Tuxedo Park Ass'n v. Sterling Iron & Railway Co.

This action was brought, under section 1638 of the Code of Civil Procedure, to compel the determination of conflicting claims to real estate. Two questions are presented for determination: First, the ownership of a strip of land, about 200 feet in width, extending north and south the whole length of the plaintiff’s premises, along the westerly side; and, second, a right of way alleged by the defendant to exist in its favor over and across the plaintiff’s premises. The court below found and decided in favor of the plaintiff on both questions, and from such decision, and the judgment entered in pursuance thereof, this appeal is taken.

The undisputed facts are that in 1854 Peter Lorillard was the owner of a tract of land situate in the counties of Orange and Rock-land, in this state, known as the “Augusta Tract.” On May 1, 1854, Lorillard conveyed the western portion of said tract, lying and being 5n Orange county, to Josiah Mead and Morgan Shuit, by deed of con

The determination of the ownership of the strip of land in question depends upon the location of the eastern boundary line of the defendant’s lot, as described in the deed from Lorillard to Mead and Shuit; in which the premises are described as follows:

“Beginning at a heap of stones at the southwest corner of the sawworks tract, in the line of Mountain lot number eight; and runs thence south, forty-four and three-quarters degrees, west, one hundred and seventy-four chains, to a heap of stones on the south end of a ridge of rocks in the Gore line; thence north, seventy-five and a half degrees west, fifty-three chains, along the Gore line, to a stake in the west edge of a swamp, and at the northeast corner of a hundred-acre lot of land known ajs the ‘ICetchum Lot’; thence south, fifteen and a half degrees west, twenty-five chains, to a heap of stones on a small rise of ground; thence north, seventy-five and a half degrees west, forty chains, to a heap of stones sixty links north of the Sterling road, at the southwest comer of the Ketchum lot; thence south, fifteen and a half degrees west, twenty-five chains and forty links, to a stake in the swamp; thence south, forty-six degrees east, one hundred and three chains, to a stake and stones; thence north, forty-four and three-quarters degrees east, two hundred and sixty-two chains and forty-five links,' to a red cedar in the saw-works line, on a bluff of rocks; thence north, forty-five degrees west, forty-seven chains, along the last-mentioned line, to the place of beginning.”

The trial court has found that the easterly line described in this deed is the line claimed by the plaintiff, and is indicated by a black line between points shown on a certain map introduced in evidence, ■known as the “Wilson and Washburn Surveys,” the point “G-” being-in the south line of the land referred to in the deed as the “Augusta Tract,” and point “H” being in the south line of the lands mentioned in said deed as the “Sawworks Tract.” The practical difficulty in the establishment of this line as the easterly boundary of the lands conveyed to Mead and Shuit results from a dispute as to the identity and location of the monuments referred to as indicating the respective southeast and northeast corners, viz. the stake and stones at the southeast, and the red cedar on a bluff or rocks at the northeast, corner.

For the purpose of supporting its contention, the plaintiff introduced parol testimony of certain witnesses, in addition to the surveys and testimony of the surveyors making them, and it is urged on the part of the appellant that the admission of such evidence was error for which the judgment should be reversed; that it violates the well-settled rule that, where the terms of description in a deed are clear and no latent ambiguity is shown, extrinsic evidence cannot be given tending to contradict, vary, or explain the description. Counsel for respondent concedes this rule, but takes the position that no attempt has been made to violate it in this action; that the plaintiff stands upon the deed to Mead and Shuit, and that the testimony objected to tended to verify the description in the deed, and to locate the same

