
    Jackson, ex dem. Schermerhorn and others, against Murch.
    NEW YORK,
    Oct. 1812.
    To ascertain the true east line of the ■Cambridge patent, the sixth course in that patent is to be run to the moslwesierly comer of the Walloonschack patent, ascertained by running two courses from the house of Gerrit Cornelius Van JVess, and the seventh course in the Cam*, bridge patent, must be run from the terminatingpoint of the sixth course, thus ascertained, north, 1,092 chains, to the middle of the MattenkilL
    
    THIS was an action of ejectment, for the recovery of 88 acres of land, part of lot. No. 4. in Schermerhorn’s patent. The cause was tried at the Washington circuit, in 1811. An exemplification of a patent to Ryer Schermerhorn and others, dated the 11th ■of May, 1762, was read in evidence. The tract of land granted is described as lying east of a tract of land granted to Isaac Sawyer, Edmund Wells and others, “ Beginning at a sweet maple tree, standing by the side of an inlet of water, near Battenkill, which said tree was marked for the northeast corner of the aforesaid tract granted to Isaac Sawyer, Edmond Wells and others, and runs from the said maple tree along the bounds of the last-mentioned tract, south 720 chains, then easterly,” &c.
    The lessors of the plaintiff are the owners of Schermerhorn’s patent, and the defendant is part owner of the patent granted to Isaac Sawyer and others, called the Cambridge patent; and the only point in dispute between the parties was the true east line of the Cambridge patent.
    In a deed of partition among the patentees of Schermerhorn’s patent, bearing date the 22d of September, 1764, lot No. 1. in the subdivision of the tract, is described as “ beginning at a certain marked maple tree, standing on the side of an inlet of water, in the northeast corner of land granted to Isaac Sawyer and others, and running thence south 82 chains and 50 links east,” &c. Lot No. 4. is described as commencing at the southeast corner of lot No. 3. which is described as being on the west line, or first corner of the Schermerhorn patent.
    
      James Mattery, a surveyor, testified, that he run the west line of lot No. and that he commenced his survey at a tree correa ponding with a tree described in Schermerhorn’s patent, as the place of beginning, and traced the west line of that patent to the southwest corner of lot No. 4.; that he allowed for the variation of the compass, and run his course south 1 deg. 18 min. east; from the maple tree he run south 305 chains, and a fence corresponded with the line he so run, for the distance of 60 chains ; thence he run to the end of the 305 chains through cleared fields, and found no line : he found a marked tree two chains east of the line run by him, and on boxing it, he found the mark to be 46 or 47 years old; that on running the south and north lines of lot No. 4. he found marked trees, corresponding at right angles with the south line as run by him.
    The defendant produced an exemplification of a patent, called the Walloomsclutck patent, the boundaries of which were described as “beginning at a certain marked tree, which is 347 chains distant from the late dwelling-house of Gerrit Cornelius Van Ness, measured on a line running south 75 degrees east from the southeast corner of the said bound to the said tree ; thence north 13 deg. 30 mm. west 90 chains and 40 links,” &c.
    An exemplification of the Cambridge patent, dated the 23d of July, 1761, to Isaac Sawyer and others, was introduced, the boundaries of which were thus described: “ Beginning at a large water maple tree marked with a turtle, standing 120 chains measured on a course north 12 degrees east distant from the southeast corner of certain lands granted to Peter Schuyler and others, commonly called the Saratoga patent, and 10 chains to the southward of a place, where a line running north 12 degrees east from the said maple tree crosses a creek called Pohqnampeack, and this tract inns from the said maple tree north 67 degrees east 290 chains; 87 degrees east 72 chains; then south 74 degrees east 1J 6 chains; then south 57 degrees east 138 chains ; then south 46 deg. 30 min. cast 88 chains; then south 13 degrees east 170 chains, to the most westerly corner of a certain tract of land called Wal~ loomschack, granted to Edward Collins and others, then north 3,092 chains to the middle of Batlenkill; then westerly down the stream; and then southerly, along the Saratoga patent, to the place of beginning.”
    
