
    Third Department,
    March Term, 1898.
    Ellen James, Appellant, v. Isabella Lewis, Respondent.
    Judgment reversed, referee discharged and a new trial granted,- costs to abide the event.—Patrick Roach was the owner of a few acres of land in the town of Granville. It was bounded on the east by a highway. On May 2,1862, he conveyed a portion of these lands to Daniel I. Day, and retained the balance of them. The portion which he conveyed lay next south of that which he retained, and the question in dispute is where the division line between them should be located. By subsequent conveyances the part that Roach retained has been conveyed to the defendant in this action, and the part which he conveyed to Day is now owned by the plaintiff. The plaintiff claims that such division line should be located further north than the line down to which the defendant claims, and is now occupying. Plaintiff brings ejectment, and the referee orders judgment for the defendant. From such judgment plaintiff brings this appeal.—
   Parker, P. J.:

The line in dispute 'is the north line of the plaintiff’s premises and the south line of the defendant’s, being the division line between them, and wherever it is it runs from the highway in a westerly or northwesterly direction about 200 feet. In the deed this division line is described as commencing at a point on the west side of the highway, 61 feet south from the southeast corner of Roach’s dwelling house, and running thence “in a northwesterly direction, as the stone wall now runs, eighty-two feet to a point in the stone wall on the south side of the garden of the party of the first part, thence westerly to a point half way in said wall from each end of the same, thence westerly in a straight line to the Rutland & Washington Railroad,” and thence on around to the highway and place of beginning. The stone wall is gone, and as no course whatever is given from such line, except “northwesterly” and “ westerly,” it is evident that trouble arises in attempting to locate the line from the deed alone. The referee has found that such division line was one commencing at a point in the west line of the highway where an iron pin is now placed, . and running thence north eighty-five degrees west, through another iron pin set in a ledge of rocks some forty-eight feet from the highway, straight across the premises to the northwest corner mentioned in such deed. 'If such was the course and starting point of such division line, the plaintiff and her grantors never had any title to the lands she claims, and judgment against her was roperly ordered. But, in my opinion, this nding cannot be sustained by the evidence in this case. The next year, by a deed dated July 18, 1863, Roach conveyed to Day a further piece of land, being a small triangle, containing about two hundred and twenty-four square feet. The description in that deed starts from a point in the west line of the highway forty-eight and one-half feet south of Roach’s dwelling house, which would bring it twelve and one-half feet north of the starting point of the division line or stone wall referred to in the deed of 1862, because that line started at a point in the west line of the highway sixty-one feet south of such dwelling house. It is also stated in such second deed that at such point of forty-eight and one-half feet there is an iron pin set in the rock. This pin is the only one in the line of the highway, and is the one to which the referee refers. It is not claimed that there was ever any iron pin sixty-one feet from Roach's house, and hence that iron pin could not he the starting point of the division line referred to in the deed of 1862. Another iron pin was set in the ledge some forty-eight feet westerly of this pin, as above stated, and it seems very clear, from the evidence, that these iron pins were put there by Roach and Day when this triangle was laid out in July, 1863. The deed then proceeds to lay off the triangle by drawing a line from this pin on the highway on a course which would carry it through the other pin, being north eighty five degrees, west a distance of thirty-two feet, where, as the deed states, it strikes the stone wall wliich is between the lands of the parties thereto. Thus the triangle is formed between the stone wall on the sóuth, the line thirty-two feet long on the north and the highway on the east. If the finding of the referee is correct, this stone wall or division line would have to be put up on the line between the two pins, and the triangle would have to be laid off above it. But the deed distinctly places the north side of the triangle on the line between the two pins and the southerly side is placed on the stone wall, one end of which is twelve and one-half feet further south. The stone in this wall was reserved by Roach and taken away by him. The land lying northerly of such wall then, for the first time, became Day’s. If the referee were correct, the land described in that triangle would have been conveyed to Day by his former deed of May 2. 1862. This deed also enables us to tell to a certainty the course which the stone wall followed for some distance, at least, from its starting point. It took such a course northwesterly that a line drawn through the iron pins would intersect it at a point thirty-two feet from the highway. The survey shows that course to be north sixty-three degrees forty-five minutes west, and the distance to be about thirty-six feet. Here, then, we see that for this distance, at least, the referee is in error, both as to the starting point and as to the course which this division line ran. Instead of starting at the pin, it started twelve and one-half feet further south, and instead of running north eighty-five degrees west, it ran north sixty-three degrees forty-five minutes west. The description of this division line in the deed of May 2,1862, starts at the point in the highway and takes it thence northwesterly, as the stone wall runs; eighty-two feet, to a point in the wall on the south side of the garden, thence westerly, etc. The plaintiff claims that such wall continued on in the same course, substantially, the full distance of eighty-two feet, and then turned westerly ana ran to the northwest corner. If it did, it undoubtedly included all the land that the plaintiff claims, and she has shown a good paper title to it. Front the language of the description there is a strong presumption that the wall made no material change to the west until it reached the point eighty-two feet distant. It is possible, of course, that it may have turned westerly at the point where it intersected the line of the two pins and then followed a course north eighty-five degrees west. But it seems hardly probable that if it had made so radical a change to almost due west at a distance of only thirty-six feet from , the starting point, it would have heen described as turning westerly at a distance of eighty-two feet, and particularly if, after making such a turn at that ‘distance, it ran on a continuous straight line across the whole lot. There is much evidence on both sides as to where that stone wall ran at points west of the intersection referred to. Such point of intersection was just east of a ledge of rocks, and the great bulk of evidence is directed to showing where the old wall was west of that ledge. But on this question, as to where the stone wall ran after it passed the point