Jackson v. Thomas — 16 Johns. 293

Majority

p. 293

Jackson, ex dem. Belden and others, against Thomas.

Headnote

The western th™&Minisink ed^the^™j?™ 0fhjVama~ yanda, patent, and the patent to^ Evans, one continued andls situated theeas/sideof lai“-

er enters or colour of edtobeinpSsentence SUtó lr° Ielnd°Wnó ISrompanf ’ ®hangeth¡n th7 character of wii^remterlt he'afterwards or^coiouSble period”^'aí tio^commences-

THIS was an action of ejectment, commenced in August, 1817, for the recovery of lot No. 41., in the second division of the Minisink patent, in the town of Mamakating, in the county of Sullivan. The cause was tried before Mr. Justice Spencer, at the. Sullivan circuit, in September, 1817. ’ r

rni . , . , . . . I he plaintiff claimed title to the premises in question, under the patent granted to Ebenezer Willson, Lancaster Symms, and others, commonly called the Minisink patent, The patent was dated the 28th of August, 1704, and the lands granted were described therein, as “ lying and being in Orange and Ulster counties, beginning at a certain place in Ulster county, aforesaid, called Hunting House, or Yaagh House, lying to the north east of the land, called Baske's land; thence to ran west by north, until it meet with the Fishkill or main branch of the Delaware river; thence to run southerly to the south end of Great Minisink Island; thence due south to the land lately granted to John Bridges and company, and so along that patent, as it runs northward, and the patent of Captain John Evans, and thence to the place it first began The patent granted one three- and-twentieth part of the land described, to Lancaster Symms and his heirs ; and the lessors of the plaintiff deduced a regular title, principally by descent, from Lancaster Symms. A partition of the patent was made by commissioners, under the colonial act of the 8th of January, 1762, entitled, “ an act for the more effectual collecting of his majesty's quit rents in the colony of Hew-York, and for partition of lands in order thereto ;" and lot No. 41., in the second division of the patent, was allotted to Lancaster Symms in severalty. The defendant was in possession of the west part of this lot.

It was contended, on the part of the defendant, that the premises were not within the Minisink patent, and for this purpose the following patents were produced in evidence :

1The patent to Captain John Evans, dated September

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20th, 1694, for a tract of land, described as follows : “ All that tract and parcel of land lying and being situate upon the west side of Hudson’s river, beginning from the south side of the land called the Palis, now inhabited by Frenchmen, and extending thence southerly along the said Hudson’s river to the land belonging to the Indians at the Murderer’s Kill; and extending westward to the foot of the high hills, Pitkiskakee, and Aiaskawasting, and thence extending southwesterly, all along the said hills and the river called Peakadasink, to a water pond lying upon the said hills.»

2. The patent to Doctor John Bridges & Co. dated April 29, 1703, for “ all those tracts or parcels of vacant and unappropriated land in the county of Orange, called or known by the name of Wawayanda, and of some other small tracts or parcels of like land there, being bounded on the eastward by the high hills of the highlands, and the patent lands of Captain John Evans, on the north, by the division line of the said county of Orange and Ulster, on the westward by the high hills to the eastward of Minisink, and on the south by the division line of the provinces of JVezo York, and East Kew-Jerseyj’

3. A patent to Return Holcomb, dated January 22, 1790, for “ all that certain tract of land, situate in the county of Ulster, in the town of Mamakating, beginning at the most westerly corner of the tract of land laid out for Ebenezer Holcomb, and running thence south, forty-one degrees and twenty minutes, west, forty chains, then south, forty-six degrees and thirty minutes, east, fifty chains and fifty links, to the northwest bounds of a tract granted to Archibald Maride and others, then along the same north forty-one degrees and twenty minutes, east, forty chains, to the said tract laid out for Ebenezer Holcomb, and then along the same, north forty-six degrees and thirty minutes, west, to the place of beginning, containing two hundred acres.» This patent covered the west part of the premises in question.

4. A patent to James White and others, dated May 18, 1761, covering the residue oí the premises in question..

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All the land covered by this patent was relinquished, on the trial, by the plaintiff.

