
    Jackson, ex dem. Beekman and Griffith, against France.
    NEWYORK,
    Oct. 1813.
    The “ Sand. Oergh or hills mentioned as m the /fardenbergh patentof thesoth and as “ at the «ep<of<the<patent to.Eáenezer yyzlsotz and others/5 is at the place called the Hunting-house, or Yaagh-house, which is a definite and notorious monument ? and the boundary line of the patent, as it returns from the north, along the bounds of the patented lands, crosses the Shawangzmh mountain till it meets the line of Evans’s patent, the west boundary of which is the foot of that mountain on the east side of it. Part of lot No. 5. allotted to G. Beekman, in the partition of the patent to Miller and Hillman, of the 24th of Octio* ber, Xi'H, is within the Harckn&ergh patent.
    THIS was an action of ejectment for lands in the town of Ma- . . . „ makatmg, in the county ol Sullivan. The cause was tried at the Sullivan circuit, before Mr. Justice Spencer, the 2d of Sepfeml,er 1812, when a verdict was taken for the plaintiff, subject e e , . J to the opinion of the court on a case made, with liberty to either party to turn the same into a special verdict.
    The parts of the case which it is thought necessary to state are, that the plaintiff claimed title to the premises, under a patent to John Miller and Nicholas Killman, dated the 24th of October, 1771, describing the lands as "all that certain tract or parcel of land, situate, See. lying on the southeast side of the Skawangunk mountains, &c. beginning at a chesnut-tree marked,” &c.
    On the 20th of June, 1772, the patentees conveyed an undivided fifth part of the lands to Gerardus Beekman, one of the lessors, and one undivided fifth part, at the same time, to William Butler, who conveyed the same to Beekman on the 19th April, 1775. By partition, in September, 1808, lot No. 5., including the premises in question, was drawn and allotted to Beekman.
    
    The defendant gave in evidence a patent to Johannes Hardenbergh, dated the 20th of April, 1708, for “a certain tract of vacant and unappropriated land, situate in the counties of Ulster and Albany ; beginning at the Sandbergh, or hills, at the northeast corner of the land granted to Ebeneser Wilson, Derick Vanden» burgh and others, at Minisink, so running all along their line, northwesterly as the line runs, to the Fislikill or river, and so to the head thereof, including the same; thence on a direct line to the head of a certain small river, commonly known by the name of Cartwright’s Kill, and so by the northerly side of the said kill, or river, to the northernmost bounds of Kingston, on the said kill, or river, thence by the bounds of Kingston, Hurley, MarbMan, Rochester, and other patented lands to the southward thereof, t© the said Sandbergh, the place where it first began.”
    The defendant alleged that the premises in question were included in No. 31. in the Hardenbergh ^patent. He then read in evidence the following documents; a patent granted to Henry Beekman and others the 25th of June, 1730, called the Rochester patent: “ Beginning at the south bound of the land now in the possession of John Van Camps, from thence running with a southeast; line to the land of Captain John Evans, and so along the said Captain JohnEvans’s land till it come over against the SandHills,” &c,c
    A patent granted to Ebeneser Wilson and others, the 28th of August, 1704, called the Minisink patent, for lands described as “ lying and being in Orange and Ulster counties, beginning s,t a certain place in Ulster county aforesaid, called Hunting-house, or Yaagh-house, lying to the northeast of the land called Bashes’s land: thence to run east by north, until it, meet the Fislikill, ox-main branch of the Delaware river; thence southerly to the south end of the great Minisink island; thence due south to the land lately granted to the above-named John Bridge and company, go along the said patent as it runs northward, and the land of Captain John Evans, and thence to the place it first began.” A patent to John Bridge and company, dated 28th April, 1703. A patent *° Captain John Evans, dated 20th September, 1694, “ beginning from the south side of the land called the Palis, &c. and extending thence southerly along the said Hudson’s river, to the land belonging to the Indians, at the Murderer’s Kill, and extending westerly to the foot of the high hills, called Pitkiskaker and Aiaskawating, and thence extending southwesterly all along the said hills and the river,” &c. The defendant next read in evidence the Marbleton patent, dated 25th of June, 1703; a deed from, the trustees of Rochester to Jacobus Bruyn, dated the 2d of April, 1730, for lands in the Rochester Patent; a deed from the trustees of Rochester to Frederick Schoonmaker and Cornelius Hornbeck, dated 20th of May, 1728, for lands, “ being within the bounds and limits of Rochester aforesaid, beginning by a certain hill known by the name of the Sandbergh, where the Minisink road now goes over, and easterly along the said road, until it comes to the Sandbergh’s Kill, and thence along the south side of the said kill, &c. till it meets or comes into the Rondout, or Randuyl’s Kill, See.; thence southeasterly to the bounds of Captain John Evans, so far as to reach the said Sandbergh with a due northwest line;” the map and partition of the same land, made the 26th of May, 1800, showing that from the Sandbergh to the southeast corner of Rochester, is south 49 deg. 48 min. east, 196 chains and 40 links; a partition deed of the proprietors of Hardenbergh patent to Thomas TFenmoM, dated 15th of November, 1749, dividing 8 lots numbered from 27 to 34. “ Lot No. 27. to begin at the Yaagh-house at the southeast corner of Lot No. 11., &c.; a deed from Lewis Kip and others to Johannes Lewis, dated 23d of November, 1749, of lot No. 28.; a deed from Lewis and others to George Gunsanlis, dated 6th of June, 1754, for the same lot; a deed from Robert R. Livingston to Conrad Bevier, dated 13th of September, 1783, for 466 acres in lot No. 27. beginning at the Yaagh-house, and extending eastwardly, &c. The defendant then gave in evidence the map and field-book of the Hardenbergh patent, made by Ebeneser JVoosier, for the proprietors, in the year 1749.
    
