
    Sylvander B. Partridge, App’lt, v. Leander Russell, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 19, 1888.)
    
    1. Trespass—Defense in action for—Actual possession gives plaintiff RIGHT TO BRING ACTION.
    This action was brought to recover damages for an alleged trespass upon the plaintiff’s premises. Held, that as the plaintiff was in the actual possession of the premises in question, when the alleged trespass was committed, it was necessary for the defendant to prove some right to make the entry, although the plaintiff failed to prove title in himself.
    3. Deed — Description of premises — When location of premises QUESTION FOR JURY.
    Both of the parties claimed title to the premises in question through a common source of title. Held, that if a grant, by sufficient description of the premises, clearly ascertains the location of the premises conveyed, it is for the court to see that the grant is applied to the subject matter in accordance with the express intention of the parties, but that when the location of the premises is doubtful through uncertain, inconsistent or conflicting terms of description in the deed, the proper location of the premises becomes a question of fact to be determined by the jury on all the evidence.
    8. Same—Boundaries—Declarations of deceased persons—-When admissible to PROVE.
    Declarations of deceased persons, while in possession of lands owned by them, and in the act of pointing out their boundaries, with respect to such boundaries, are competent evidence regarding such boundaries, when nothing appears to show an intention on the part of the declarant to deceive or misrepresent.
    4. Same—Boundaries—Evidence of—What is competent.
    In proving the boundaries it became necessary to ascertain the location of a highway, and an order made by a highway commissioner, laying out the highway, filed in the office of the town clerk, but not recorded till after the commencement of this action, was given in evidence. Held, that if it was a valid order it was properly received,, and if it was not it could only be used as an item of proof in connection with all the other evidence on the point, for the purpose of reconciling the repugnant clauses used in the description of the defendant’s premises: that boundaries may be proved by every soft of evidence that is admissible to prove any other fact.
    Appeal from a judgment entered upon the decision of the trial judge, rendered at the Erie circuit without a jury.
    
      Hosea S. Heath, for app’lt; W. S. Thrasher, for resp’t.
   Barker, P. J.

action was trespass, quare clausum This freget. The plaintiff occupies the premises entered as tenant of one Peter Bulger, and in the case, the latter is mentioned as the owner. The defendant occupies the lands lying north of those of which the plaintiff is in possession, and the division line runs east and west, and is two chains and forty-two links in length. The board fence which separated their respective enclosures was torn down by the defendant, and he erected a line of posts twelve feet to the south with a view of rebuilding the fence on that line, and this act constitutes the trespass complained of. Both parties claim title to the locus in quo, by mesne conveyances, from John Sherman, the former owner of both parcels, who derived his title by deed directly from the Holland Land Company in the year 1883. The deed first delivered by Sherman was to Maria Farnsworth, from whom the plaintiff derives title, and if that deed embraces the strip of land in dispute, then the plaintiff made a case for the re-. covery, and the judgment should be reversed. It becomes necessary to ascertain as the primary question involved in the controversy, the true location of the starting point mentioned in the deed from Sherman to Farnsworth, and when that is determined, the dispute whether or not the plaintiff’s landlord has title to the lands where the posts were erected is ended. That deed was executed and delivered on the eighth day of December, 1875, and after giving the range and number of the lot, the description continues, namely; bounded as follows: £ £ Beginning at the southeast corner of lands owned by John Sherman, on the west side and adjoining the Buffalo and Jamestown E. E. Co., thence west on the south line of John Sherman’s land, and on the north side of E. C. Stan cliff’s land two chains; thence north two chains and seventy-five links; thence east parallel to the south bounds of the land hereby conveyed, two chains and ninety-eight links or thereabouts to the west line of said railroad and thence southerly along said railroad line to the place of beginning.”

This was the first parcel of land sold and conveyed by Sherman out of his entire tract of fifty acres. At the time Sherman received his deed from the land company they had conveyed part of lot No. 63 to Jesse Stancliffe, and this parcel was located to the south of the lands conveyed to Sherman.

In the deed of the latter, the parcel of land conveyed to him is bounded on the £ £ south by land conveyed to Jesse Stancliffe, fifty-three chains and eighty-two links,” and in no other way is Sherman’s south line referred to, and no proof was given on the trial as to the description contained in the deed to Stancliffe, by which his north line can be located. No reference is made in the deed of the Holland Land Company to Sherman to any natural or artificial monument, or object, as being located in the south boundary of the land conveyed to him. On the trial both parties gave oral evidence with a view of locating the south line of Sherman’s tract, and some of the evidence tended to prove that there had been erected, for a period of more than twenty years prior to the conveyance by Sherman of the Bulger lot, a rail fence between Sherman and Stancliffe, and an actual occupancy by those parties, respectively, of each side of such fence, and that each of them recognized the same as being on the true division line between their lands, and the evidence also tended to show that the line of such fence was, in 1875, as well as at the time of the trial, traceable by the old and remaining portions of the fence.

