Jackson ex dem. Hardenbergh v. Schoonmaker , 7 Johns. 12 ( 1810 )

Kent, Ch. J.

delivered the opinion of the court. This cause is submitted to the court, upon the legal operation and true construction or location of Cole's deeds, of 1717 and 1751, The claim, under these deeds, has been several times before the court; but this is the first time that the cause has turned upon their location.

The question is, what stream was meant by the running water, in Cole's deed ? Was it the stream now called the Sander's Kill, or the stream now called the Mill Creek?

It ought to be recollected, that we are inquiring into the meaning of a description of a piece of land, which was granted as early as 1717. Coles, the grantee, does not appear to have ever reduced the bounds of his grant to actual location. The deed slept quietly, from the time it was given, for 34 years, until the year 1751, when it was acknowledged and recorded; and the son and heir of Coles sold the land by the same description given in his father’s deed. No actual location was made of the grant in the life-time of Dubois, though he lived six years after the date of his deed; and, now, after the lapse of near a century, his representatives call upon the court to carry a description vagiie in itself, and rendered extremely so by time, from 9 running stream which would take in the least, to a running stream which would take in the greatest portion of land; and this at the expense of "Very long and ancient settlements, between the two streams. In a case of such antiquity, every presumption should be turned against the party who neglected, at the time, to have the land surveyed, an,4 accurately defined, or to reduce it to actual location, when the common parlance of the country was well understood, and monuments were fresh and notorious. This principle is, of itself, sufficient to decide this cause against the plaintiff for it must be admitted, that nothing can. be-more, difficult than to endeavour to find out, at this day, what and where were the Cripple Bos, the running water, and the Indian marked tree, mentioned in the deed of 1717.

If there be two running streams which will each of them tolerably well answer to the description in. the deed, the plaintiff ought now to be confined to that which will reduce his grant to the narrowest limits. His grant was likewise to be located on the west side of Harman Henderson Rosekran's land. This alludes to Rosekrands land, as a matter of claim and possession 5 and if the patent to Beekman and Hendricks, in 1680, was never granted upon actual survey, but by vague and indefinite terms, and the claimants under that patent, did, for a period, as far back, at least, as the memory of witnesses can reach, extend their possessions east of Sander’s Kill, the grant to Coles must lie west of those possessions.

But if we were now to search for the monuments and bounds of Cole’s deeds, the weight of testimony is greatly in favour of the Mill Brook being the running water, mentioned in the deeds. In addition to the force of a number of circumstances which need not now be de-f tailed, there were four surveyors examined upon the trial, as witnesses, and three of them locate the deeds upon that brook, as best corresponding with the description in the deeds, and the actual view and state of the premises; and the other surveyor admits, that if Rosekran's land did, in fact, extend west of the Sander’s Kill, as was shown on the part of the defendant, he should also concur in the location contended for by the. defendant.

For these reasons, judgment ought to be rendered for the defendant.

Judgment for the defendants