
    William E. T. Smith and Others, Appellants, v. The Trustees of the Freeholders and Commonalty of the Town of Brookhaven, and Others, Respondents.
    
      Tradition as to ancient boundaries — not admissible where the location can be established by ancient documents— ambiguities in descriptions to be reconciled.
    
    In an action of ejectment in which the rights of the parties depended upon the location, with reference to the western boundary line of the town of Southampton on Great South beach, Long Island, of a structure known as “ Bailey’s Stage,” it appeared that “ Bailey’s Stage” had long since passed totally out of existence and that the memory of no living witness extended far enough back to locate its ruins or the place where it stood.
    It appeared, however, that “Bailey’s Stage” was mentioned in several deeds upwards of a hundred years old, which had been placed in evidence, and that these conveyances agreed without violent discrepancy as to the location of the structure;
    
      Held, that evidence given by witnesses to the effect that many years ago they had heard “old people ” state that “Bailey’s Stage ” was located at or near the Southampton town line was incompetent, especially where the “old people” did not appear to have had any personal knowledge themselves as to the location of the structure in question.
    Hearsay evidence of reputation and tradition is not admissible where there is sufficient in the documents to mark the location of boundaries without its aid. In case of ambiguity in the descriptions of deeds or in the location of boundaries, they should be read to conform one with another, where that can be done without giving a violent meaning or strained construction to a particular description.
    Appeal by the plaintiffs, William E. T. Smith and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Suffolk on the 31st day of May, 1902, upon the report of a referee.
    
      Clarence G. T. Smith [Everett H. Osborn with him on the brief], for the appellants.
    
      Timothy M. Griffing and Robert S. Pelletrian, for the respondents.
   Hooker, J.:

The decision in this case hinges on the location of Bailey’s stage. This is conceded to be its only issue. If that structure during its existence stood on or adjacent to the western boiinds of the town of Southampton on the Great South beach, instead of about a mile or mile and a half west thereof, as the plaintiffs claim, the defendants must succeéd in this action of ejectment.

In the latter part of the seventeenth century Colonel William Smith obtained Indian deeds and patents of the locus in quo and adjoining property. It appears from some of the deeds in evidence that there stood in the neighborhood a certain house which Stephen Bayly & Company used when they went a whaling,” and this house, called in some of the. more recent conveyances “ Bailey’s Stage,” was treated as a landmark or monument in fixing the boundaries in many of the several deeds which form the plaintiffs’ chain of title, and in many of the deeds by which neighboring property on the east and west had been, prior to the commencement of the last century, described. Bailey’s stage has long since passed totally out of existence, and the memory of no living witness extends far enough back to locate its ruins, or the place where it stood. The defendants, presumably on the theory that in the written instruments there was ambiguity as to its location, sought to show a tradition in regard thereto, and asked of one of their witnesses, who had said that he had heard of a tradition in regard to the location of Bailey’s stage at least sixty years before the trial, whether he knew of a, tradition in regard to Bailey’s stage with reference to the location or in connection with the western. boundary of the town of Southampton. This was objected to as incompetent, immaterial, as hearsay and as tending to' vary the terms of a written instrument; the learned referee overruled the objection and the plaintiffs duly excepted. The witness answered that,older people living there had stated that Bailey’s stage and the Southampton town line were identical, or that Bailey’s stage was located near the Southarnptown town line. Another witness was allowed to testify, under the same objection and exception, that he had heard it spoken of, as a boy; that the old people located Bailey’s stage at the end of the cedars near the great hill, and that he had never heard of any other location for Bailey’s stage. It appeared that the great hill was, on or near the Southampton town line.

It is evident that the referee intended to follow the rule stated by' Greenleaf in his work on Evidence (Vol. 1 [15th ed.], § 145) : “ Accordingly, though evidence of reputation is received, in regard to the boundaries of parishes, manors, and the like, which are of public interest, and generally of remote antiquity, yet, by the weight of authority and upon better reason, such evidence is held to be inadmissible for the purpose of proving the boundary of a private estate, when such boundary is not identical with another of a public or quasi public nature. Where the question is of such general nature, whether it be of boundary or of right of common by custom, or the like, evidence of reputation is admitted only under the qualifications already stated, requiring competent knowledge in the declarants, or persons from whom the information is derived, and that they be persons free from particular and direct interest at the time and are since deceased.” That this rule was not applicable for the reason to be discussed hereafter, that hearsay evidence of reputation and tradition is not admissible where there is sufficient in the documents to mark the location of boundaries without its aid, and that there was sufficient in the deeds we find in the record is, we think, clear.

