
    MAX DAMZIGER, Appellant, v. JOHN BOYD, et al., Respondents.
    
      Deeds—construction of descriptions in—Monuments not necessarily controlling courses, distances or quantities—150 and 152 Leonard Street— dividing line between.
    
    When there is anything in the description which shows that the courses and distances are correct, they will control, because the primary object in all cases is to arrive at the real intent of the parties. Thus, when it is apparent on the face of the deed that the intention was to convey a specific quantity of land, if the courses and distances would include that precise quantity, but the description by fixed measurement would embrace more or less, it is clear that the former should be followed.
    The above rule applied to the facts in this case.
    Before Sedgwick, Oh. J., Van Vorst and Freedman, JJ.
    
      Decided June 10, 1886.
    Appeal by plaintiff from judgment entered on findings by a judge in an action of ejection tried without a jury by consent.
    
      
    
    
      The action was in ejectment. The defendant was in possession of the western part of the land indicated on above diagram, up to the center of party-wall “A.” The plaintiff claimed that he was entitled to the land on the east, from a line about five feet west of the center of party-wall “A.”
    The complaint was dismissed upon the merits.
    The parties claimed title, under a judgment in partition. Before the conveyances to the parties, the land was held as one parcel. The exterior lines of the diagram represent the parcel as a whole, excepting that the building on the rear did not cover the whole of the lot at the. rear, but left a narrow strip two feet seven inches at the eastern side, running westerly to a point. This strip is immaterial to the controversy, a,nd is not indicated on the diagram. The interior lines represent buildings upon the parcel.
    The plaintiff was entitled to land in the parcel lying to the east, and the defendant to land lying to the west The dispute is as to the dividing lines between the properties of the parties. The above diagram omits any indication of that dividing line.
    The court below on dismissing the complaint, delivered the following opinion:
    Ingraham, J.—“The buildings on the property in question were erected by the owner, of both parcels upwards of thirty years ago. Subsequently an action for the partition of the premises was commenced in the supreme court and the property sold under the judgment in that action, the grantor of the plaintiff purchasing No. 152 Leonard street, and James Boyd, through whom the defendants claim, purchasing No. 150 Leonard street.
    “The deed to James Boyd was dated April 1, 1865, and was acknowledged and recorded April 3, 1865. The deed to Peter Pia, through whom the plaintiff claims, was dated on the same day, but was not acknowledged until April 4, 1865, and was not recorded until June 16, 1865.
    “ The grantees in said deeds mentioned, respectively took possession of the premises .purchased, and they or their grantees or devisees have continued in such possessian as now occupied by them, from the time of the delivery of the deeds down to the time of the trial. Neither of the deeds, purports to give the exact number of feet of the rear line of the lots conveyed. The deed to Boyd, which was first recorded, describes it as about twenty feet to a certain party-wall or partition now on said premises. The party-wall, rear building, is twenty-five feet eleven, inches, while the continuation of the center of the party-wall of the front building would make the rear lot nineteen feet eleven and one-half inches.
    “It appears that in the partition suit the referee reported that the premises could not be actually partitioned because the pieces of property known as Nos. 150 and 154 Leonard street comprise two buildings in front and two buildings in the rear.
    “The report of sale states that No. 150 Leonard street was sold to James Boyd. This would, of course, be the front and rear building, and the court directed the referee to complete the sale and execute the necessary conveyance to the purchaser, and in pursuance of such direction the referee executed and delivered the deed hereinbefore described.
    “Taking into consideration the foregoing facts, it must have been.the intention to convey to Boyd the front and rear buildings known as No. 150, and this is confirmed by the undisputed possession of the premises for nearly twenty years, which, while not sufficient to give defendants title by adverse possession, is strong evidence of the construction of the 'deeds by the parties interested.
    “ On the whole case I think the defendants are entitled to judgment.”
    
