
    James Donohue, Resp’t, v. Hiram Whitney, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 11, 1891.)
    
    Boundaries—Evidence.
    In an action which involves the location of the boundary between the parties, where their deeds bound them by a specified line, but contain no data by which to locate it, a map thirty years old made upon a survey of the premises for plaintiff’s grantor at the time of his conveyance, evidence of the acts and declarations of the surveyor, since deceased, in pointing out to plaintiff the corners of his lot according to the survey, certified copies of older maps of the patent showing such line and recorded with the secretary of state, and a county map, widely distributed through the county, a copy of which was in defendant’s possession, are admissible as. the best obtainable evidence and as indicating the general diffusion of the reputation of the location of the line and defendant’s knowledge thereof.
    Appeal from a judgment in favor of the plaintiff, entered upon a verdict upon the trial at the Ulster circuit.
    
      John E. Van Etten, for app’lt; Wm. Lounsbery, for resp’t.
   Landon, J.

—The plaintiff recovered a verdict against the defendant for wood and timber which the defendant cut upon the land in dispute in this action. Both parties claimed to own it. Their lands adjoin, the “Livingston line” being the boundary between them. The land is wild, rugged and unfenced, and situate upon a mountain side in the town of 'Shandaken, Ulster county, being part of Great Lot No. 8 of the Hardenbergh patent, granted in 1708, and subdivided in 1749, Great Lot No. 8 being again subdivided in 1779 and partitioned among the heirs of Robert R. Livingston. No deed, however, earlier than 1817 was read in evidence. It seems that prior to that date the more southerly part of Great Lot No. 8, on the southwesterly side of the “Livingston line,” was acquired by Lucas Elmendorf, and the more northerly part on the same side of the line by John Duer, and that the land upon the northeasterly side was acquired, the more southerly part by Peter R. Livingston and the more northerly part by Alida Livingston. The plaintiff’s land is part of the Elmendorf tract and the defendant’s part of the Peter R. Livingston tract The deeds of neither party contain sufficient data to enable a surveyor to go upon the land and locate the Livingston line. He must have recourse to other sources of information in order to do this. The plaintiff read in evidence the deed of his grantor, Russell, to the Wey Brothers, made in July, 1856, of another parcel of land in the Elmendorf tract adjoining the plaintiff’s lot on the north and the Livingston line on the east Russell gave to plaintiff on the same date a contract for plaintiff’s parcel, and gave him the deed thereof in 1858. In 1856 Russell procured Brodhead, a surveyor of experience in that region, now dead, to make a survey and map of the two parcels of land sold, or about to be sold; one to the plaintiff and the other to the Wey Brothers. Brodhead made the survey and map and went around the plaintiff’s parcel and pointed out the corners to him as he had established or identified them. This map has since been in the possession of the surviving Wey brother, who has ever since claimed to own the land described in his deed and delineated upon the map. The Wcy tract thus deeded and mapped extends for at least two miles and a half along the Livingston line, and the plaintiff’s adjoining land is represented upon the map as extending along the line half a mile further. By the aid of this map and the deed of Bussell to Wey Brothers, and the deed of Bussell to the plaintiff, the plaintiff’s surveyor testified that he located the Livingston line and identified it by some of the monuments which he found on the ground as indicated on the map. The defendant objected severally to the deed and map upon the trial and now urges here, as he. did there, that they were inadmissible.

"Undoubtedly they are res inter alios so far as he is concerned, and they cannot be used to contradict or disparage his title. Such is not their function here. They are used because they seem to afford the best obtainable description of the location of the Livingston line, and thus enable us to understand what the deeds of the parties mean when they employ that line to bound the respective parcels. The map was made before any contention arose; was made by an expert; was intended to delineate the line for three miles of its length; was made thirty years ago, and itself affords the data to test to a considerable degree its own accuracy. So far as the defendant; is concerned, it is in the nature of hearsay ; but hearsay, in the absence of better evidence, is often used to determine boundaries.

The theory is that what common fame or reputation declares to be the boundary at the time a deed is made referring to such boundary, defines the boundary as the deed speaks of it, in the absence of any terms in the deed or chain of title indicating any other meaning. Brandt v. Ogden, 1 Johns., 156; S. C., 3 Caines, 6; Boardman v. Lessees of Reed, 6 Peters, 328; Sparhawk v. Bullard, 1 Metc., 95; Morris v. Callanan, 105 Mass., 129; 1 Phillips Ev., Cowen, Hill & Edwards’ notes, 219, 230. The acts and declarations of the surveyor Brodhead, now deceased, pointing out to the plaintiff his corners described in his deed and indicated on the map, were for the like reason, in the absence of any ground of suspicion, admissible, and also because part of the res gestee of his possession. Partridge v. Russell, 18 N. Y. State Rep., 685. The English cases, which are more strict than our own in this particular, admit hearsay to determine a private boundary when it is identical with a public boundary, as of a hamlet, parish or manor. Thomas v. Jenkins, 6 Ad. & Ellis, 525. The Livingston line, six miles long, was of a quasi public nature.

Duly certified copies of a map of the patent made in 1815, and of another made in 1835, on file in the office of the secretary of state, upon which this line was drawn, were properly received in evidence for the same reason. A published county map made in 1874, widely distributed throughout the county, a copy of which was in the defendant’s possession, upon which the same line was drawn and the -lands of the parties indicated, was hardly admissible as evidence of ancient reputation, but we think was admissible as confirmatory of that reputation as otherwise established, and as indicating its general diffusion, and as bringing it home to the knowledge of the defendant

The maps read in evidence by the plaintiff and other testimony tended to show that there was a set off in the Livingston line at. the northeast corner of the plaintiff’s lot. If so it probably resulted from establishing the Livingston line along the Elmendorf tract by beginning at the southerly side of great lot No. 8 and running northerly as far as the Elmendorf tract extended, and by beginning at the northerly side of the great lot, and running southerly as far as the Duer tract extended; the two lines, which in theory ought to unite in the middle of the tract and form one straight line across it, separated and thus formed a set off. If this were so, then a line in the plaintiff’s deed described as running from one point to another along the Livingston line, would turn the corner made by the set off supposed, and would run on two courses. The court instructed the jury that if they were satisfied the facts were as indicated it would be proper for them to run between the two points mentioned as the beginning and end of the course, by following the line to the corner, turning the corner and" proceeding to the terminal point of the course. The instruction was clearly right

The plaintiff in testifying to his occupation of his land, and to-the facts respecting it, testified that one Patchin had several years ago encroached upon the locus in quo and cut some trees and that he had compelled him to desist. He had the right to show how far he occupied under his deed, and to do this to show what were the facts of his occupation.

The defendant on the argument offered to hand up the record of a deed which was not put in evidence upon the trial. This-we cannot receive. Although a record, it is new evidence, and to-introduce it now would be to present a different case from that tried below. We sometimes receive a record on the argument with like effect as if given upon the trial, but only to remove some objection based upon the non-production of the record, in a case where its absence on the trial or in the appeal book is a mere informality.

On the merits we see no ground to set aside the verdict.

Judgment affirmed, with costs.

Learned, P. J., concurs; Mayham, J., not acting.  