On the 22d day of July, 1768, the owners of all the meadow on the Great South beach, from Bailey’s stage to the westerly side of Reeves’ point, entered into a partition agreement and deed, by which there was set off to each of the owners certain parts of the property which had been held in common. This deed was received without objection; division was made therein by reciting the act of the surveyors to whom was referred the matter of allotment, and the description of that portion laid out at the most eastern portion of the lands treated by the deed is described by reciting what the referees had done, as follows: “ Then they laid at the east end of the tract of meadow nex.. to Bailey Stage a lot for John Tuthill, containing about four acres being 25 rods wide next the bech to jaw bone of a whale marked on the east side J. T. on the west J. S. the course between sd. lots is north 15 degrees west, then they laid all the meadow between sd. John Tuthill & sd. Matthew Smith, together with Reeves Island for the part of Opt. Josiah Smith.” This instrument seems to indicate that Bailey’s stage was located twenty-five rods east of the west line of the plot set off to John Tuthill, held and owned at present by George Franklin Tuthill, who now has the eastermost piece of the meadow which has come down by inheritance and grant from John Tuthill. There appears-to be no dispute as to the present exact location of the line from which this measurement of twenty-five rods was made. William Smith, the grandson of the original grantee and patentee, made an important disposition of the premises in question which adjoins the East bay, the deed being part of the chain of title upon which the claim is made. - In 1790 by warranty deed he conveyed all that certain Beach and Meadow in the Manor and in the County aforesaid, extending Easterly from a certain place called and known by the name of Bayles’ Stage (which is in about a South direction from a certain Neck or point of Land called Moriches, at present owned by Oliver Smith), to the Western bounds of the Southampton patent Line aforesaid.” The determination of the location of Bailey’s stage gathered from this instrument as being in about a south direction from a “certain Neck or point of Land called Moriches” is very nearly coincident with the location determined by the partition deed of 1768. Although there is more than one “ Neck or point of Land ” called Moriches at the present time, the proofs taken, we think, are quite sufficient to point very strongly to the intention of the grantor in the deed of 1790 to speak of the eastern Moriches.

Had there been no other deeds which, at first notice, seem to dispute the determination of the location of Bailey’s stage, as indicated in those we have mentioned, it does not seem likely that the referee would have admitted evidence of tradition for the purpose of ascertaining its location. The defendants rely particularly upon the deed of William Smith, the patentee, dated June 14, 1693, as fixing Bailey’s stage adjacent to the Southampton town line, and evidently admitted the evidence of tradition for the purpose' of expelling, if possible, the doubt raised in relation thereto by what appeared to be contradictory statements in regard to the place where this house formerly stood.