John Willson, a witness on the part of the defendant, testified, that the Holcomb patent lies on the top of Shazoan gunlc mountain, and includes the westerly part of the premises in question, and that the easterly part was contained within the bounds of the patent to White and others : that the Yaagh house is in Mamakating hollow, near the church : that a line running the nearest course from the Yaagh house to the east foot of the mountain, would leave the premises in question on the south side of it; and that the Wawayanda patent is bounded on the west, by the east foot of the Shawangunk mountain. That the witness, at the request of the defendant, had been to a pond lying on Shawangunk, which he was informed was called Merelange: that he found the pond on the line between Nos. 8 and 9 of the sixth division of the Minisink patent, sixty chains west of the east foot of the mountains; and that the outlet from Merelange. pond was south east.

Samuel Gunsalus, another witness for the defendant, testified, that he was more than eighty-three years of age: that the pond was first shown to him by the Indians, who called it the Merelange, or Canetotheman: that he well knows the Shawangunk mountain, and Mamakating hollow; and that the farm, called the Martin farm, lies on the north pari of the expense lot, No. 3. of the Minisink patent, east of the Yaagh house, and has been held and improved under the, Minisink patent, for more than fifty years.

Samuel Bodle, another witness for the defendant, testified that the pond was never known as .a corner of any patent: that it lies near West Falls in Minisink: that the east face of the mountain was all cultivated and claimed, and held under the Minisink patent: that he never heard it disputed that the mountain was a part of the Minisink patent; and that the lands in Mamakating hollow, west of Shawangunk mountain, have always been reputed to be held under the Minisink patent.

Timothy Doolittle, also a witness for the defendant, testified, that at the time the Holcomb patent was granted, and a number of years before 1790, Holcomb lived on part of

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the land covered by the patent, but not on the premises in question: that he sold to Ebenezer Holcomb, jun. who remained in possession till" about six years ago : that the defendant was in possession of the premises about twenty or twenty-five years, and that he bought the possession : that several years ago, one Schoonmaker came on the mountain, and was about obtaining a patent for the same, as vacant land, the occupants being in possession without title, and it was then agreed that Schoonmaker should procure patents to the occupants, for the lands possessed by them, and that he should have the rest: that at the time the patent' was granted to Holcomb, the defendant was not in possession of the premises in question : that the west part of the premises in question, which is not covered by While’s patent, has, ever since the patent to Holcomb, been held by Holcomb, and those who have purchased of him ; and that the defendant is in possession, claiming title under that patent.

William W. Sacket, a surveyor, was then called by the plaintiff, and testified, that the north line of the Waway anda patent is a considerable distance north of the land mentioned by Willson, and the other witnesses; that the line called the new north west line, run by Mr. Colden, would strike No. S3, in the second division of Minisink patent; that No. 1. and No. 2. of the sixth division of that patent, were purchased of the Minisink proprietors, and were held under that patent; that all that part of the sixth division lying north of the present established line of the state of New-Jersey, has always been reported to belong to the same patent, since the establishment of that line; that he knows the line established between the Hardenbergh and Mini-sink patents, from the Yaagh house easterly, which line was settled by the Hardenbergh proprietors, as the south line of great lot No. 27.; that he had always understood that the lands south of that line were held under the Minisink patent, and that Mamakating hollow, south of that line, had been possessed for a great many years under the Minisinlc proprietors; that lot No. 46. in the first division of that patent, was sold many years ago to the present occupants, under the Minisink title ; that a line from the pond mentioned by Willson to the Yaagh house, would run across the

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sixth division, and No. 46. of the first division, and through Mama/cating hollow, and cut oil the principal part of the Martin farm; and that the second and sixth divisions are located on the east face of the mountain.