      John Kierstsd testified, that he and James Cockburn, as surveyors, run out the 8 lots above mentioned to the foot of the M'hawangunk mountain, in 1810, and subdivided the same; that the defendant’s possession was about 30 chains above what he considered the foot of the mountain, and, according to his survey, within lot No. 8. of the subdivision of lot No. 31. and about midway up the mountain. The defendant held his possession from the heirs of James Desbrosses, under the Hardenbergh patent. James Cockburn testified, that the upper side of the defendant’s possession was within 3 or 4 chains of the top of the mountain; that Rochester is bounded eastward on Evans’s patent at the foot of the Shamangunk mountain, and runs along Evans’s line all along the foot of the said mountain southwesterly, till it comes opposite the Sandbergh, and then crosses over the mountain to the Sandbergh; that there is a pine stump at the northeast corner of lot No. 1. in the Hardenbergh patent, being the 14th monument; that the Sand hills extended through Mamakaiing hollow; that he knew the Yaagh-house, which is correctly laid down on Kiersted’s map; Evans’s patent is to be located along the foot of the mountain; the Sandbergh is a known boundary of Rochester, and the 14th monument of Wooster; that he kne>v of no other place called Sandbergh, but the hills at the northwest corner of the lots laid down on the map produced by the defendant, and which run over the mountain.
    
      Gunsaulis, another witness, 77 years of age, testified, that he had always known the Yaagh-house, and that he was with Webb, a surveyor, who ran out the Minisink patent, in 1761, or 1762, and that Webb made it the corner of that patent, and it is the division line between the Hardenbergh and Minisink patents; that he well knew the hills, or Sandbergh ; but he never knew any other sand hill, or Sandbergh, but that at the bounds of Rochester; there was a pine tree on it, with a heap of stones laid about it; that he never knew of but one Sandbergh, and there are not many hills thereabouts, except the Shamangunk mountains; that Minisink was on the west side of those mountains, in Mamakaiing hollow, &c.
    The plaintiff then called Cornelius Tappen, a surveyor, who testified that the maps exhibited by him were correctly made; which he particularly described and explained. He differed in opinion from the other surveyors, as to the foot of the mountain, in Miller dr Kelhnan’s patent. He never heard of but one Sandbergh, which was the same as described by the other witnesses. He considered the Sandbergh and Yaagh-house as the eastern boundaries of the Hardenbergh patent.
    r£he plaintiff, also, gave in evidence an Indian deed, to Jacob 
      Rutsen, dated June 8, 1696, of a parcel of land, beginning at the west bounds of lands called Nepenach, &c.; and a patent to Rut-sen, dated, June 18th, 1713, beginning at the foot of a certain mountain, on the southwest side thereof, about 100 chains northwest from the Indian Tatapa’s wigwam, &c. '
    
