
    Elizabeth Greenleaf et al., Resp’ts, v. The Brooklyn, Flatbush & Coney Island Railroad Company et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 9, 1889.)
    
    Boundaries—Location of lot by ditch.
    Plaintiffs’ predecessor in title purchased a salt meadow lot on Coney-Island in pursuance of a survey in a chancery proceeding for partition, it being described only by courses and distances. The map showed a ditch at one side of the lot. The survey on "which this action of ejectment was based began at what was claimed to be the same ditch, but defendant claimed it to be a new one and that ditches in that Ideality were continually changing. Held, that the evidence was sufficiently definite to fix the locality.
    (Pbatt, J., dissents.)
    Appeal from judgment in favor of plaintiffs. Action of ejectment. Plaintiffs showed title to lot No. 23 on a map made in a partition suit in chancery by deed from one of the heirs to Charles Greenleaf, made in 1848, which described the lot by courses and distances commencing at a stake in Duck Hill and running to the ocean. The lot was in a salt meadow on Coney Island. The map showed a ditch on the westerly side of the lot. The map used in this action to locate the lot was drawn by one Crooke from statements made by Bergen, who made the survey in the partition action, commencing at a ditch.
    The defendants showed that their predecessor had taken quitclaim deeds from all the owners of property in that neighborhood that he could find; that Charles Greenleaf at one time claimed ts locate his lot further west and had made inquiries concerning ito location; that the ditch spoken of was a new one; that the ditches in that locality were continually changing and that the lines of plaintiff’s lot as claimed did not correspond with the public maps and that if run out as claimed it would intersect several other lots.
    The court at special term delivered the following opinion:
    Bartlett, J. If the principal question in this case were res nova, I should have great hesitation in holding that the proof upon which the plaintiffs rely was sufficient to show that they were entitled to maintain the action.
    But the general term of this department has distinctly decided that inasmuch as a judgment of partition in the old court of chancery of this state necessarily imports seizin in the parties to the suit in which it was rendered, a paper title based upon such a judgment is sufficient to enable a party to maintain ejectment, even in the utter absence of any extraneous proof that the premises sought to be recovered were ever in the possession of the parties to the partition suit, or of any person through whom the title is deduced. This was held in the first appeal herein, Greenleaf v. Brooklyn, Flatbush & Coney Island Railway Company, 37 Hun, 435, and the general term adhered to the same doctrine when the case came before it a second time. 3 N. Y. Supplt., 222; 21 N. Y. State Rep., 946. The law of the case must therefore be deemed to be settled so far as the action of a judge at circuit is concerned; and the prior decisions of the general term herein leave the trial court no option but to hold that the plaintiffs have proved enough to entitle them to recover, since the defendants have not established any title in themselves, but have relied upon the weakness of the plaintiffs’ title. Whatever may have been the case heretofore, I think the evidence taken on this last trial is sufficiently definite to fix the locality of the lot which was conveyed to the plaintiffs’ predecessors by the commissioners in partition.
    
      The result of these views is that the plaintiffs must have judgment, with costs.
    
      Win. 0. De Witt, for app’lts; Mornay Williams and Frederic A. Ward, for resp’ts.
   Dykman, J.

This case has been before us on two former occasions, when we gave it careful consideration, and reached a conclusion in favor of the plaintiffs.

Upon the former appeals the evidence on the part of plaintiffs only was before us, but upon the trial which resulted in the judgment from which the present appeal is taken, the evidence of the defendant was also introduced, but it discloses no claim of right or title to the premises in question on the part of the defendant.

Neither is there any controversy respecting the title of the plaintiffs to the premises, but only of their location, and the trial judge has said in his opinion: “ Whatever may have been the case heretofore, I think the evidence taken on this last trial is sufficiently definite to fix the locality of the lot which was conveyed to the plaintiffs’ predecessors by the commissioners in partition.”