The plaintiff then produced in evidence, an exemplification of the Hardenbergh patent, dated the 20th of April, 1708, the boundaries of which are as follows: “ a certain tract of vacant and unappropriated land, situate in the counties of Ulster and Albany, beginning at the Sandbergh or hills, at the north east corner of the land granted to Ebenezer Willson, Derick Vanderbergh, fyc. at Minisifik, so running all along their line, northwesterly, as the said line runs, to the Fishkill, or: iver, and so to the head thereof, including the same ; thence on a direct line to the head of a certain small river, commonly known by the name of Cartwright's kill, and so by the northerly side of the said kill or river, to the northernmost bounds of Kingstown, on the said, kill or river; thence by the bounds of Kingstown, Hurley, Mar bletown, Rochester, and other patented lands to the southward thereof, to the Sandbergh, the place where it first began.”

The defendant then produced in evidence, an office copy of the patent granted to Col. Henry Beekman and others, commonly called the Rochester patent, dated the 25th of June, 1703, the boundaries of which are as follows : “ all that tract or parcel of land, lying and being in the county of Ulster aforesaid, and beginning at the south bounds of the land now1 in the possession of John Van Camp, from thence running with a south east line, to the land of Capt. John Evans, and so along the north west bounds of the said Capt. Evans, his land, till you come over against the Sand hills ; from thence with a northwest line to the great mountains, commonly called the Blue hills; thence north east, something northerly, along the said hills to the bounds of Marbletown, and from thence along the bounds of Marble-town, to the place where first began.”

A verdict was taken for the plaintiff, subject to the opinion of the Court on the above case.

L. Billings, for the plaintiff.

p. 298

Baker and Betts, contra.

The principal question related to the location of the preInlses; and as the arguments would not be understood with a reference to the map, it is not thought necessary to state them.

Two questions have been made on the argument: 1. Are the premises included in the Minisink patent? 2, Has there been an adverse possession for a sufficient length of time to bar the plaintiff’s right of entry ?

The premises in dispute are part of lot No. 41. lying near the top of (and a little east thereof) the Shawangunk mountain, and west of the foot of the mountain. It appeared to be conceded, that if the Minisink patent ran along the foot of the mountain on the east side, so far north as that a west line was to be run to the Hunting house, or Yaagh house, then lot No. 41. fell within that patent, and the lessors of the plaintiff had deduced a title to it.

The last or closing line in the Minisink patent, is the only one in dispute, for it is conceded, that the place of beginning is at the Yaagh house; and that is a notorious and un-. , disputed monument. The previous boundaries and courses of the patent, were east of the Shawangunk mountain, and upon the line of the patent granted to John Bridges fy Co. and then the course is thus: “ and so along that patent (Bridges’s patent,) as it runs northward, and the patent of Capt. John Evans, and thence to the place of beginning. Now, it is clear from the evidence in the case, that the patents to Bridges <£• Co. and Capt. Evans, presented one continued unbroken line, and that Evans's patent ran along the foot of the Shawangunk mountain on the east side of it, opposite to a line due west to the Yaagh house. This was the construction of that patent adopted by this Court in Jackson V. France, ( 10 Johns. Rep, 434 .) and it is supported by the evidence in the cause. The Minisink patent is inexplicit as to the precise point on the line of Evans's patent, from which the closing line to the place of beginning, is to be run; but the facts in the case decide that.

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Before the revolutionary war, the patent of Minisink was divided by Commissioners, appointed in pursuance of the colonial act of the 8th of January, 1762, (2d vol. of Smith’s edition of laws, 237.) and the 9th section of that act required the outlines of the patent to he surveyed by the surveyor general; after this length of time we must intend that this direction was fulfilled. At this remote period, the act of a .public officer in ascertaining the boundaries of a patent, under the direction of the legislature, is entitled to high consideration, as evidence of the sense of government; not that such an act would control, in cases where the boundaries were certain and explicit; but in cases where they are vague and uncertain, as it must be confessed they are, in regard to Evans’s patent, thé acts of the surveyor general, adopted by the Commissioners, and acted upon by the proprietors, are of very high authority. The situation of the places referred to in the patent, and the lines run, were then within the knowledge of many persons; and we cannot expect, at this late day, the same light which the officers of government then had. Independently of this, the evidence shows, that lots No. 1. and 2. in the 6th division of the Minisink patent, were purchased of the Minisink proprietors, and are held under that patent; and those lots, on the east, run down to the foot of the Shawangunk mountain. It is proved, that the proprietors of the Minisink an&Hardenbergh patents, have a settled and established boundary between them, and that the premises in question lie south of that line ; and that, in general, the lands south of that line have always been held under the Minisink patent; that the lands in Mamakating hollow, south of that line, especially, have been held, for a great number of years, under theMinisink patent; and, particularly, lot No. 46. in the first division of the Minisink patent, lying north of the premises in dispute, and east of the top of the Shawangunk mountain, is and has been, for many years, held under the Minisink patent.