    
      James Clinton, a surveyor, testified that in surveying other patents, he run along the east bounds ■ of the patent of Miller Sr Killman, which he considered all on the side of the mountain; that he run out the patent to Rutsen, in October, 1790; that having ascertained the place where Tatapa’s wigwam stood, he found that 100 chains would not bring him to the west foot of the Shawangunk mountains; and that he, therefore, varied the course, which was often necessary in regard to ancient patents, in order to locate on the place intended. That he believed the patent correctly laid down on the map of Cornelius Tappen ; and that Gunsaulis held possession under Rutsen.
    
    
      Christopher Tappen and James Cockburn were appointed commissioners, by the act of the legislature, in 1790, to survey some of the southern lots of the Hardenbergh patent, and they surveyed them accordingly. Christopher Tappen testified, that he knew the Sandbergh and Yaagh-house. That the Sandbergh is a known boundary of the Hardenbergh patent, as much as the Yaagh-house; that there is a distance of nearly 6 miles from the Sandbergh to the northeast corner of Ebeneser Wilson and company, which is Yaagh-house; that he and Cockburn run from Yaagh-house to Delaware river, &c. The plaintiff then gave in evidence a patent to Joachim Staats, dated 3d July, 1688.
    
      Christopher Tappen further said, that Evans’s patent was to be located on the top of the Shawangunk mountain; that running out the Minisink patent, in the closing line from Evans’s patent, he would rim to Yaagh-house, from the nearest point on the east side of the mountain, to the Yaagh-house. lie would call the Yaagh-house the northeastern corner of Minisink patent. The Rochester patent interfered with Miller and Killman’s patent about 800 acres.
    
      James Clinton, also, said that Yaagh-house was the most northeast bounds of the Minisink patent. That it was never called Minisink on the east side of the Shawangunk mountains ; but it was, in the hollow, on the west side of the mountains. That, the Minisink patent is held under, to the foot of the mountain on line east side. He considered the patent to Bridges as going to the foot of the mountain.
    
      James Oliver, also, testified that he knew the Sandbergh, &c. which was always a reputed corner of the Hardenbergh patent, and that Yaagh-house was another comer.
    
      Richard Rroadhead, another witness, 73 years old, said he always knew the Sandbergh; that the Hardenbergh patent runs from the Sandbergh to the Yaagh-house, &c.
    The plaintiff then read in evidence an act, passed the 12th May, 1699, vacating the patent to Captain Joshua Evans ; also, a petition from the proprietors of the Hardenbergh patent to the commissioners of the land office, signed, among others, by James Desbrosses, praying a patent for all vacant land, included in the boundaries set forth in the petition, which was filed the 10th June, 1791, and a similar petition in January, 1798, from the same proprietors. The plaintiff, also, gave in evidence certain proceedings before the court of common pleas of Ulster county, on the 21st April, 1730, on the complaint of Johannes Hardenbergh and others, executors of Jacob Rutzen, against certain Indians for disturbing the possession of the lands granted to Rutzen. Johannes Hardenbergh was the son-in-law of Rutzen, and one of the proprietors of the Hardenbergh patent. The plaintiff, also, read in evidence a deed, dated 18th February, 1778, between the trustees of Rochester, and the proprietors of the Hardenbergh patent, for settling the division line between the town of Rochester and that patent; by which they agreed that the lines run by William Cockburn and John Wigram should be the division lines between them; “ beginning at a stone set in the ground, standing on the southeasterly side of the road that leads from Rochester to Minisink, near the most easterly part of the Sandbergh, and runs, &c. nearly two chains, to a pitchpine tree, formerly marked as the boundary line of the Rochester patent, standing on the brow of the said Sandbergh, and so along,” &c. The plaintiff then read in evidence part of the original field-book of the survey of the Eardenbergh patent, made by Ebenezcr Wooster, for the proprietors, in July, 1749. The plaintiff, also, read a note in Van Schaak’s edition of the Laws of New -York, page 31. in the margin of the act, passed 12th May, 1699, for breaking and annulling several extravagant grants made by Colonel Fletcher, 8cc.
    