      George Webster, a witness for the defendant, testified, that he was a surveyor, and that last summer he run the east line of the Cambridge patent. He commenced at the southeast corner of the house mentioned in the Walloomschack patent, and run the two first courses and distances as specified, in that patent; that as-sum'r,8 the termination of the second course as the most westerly corner of the Walloomschack patent, he run á course thence north (allowing 1 deg. 30 min, variation) until he passed lot No. 4. of Schermerhorn’s patent; that the line run by Mallery, as the west line of lot No. 4. was 24 chains w.est of the line run by him as the east line of the Cambridge patent.
    On' his cross-examination, he said, that the point assumed by him as the most westerly corner of the Walloomschack patent was in a meadow where there was nothing to designate it; and was very considerably within the bounds of the Hoosick patent; and that he had traced the courses and distances of the south boundary of the Cambridge patent, as specified in the grant; that the south line of the Cambridge patent cannot be closed, so as to bring it to the point assumed by him as the most westerly corner of the Walloomschack patent, without disregarding the last course and distance given in the patent, which is south 13 degrees east 170 chains, and running a course south 24 degrees east 170 chains and 50 links. That from the termination of the courses and distances on the south boundary of the Cambridge patent, according to the words of the grant, to the place assumed by him as the most westerly corner of the Walloomschack patent, is north 65 degrees east 34 chains and 95 links; that a line run due north from such termination to Battenkill, would, when opposite to lot No. 4. in Schermerhorn’s patent, be very considerably west of the line run by Mallery, as the west line of the said lot; that the line run by the witness corresponded to a line called Campbell’s line, and that run by Mallery to a line called Bleeclcer’s.
    
    Another witness testified, that 24 years ago the defendant went into possession of a farm, which he bought of one Smith, under the Cambridge patent; that the defendant’s present house is east of Bleecker’s line; that the witness bought lot No. 13. in the east tier of lots in the Cambridge patent, and possesses up to the Bleecker line.
    A witness for the plaintiff testified, that he assisted John 22. Bleecker, in 1763, in surveying the patent granted to Schermerhorn and others ; that a few days before the trial, he saw the tree standing by a cove, or inlet of water, on Battenkill, at which they commenced their survey of the west line of the said patent; and that when they commenced the survey, John 22. Bleecker, the surveyor, and Abraham Jacob learning, two of the patentees of the Cambridge patent, and Ryer Schermerhorn and Jacob Schermerhorn, two of the patentees of the Schermerhorn patent, were present; and the said tree was recognised by the persons present, and marked as the corner tree between the two patents. This evidence was objected to, but admitted by the judge. A letter from John R. Bleecker, dated the 28th November, 1765, directed to two patentees of the Cambridge patent and a patentee of the Schermerhorn patent, though objected to, was read in evidence. In this letter, Bleecker stated that the sixth course of the Cambridge patent was south 13 degrees east 170-chains, which he assumed to be the westerly corner of the Walloomschack patent, and made a return accordingly to the surveyor-general; and that the corner so assumed will agree with the corner made for Sam'' yer’s tract on the south side of Battenkill, being a sweet maple, which stands on a direct north course from the place first mentioned ; that Abraham J. Lansing was present when he marked the maple tree standing on the side of an inlet of Battenkill, in the bound of the Cambridge patent; and was present also when he commenced the survey of the Schermerhorn patent; and that he run a due north line from the maple tree to Battenkill across a neck of land, and Lansing and Schermerhorn marked a tree.
    A witness for the plaintiff testified, that when A. J. Lansing, the owner of lot No. 21. in the northeast corner of the Cambridge patent, sold that lot, he sold only to Bleecker’s or Schermerhorn’s line : at that time, being 40 years ago, one Cloughy was in possession, under the Schermerhorn patent, up to Bleecker’s line. Lansing offered to sell the land between the two lines, but Cloughy refused to purchase, and continued in possession up to Bleecker’s line, which possession was continued, under Cloughy, down to about 15 years since, when the occupier bought the claim of one Smith, a Cambridge patentee. Another witness testified, that he was in possession of land in lot No. 4. in Schermerhorn’s patent, which hfe held under Dan. Kellogg, who had a lease from the Schermerhorns ,* and that he possessed up to Bleecker’s line, and continued in possession about 10 years, during which time the defendant never claimed any right east of Bleecker’s line ; that one Sage, who possessed the land adjoining, under the same title, held to the Bleecker line.
    Another witness testified, that 20 years ago, he assisted Sage in cutting wood on lot No. 4. within 51 rods east from the dwelling-house of the defendant, and to about 20 rods east of his present dwelling, and the defendant did not claim the land, or forbid Sage t0 CU(- anj carry away the timber.
    The judge expressed his opinion that the defendant was enti» tied to a verdict; and the plaintiff, thereupon, submitted to a non-suit, with leave to move the court to set it aside, and for a new trial.
    A motion was now made to set aside the nonsuit, and for a new trial, which was argued by Wendell, for the plaintiff, and Crary, for the defendant.
   Per Curiam.