There can scarcely be ground for argument over the competency and relevancy of the evidence in question in the view expressed. Its admission does not violate the rule invoked by appellant, as a careful examination of the authorities cited by him will show. We shall not attempt to distinguish the cases, but it will be seen that in the case at bar there is no question of intent to convey something not embraced in the description. The evidence is not resorted to to vary the térms or aid in 1 lie interpretation of the deed, as was the case in every one of the authorities cited, but for exactly the contrary purpose, viz. to demonstrate that the description was made from a survey made at the lime of, and identical with, a practical location made by the parties to the deed, and that they still coincide. As already indicated, the controversy as to this line arises, largely, from the dispute as to the corner monuments referred to in the deed, and the rule is invoked that visible, known, and fixed boundaries, monuments, or natural objects existing at the time, as a river, a spring, a marked tree, etc., referred to in a deed, control quantity, courses, and distances, where they conflict. But, as an exception to the above general rule, it has been held that where the courses and distances are right in themselves they will prevail against monuments, so as to carry out the intent of the parties. Higinbotham v. Stoddard, 72 N. Y. 94 ; Townsend v. Hayt, 51 N. Y. 656 . Where the courses and distances are to form a fixed line or to inclose a fixed quantity, they will control natural boundaries (Railroad Co. v. Stigeler, 61 N. Y. 348 ; Higinbotham v. Stoddard, 72 N. Y. 94 ); and where monuments existing at the time of a conveyance are referred to therein, which have since disappeared, parol evidence of their location is competent (Robinson v. Kime, 70 N. Y. 147 , 154). There is no claim made that the courses and distances in the deed in question are not right in themselves. The deed incloses a fixed quantity of land, and it is not suggested that the line established by the trial court does not inclose the exact quantity; consequently the case shows no attempt to depart from the description, the question is one of fact, and the proofs fully sustain the findings of the trial court as to the location of the disputed boundary.

The plaintiff produced as a witness Josiah Mead, the grantee of that, name in the deed in question (Morgan Shuit, the other grantee, having-died some years before the trial), and from his testimony it appears; that the preliminary negotiations for the Mead and Shuit purchase were had with one Josiah Patterson, who lived on the property, and was the agent of the grantor, Mr. Lorillard; that before the conveyance from Lorillard was executed and delivered the east line of the-premises was surveyed along a location made at the time by blazing

Wilson, a surveyor who made the map upon which the trial court has established the line, testified that he had surveyed parts of the Mead and Shuit tract. He started at the monument in the Gore line. This is a well-defined monument, consisting of a heap of stones, and is referred to in the deed as being “S., 44|° W., 174 ch. from a heap of stones at the southwest corner of the sawworks lot, in the line of Mountain lot number eight.” The location of this monument is undisputed, and it is of great importance in determining the location of the line in question. From this monument he ran a course northerly, as indicated in the deed, until he reached lots 5 and C of the Great Mountain lot No. 8, where he found a pile of stones around an old

We now call attention to other measurements made by those surveyors, which equally impress us with their relevance and force, as tending to establish the correctness of the location claimed and found. The north line of the premises conveyed to Mead and Shuit is-described as 47 chains from the northwest, to the northeast corner. As already pointed out, the east and west lines are exactly parallel from the north end to the Gore monument, so that a line run from the latter point east, the course and distance called in the deed for the north line, must, of necessity, strike the east line, and the east line must, of necessity, pass through the point so found. This claim is verified by the measurements made. Measuring from the Gore monument, —as to the location and identity of which there is no dispute,—east, over the course called in the deed for the north line, they struck the-line as located by them at a point 47 chains and 1 link from the monument,—only 1 link further east than the length of the north line. There they found a marked chestnut tree very near the line, and of such character that it might well be one of those blazed by the surveyors when the line was originally run. It was 18 inches in diameter, with a blaze and three hacks on the west side, and stood 1-J feet west of the line. They then measured from a point in the west line 4,735 feet north of the Gore monument, east, the-course and distance called in the deed for the north line, and at the distance of 47 chains they struck the line located by them at a point about 470 feet west of the Tuxedo Lake. As we view it, these measurements alone establish the correctness of the location with sufficient certainty. It would be absurd to say that the east line could be located 200 feet east of these points. Had the surveyors found at the point indicated by them as the northeast corner a cedar tree, no one could find ground for debate. They did find the bluff of rocks and a tree marked at substantially the distance called for in the deed. The variations in measurement, which are slight, are explained and accounted for by the nature of the premises, which are rough, mountainous, and wooded. Defendant’s own surveyor testified that no two surveyors could chain the distances alike, and one could not do it twice alike. The monument which the defendant claims as establishing the northeast corner,

