
    The Seneca Nation of Indians, App’lts, v. Wellington Hugaboom, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 11, 1890.)
    
    Boundaries—Description.
    By the treaty of 1802 a description of the Cattaraugus reservation was given, one line of which was extended “ west 482 chains 31 links to a post.” This followed the survey of 1798. In an action to recover possession of land claimed to be included if a survey was made according to the treaty, a surveyor testified that there were evidences that the monuments described in the survey still existed and that they indicated the line to be where it was supposed to be for ninety years, which would not include the land in question. Held, that the evidence made a case for the jury and that their verdict for defendant should not be disturbed.
    Appeal from the judgment entered in Cattaraugus county on a verdict rendered at the May circuit, 1889, and from an order denying the plaintiffs’ motion for a new trial upon the minutes of the court.
    
      Hudson Ansley, for app’lts; W. S. Thrasher, for resp’t.
   Macomber, J.

The action is ejectment to recover certain premises in Perrysburgh, Cattaraugus county, in this state, which the plaintiffs claim lies within the boundaries of the Cattaraugus Indian reservation.

By the treaty of 1802 the plaintiffs became the owners of a certain tract of land known as the Cattaraugus Eeservation, the true southern line of which is put in dispute by this action. Up to 1802 there had been no defined and well ascertained boundaries given to the reservation by any treaty. At this time, however, a complete description was given thereof, one line of which was extended as follows : “ Thence west 482 chains, 31 links to a post.” The jilaintiffs’ claim rests mainly upon the contention that if a survey is made according to this treaty, the same will include the piece of land in dispute.

The government ordered, it is true, a new survey of this reservation in the year 1878, but we do not conceive that such new survey could be effective in adding to the reservation any lands which did not belong to the tribe by virtue of the treaty made by the government with the Indians in 1802. The question, therefore, before the jury was, whether this line quoted above, was the true one, and whether it must be relied upon, irrespective of any monuments there referred to. The argument in behalf of the plaintiff is. that the monuments had been obliterated; and that there remains no evidence of the true boundaries save the line as projected by the survey made in 1798, and which was adopted by the treaty of 1802. To meet this position of the plaintiffs, the witness, Benjamin E. Train, a surveyor, was called, whose evidence is quite voluminous. It is to the general import that there were evidences, even a short time before the trial of the action, that the monuments described in the survey still existed, and that they indicated the line to be where it has been supposed to be for ninety years, which would give the land to the defendant. This witness admits that the line which he has traced out is not a direct line sack as is mentioned in the treaty; but it is claimed, as a resalt oí his evidence, that it is shown that the survey for this reservation, so made in 1798, did not proceed upon a straight line, and that the monuments which were named in the courses must control, and not the courses themselves.

On the whole we think that this testimony made a case for the consideration of the jury, and that their verdict ought not to be disturbed, as it has direct evidence to support it, and the tacit support of three generations of men.

The judgment and order should be affirmed.

Dwight, P. J., and Corlett, J., concur.  