      
      Kauffman & Sanders, attorneys, and Lewis Sanders, of counsel for appellant,
    argued :—I. If, in the description of the dividing line of the premises conveyed, the words, “ and on a line in continuation thereof ” be rejected as surplusage, the descriptions, by measurements and monuments, coincide and supplement each other and are in exact accord with themselves and the facts. That this is the rule and its proper application the authorities are unanimous (Jackson v. Marsh, 6 Cow. 283 ; Wagner v. Hodge, 34 Hun, 524 : affirmed, 98 N. Y. 654 ; Jackson v. Clark, 7 Johns. 222: Peck v. Mallams, 10 N. Y. 532 ; Bookman v. Kurzman, 94 Ib. 212). There is no ambiguity in the description, and in an action for specific performance a purchaser would be bound to take. There being nothing to construe, there could be no “ construction ” of the deeds. ■
    II. A practical construction by “ practical location ” is indicative of a controversy settled by an agreed location. A simple occupation by one party and non-interference by the other gives title by possession when claimed adversely after twenty years, but not before. The decision below shortens the statute of limitations of twenty years by an indefinite quantity, and leaves the law of adverse possession entirely in nubibus. The statute requires twenty years of adverse possession ; the opinion says any time short of twenty years will give a title to the occupant.
    To establish a practical location, affirmative acts on both sides recognizing the correctness of boundary are essential. To call the negative act of a failure to bring suit an affirmative act fixing the boundaries by mutual agreement, is utterly destructive of the sense of the words. A title by practical location does not ripen sooner than that by adverse possession: “ The doctrine as to the practical location of a boundary line, is well settled by the courts ; it was adopted as a rule of repose, with a view of quieting titles, and rests upon the same ground as the statute in reference to adverse possession which has continued for a period of twenty years ” (Sherman v. Kane, 86 N. Y. 73). In the above case, the “practical location ” was from 1812 to 1866, and the boundary line D D was shown on a map and on the soil. In Baldwin v. Brown (16 N. Y. 364), for “more than forty years.” In Jackson v. Bowen (1 Caines, 358), for thirty, six years. In Jackson v. Dysling (2 Ib. 198), for forty years. In Jackson v. Vedder (3 Johns. 8), forty years. In Jackson v. Dieffendorf (Id. 269), thirty-eight years. In Jackson v. McCall (10 Johns. 377), forty-one years. In Jones v. Smith (64 N. Y. 180), for more than fifty years. In the case at bar there has been no practical location by both parties, or by one party, and acquiescence by the-other. Neither James Boyd nor his grantees have ever done anything to locate a boundary ; they have by their tenants, simply occupied the rear building to the party-wall, claiming adversely. James Boyd did not put up the party-wall, nor was it put up by Anthony Crown, the owner of both lots, as a boundary line between the lots ; first, it was not as matter of fact such boundary; second, the front party-wall already marked the actual boundary; third, there would have then been two boundaries, irreconcilable ; fourth, it would have impaired the sale of his property. The rear building is an accident, and defendants occupation mere adverse possession.
    III. The rule that monuments control distances is subject to two qualifications : 1st, the monuments must be natural, not artificial; 2d, the quantity must be subordinate to the description, 1 ‘ but when it appears from the designation of quantity or other elements of description that the courses and distances from a. fixed and determined line were intended to control monuments, then the latter shall be disregarded” (Higinbotham v. Stoddard, 72 N. Y. 99). It is clear that a lot twenty-four feet six inches by ..ninety-one feet, was intended to be conveyed ; that quantity was the primary consideration. No. 152 Leonard street would mean a full lot without accompanying qualification, •“ The rule applies with less force to monuments which am artificial than to natural and permanent objects; and when there is anything in the description which shows that the courses and distances are right in themselves, they will prevail, because the primary object is to carry out the intention of the parties ” (Higinbotham v. Stoddard, supra). Here the intention of the parties was plain, as expressed in both the deeds, the one to James Boyd, the other to Peter Pia. Peter Pia was to get Ho. 152 Leonard street, as it appeared in front—a full lot, a parallelogram. That the party-wall of the rear building is not in fine with that of the front building, neither alters the intention, nor defeats the description. Tear down the rear building, which finds no mention in the deeds, and which does not square with either Leonard or Centre streets, and there is no difficulty in running the lines both by distance and monument named in each deed--the lines running by distance as well as by call through the center of the party-wall of the buildings fronting on Leonard street.
    IV. Defendants cited below the following authorities, besides some already noticed : Powers v. Hill, 19 Johns. 452 ; Drew v. Swift, 46 N. Y. 204 ; Robinson v. Kine, 70 Ib. 147; Avery v. Empire Co., 82 Ib. 582 ; adverse possession from 1830 to 1874. Hone of these sustain the position of the defendants, but, on the contrary, show that a practical location and its duration, and surplusage in description, are as contended for by appellant.
    
