudson’s river, northward by. the land of Colonel Cortlandt and company, and the land of Colonel Beckman, .eastward by-the partition line between '.our colony of Connecticut ánd this our province,, and southerly by the manor of Cortlandt, to thedand of the-said Colonel Cortlandt., including,” &o.
The boundary, between the patents to Rumbout and Phillips forms the boundary of the towns of Fishkill and Phillips.. The farms in that part of the alleged gore, which was in- th$
p. 348
vicinity .of the premises...® question, were held '.under ¡■■titles derived' from Schernk. ■. In .another, part ■ of. the .gore ■- were per». sons who held merely by pPssessionywithout claim of title;; and thegore had always- 'been--claimed .by- .S&henek as' being -within-his part of the Rumbout patent. In 17Í55- there wás án ¡arbitra-. tibnrbetween Scfieuc/e-andmany-bf.thá.séttlersv atídj. when. it was decided:, all who: Were parties to the .arbitrátioB<toók undeii' §chenck;.or moved off. ■ -■ - ; .. . í
Tbe case- made for.-'the opinion; dfl^bouit.- «íHitamed a great deal . of evidence relating, to- the actual location of the Rumbout patent,, which, it would be'-very difficult- toirend'ev intelligible;, and of which it is not thought necessary to attempt.. '■to give-a statement'.. A verdict'- w.a,s. Ttaken.'fq.u, ;the. plaintifij,, subjecttó the-opinion of the.court; > -.; ¡/ t' .. , ..• •• -- •
Mi ■WiMianvsit&nd-j*^.yafeadg£,.fpr the •.plaintiffs-.
Q'dkly., contra,
'delivered -the-.©pinion, -of the court. ■ ,Sf •{heRumboiitiov Fishhill .patent.was .now,- for the first.time! to receive: •á.-eonsíruotionyánd location, I .should very much invi clinevto adopt that which has-been.’given-.tp -it by-t-hedeféfidántis counsel. Upon.thÍs ábstract'quest¡onjhoweveri..thecourtdó.not, mean to express any opi nion, .But in 'grants.-of- such .aritiqui-tyy where the description;of-the land is vague, and the,construction' somewhat, doubtful, -the acts-of the'parti'e.s^'fhe acts, of govern.-' moot, and of those claiming under adjoining patents,, are entitled! to great weight, in die location of the grant;.- -It ought, also, to., be noticed, in the- outset, .that . the defendant'.in -this-action,dopsi Kot:pretep.d, t.o-'el:aim or set up any title to the premises in ques-. tionybut- rests entirely, upon his .possession, and -that not of more, than ten or twelve years continuance, and this,possession field pnfier the idea that,it , was not covered;,by any patent, -but formed, a part of a gore, between the Rumbout ond Phillips patent,. This> pretension must- be laid out of view as altogether un-. founded; Phillipses patent, which lies on. the. south, is express-, ly bounded, on the south line of this patent, which makes it im-. possible that.there should be any vacant land, between the - two. patents., Construing the. Rumbout patent, per■ se, there isnothing in it which requires the south bpundsto.be an east and, west line.
p. 349
The more natural construction would be that the southern 'boundary was formed by the Fish creek, and the lowlands on the south side thereof, without extending at all ■ up the hills; and this location would, best' satisfy- the general description given to the .land intended to be included in the patent, to wit, lands'lying on the' north side of the Highlands ; whereas, the south line, setup on the part of the plaintiff, éxtends-several miles'upon the hills,' beyond the lowlands. But'in the patent to Phillips, which' was only twelve, years- later, the -north line of -the; land granted is not only described as being the southward bounds of the Rumbout -patent, but this line is expressly-designated as an .east and west line. This • may be considered a ootempofaneous act of ¡the government, showing their construction of the former grant; but this, it is true, would not have been. binding upon the patentee, if the interpretation was not warranted by the terms of the grant. That- construction, however; has always been acquiesced in by the proprietors of the Phillips patent; and no pretension ever appears to have been set up to a line north of the one .as claimed by the lessors qf the plaintiff. The suggestion of the defendant’s coun-i s.el, that the Phillips patent might have.been. intentionally so loca*; ted as to leave out á part of the land covered by it, .does not appear - itó be warranted by any evidence in thé cáse. And-there is nothing, showing any act of the proprietors of the Uwmóotíí patent, whereby they -have reoogniséd a- line running along the foot of- the hills as‘their south line. -The various^ acts? of the legislature, from the year 1737 to the present day,*dm>ding this part of the country ‘ into précincts - and towns, and in which the line, as now set up on the part of the plaintiff,'has been recognised as the true line between the'patents, is- a strong corroboration of this Construction. There arfí mañy other facts in the case which might be noticed, tending to the same conclusion. And, whatever doubts there might have been, originally, as tb the true location, of the south line of this patent, it is. too late now to call it in question. It was not pretended, on the; argument, that, if the Rumbout patent covered the premises in question, the plaintiff was entitled to recover. Judgment must, accordingly, be given for the plaintiff,.
Judgment for the plaintiff.