    The defendant then introduced several other surveyors, as to the mode of locating the patents above mentioned.
    
      The maps, &c. were produced at the argument of. the cause.
    
      D. Ruggles, for the plaintiff.
    
      Sudam, contra.
   Per Curiam.

The defendant is in possession under the Ilardenbergh patent, which is the elder patent. He holds under the heirs of James Desbrosses; who, according to the documents produced by the plaintiff, was, in 1791, one of the acknowledged proprietors of the Hardenbergh patent. If the premises- are covered by this patent, the defendant has shown a complete bar to the plaintiff’s claim; for the patent under which the lessors of the plaintiff claim is, in comparison with the other, a very young patent, and there are no possessions, one way or the other, to interfere with the dry question, as to the true location of the Hardenbergh patent.

. The Hardenbergh patent begins “ at the Sandbergh, or hills, at the northeast corner of the land granted to Ebeneser Wilson, Derick Vdndenbergh, and others, at Minisink.” The exact point of beginning, if to be ascertained by the description of “ the Sandbergh, or hills,’’. must be somewhat indefinite# The plaintiff attempted to give location to the Sandbergh, but it was not done with great success ; and it was not to be expected that tradition could, at this day, fix on the very place intended by the general name of Sandbergh, or hills, so long ago as the year 1708. The phrase hills shows that no very narrow or precise spot of ground was meant; but it was, probably, a range of hills, extending some distance. One of the witnesses said that the sand hills extend through Mamakating hollow. The patent, likewise, further describes the place of beginning as “ at MinisinkP This is equally deficient in precision with the other; and both vrere, probably, used as general descriptions of some latitude, and embracing, but not as being confined to the locus a quo. A century ago the country, was a wilderness, and inhabited by Indians, and of little value; and this will account for such vagueness of description. But the patent has, fortunately, used a description of the place of beginning which is certain and definite, and cannot be mistaken; which is, “ at the northeast corner of the land granted to Ebeneser Wilson,” &c. If that corner can be ascertained, it puts an end to .the question; and by recourse to the patent of Wilson, of 1704, it is found to begin at a place called Hunting-house or Yaagh-house, and that is a definite and notorious monument, or heap of stones. Its locality is universally admitted. It was considered by a surveyor, in 1761, to be the corner of the Minis ink patent.

The Hardenbergh patent beginning at the Yaagh-house, will include the premises, and it will not leave any lands surrounded by patented lands, and uncovered by any; for the line of the patent, as it returns from the north, runs along the bounds of the “ patented lands,” to the place of beginning. To fulfil this description, it must cross the Shatvangunk mountain, in order to meet what, at the time, was called Evans’s patent, and which extended west from Hudson’s river, “ to the foot of the high hills.” The foot of the Shatvangunk mountain, on the east side of it, was the reputed west bounds of Evans’s patent. By going to, and along those bounds, the Hardenbergh patent included the premises; and it appears from the case that, from the year 1.749, the claimants under that patent have sold lots already surveyed and numbered, lying east of the premises, and conformably to the above location.

This being the true location of the Hardenbergh patent, it puts an end to the controversy, and the defendant is entitled to judgment.

Judgment for the defendant.  