      Townsend & Malian, attorneys, and of counsel for respondents,
    argued: I. The construction of the buildings on both premises, and their occupation ever since their erection, show a practical and actual location of the boundary line between the rear buildings.
    II. The descriptions given in the deeds give a monumental point for the location of the boundary line between the premises 150 and 152. (a.) They started from a point on the rear fine at or opposite to the center of a party-wall or partition, and it is perfectly evident that the party-wall referred to was that between the rear buildings, (b.) The line of division which runs through a party-wall must have been the line running through the party-wall between the rear buildings, for the reasons not only that this was the party-wall upon or immediately contiguous to the rear line, but certainly because it was necessary to find a party-wall so located that, after the dividing fine had passed through it, such line will have a continuation before reaching the southerly side of Leonard street. This certainly designates the party-wall between the rear buildings as the one intended, for the front buildings stood on the very line of Leonard street, and it follows, as a mathematical demonstration, that there could be no continuation of any line to reach Leonard street after it had passed through the center of the party-wall between the front buildings. It would end as soon as it had passed through this wall, without any continuation, as is required by the description in the deed, (c.) It would be simply ridiculous to claim that the party-wall through which the division line was run was that between the front buildings, for the reasons above stated, and for the further reason that this wall did not correspond even in location to any distance given for the dividing line. In fact, as to location by distances (if “about” is to be considered as thus locating), neither the wall between the rear or the front building was on line.
    III. As to description of premises, (a.) “Where the descriptions in a deed several particulars, all of which are necessary to ascertain the land to be conveyed, nothing but what will correspond with all these particulars can pass by the grant; but if there be certain particulars sufficiently ascertained to locate the land, the additional, false or mistaken particulars may be rejected ” (Hathaway v. Power, 6 Hall, 543; Wendall v. People, 8 Wend. 189 ; Loomis v. Jackson, 19 Johns. 452). (5.) “It is a settled rule that a conveyance is to be construed in reference to its distinct and visible locative calls as marked or appearing upon the land in preference to quantity, course, distance, map or anything else ” (Van Wyck v. Wright, 18 Wend. 157). (c.) “ It is a rule of construction as to the description of premises in a deed that what is most material and most certain shall control that which is less material and less certain; courses and distances yield to natural, visible and ascertained objects ” (Doe v. Thompson, 5 Cow. 371). (d.) “Permanent and visible monument referred to in a deed will control course, distance and quantity” (Drew v. Swift, 46 N. Y. 204). (e.) “A conveyance is to be construed in reference to its visible locative calls, as marked or appearing upon the land in preference to quantity, course or distance, and any particular may be rejected if inconsistent with the other part of the description, and sufficient remains to locate the land intended to be conveyed” (Robinson v. Kirns, 70 N. Y. 147). (f.) “The long established rules in reference to the construction of descriptions contained in conveyances require courts to adopt such an interpretation thereof as shall give effect to the instrument, according to the intentions of the parties if that is discoverable from legitimate sources of information ” (Bookman v. Kurzman, 94 N. Y. 272 ; 72 N. Y. 96 ; 17 Johns. 29 ; 3 Rand. 44-49 ; 13 N. Y. 569 ; 3 Keyes, 516 ; 32 N. Y. 561; 16 Wend. 285).
    IV. As to practical location, (a.) “ Practical location and long acquiescence in a boundary line are conclusive, not upon the ground that they are evidence of a parol agreement establishing the line, but because they are of themselves proof that the location is correct and of so controlling a nature as to preclude evidence to the contrary” (Baldwin v. Brown, 16 N. Y. 359). (6.) “Where there has been a practical location of the dividing line between the lands of adjoining owners, and a long acquiescence therein, the line so established will not be disturbed” (Avery v. Empire Woolen Co., 82 N. Y. 582). “Twenty years is not essential. The time is not so important, if the proof be clear” (Decker v. Hauer, 4 Alb. L. J. 316; Brace v. Beckworth, 6 Id. 41). (c.) “A practical location of the boundary line between two lots, and an acquiescence by the adjoining owners, is conclusive upon them and their successors in interest ” (Sherman v. Kane, 86 N. Y. 57).
    
   By the Court.

Sedgwick, Ch. J.

The common source of title was one Crown. After his death and in an action of partition between persons claiming under him by inheritance or by his' will, part of the real estate indicated by the accompanying diagram, was conveyed to the plaintiff and part to the defendant. It is evident from the case, that the intention of the two deeds that will be construed was to give to the plaintiff all eastwardly of a dividing line between the premises of both parties as they were intended to be conveyed, and to the defendant all westwardly of that line. The controversy will be determined by placing that, line according to the proper construction of the two deeds. The exterior lines of the plot comprising the two pieces, indicate the real estate as it was held before the conveyances. And the measurements are those given by the conveyances. The dividing line which runs about south from Leonard street, is not indicated on the diagram.