We have very carefully considered the evidence on the part of the defendant, and, while not passing upon the competency of any of it, but giving it full' force and credit, it cannot be said to present a case of preponderance of evidence, so as to call for the reversal of this judgment. On the contrary, we are constrained to find that the effect of the plaintiff’s evidence is to establish, beyond reasonable question, the correctness of the conclusions of the trial court. It establishes with certainty the west line of the Mead and Shuit lot from the Gore monument, which is undisputed, north to the southwest corner of the sawworks lot, in the line of Mountain lot No. 8, and fixes the location of the Gore monument. The east and west lines being parallel, and equal distances apart from the north to the Gore monument, and the east line continuing south the same course, it follows that the east line, at a point east of the Gore monument on the course of the north line, must be 47 chains east therefrom. The line established does so pass, with the variation of but one link. The east line must pass about 500 feet west of the Tuxedo Lake. A line measured from a point 4,735 feet north ■ of the Gore monument does strike the line as located at a point 47(1J feet west of the lake. A-line passing through the point 47 chains east of the Gore monument, parallel with the west line, should find at its southerly end, marking the southeast corner of the lot, a stake and stones. The line as located does reach such a monument, substantially corresponding to the call of the deed. The true line should pass through or near certain marked trees. It should run west of the Babcock Swamp, west of the old coal pit, and about 500 feet west of the lake, if it be the line located by Mead and others. This line does so pass. The line contended for by the defendant could not be made to verify as does the one claimed by the plaintiff, but ignores all the distinguishing marks except corner monuments, while the monument claimed to mark the northeast corner is wholly discredited, and cannot be found to answer the call in the deed.

The question as to the right of way claimed by the defendant over the premises of the plaintiff described in the complaint arises under the answer, in which the existence of the right of way is averred, and judgment asked that the same be confirmed and established by judgment of the court. The facts are briefly as follows: By the deed from Peter Lorillard to Mead and Shuit, the privilege of a right of way was granted to said Mead and Shuit in the following terms: “With the privilege of a right of way to said land over the land of the said Peter Lorillard, to be located by mutual consent, to the land hereby conveyed.” The land referred to as. the land »f Lorillard is the satiie now owned by the plaintiff. Counsel for

The conclusion is thus reached that the trial court was right im its findings and decision, and the judgment should therefore be affirmed, with costs. All concur, except O’BRIEN, J., who dissents.

Although it may be concluded that the plaintiff in the first instance made out a case establishing its title in the strip of land in dispute, nevertheless, when we come to consider the question of the weight of evidence, I think it clearly preponderates in defendant’s favor. The principal witness for the plaintiff, and upon whose testimony mainly the finding for the plaintiff wras based, was Mr. Mead, who at the time was 75 years of age, and who gave his recollection of what occurred 'in 1854. He admitted that he knew nothing about either the southeast or the northeast monuments, which in the deed located the boundary line in dispute. He merely stated that prior to the making of the deed he went with Mr. Patterson to a point 500 feet from the lake, and thence measured off distances and marked trees to the east, and

This is all we have on the part of the plaintiff in support of the boundary it claims. There is not one word of identification of the southeast or of the northeast monument, and there is no northwest monument to identify. Its southeast monument was an old heap of stones, which was nearly the right distance from an unidentified stake in a swamp. The northeast monument was neither located on a “bluff of rocks” nor near a “cedar tree,” nor was it the proper distance from any northwest monument. It was on the side of a hill, in a more or less stony place, at a white oak tree, and cedar trees were “further east.” It was 47 chains from a line which had been started by plaintiff’s surveyor north from the Gore monument, and in progress was corrected 56 feet, and ended at no northwest monument. All that can further be said is that Mr. Mead testified that the boundary was 500 feet from the lake, and that the plaintiff’s line is at such distance (though whether or not the shore line had changed he did not know), and he also testified as to blazed trees, etc., on that line.

That Mr. Mead’s statement has been regarded as of great importance appears from the opinion of Mr. Justice HATCH, where, in speaking of the plaintiff’s claimed line, he says:

“The true line should pass through or near certain marked trees. It should run west oí the Babcock Swamp, west of the old coal pit, and about 500 feet west of the lake, if it be the line located by Mead and others. This line does so pass. The line contended for by the defendant could not be made to verify, as does the one claimed by the plaintiff, but ignores all the distinguishing marks except corner monuments. * * *”

The plaintiff’s case rests almost entirely on Mr. Mead’s testimony, and, so far as it gives new lines, marks, and monuments differing from the deed, the question arises, is it admissible? The deed makes no mention of 500 feet from the lake, nor of any marked trees along the way; and the rule is that where the terms of description in a deed are clear, and no latent ambiguity is shown, extrinsic evidence cannot be given to contradict, vary, or even explain the description. The rule is thus stated in Harris v. Oakley, 130 N. Y. 1 , 28 N. E. 530 :

“Where, in. the description of premises in a deed, courses and distances and monuments are given, the premises must be located according to the deed, and all parol evidence of the declarations and acts of the parties of an intended different location is inadmissible as contradicting or varying the deed.”