of intersection and west of the. ledge, there is another conveyance that throws considerable light upon it. On July 18,1868. in exchange for the triangle above referred to, Day reconveyed to Roach a small triangular piece of land next south of the division line between them. It is described in that deed as beginning at an iron pin in the rock eight and one-half feet south from Roach’s barn, “thence in a northwesterly direction forty feet in a straight line until it strikes the stone wall ” between the parties; then commencing at said iron pin again and “running east fourteen feet ” to the said wall. From this description it is manifest that the stone wall between the parties is the north side of the triangle, opposite the apex, and that the apex is at the iron pin. Now, if that apex can be correctly located on the ground, it will be easy to locate where the line of the stone wall ran west of the ledge. The defendant claims that this iron pin is not the one which was set in the ledge. She claims that it is another one set about eight feet south of that one. If that is correct, then the side opposite the apex, viz., the stone wall, could be on the line running through the other two pins, as the referee has found it to be. But can the apex be located at that point and make the sides of the triangle consistent with the description above given? It seems not. A. line drawn from the apex east fourteen feet would not strike the stone wall at all. It requires, as appears from defendant’s own map, a line to run north fifty-eight degrees east in order to strike the wall at that distance. There is another very significant feature to be considered in this connection, and that is, that no witness, so far as I can discover, has ever seen an iron pin at that point. Roach, who helped lay out this triangle, knows nothing .of such a pin. He frankly says he has no recollection of any pin there, and the only ones he speaks of are the two above mentioned. The plaintiff, claims that the pin mentioned in this deed of the second triangle is the one set in the ledge. And such a location will harmonize the sides of this triangle with the description given in the deed. Placing the apex at the iron pin in the ledge, and a line drawn substantially east will strike the stone wall at a distance of fourteen feet. Such line is the line drawn through the two iron pins, and it strikes the stone wall of course at the place where that line was made to intersect it, by the other deed. Thus the ends of these two triangles corner at that point of intersection, and it is manifest that this stone wall, instead of turning there and running westerly along the side of this new triangle, continues on its course and runs so that a line drawn from the apex and in a northwesterly direction may strike it and form a triangle north of the pin. The evidence which has controlled the referee in this particular seems to have been the recollection of witnesses that the barn stood as far south as the iron pin in the ledge and that the stone wall ran off from the corner of the barn in a straight course to the railroad. There is a very great difference in" the memory of the witnesses upon these naked facts. Roach seems to have remembered the barn as being as far south as the pin in the ledge, and if it depended upon memory alone, I should not be disposed to interfere with the referee’s conclusion. But it is clear that he is in error concerning the point from, and the course on, which the division line between the parties originally started. The probabilities are also very strong that the iron pin which is still found in the ledge is the one referred to in the deed describing the- second triangle At that point it fits in with the description given; at the other point it does not fit at all. At that point an iron pin is known to have existed, put there for the purpose of surveying the triangleswhich were then exchanged; at the other point no one has ever seen a pin, and the only proof of it is a supposition that it was there and is now covered up. And yet, if the apex of this triangle was at the point where plaintiff claims it to have been, there can be no doubt but that the division line in the deed of 1862 ran for the full distance of eighty-two feet on the course upon which it undoubtedly started. The. evidence upon the subject of just where that barn stood is too voluminous to discuss it in detail, but I cannot but conclude that the referee has failed to give to the descriptions in the conveyances referred to, the force to which they are entitled, and that hence they have not had their proper-weight in determining the question at issue. I am, of "course, aware that the original division line may have run as the plaintiff claims it did, and yet defendant have acquired a title to the strip in, dispute by adverse user. But I do not understand the referee to put his decision upon any such ground. He does not specifically find to that effect; 'nor do I think the evidence in the case will substantiate that claim, if it be conceded that the stone wall, at the time of the conveyance, in May, 1862, ran the whole length of eighty-two feet upon the course on which it started. Unless the stone wall, as a matter of fact, ran as far south as the iron pin in the ledge, there is not much evidence to sustain the claim that the land was ever, for a period of twenty continuous years, occupied by defendant as far south as the line which the referee finds. So, also, there is no evidence of any change in such line made by Roach and Day by deed, location, or other wise ^ that would be operative against either, except so far as it was changed by the exchange of triangles above described. The defendant claims that, wherever the original division line between Roach and D.ay may have been, the conveyance to the plaintiff from Daniel "I. Day gives as her northern boundary the straight line running through the two iron pins, as found by the referee, and that hence she can claim nothing to the north of it. 8uch deed substantially described • the premises conveyed as a parcel of land 80 feet in width on the highway, 100 feet in width in the rear or west end, and 200 feet long or deep from the west side of the highway. From this defendant argues that, because a straight line drawn, as the referee finds, is 200 feet long, and a line following the old division line bends out to the. northward so as to make it some 208 feet in all, therefore, plaintiff must foliovv the straight line and treat all the land between.it and the old division line as still owned by Day. But Day’s deed does not attempt to describe the line It describes the lot as being 200 feet in depth; in addition to that it says that the piece conveyed is taken out of the northeast | corner of liis lot. Clearly that description conveys all that Day owns in that corner, and carries the land conveyed up to his north line. The value of the land claimed in this case is said to be ten dollars, and the parties have already enjoyed a sharply-contested trial over it. It is to be regretted that one trial cannot be made to close the con- '■ troversy. But, inasmuch as I am satisfied that the referee has misconceived the force of the conveyances above referred to, I am nob at liberty to disregard the error and evade granting another. The judgment must be reversed, the referee discharged and a new trial granted, costs to abide the event. All concurred.  