The description in the conveyance of the referee in partition, of the piece which the plaintiff afterwards Required, is as follows : Beginning at a point on the southwesterly side of Leonard street, distant ninety feet, three inches, more or less from the south-easterly corner of Leonard and Centre streets, running thence south-easterly along Leonard street twenty-four feet, four inches, thence south-westerly parallel with Centre street ninety-one feet, eight inches, thence north-westerly parallel with Leonard street twenty-four feet, or thereabout, to or opposite to the centre of a party-wall or partition, and thence north-easterly through the centre of the said party-wall or partition and on a line in continuation thereof ninety-one feet, or thereabout, to the south-westerly side of1 Leonard street, the place of beginning.

The description in the referee’s deed to defendant’s land. is : Beginning at a point an the south-westerly side of Leonard street, distant forty feet south-easterly from the south-easterly corner of Leonard and Centre streets, running thence south-westerly parallel with Centre street fifty-seven feet and six inches, thence south-easterly parallel with Leonard street thirty feet, three inches ; thence south-westerly parallel with Centre street thirty-two feet and six inches; thence south-easterly and parallel with Leonard street about twenty feet to or opposite to the center of a party-wall or partition now on said premises, thence north-easterly through the center of said party-wall or partition and on a line in continuation thereof, parallel with Centre street ninety feet, six inches, or thereabout, to the south-westerly side of Leonard street, aforesaid fifty feet, three inches more or less to the point or place of beginning.

The words in italics, are the only words in the two deeds that specifically touch the matter of the dividing line that has been mentioned.

A deed of conveyance of real estate operates through its granting and conveying parts as an actual delivery of land from grantor to grantee, of which the parties to the deed give an account or description in the words of the deed. In construing the deed, the land is viewed as it is in fact, and the question is, what has the grantor delivered, if the terms of the deed are considered altogether ?

It has been assumed that the easterly line of defendant’s land, and the westerly fine of plaintiff’s, were meant to be coincident. Such was the fact, excepting that the lengths were differently described. In the plaintiff’s deed, so to call it, the fine was described as in length ninety-one feet,,or thereabout. In the defendant’s it was ninety feet six inches, or thereabout. This would only show, disregarding the word “ thereabout,” that plaintiff’s fine continued six inches southwardly beyond defendant’s line, as the north ends of both lines were at Leonard street. This prolongation is not material to the controversy.

The line or lines in dispute must be held to be straight lines. In the defendant’s deed it is said to be parallel with Centre street, which runs in a straight unbroken line. There is nothing to indicate a curved line, or one composed of two or more lines, forming angles. It is further clear, that the end of the dividing line at Leonard street is ninety feet three inches from the south-easterly corner of Leonard and Centre streets, because the next course from that end of the line, and to the place of beginning, is said to be fifty feet three inches along Leonard street to the place of beginning, which the description begins by stating to be on Leonard street forty feet from the corner of Leonard and Centre streets. The end of the line in dispute is therefore the center of the party-wall, marked “ B ” on the diagram. It is found, moreover, that plaintiff’s land begins at the center of this party-wall, for the description begins at a point distant ninety feet three inches, more or less, from the corner of Leonard and Centre streets referred to.

Again, by tfie defendant’s deed, the course, from which the disputed fine begins to run, is parallel to Leonard street, and is about twenty feet. Both the surveys, made for the parties respectively, show that this twenty feet ends at about ninety feet three inches from Centre street, or the same distance that defendant’s land extends from Centre street on Leonard street at the party-wall “B.” If there were no words in the deed to the contrary, the inference would be inevitable, that the eastern boundary would be a straight line drawn between the two points, each ninety feet three inches from Centre street. This straight line would go through the center of the party-wall “B.”

It is, however, argued, that the words of the deed necessarily call for the extension of the twenty feet course to the center of party-wall “A.” The words and “Thence south-easterly, and parallel with Leonard street about twenty feet to or opposite to the center of a party-wall or partition now on said premises.”

