
    Higley against Bidwell and others.
    The doings of freeholders under the statute of 1719, regarding the bounds of lands, setting up and fixing the bounds in controversy, are prima facie evidence of title.
    In the description of land, fixed natural objects controul courses and distances. Therefore, where in a survey of land, one of the boundaries was described thus : “ Running from thence [a certain rock] Westward, upon a South West line, measured from said rock 108 rods ; at the end of said measure, marked a white oak tree on the Westward side of the next brook West of Ned's brook it was held, that the boundary in question was to be determined by the place of such white oak tree, without regard to the course and distance mentioned in the survey.
    In 1765, while A. and B. were proprietors of adjoining lands, and a contro. versy existed between them respecting their boundaries, B.t in pursuance of an agreement between him and A,t released to A. the disputed tract. In an action tried in 1833, between E. claiming under A. and Fwherein > the boundary line between the lands formeñy owned by A. and B. was in question, the plaintiff, in support of his claim, offered in evidence, the decía** rations of B., and of Ca tenant under A.t made after 1765, B. and C. haring long since deceased. Held, that such declarations were admissible.
    This was an action of trespass de bonis asportatis; tried at Hartford, February term, 1833, before Bissell, J.
    The defendants were select-men of the town of Canton* The property in question was taken under a warrant for the collection of town taxes, made out by the defendants, including a tax on land owned by the plaintiff, which, he claimed, was exempt from taxation, by the statute of 1719. Stat. 66. rea. 1702.
    In support of his claim, the plaintiff offered in evidence a vote of the town of Simsbury, (whereof the present town of Canton was then a part,) passed in 1706, sequestering certain lands for the support of the gospel ministry, and appointing a committee to lay out the same. He also offered in evidence the doings of that committee, describing the land laid out thus: “ This land is situated in Simsbury, at a place, called Ned’s brook, lying Northwardly of Cherry’s pond. The first butment is on the West side of Ned’s brook, Southward from the path five or six rods, at a rock; running from thence Westward, upon a South South-West line, measured from said rock 108 rods; at the end of said measure, marked a white oak tre on the Westward side of the next brook West of Ned’s brook: then turned South and measured 20 rods,” &c. The plaintiff also offered in evidence a lease from the committee of the fir-l society in Simsbury, dated in 1743, of the land so sequestered, to Ezekiel Humphrey, for 999 years ; and claimed that the land taxed, was in the South East corner, and was a part of the tract so sequestered, and laid out, and leased.
    It was admitted, that the North West corner bound of that tract was a known monument, about which there was no dispute. The principal question related to the West line. If it extended but 108 rods from the rock, the land in question was not embraced in the tract sequestered. But if it extended to the West side of the brook next West of Ned’s brook, it was included in that tract.
    The plaintiff claimed, and prayed the judge to instruct the jury, that without regard to the length of the West line, it must be so extended as to reach to the West side of the brook next West of Ned’s brook. And the judge so instructed the jury.
    The plaintiff claimed, that the ancient boundaries were in accordance with the survey and laying out of the tract, as claimed by him. To prove this, he offered in evidence the doings of certain freeholders, in 1757, setting up and fixing the boundaries of said tract in conformity with the bounds es_ tablished by the committee in 1706; to which the defendants objected. But the court admitted the evidence.
    It was admitted, that Benjamin Dyer formerly owned the land South and West of that now owned by the plaintiff; that a controversy having arisen between him and Ezekiel Humphrey, respecting their boundaries, in 1765, an agreement was made between them, by which the latter released to the former the land in question ; and that it came, by regular conveyances, from Dyer to the plaintiff. The plaintiff offered in evidence the declarations of Ezekiel Humphrey and Daniel Dyer, both long since deceased, made after 1765, while paniel Dyer w'as in possession, claiming under Benjamin Dyer, of the land in question, to shew that the line extended to the West side of said brook, and that the áncient boundary was there. 0T0 the admission of this evidence, the defendants objected, on *•; ,. , ie ground that mere had existed a controversy regarding undarv, and on the ground that the possession had not been conformity with the plaintiff’s claim. The judge overruled © objections and admitted the evidence.
    The jury returned a verdict for the plaintiff; and the de-'endants moved for a new trial, on account of the interlocutory decisions above stated, and for a misdirection.
    
