Donohue v. Whitney

—The plaintiff recovered a verdict against the defendant for wood and timber which the defendant cut upon the land in dispute in this action. Both parties claimed to own it. Their lands adjoin, the “Livingston line” being the boundary between them. The land is wild, rugged and unfenced, and situate upon a mountain side in the town of 'Shandaken, Ulster county, being part of Great Lot No. 8 of the Hardenbergh patent, granted in 1708, and subdivided in 1749, Great Lot No. 8 being again subdivided in 1779 and partitioned among the heirs of Robert R. Livingston. No deed, however, earlier than 1817 was read in evidence. It seems that prior to that date the more southerly part of Great Lot No. 8, on the southwesterly side of the “Livingston line,” was acquired by Lucas Elmendorf, and the more northerly part on the same side of the line by John Duer, and that the land upon the northeasterly side was acquired, the more southerly part by Peter R. Livingston and the more northerly part by Alida Livingston. The plaintiff’s land is part of the Elmendorf tract and the defendant’s part of the Peter R. Livingston tract The deeds of neither party contain sufficient data to enable a surveyor to go upon the land and locate the Livingston line. He must have recourse to other sources of information in order to do this. The plaintiff read in evidence the deed of his grantor, Russell, to the Wey Brothers, made in July, 1856, of another parcel of land in the Elmendorf tract adjoining the plaintiff’s lot on the north and the Livingston line on the east Russell gave to plaintiff on the same date a contract for plaintiff’s parcel, and gave him the deed thereof in 1858. In 1856 Russell procured Brodhead, a surveyor of experience in that region, now dead, to make a survey and map of the two parcels of land sold, or about to be sold; one to the plaintiff and the other to the Wey Brothers. Brodhead made the survey and map and went around the plaintiff’s parcel and pointed out the corners to him as he had established or identified them. This map has since been in the possession of the surviving Wey brother, who has ever since claimed to own the land described in his deed and delineated upon

"Undoubtedly they are res inter alios so far as he is concerned, and they cannot be used to contradict or disparage his title. Such is not their function here. They are used because they seem to afford the best obtainable description of the location of the Livingston line, and thus enable us to understand what the deeds of the parties mean when they employ that line to bound the respective parcels. The map was made before any contention arose; was made by an expert; was intended to delineate the line for three miles of its length; was made thirty years ago, and itself affords the data to test to a considerable degree its own accuracy. So far as the defendant; is concerned, it is in the nature of hearsay ; but hearsay, in the absence of better evidence, is often used to determine boundaries.

The theory is that what common fame or reputation declares to be the boundary at the time a deed is made referring to such boundary, defines the boundary as the deed speaks of it, in the absence of any terms in the deed or chain of title indicating any other meaning. Brandt v. Ogden, 1 Johns., 156 ; S. C., 3 Caines, 6; Boardman v. Lessees of Reed, 6 Peters, 328; Sparhawk v. Bullard, 1 Metc., 95 ; Morris v. Callanan, 105 Mass., 129 ; 1 Phillips Ev., Cowen, Hill & Edwards’ notes, 219, 230. The acts and declarations of the surveyor Brodhead, now deceased, pointing out to the plaintiff his corners described in his deed and indicated on the map, were for the like reason, in the absence of any ground of suspicion, admissible, and also because part of the res gestee of his possession. Partridge v. Russell, 18 N. Y. State Rep., 685. The English cases, which are more strict than our own in this particular, admit hearsay to determine a private boundary when it is identical with a public boundary, as of a hamlet, parish or manor. Thomas v. Jenkins, 6 Ad. & Ellis, 525. The Livingston line, six miles long, was of a quasi public nature.

Duly certified copies of a map of the patent made in 1815, and of another made in 1835, on file in the office of the secretary of state, upon which this line was drawn, were properly received in evidence for the same reason. A published county map made in 1874, widely distributed throughout the county, a copy of which was in the defendant’s possession, upon which the same line was drawn and the -lands of the parties indicated, was hardly admissible as evidence of ancient reputation, but we think was admissible as confirmatory of that reputation as otherwise established, and as indicating its general diffusion, and as bringing it home to the knowledge of the defendant

The plaintiff in testifying to his occupation of his land, and to-the facts respecting it, testified that one Patchin had several years ago encroached upon the locus in quo and cut some trees and that he had compelled him to desist. He had the right to show how far he occupied under his deed, and to do this to show what were the facts of his occupation.

The defendant on the argument offered to hand up the record of a deed which was not put in evidence upon the trial. This-we cannot receive. Although a record, it is new evidence, and to-introduce it now would be to present a different case from that tried below. We sometimes receive a record on the argument with like effect as if given upon the trial, but only to remove some objection based upon the non-production of the record, in a case where its absence on the trial or in the appeal book is a mere informality.

On the merits we see no ground to set aside the verdict.

Judgment affirmed, with costs.

Learned, P. J., concurs; Mayham, J., not acting.