The trial court found as a fact that the south line of John Sherman’s land was identical with the fine of the fence, and that at the intersection of that line with the west line of the railroad was the place of beginning, as mentioned and described in the conveyance by Sherman to Farnsworth, under which the plaintiff claims title. This conclusion, we believe, is well supported by the evidence. There is no evidence that Stancliffe, or those who succeeded to his title, ever occupied any of the land lying north of the rail fence mentioned by the witnesses, and the evidence conclusively establishes that Sherman claimed that his south line was indicated by the same. In all the deeds down to, and including, the one to Bulger, his lot is described the same as it is in the deed from Sherman.

If a grant by sufficient description of the premises clearly ascertains the location of the premises conveyed, it is for the court to see that the grant is applied to the subject-matter in accordance with the express intention of the parties. In such a case nothing but a question of law is presented for the court to determine, but whenever the location of the premises is doubtful, through uncertain, inconsistent or conflicting terms of description in the deed, the proper location of the premises becomes a question of fact to be determined by the jury on all the evidence. Petit v. Shepard, 32 N. Y., 103; Green v. Collins, 86 id., 254; Barclay v. Howell's Lessees, 6 Peters U. S., 499; Brookman v. Krurzman, 94 N. Y., 276; Curtis v. Aaronson, 6 Cent. R. (N. J.), 87; Cronk v. Wilson, 40 Hun, 269.

The mere reading of the deed in question from John Sherman, together with the deed to him from the Holland Land company, discloses that the premises claimed by the plaintiff cannot be located without the aid of a surveyor, and a resort to oral evidence. A slight examination of the evidence in the case, is sufficient to show the uncertainty in applying this grant to the locus in quo. A question of fact was presented, which the trial judge was required to determine. His conclusions on that question, if adhered to, determines, as a matter of law, that the plaintiff failed to establish a title to the gore of the land in dispute.

The plaintiff took an exception to one of the rulings of the court, in receiving evidence bearing on the question of fact, which may be examined in connection with the point now under consideration. Prior to the delivery of the deed by Sherman of the Bulger lot, he engaged a surveyor to survey and locate the premises, who went on to the ground in company with Mr. Sherman, and they there located the boundaries by which the premises were described. The defendant’s counsel asked the surveyor this question: “What did you do, if anything, with reference to ascertaining the fine described as the south line of John Sherman’s land ?”

This was objected to by the plaintiff as immaterial and incompetent, and as tending to contradict the deeds in evidence by proving previous acts and declarations. On the objection being overruled, the witness stated that Mr. Sherman “ took me to what he called his south line, showed me a post in that line and other monuments. One was the southeast comer of a barn standing upon that line. I went to a certain post, in what was shown me as the south line of the lot, and sighted to the west of this to the southeast corner of the barn that I speak of. I put my transir on this post, and sighted to the west of this to the southeast corner of the barn that I speak of. This post is. situated on what is called the southwest comer of the Bulger lot. It was an oak post, four inches square, and standing four feet high, and comparatively new. I sighted to the southeast corner of this barn to the west, and then reversed the instrument to the east, and set a stake at the railroad Une. I then ran north two chains and seventy-five links, which carried me to the northwest comer of the Bulger lot.”

The witness gave a further and detailed account of the manner in which he located and surveyed this lot. The plaintiff claims that the declaration of Mr. Sherman that a line which he pointed out to the surveyor was his south line was incompetent and should have been excluded.

The question itself did not call for any declaration which Mr. Sherman may have made while on the ground directing and aiding the surveyor in locating the premises, and called only for a statement of fact from the witness, which was entirely competent. Before the question was propounded, the witness stated that he'acted as surveyor for Mr. Sherman in laying out his village lots, and that Mr. Sherman gave him a description of the Bulger lot, in the form of a contract. As the question was competent, the objection was properly overruled, and if the defendant was satisfied with the answer which the witness gave, he should have moved to have the same stricken out, and that would have brought the mind of the court directly to the point whether Mr. Sherman’s declaration was competent or not. Failing to make that motion, the court had no opportunity to pass upon the competency of the evidence.

We are also inclined to the opinion that it was competent for the defendant to prove that Sherman, while on his own land engaged in making a survey of the premises which he intended to convey, stated to the surveyor where he claimed his south line to be, as it was at that time the boundary line of his inclosure. The surveyor was in his service and the declaration accompanied the act of pointing out the boundary lines, and maybe regarded as a part of the res gestee. It was certainly competent to prove the fact that Sherman before making the conveyance of the lands which he sold, went upon the premises and located a boundary line, and when done with the aid of a surveyor the mode and manner of making it could not thereafter be proved fully and independently without also proving the things done and said by Sherman connected with the making of the survey, as he died before the trial. The declarations of deceased persons respecting boundaries are received as competent evidence, and are an exception to the rule which rejects hearsay testimony, but to bring the case within the rule of the exception, it must appear that such declarations were made by deceased persons while in possession of lands owned by them and in the act of pointing out their boundaries with respect to such bouudaries, and when nothing appears to show an intent to deceive or misrepresent. At the time the survey was made there was no controversy between Sherman and the parties in the possession of the premises on the south of the line indicated The point indicated by the declaration was on the fine of Sherman’s inclosure, and nothing is indicated that he had any interest to deceive or misrepresent the location of the true boundary line. Daggett v. Shaw, 5 Metc., 223; Long v. Colton, 116 Mass., 414; Curtis v. Aaronson, 6 Cent. R., 87; Bartlett v Emerson, 7 Gray, 174.

