
    Lawrence Roth, Respondent, v. The City of Rochester, Appellant.
   Judgment reversed and new trial granted, costs to abide the event.—

Bradley, J.:

The action is trespass for alleged entry upon and appropriation of the plaintiff’s land. The plaintiff having purchased in 1872 of Samuel Moulson took from him, in March 1874, a deed of the east part of lot 37 and the whole of lot 38 in what was known as Moulson’s subdivision of the Kedie farm, then in the town of Irondequoit, Monroe county, according to a map recorded in the office of the clerk of that county, and bounded north by the center of Linden street and east by the center of Joiner street. The survey and map were made by Horace Jones, surveyor, in 1871, ■and he in the survey and upon tho map located and described Norton street as the northern boundary of the subdivision, and parallel with and south of it Linden street, and south of that and parallel with it Borchard street, also Joiner street at right angles with them. The western boundary of the subdivision was Clinton street. After the extension of the limits of the city of Rochester so as to embrace this tract, and in 1885, the city authorities proceeded to open and grade Linden street. The complaint is, that in doing so there was an encroachment upon plaintiff’s premises, and an appropriation of a strip of his land thirteen and twotentlis feet in width at the east side, reduced to tlio width of eleven and two-tentlis feet at the west side of it, by putting it into Linden •street as opened and graded by the defendant. The fact is undisputed that between the ¡southern boundary of the plaintiff’s land and Linden street as opened and graded by the city, there is that deficiency in the land described in his deed, that is to say, bis east •and west lines are thus made to appear that much shorter than those described in Moulson’s deed to him. The only controverted question has relation to the location of Linden street as actually made by the owner of the premises and represented by the Jones •survey and map. He laid it out and dedicated it as such at the width of three rods. And the plaintiff gave evidence tending to prove that the center line of it was indicated by stakes, and that if its location as thus represented had been observed by the defendant in opening and grading the street, its southern boundary would have been further north, and he would have been left in the undisputed possession of the strip of the northern portion of his premises so alleged to have been appropriated. And such" in effect are the views of Jones, the surveyor, as expressed by his evidence. Upon that state of facts treated as established, tho plaintiff was entitled to recover. As represented by the map before mentioned, Norton street, Linden street and Borchard street aro parallel, and the lots in each tier of lots between those streets are of uniform length north and south. And the fact is undisputed that Linden street as opened is at the distance south from Norton street described on the map as its location by the surveyor. But that is not a controlling fact if it is not the place where the street was actually located by the survey, unless it also appears that it is also the distance from the south boundary of the subdivision tract as represented by the map. There is no question about the location of the west end of Linden street at its junction with Clinton street. The difficulty arises as it proceeds cast to Joiner street. There the distance is not sufficient between the south line of the subdivision tract and Linden street as laid out and graded by the defendant to givo the quantity of land or length of line north and south as described by the survey as represented by tho map, and this deficiency is that complained of by the plaintiff. Tho difference in length between the west line of the tract and on Joiner street may be explained by the fact that in a map of a survey of the Kedie farm made in 1851, in which the lots were so described as to give them the greater length east and west, the lot there numbered 36, which was south of the street afterwards laid out and since known as Borchard street before mentioned, was so described that its east line was twenty links, or thirteen and two-tentlis feet shorter than its west line. While Jones, when he made his survey in 1871, had knowledge of this map of 1851, the difference in the length of the west line of the subdivided tract on Clinton street and that on Joiner street was not observed in making his map. Hence arose the discrepancy Between the actual length of the line and the length as represented by his map of that tract along the latter street. His evidence is to the effect that he commenced his survey at the south side of tho tract subdivided, and described Linden street as parallel with the south line of it. If that is so, and the center line of Linden street ivas located at the east end of Joiner street the same distance from the south boundary as it was on the west end at Clinton street,tho plaintiff’s contention is sustained. This corresponds with the evidence of the witnesses about the location of stakes, to which they refer as before mentioned. And such view, if supported, would place the discrepancy and deficiency in that portion of the tract north of Linden street. The witness Jones, the surveyor, by his evidence, so treats it. The motions for nonsuit and for direction of a verdict for the defendant were properly denied. But the defendant’s exception to the refusal of the learned court to submit to the jury the question relating to the actual location of Linden street seems to have been well taken, The difficulty very likely has arisen from the mistake in Jones’ map. And as it does not appear that he made an actual survey of that part of the tract lying between Norton and Linden streets, the mistake may have been the result of his omission to do so. Nor does it necessarily appear that any stakes were on the ground indicating the actual location of Linden street, at the time it was laid out by the defendant. It appears by tho evidence of the city surveyor that he had before him the Jones map; that ho commenced at and proceeded from Norton street to ascertain the location of Linden street. I-Ic determined it as described on his map, and as laid out and graded by taking as his guide the distance between those streets as given by the Jones map. In that respect the result of his survey does correspond with the description on that map. But the evidence tends to prove that if he had commenced at the southern,houndary and proceeded north according to the description in the Jones map, the city surveyor would, by the adoption of the distances there given, have reached the southern line of Linden street, where the plaintiff claims it was located by the survey of 1871. Although the witnesses who testified to the location of the stakes referred to by them had no personal knowledge that they were the stakes placed there pursuant to the Jones survey, the inference was permitted that they were. Those witnesses, however, had such relation to lots bounded north by Linden street as to give them some interest in the question. The weight of their evidence was for the consideration of the jury. There were also other circumstances furnished by the evidence, and to which it is unnecessary here to refer, proper for their consideration. The question as to the actual location of Linden street by the survey as made by Jones and represented by his map was one of fact for the jury. And for the error m the refusal to submit that question to them the judgment should be reversed and a new trial granted, costs to abide the event.

Lewis, J., concurred; Ward, J., not voting; Davy, J., not sitting.  