These facts, in my opinion, settle tiie question, and we must pronounce the premises in dispute to lie within the Minisink patent, and, therefore, as belonging to the lessors of the plaintiff.

The defence setup was, that the defendant held adversely

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"to the plaintiffs, and had so held possession, under colour of yyej more than twenty years prior to the commence•ment of this suit.

■The defendant gave in evidence, twti patents, the one to james White and others, dated the, 18th day of May, 17'61, and the other to Return Holcomb, dated the 22d of January, 1790; and it was then proved, that the patent to White covered the easterly part of the premises in question, and the pa* tent to- Holcomb, the westerly part thereof, and thereupon the plaintiff relinquished any claim to that part of the premises included in the patent to White.

It was then proved by a witness, that he knew the Holcomb patent, and that at the time it was granted, and a number of years before,' Holcomb lived on part of the land covered by the patent, but not on the premises in question. That Several years ago, one Schoonmaker was about obtaining a /patent for the lands on the mountain, as vacant lands, at ■which time the possessors had po title; and it was then agreed that Schoonmaker should procure patents to the occupants for the lands possessed by them, and that he should have the rest. That, at the time the patent was granted to Holcomb, the defendant was not in possession of the premises ; that the west part of the premises not covered by White's patent, have, ever since the patent to Holcomb, been held by Holcomb, and those who have purchased of him, and that the defendant is in possession, claiming title under that patent.

It appears to me, that an adverse possession is abundantly made out. When the patent was granted to Holcomb, he did not live on the premises in question; tint eVer since the granting of the patent, that part of the premises not included in White's patent, have been held by Holcomb, and those who have purchased of him ; and the fact is proved, that the defendant is in possession, claiming title under Holcomb's patentv and he certainly entered into possession since the granting of the patent to Holcomb, for his possession has been for twenty, or twenty-live years. The objection to the adverse nature of the possession is, that there is no privity between the defendant and Holcomb, and that the defendant’s pos* session, in its origin, was. not adverse.

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The first objection is not sustained by the facts, for the proof is, that the defendant is in possession, claiming title under Holcomb’s patent, and that the premises not included in White’s patent, have, ever since the patent to Holcomb, been held by him, and those who have purchased of him.

The evidence was not objected to at the trial, nor were the deeds from Holcomb called for, or insisted upon, as the best evidence of the facts; we must, therefore, consider these facts as well proved.

If the defendant was not in possession when Holcomb’s patent issued, and the case shows' he was not, and if these premises have been held, ever since that patent issued, by Holcomb, and those claiming under him, then the defendant’s possession was, in its inception, adverse.

The principle, however, that possession must, in its inception, be adverse, and continue so, is not well understood. In those cases in which that observation occurs, nothing had happened to change the character of the first possession, and that was considered as denoting quo animo the possession was held after ihe first entry.

If one enter on land without any title or claim, or colour of title, the law adjudges the possession to be in subservience to the legal owner, and no length of possession will render the holding adverse to the title of the owner; but if a man enters on land, withoutclaim or colour of title, and no privity exists between him and the real owner, and such person, after-wards, acquires what he considers a good title, from that moment his possession becomes adverse. I am not sensible that the Court have ever held a contrary doctrine.

In the present case, even Holcomb was not in possession of these premises when his patent issued, though he entered immediately after. It appears to me, that an adverse possession fora sufficient length of time to bar the plaintiff’s right of entry, is clearly established by the evidence.

Judgment for the defendant.

N. B. In the case of Jackson, ex dem. Belden and others., v. Daniel Godfrey, jun. the same judgment was rendered.