This deed purports to have been executed on the 14th day of June, 1693, and conveyed to the trustees of the freeholders of the commonalty of the town of Southampton all that “ tract of medow on ye north side of ye South beach situate lying and being on ye East side of a certain house which Stephen Bayly & Company used when they went a whaling near to a place called Copsowogue about a mile and a half from ye gut near ye place called ye green pines To have and to hold ye said medqw with convenience of making yards to set up hay to ye use of ye said Trustees of ye freeholders & comonalty of ye town of Southampton and their heirs and sucksesors forever.” The defendants hold that this deed, the oldest in which this whaling station of Stephen Bayly is mentioned, locates the stage at or near Oopsowogue, and inasmuch as there is abundant proof and no apparent denial of the fact that Oopsowogue was in or near the Southampton west line, they claim that it is demonstrated by this instrument of extreme antiquity that the landmark in question was at the Southampton bounds. A close inspection of the description which we have quoted leads to the consideration that the deed falls short of substantiating defendants’ claim in tips respect; this doubt is raised partially by the total absence of any punctuation in the description and by the use of the word gut ” unaccompanied by any words of modification or description. There is no evidence, either record or verbal, of any place known now or heretofore as a “ gut ” located about a mile and one-half from the Southampton west town line except Oopsowogue itself, which is described as Oopsowogue” or “Cupsogue Gut” with great frequency in the deeds and other records introduced by both parties. We think that no contortion of the instrument is effected, therefore, to' read the words “ Oopsowogue ” and gut ” contained in this description as meaning “ Cupsowogue Gut,” especially as the reading of the description upon this basis will conform the location of Bailey’s stage very closely to the place where it was evidently understood to be by later grantors. With proper punctuation, adopting this reading, the description will go as follows : All that tract of meadow * * situate, lying and being on the east side of a certain house * .* near to a place called Oopsowogue — about a mile and one-half from the Gut — near the place called the green pines; or, to make the apposition between the words Oopsowogue ” and “ Gut ” more distinct, this interpretation lea,ds to the reading: East side of a certain house, * * * near to a place called Oopsowogue, about a mile and one-half from it (or therefrom), near the place called the green pines. Supplying this punctuation and reading the description thus gives effect not only to the description itself, but to the later deeds. Without it the words about a mile and a half from ye gut ” seem to serve no purpose in the description. It is a familiar rule that the construction should be indulged which gives effect to the whole instrument. In case of ambiguity in descriptions of deeds or in the location of boundaries, they should be read to conform, one with another, where that can be done without giving a violent meaning or construction to a particular description. (See Higinbotham v. Stoddard,. 72 N. Y. 94;; Buffalo, New York & Erie R. R. Co. v. Stigeler, 61 id. 348; Ayers v. Watson, 113 U. S. 594; Frier v. Jackson, 8 Johns. 495.)

With this deed of 1693 construed in this manner, there is no violent discrepancy in the instruments or records appearing in the printed book in reference to the location of Bailey’s stage, and we think that the ruling of the referee admitting parol evidence of tradition or reputation as to the place where that landmark stood was error under the rule that a deed cannot be contradicted or explained by parol evidence. It was said by Judge Allen, speaking for the Court of Appeals in Drew v. Swift (46 N. Y. 204, 209): “ Where there are no monuments, or if monuments once existing are gone, and the place where they originally stood cannot be ascertained, the courses and distances, when explicit, must govern, and cannot be controlled or affected by parol evidence. (Linscott v. Fernald, 5 Greenl. 496; Bell v. Morse, 6 N. H. 205; Van Wyck v. Wright, supra ; Clark v. Baird, 5 Seld. 183; Clark, v. Wethey, 19 Wend. 320.) ” It was held in Seaman v. Hogeboom (21 Barb. 398) that parol evidence is unnecessary and inadmissible to ascertain the locus where the words of the conveyance are sufficient, and that evidence aliunde cannot be resorted to except in case there is not sufficient description to locate it, or part of the description is false.' While it may be proper to prove ancient reputation for the purpose of establishing boundary lines, and especially where monuments and landmarks 'have ceased to exist as pointed out by Greenleaf (1 Greenl. Ev. [15th ed.] §145), as has been held by the late General Term of the fifth department, Mr. Justice Barker speaking for the court (Partridge v. Russell, 50 Hun, 601; 2 N. Y. Supp. 529), and as perhaps indicated by a sentence in the opinion of Judge Maynard in Donohue v. Whitney (133 N. Y. 178,186), this is not a case where the reception of such evidence is proper. While it is true Bailey’s stage has long since passed into oblivion and no one has any personal knowledge of where it stood, the declarations in the deeds in evidence, all of which are upwards of 100 years old, must be relied upon to tell the story of the lost landmark with that degree of faithfulness which will not permit an impeachment by the evidence of those who heard old people tell where Bailey’s stage stood, especially in view of the fact that those “ old people ” do not seem to have had any personal knowledge themselves upon the subject of its location.

The judgment should be réversed, therefore, and a new trial granted.

Goodrich, P. J., Woodward, Hirschberg and Jenks, JJ., concurred.

Judgment reversed and new trial granted before another referee, to be appointed at Special Term, costs to abide the event. 
      
       5 Maine, 496.
     
      
       18 Wend. 157.
     
      
       9 N. Y. 183.
     