
    Jackson, ex dem. Tibbits and others, against Williams.
    The survey HosickPpa-trent> made by John K. Bleecker, in May, 1754, and the location oflot No- 48, made on the partition of the said petent are correct, and describe the true bounds thereof. A subsequent smvey ol lot 48, made by the direction of' the then owner, was not held conclusive against the subsequent owner.
    This was an action of ejectment for land in Biltstown, in the county of Rensselaer. The cause was tried at the May Circuit, in 1806, before Mr. Chief Justice Kent.
    
    The declaration contained three counts, on three demises: 1st. By George Tibbits: 2d. By the sons of Barnardus Bradt, and his daughter Elizabeth, and her husband, John L. Bradt: 3d. By the heirs and legal representatives of Volkert P. Douw, the heir of Petrus, who was the heir of Janas Douw.
    
    At the trial, the following facts appeared. Letters patent issued in 1688, to four patentees for JHosick patent» of the patentees died before any partition was made. On the 18th of October, 1706, the two surviving patentees conveyed one undivided fourth part to Johannes Van P^chtcn, as heir at law of Gcrrit Teunissee, one of the deceased patentees,, in fee. Johannes Van Vechten, on the 10th June, 1707, conveyed one moiety of his share to Jonas Douw in fee j and afterwards, on the 30th October. 1741, conveyed all his lands in Uosick to his three sons in-law, Bradt, Breese and Van Beuren, as joint-tenants in fee. Breese died between 1749 and 1754, and Van Beuren died previously, without partition,- leaving Barnardus Bradt, their survivor. ' On the 27th May, 1754, a petition of the patent was made by John B. Bleecker, and his map, with a release of the proprietors indorsed, was produced on the trial. Lot No. 48, fell to the share of the representatives of Gerret Teunissee. Bamardus Rradtdied in 1786, leaving the children who are lessors in the second count. The lessors in the third count are the legal representatives of Jonas Douw. The lessors in the second count, on the 13th of January, 1720, conveyed, their right in lot No. 48, to the lessors named in the last demise. The lessors in the last count, in July, 1803 conveyed the premises in fee to George Tiblils.
    
    The defendant showed a regular paper title to the lands in his possession, lying along the south line of the patent of Uosick, under Shepherd's and Mersereau’s patent, dated 14th August, 1786, and that he had been in actual possession of the premises for more than ten years.
    
      John E. Van Alen, a witness for the plaintiff,
    testified that ho had surveyed the west line of lot 48, according to the map and field book of Bleecker, and had ascertained the south line thereof, by beginning at a corner on Hosiclc river, shown him by Hazel Shepherd, and that both his and BJeeker's lines included the premises in lot No. 48.
    On the part of the defendant, 'Nehemiah King testified, that giving lot 48 the lengthexpressed on Bleecker’s map, it ncluded the premises; but that on surveying the south line of Hosiclc river, according to the courses given in Bleecker's map, and making the usual allowance for variation, the premises were not included in that patent. Hazel Shepherd testified, that he made a survey of lot 48,in 1784, for VoTkertPHomo, who was then owner of it, at the request of his tenant, John Hice, jun.; that he made the survey without direction from Homo, and subdivided lot 48 into several small lots, and delivered a map of his survey and subdivision to Douw, who paid him for it; that he gave no explanation, either on his map, or to Homo, of the manner of his survey, and his mode of location ; that according to his survey, the premises were not included in lot 48; that the lines of the lot, as laid down on Bleecker's map, comprehend about 25 acres in .possession of the defendant, and Van Alen's includes a greater portion; that in 1789, he ran a compromise line between the patent of Mersere.auand Shepherd, and the lot east of 48 in Hosick patent, but Douw had nothing to do with this compromise line; that when he surveyed in 1784he had not seen Bleecker's map, nor did he know any thing of Bleecker's lines; and he has since been convinced that his survey vvas^rroneous, and that it did not extend lot 48 as far south as it ought to be.
    The defendant then produced a lease from Douw to Asahel Starts, dated 28th January,, 1785, for lot No. 13, in the subdivision of lot 48, and which lot 13 was laid out on his map, as bounding on the line which he then ran for the south line of lot 48; in the lease, lot No. 13 is described as being bounded by the south line of the original ot No, 48.
    
      
      Israel Shepherd testified,
    that about 16 years ago he {jear(j Douw, and Shepherd, the patentee, converse about compromising a certain suit, then depending, in which they were interested; that Douw being asked about a run by Hazel Shepherd, observed that he should make no difficulty on the subject. The witness did not hear the commencement of the conversation, nor any thing-said about Bleeckei-’s lines.
    The jury found a verdict for the plaintiff, subject to the opinion of the court, on a case containing the above facts, with liberty for either party to turn the case into a special verdict. The case was argued in February term by Vail Vechten, for the plaintiff, and Foot, for the defendant. Van Vechten cited Jackson and others v. Bradt, 2 Caines, 169. and Jackson v. Dennis, 2 Caines, 177.
   Per Curiam.

The title of the lessors of the plaintiff was fully made out upon the trial. According to BJeeck-ej-’s map and survey, which has heretofore received the sanction of this court, the premises in question are included within lot No. 48. The defence set up was, that the line to which the defendant claims had been established by Volkert P. Douw, the former proprietor of lot 48, and that the lessors of the plaintiff are now concluded by his acts from contesting that line. But the facts in. the case are not sufficient to support that inference, or to prove that Douw had done any act, or given any assent which ought to have concluded him from asserting his right.

Judgment for the plaintiff. 
      
       In this, and in the eases which were-argued at the last term, Mr. Jugttee Van Ness took-no part in the Judgments delivered by the^court.
     