Subsequent to the conveyance of the Bulger lot, and several years before the removal of the fence, a person in charge of the premises for the owner, erected the same, and thereafter it was constituted a division fence. As the plaintiff was in the actual possession of the locus in quo, when the fence was removed, it was necessary for the defendant to prove some right to make the entry in support of the judgment in his favor, although the plaintiff failed to prove title in himself. A person in the actual occupancy of land, is protected by the law, in the enjoyment of his possession against mere intruders, who make no show of right. This the defendant sought to do on the trial, and it was held by the court upon the evidence, that the premises, conveyed by Sherman to Emerson H. Woodard, under whom the defendant claims title, embraces the land in dispute. In that deed the premises are described as beginning: At the southeast corner of land heretofore deeded by the said first party, John Sherman, to Phoebe Wilson; thence, east on the north line of lands deeded to William Farnsworth, two chains and forty-two links, to the railroad survey.” The Wilson lot was deeded in Hay, 1879, and the defendant received his deed in 1883.

On the map' of the village lots made by Sherman, which is printed in the case, the southeast corner of the Wilson lot, is in the north line of the Bulger lot, as that line was established by the court in its decision.

On the trial, the plaintiff contended that the defendant had failed to show any title to the land in dispute, and gave some evidence which tended to prove that the southeast corner of the Wilson lot, the starting point mentioned, in the Wilson deed, was at least as far north, as the line of the fence, removed by the defendant.

By referring to the Wilson deed, it is found that the premises are located by commencing at a point in Elm street, four chains and seventy links south of the center of Sherman avenue, which street had been .laid out and used by the public, for the period of twelve or fifteen years. Evidence was produced by both parties, for the purpose of ascertaining the center line of Sherman avenue, and the records in the town clerk’s office were produced, which show that the street was opened in 1873, by an order made by the highway commissioners, which was duly recorded. In 1874 another order was made by the highway commissioners then in office, laying out Sherman avenue, substantially on the same line, which was also filed in the clerk’s office, but not recorded until after the commencement of this action. The plaintiff objected to the admission of this order, upon the ground among others, that the paper does not show upon its face, that the commissioners had. jurisdiction to make it, and that there was no proof of the application, and other papers on which the order was made, were filed, as the statute requires within thirty days; and, also, further, that there is no proof of any recording of the order. The objections were overruled and the defendant excepted, and the order read in evidence. This the plaintiff contends was error.

But we think it was properly received, for the reason that it was competent to prove the fact that such an order had been made and filed in the town clerk’s office. If the plaintiff’s position is correct as to the true location of the southeast corner of the Wilson lot, then the starting^ point given in the deed is repugnant to the first course in the deed, and one or the other must-have been inserted in that deed by mistake, for the course from the starting point to the railroad is east, on the north line of the Bulger lot. It was competent to ascertain the center line of Sherman avenue, with a view of ascertaining the true location of the Wilson lot, and in view of the repugnancy in the description, which had been referred to.

It was competent to prove, by paroi evidence, if such was the fact, that the surveyor, in locating the Wilson lot, commenced at some other point in Sherman avenue than the center line, as indicated by the first survey, and as bearing on that question. The second order was properly received in evidence, as the plaintiff might have shown that the surveyor adopted the description contained in that order in making his survey. Boundaries may be proved by every sort of evidence that is admissible to prove any other fact. If it was a good and valid order, then it was properly received. If it was not, it could only be used - as an item of proof in connection with all the other evidence for the purpose of reconciling the repugnant clauses used, in the description of the defendant’s premises.

After the proofs were all given relative to the true location of Sherman avenue, the plaintiff moved to have the evidence, relative to the order, stricken from the record, which motion the court denied, at the same time remarking that it did not, at that time, pass upon the question whether the order was valid or not, thus indicating that the record of the order might be used for the purpose of ascertaining the real point in Sherman avenue, adopted by the parties in surveying and locating the Wilson lot. From all the proofs, we are fully satisfied that the south line of the defendant’s lot is the same as the north line of the plaintiff’s premises as established on the trial, which shows title in the defendant to the stiip of land in controversy.

Several other exceptions were taken on the- trial, which we have examined with care and fail to discover any error.

The judgment should be affirmed.

All concur; Haight, J., not sitting.  