Therein it was said:

‘•‘The fence is not mentioned in the deed. Had it been, it would perhaps have become a-monument or object which would control the determination of

the question; for the rule is that courses and distances ordinarily must yield to natural or artificial monuments or objects.”

And in Muldoon v. Deline, 135 N. Y. 150 , 31 N. E. 1091 , the ctiurt said: ;

"There is no ambiguity in the description contained in the plaintiff's deed. Every line can be surveyed on the ground just as given and the grantor had the land. When the description is applied to the land, no ambiguity is produced, and hence there is no room for parol evidence. It is true that the intent of the parties to the deed must control. But that intent must be ascertained from the language contained in the deed.”

Here there was no ambiguity. The deed refers to the southeast corner as “a stake and stones,” and says: "Thence north, forty-four and three-quarters degrees east, two hundred and sixty-two chains and forty-five links, to a red cedar in the sawworks line, on a bluff of rocks.” To establish this line, all that was necessary was to identify the stake and stones at one end, and the red cedar on the bluff of rocks at the other, or to run the course given in the deed. The distance of that line from a place such as the lake, not mentioned in the deed, was hardly competent. Furthermore, all that Mr. Mead did preceded the giving of the deed, and in such a case the deed itself must be held to represent the final terms and boundaries as agreed upon. As said in Clark v. Wethey, 19 Wend. 320 : “The maxim of the common law * * declares that all oral agreements of the parties "in respect to the subject-matter of the deed shall be merged in it, and such deed cannot be contradicted by parol.” The relief asked by the complaint was a confirmation of a boundary line claimed to have been agreed upon after the delivery of the deed. Mr. Mead, however, says that the location, if any, preceded the giving of the deed, and no motion to amend the complaint was made.

Assuming that Mr. Mead’s testimony was admissible, it will be seen upon what a slight basis the plaintiff’s case rests. If, however, we deem such proof sufficient by itself to support a finding in favor of plaintiff’s title to the land in dispute, I think that, when compared with the evidence given by the defendant, it is clearly outweighed. The defendant offered convincing testimony, identifying the landmarks of the deed as coincident with the boundaries it claims. The northwest monument is identified by J. S. Ford, who had been superintendent for defendant, and who said that Mr. Patterson, now deceased, who was manager for Mr. Lorillard, had pointed it out to him. And from this monument Mr. Garrison, in 1885, ran a line to the Gore monument, which came within three feet of the distance stated in the deed; thus confirming Mr. Ford’s testimony. The southeast comer is identified by Mr. Slawson, who testified that Mr. Patterson had in 1856 showed it to him, and told him it was the southeast corner; and this when, as an adjoining owner, it was against Mr. Patterson’s interest to do so if the boundary was further west. Mr. Gordon also testified that, in 1861, Mr. Patterson told him it was the southeast comer, and not to cut beyond it. The northeast corner is identified by Mr. Garrison, as the deed calls for, as “a red cedar in the sawworks line, on a bluff of rocks”; he having in 1885 run from the northwest monument 47 chains 26 links, and

With such evidence opposed, I do not think it can be said that the - plaintiff should have judgment establishing its title to the landclaimed. The defendant’s line had evidently been acquiesced in by the plaintiff and many others, and a natural conclusion from the testimony is that the plaintiff first started its dispute upon hearing the statement of Mr. Mead that the boundary line was 500 feet from the lake, and the discovery that the recognized boundary was not that distance. Opposed to Mr. Mead's statement, we have an array of evidence, including the silent testimony of the deed' itself, which absolutely discredits it. And, so far as practical location is concerned, not only did the plaintiff fail in any such proof, but the defendant showed that the plaintiff had governed itself according to, and had' caused a map to be filed showing, the boundary line claimed by the ■ defendant.

For the reasons stated, I dissent from the conclusion reached by my associates.