The findings of the trial judge are also full and explicit in relation to the identity of the lot and the possession of the same by the defendants.

A full and careful examination of the case for the third time confirms our former views, and we have no doubt the results reached on this last trial are in accordance with the dictates of law and justice, and the judgment should be affirmed, with costs.

Barnard, P. J., concurs.

Pratt, J.

(dissenting).—Without stopping to discuss or criticise the unreliable character of the testimony by which the judgment is sought to be sustained, the findings of the trial judge upon the undisputed proofs offered by defendant seem enough to settle the dispute.

The judge has found in his tenth and eleventh findings of fact that the lines and location of plaintiffs’ lot are contrary to all the locations upon the public maps of Coney Island, and that to follow the lines and location of plaintiff’s property as claimed by him, instead of following the lines of lots laid out on the map of the original grant to the freeholders, intersects and includes portions of several different lots on said map, and it would not be possible to observe the lines and bearings set up by plaintiff without casting the easterly lines of Coney Island north of Sheepshead Bay.

In other words, to sustain the plaintiff’s contention it must be held that all the public maps and locations of other property on that part of the island are wrong, and that the east end of the island itself has been transferred to the main land. By following the lines of plaintiff’s lot the lines of all the other owners of this valuable property are thrown into inextricable confusion. It is true the judge has found that the locality of the premises mentioned in the complaint, which were conveyed to the plaintiffs’ predecessors by the commissioners in partition, is definitely established, but it is evident this finding is based upon what the judge supposed was the finding of the general term upon the proofs previously before that court.

The only question in the case was as to location of lot 23 ; the plaintiff’s evidence to establish that fact was entirely overthrown by the defendant’s evidence upon that question. It was shown that this part of the island was covered with ditches in all directions, and that it was invaded by the ocean and the whole surface frequently changed. The nature of the soil was such that there could be no permanent land-mark, and there were no improvements from which a reliable standpoint could be obtained at the time Bergen run out the lines in the particular suit. It was only after improvements began to be made, and the land became valuable, that accurate surveys were made and permanent bounds established to mark the location of the various lots. Mow it appears that for years property has continually changed hands, vast improvements have been made, all based upon the public maps and surveys now on file. All these. surveys and lines are utterly inconsistent with the location of the plaintiff’s lot as established by that judgment; in fact, if his location is right, the judge has found that the east end of Coney Island is on the mainland at Sheepshead Bay.

The ditches and roads upon this part of the island are shown to be changeable and unworthy of any reliance upon which to base a disputed boundary line.

The evidence of the plaintiff was insufficient, if the cross-examination of the witness is taken into consideration, to establish the location.

In the first place, as to the hearsay evidence of Mr. Bergen He did not profess to know where the line of lot 23 was located; all he pretended to know was that he surveyed a lot where he was told to do so.

It is not the case of hearsay from a person in a situation to know that the declaration he was making was true. It was not the declaration of a person claiming title, or a person claiming to know the location of an ancient boundary or of a general custom or reputation, and, therefore, even if admissible, of which there is doubt, it was of a very low degree of proof and easily rebutted.

The vice of this ditch bound lies in the fact that a ditch could be found at various points along the road that existed when the chancery map was made, and any person could step off of the road and go any distance upon the ditch and start his lines. But it appears that all those ditches have been repeatedly changed, the road is no longer in existence, so that there is no permanent starting point fixed from which any definite location can be made. As stated by a witness: “ There is no durability to those things, as monuments.”

The deed to Greenleaf was made in 1848, since which time no effort has been made to claim or locate this lot; in the meantime, persons supposing they had acquired a good title to said lands have expended thousands of dollars upon the land on the faith of the public surveys. A title acquired under such circumstances, and where such momentous consequences are to follow its failure, , Jd only be impeached by clear and convincing proof, especially where such gross loches characterize the conduct of a claimant.

The judgment should be reversed and new trial ordered, costs to abide event.

Judgment affirmed, with costs.  