      Hungerford and T. C. Perkins, in support of the motion, contended,
    I. That the doings of the freeholders were inadmissible. In the first place, they wsre inadmissible even between the parties. Humphrey v. Pison, 1 Root 259. Secondly, if admissible between the parties, they cannot affect the defendants, who are neither parlies nor privies. 1 Stark, Ev. 185. 191,2. Rex v. Cotton, 3 Campb. 444. Thirdly, if inadmissible as a record, they cannot be received as inferior evidence. The Berkley Peerage case, 4 Campb. 404, 5.
    2. That the declarations of Humphrey and Dyer were inadmissible. First, because there were no accompanying acts of enjoyment. 1 Stark. Eu. 57. 59. Weeks v. Sparke, 1 Man. & Selw. 689. Russell & al. v. Stocking & al. 8 Conn. Rep. 236 241, Secondly, because it was for their interest to make the declarations. 1 Stark. Ev. 57. 09. Roe d. Bruñe v. Rawlings, 7 East 279. 290. Thirdly, because they were made post litem motam. Rex v. Cotton, 3 Campb. 445. The Berkley Peerage case, 4 Campb. 405.
    3. That the charge was incorrect. It was necessary to recur to the length of line, to ascertain where the monument
    vas. The question wars not between a fixed monument and sngth of line, where one comes in conflict with the other, but vhether both might not be taken together, in determining he boundary sought. The charge excluded the length of line from the consideration of the jury.
    
      N. Smith and F. Parsons, contra, contended,
    1. That the doings of the freeholders were properly admitted. First, because they were pursuant to the statute of 1719, and were, i»y that statute, made prima facie evidence of the bounds, according to the right of the parties. Secondly, if not evidence, under the statute, they were admissible as declarations of deceased men acquainted with the fact.
    2. That the declarations of Humphrey and Dyer were admissible. They were old men, well acquainted with tiie fact. 1 Swift’s Dig. 766. I Stark. Ev. 69. ^
    3. That the charge was correct. The survey gives a two-foVl description of the bound in question ; first, that it is 10K rods, on a South West line, from a given point, viz. a rock ; secondly, that it is a white oak tree on the Westward side oí the next brook West of Ned’s brook. The defendants claim according to the first description ; the plaintiff according to the second. The only question, then, is, which shall govern — > course and distance, or a fixed, visible monument. The authorities leave no doubt on this point. Belden v. Seymour, 8 Conn. Rep. 19. ⅞ 4 Kent’s Comm. 455. and authorities there cited. ;
    
      
      
        Stat. ed. 1750. p. 112. ed. 1796. p. 256. That statute provides, that when the proprietors of adjoining lands have lost their bounds and cannot agree to the fixing of them, three disinterested freeholders, appointed by a justice of the peace, after due notice to the proprietors concerned, shall have power to set up and fix such hounds between them ; and the bounds which shall be so fixed, shall be entered in the records of the town where such lands lie, and remain the bounds of such lands; the freeholders being first sworn to lay aside all prejudice and partiality, and to erect said bounds according to the true and just right of the parties. Then follows a proviso, that the proceed* ings uuderthis act shall not hinder any proprietor dissatisfied with the bounds so fixed, from bringing any action for the maintaining of his right to, or recovering the possession of, such land as by the setting up of such bounds, shall be taken or withheld from him; and another proviso, that when the bounds so set up shall take any land from any proprietor, which he has for any time held possession of against the other proprietor, nothing in this act or any thing done therein, shall be taken to disseise such possessor; but whensoever any action is brought against such possessor, l y the otherpropri-etor, to recover from him possession of said land, if such possessor shall not prove, upon the trial, that the bounds or line which he claims to hold to, aro the just and true bounds, judgment in the said action shall be given for the said proprietor to recover the possession according to the bounds set up as aforesaid.
    