The judge expressed an opinion at the circuit, that the defendant was entitled to a verdict. This opinion having been submitted to then, the court is now called upon to review it, and to determine whether the jury would not have been warranted in deciding in conformity to it.

The only question for our consideration relates to the running of the seventh course in the Cambridge patent. Is it to be run from the most westerly corner of the Walloomschack patent, ascertained by running two courses from the site of Gerrit Cornelius Van Ness’s dwelling-house; or is that course to be run from the termination of the sixth course of that patent, ascertained by running the previous courses and distances, without reference to the Walloomschack corner ? We are of opinion that, as the sixth course in the Cambridge patent calls for the most westerly corner of the Walloomschack patent, that corner being ascertained by running two courses from Van Ness’s dwelling-house, must be the point to which the sixth course in the Cambridge patent is to be run, and that the seventh course,north 1,092 chains to the middle of Battenkill, must be run from the terminating point of the preceding course thus ascertained.

Van Ness’s house is precisely shown, and although there is no monument to be found at this day, designating the most westerly corner of the Walloomschack, it is fairly inferrible, from the facts in the case, that Campbell’s line, run between forty and fifty years ago, was run from a monument then existing, and well known as such corner. The principle that a course and distance shall be rejected, when a monument is to be run to, applies to the point now under consideration. That principle is founded on the facts, that compasses vary, that surveyors are liable to mistake, and that, in the progress of settlement, as lands are cleared, ob« sructions removed, there would scarcely ever be a correspond-(Slice in the length of chain between a survey at the granting of a patent and a resurvey after a lapse of-years. The monument is preferred for the greater certainty; and, on the same principle, as it requires, in this cause, but two courses to be run from Van Ness's house to ascertain the most westerly corner of the Waloomschack patent, that point, thus ascertained, is more certainly the true westerly corner, than the point attained after running out six courses in the Cambridge patent.

We have been pressed with the circumstance, that the westerly corner of the Walloomschack patent is thus found in a meadow, and within the bounds of the Hoosick patent. The dates of the Walloomschack and the Hoosick patents are not stated. We know not, therefore, which is the eldest; but admitting Hoosick patent to be the eldest, and that they interfere, that circumstance would not prevent the Cambridge patent’s running to the corner of the Walloomschack, as a point from which to start in the location of -that patent. The plaintiff ought not to be allowed to draw an argument, from the non-existence of a known corner of that patent, when, in all probability, the recollection of it has been lost by the, lapse of time.

Much stress was placed on the survey of the patent by John R. Bleecker, under the inspection and with the assistance of A. J. Lansing, they being patentees. There is no evidence in the ease that the other patentees ever assented to that line; their number exceeded sixty, and it cannot be contended that the acts of part of the patentees can control the rights of those who did not assent to that act. So far from their having assented, we find Campbell’s line, which ivas coiemporaneous with Bleecker's, and coinciding with the line run by Webster from the most westerly corner of the Walloomschack patent, ascertained in the manner already mentioned,. That Campbell’s line was run as the easterly boundary of the Cambridge patent, and by the patentees of that patent, cannot be doubted: it is impossible to account for the existence of that line in any other way. When, therefore, we consider that Campbell’s is an ancient line, that the plaintiff has not shown a single foot of land to have been possessed to the west of that line, for a considerable number of years, and that even such parts as have been possessed were predatory possessions, we cannot but consider the opinion given at the trial as correct, and we accordingly deny the motion.

Motion denied.  