The rule is invoked that a visible monument referred to will control courses, distances and quantities (Drew v. Swift, 46 N. Y. 204). The course is intended to go to the monument, and the incorrect" statement of the length of the course yields to the fact that it runs to the monument. The ground of this rule and its proper application appear in the opinion in Baldwin v. Brown (16 N. Y. 359). “ The reason is that mistakes are deemed more likely to occur with respect to courses and distances than in regard to objects which are visible and permanent. This, however, is by no means an inflexible rule. When there is anything in the description which shows that the courses and distances are right, they will, of course, control, because the primary object in all cases is to arrive at the real intent of the parties. For instance, when it is apparent upon the face of the deed that the intention was to convey a specific quantity of land, if the courses and distances given would include that precise quantity, but the description by fixed monuments would embrace more or less, it is clear that the former should be followed. To do otherwise would be to defeat the plain intent of the parties.” This was approved in Higinbotham v. Stoddard (72 N. Y. 94), and in Brookman v. Kurzman (94 Ib. 272). In the last case it was said : “In giving effect to such intention, it is also their duty to reject false or mistaken particulars provided there be enough of the description remaining to enable the land intended to be conveyed to be located (Hathaway v. Power, 6 Hill, 453 ; Wendell v. People, 5 Wend. 189 ; Loomis v. Jackson, 19 John. 449). It was said in Robinson v. Kime (70 N. Y. 147), that a conveyance is to be construed in reference to its visible locative calls, as appearing upon the land .... and any particular may be rejected if inconsistent with other parts of the description and sufficient remains to locate the land intended to be conveyed. The rule that a monument controls other positions of the description in a deed is not inflexible ; when the monument is repugnant to another of like character, or a map gives other results, the truth is to be ascertained from all the facts of the case (Townsend v. Hayat, 51 N. Y. 656 ; Higinbotham v. Stoddard, 72 Ib. 94).” The principle is again recognized in Hussner v. Brooklyn City Railroad Co. (96 N. Y. 18) ; Mott v. Mott (68 N. Y. 246), and the cases cited there.

That the party-wall, to which or opposite to which the line of twenty feet is said to run, is the party-wall “A,” seems to be clear. The use of the alternative refers to the fact that there was doubt whether the party-wall ran quite to the rear line of the lots. The phrase is applicable to party-wall “A,” but not “ B,” for that reason.

In considering whether the course or the party-wall “A” controls, it must be noticed that the party-wall is distant from the last point of departure twenty-five feet, nine and a half inches. This is a difference from the course of twenty feet, more or less, of great importance and not likely to occur from imperfect surveying. The words “more or less” are not to be taken to intend to comprize such a possible mistake. These words are not meant to convey an indefinite quantity. They are a guard against inaccuracy (Brady v. Hennion, 8 Bosw. 528). It would be one consequence of extending the line to twenty-five feet and more, that the next or disputed line, would end at a point on Leonard street, that would give the defendant five more feet there, than it is certain the deed intended to give.

The description in the defendant’s deed will not allow the disputed line to run in this way. That line is claimed to run parallel to Centre street, and through the center of party-wall “A” and on a continuation of that center-line, but it is made to end at ninety feet three inches from the corner of Centre and Leonard street. If it does so end and if it be a straight line, beginning at the center of party-wall “A” it will be a diagonal line, leaving the party-wall “A” at a short distance from the point of beginning, running through an alleyway on Leonard street, cutting through beams above that alley and entering party-wall “B” at a short distance from Leonard street. No conceivable state of facts would present a motive for a division of this kind, which, if by chance it had been made at a former time, would have brought about a re-arrangement for convenience of occupation and of sale, that would have been settled in the partition action.

Eunning the line as proposed by plaintiff would give to him possession of the whole of party-wall “A.” And of a part of defendant’s house, indicated along its beams by no supporting partition. Yet if it be run as proposed by defendant it will give him the whole of party-wall “B” and a part of plaintiff’s house on Leonard street. Such a division would be eccentric and inconvenient, but not so eccentric and inconvenient as would be the division made by running the diagonal line, that has been imagined.

All the inferences that have been drawn from the terms of defendant’s deed would be repeated in an analysis of the description of plaintiff’s deed.

The difficulty is solved and the incoherent made coherent by holding that the following are the dominant certainties of the conveyances: On Leonard street the dividing point is the center of party-wall “B,” ninety feet three inches east from the corner of Centre street and Leonard street. The dividing line runs southwardly from that point and parallel with Centre street ninety feet six inches, or ninety-one feet or thereabout, until it meets the rear line of defendant’s premises. The result is, that rear line is found to be twenty feet long more or less, as given in defendant’s deed. If these things are certain, then the deed as a whole does not give the defendant to party-wall “A.” It is certain that the words “to or opposite to ” the party-wall is a mistake in the description of the line of twenty feet, and not the reverse. The former is to be rejected and not the latter. The cases that have been cited say, in substance, that when no other parts of the description should be considered, then simply as between the statement of a length of a line and of the fact that such line runs to a monument, the latter is to be deemed the more certain evidence of the intention, but that other parts of the description may show that the statement of length is the more certain. If the parties were on the land and went over the lines, it would be clear that a declaration or supposed perception that the point referred to was opposite the party-wall, was a mistake in words or of the senses, was an error or inadvertence, shared by both parties.

Judgment should be reversed, new trial ordered, with costs to abide event.

Van Vorst and Freedman, J'J., concurred.  