   Peters, J.

The motion presents three questions.

1. Were the doings of freeholders admissible ? This was a proceeding under the statute,of 1719. Stat. 112. rev. 1750. The freeholders were appointed by a magistrate, and sworn to act impartially. They were empowered to set up and fix bounds, which the statute declares shall be recorded, and re-maw the bounds ol such lands. The same statute further provides, that whenever any action is brought to recover possession according to the bounds set up, if the defendant shall not prove, that the bounds he claims to hold to, are the just and true hounds, judgment shall be given for the plaintiff to recov~ er possession accordmg to the bounds set up, i. e. shall ba prima facie evidence of tithe. The only objection to the proceedings of this domestic tribunal, is the case of Humphrey v. Pison, 1 Root 259. which contains neither fact, argument nor Jaw.

2. Were the declarations of Ezekiel humphrey and Drzn~. iel Dyer admissible ? The principal objection seems to have been, that a controversy had previously existed between Ezekiel humphrey and Benjamin Dyer (under whom Daniel Dyer occupied) respecting their boundaries. But it appears to have been an amicable controversy ; ending in a friendly compromise, by a recognition of the ancient boundaries estub lished by the committee, who surveyed and laid out the original sequestration in 1706 ; and by the freeho)dcrs, who set up and fixed (lie same in 1757 ; and by a release from the original lessee to the other party, of the land in question. And we are informed, by the late Cli. J. Swift, that in this state, the declarations of old pe~ple respecting the ancient bounds or monuments between the lands of indi~idual proprietors, who w'ere acquainted with them, have constantly been admitted in evidence, 1 ~Sw~Ths Dig. 766. Sw~J~'s Eu. 123. 1 Phill. Eu. 197, 8. and eases there cited.

3. Was the charge of the court correct? The question arising on this charge has been SO often and so uniformly decided, that it would probably never have reached this court again, without the aid of the legislaturc. l3ut as it is here, we must decide it, although it comes not " ut nouns hospes.'~ The first case on this point within my memory, came before the superior court, in February, 1793, in Snow v. Chapman, 1 Root, 528, wherein it was decided, that in a grant of land, within certain bounds, calling it more than it is, the covenants extend only to the land within the bounds, Similar decisions ^ave keen made in many of our sister states. I will notice a few of them. In Howe & al. v. Bass, 2 Mass. Rep. 380. 382. Parker, J. said : “ There is no rule of construction more established than this, that where a deed describes land by its admeasurement, and at the same time by known and visible monuments, these latter shall govern.” In Pernam v. Weed, 6 Mass. Rep. 131. 133. Parsons, Ch. J. said: “When the boundaries of land are fixed, known and unquestionable monuments, although neither courses, nor distances, nor the computed contents, correspond, the monuments must govern.” In Preston’s heirs v. Bowmar, 6 Wheat. 580. 582. Story, J. said : “ It may be laid down as a universal rule, that course, and distance yield to natural and ascertained objects.” In McIver’s lessee v. Walker & al. 9 Cranch 173. S. C. 4 Wheat. 444. 447. Marshall, Ch. J. said : “ It is a general principle, that the course and distance must yield to natural objects called for in the patent.” And the late Chancellor Kent, in his excellent Commentaries, says : “ In the description of the land conveyed, the rule is, that known and fixed monuments con-troul courses and distances.” Vol. 4. p. 445. The Chief Justice of this Court, in delivering his opinion in Belden v. Seymour & al. 9 Conn, Rep. 19. says: The rule is, that known and fixed monuments controul courses and distances.”

I would not advise a new trial.

The other Judges were all of opinion, that the case was properly disposed of, and would not disturb the verdict. Daggett, Ch. J. and Willia.'is, J., however, expressed some doubt whether the declarations of Humphrey and Dyer, made post litem motam, were admissible.

New trial not to be granted. 
      
      ~(b) Vid. S~t. 183G. p. 988. c. ~3.•. 1.
     