Jackson ex dem. Jadwin v. Joy — 9 Johns. 102

Majority

p. 102

Jackson, ex dem. Jadwin, against Joy.

NEW YORK,

May, 1812.

Headnote

Bkeeker's snap ofthe Ho-sick patent, made in 1754, is not conclusive, where it differs from the actualsurvey or field book made by him. The question of adverse possession, ought to be left to the jury, and the judge, having directed the jury as to that fact, a new trial was granted.

THIS was an action of ejectment for land, in Scaghticoke, being part of lot No. 40. in the Hosick patent.

The cause was tried at the Rensselaer circuit, in September, 1809, before Mr. Justice Van Ness. The following are the material facts in the case.

Bleecker's map of partition, and field book of the survey of the Hosick patent, made in 1754, were produced at the trial. The plaintiff proved title to lot No. 40. in that patent. Evert Van Alem, a witness, surveyed lot No. 41. under which the defendant claimed title to the premises. By this line, the premises in question were included in lot No. 40. but there were no marked trees along the, disputed tract. He run the line within a rod of the river, near the bend, and found a marked tree at the brow of the hill. The course of the east line corresponded with Bleecker's map and field book. The distance mentioned in Bleecker's field book, is 210 chains from the place where he began to run his line, and on the map it is 213 chains. That between the actual survey of

p. 103

the witness, and that of Bleecker, there was a difference of 3 chains, at the bend of the river. And the witness stated that Bleecker’s traverse of the river, if he made any, was incorrect, but he believed that Bleecker never made any actual survey of the river.

Another witness testified, that he traced the line of lot No. 41. in 1775, or 1776, with Jadwin, and found marked trees all along the line, to Van Alen’s termination of it, at the river. One Chase and others, were in possession of the premises. One of them, Hanson, said he purchased of Jadwin, and claimed the premises as his own, and admitted it was within lot No. 40. The claimants against Jadwin alleged that the line stopped at the bend of the river.

Another witness testified, that Hanson owned the land adjoining the premises in question, and that his father, in 1782, hired the land of Hanson; that Jadwin collected the rent for Hanson; and that about 15 years ago, Jadwin had a survey made and claimed the premises in dispute. Chase and one Jacobs, who were in possession, agreed, about the year 1790, with Jadwin, that if he would show a title to the land, Chase would give him another lot in exchange for it. Jadwin exhibited his title to one Freleigh, who decided that Jadwin had no title. They after-wards agreed to submit the question to C. Sands, but whether it was done, did not appear. The premises have been improved above 30 years, and the occupants claimed to hold under lot No. 41. Several other witnesses testified as to the line and marked trees, &c.

The judge charged the jury, that the map made by Bleecker was not conclusive, but the line between lots No. 40. and 41. as run by Van Alen, was proved to be the true line, and corresponding with the actual survey sad field book made by Bleecker. That the defendant must rest entirely on his adverse possession, which he had not proved, and that they ought to find a verdict for the plaintiff. The jury found a verdict accordingly.

A motion was made to set aside the verdict, and for a new trial.

Foot, for the defendant.

Van Vechten, contra.

The premises lie in lot No. 40. which belongs' ¿o the lessor of the plaintiff. The defendant* who claims under title to lot No. 41. contends, that the line run by Bleecker, as the division line between those lots, terminated at the pine tree. But the line must be continued to the river, and the testimony fully establishes a continuation of a line of marked trees. Bleecker’s map has never been considered as conclusive, in opposition to the true lines, founded upon his actual survey. In all the cases, hitherto before the court, respecting the Hosick patent, the map and the survey of Bleecker were assumed to agree, and it was Bleeck er’s survey that the courts have so repeatedly sanctioned. ( 2 Caines’ Rep. 177 . 2 Johns. Rep. 297 . 5 Johns Rep. 496 . 506.) On the part of the defendant, there is, however, a strong ease of adverse possession made out. This possession has been continued for nearly 40 years,, and would be conclusive, unless the agreement said to have been made in the year 1790, between Jadwin, Chase and Jacobs, should be deemed sufficient to take the case out of the statute of limitations. By that agreement, the possession was to be delivered to Jadwin, if he would maintain a title, and Jadwin submitted his title to one Freleigh, who decided against its validity. It was afterwards agreed to be submitted fey C. Sands, but this agreement was never carried into effect. The decision fay Freleigh was 19 years before the trial; and it is reasonable to presume that Jadwin, at that time, had abandoned his title. This question of adverse possession, ought at least, to have been submitted to the jury.

A new trial must be granted with costs to abide the event of the suit.