
    DIVISION.
    
      No. 1.
    DOOLITTLE against PECK.
    Addison,
    1820.
    WHEUE in the allotment and survey of a town, the boundary lines of lots No. 28 and 29 excepting the divisional tines between them were actually surveyed out and marked by a surveyor duly appointed for that purpose ; but no divisional line was actually run between said lots, the surveyor however, made survey bills describing a divisional line between them, which was duly recorded, and the land contained in the boundaries of both lots fell short of the quantity allotted to both lots. Held, that the line must divide the tract equally, although the owner of one lot had taken possession of his full complement of acres to the exclusion of the other.
    THIS was an action of Ejectment, for a tract of land in Brid-port, as part of lot 28 in the third division, drawn to the original right of Nathan Green. On the trial at July term 1819, it was admitted, that the plaintiff was legally seized of lot No. 28, and that the defendant was likewise seized of lot No. 29, an adjoin* ing lot, and that defendant was in possession of the premises in question. The plaintiff then offered in evidence the following facts viz : That on the original allotment of said town of Brid-port, the boundary lines of said lots No. 28 and 29, excepting the divisional line between them, were actually surveyed out and marked, by a surveyor duly appointed for that purpose; but that no divisional line was, by said surveyor, actually run between said lots, that said surveyor made survey bills of both said lots describing a divisional line between them, which' bills were duly recorded; that defendant, afterwards, surveyed out and marked said divisional line, agreeable to the survey bills of his lot No. 29, and went into possession accordingly ; that the land in question is contained in lot No. 29, the defendant’s lot according to the survey bills thereof; that upon a survey of plaintiff’s lot, according to. the survey bills thereof, it was found, that the quantity of land allotted to both lots, by the original surveyor, fell short of the number of acres allotted, by the pro: prietors, to the two lots in question. That in consequence of the defendant’s having thus taken possession of his full complement of acres, agreeable to .the survey bills of his lot, plaintiff is cut short of his complement of acres, and a part of the land described in the survey bill of his lot, and that the land described in plaintiff’s declaration is only a rateable proportion of the land thus covered by both survey bills. To the admission of this evidence, the defendant objected, but his objection was overruled by the Judge: The Judge charged the Jury, that if they found no divisional line was marked, by the original survey- or, between said lots, but that the same was described in survey bills, without an actual running thereof; and if. they farther found the plaintiff’s lot was deficient in quantity, as alledged by him, they would find for the plaintiff to recover his rateable proportion of the land conveyed by both survey bills.
    Verdict for plaintiff, and motion for new trial, founded pn exceptions to the opinions and charge of the Judge.
    In support of the motion, it was contended, that the executing and recording the survey bills, effected a complete severance ; otherwise the parties are tenants in common, and so the plaintiff cannot maintain this action.
   Bqt by tho Court,

the decision of the Judge is confirmed ' The plaintiff and defendant were not tenants in common, each was seized of his lot in severalty, both lots were surveyed by actual lines into one tract, so that the land included in those bounds, was all the land belonging to both lots, no division line yvas, in fact, rpn between lots No. 2g and 29 ; the only question was, where this line ought; tq run : It must be run so as to divide the lots equally.

Motion dismissed and Judgment rendered on the Verdict.  