Jones v. . Smith

*209 Allen, J. The plaintiffs can take no benefit from the terms of the description of the granted premises from Hunt to Throop, so as to extend the boundaries beyond the east line of the Benson and Montressor patents. That lino was the boundary of the lands granted on the east, and the moro general and introductory description preceding the specific and particular boundaries, as “ the lot or piece of land called the cross lot and now in the possession of the said George Throop,” was too general to control and override the more certain and material description following. If, by an adverse occupation, or by mutual acquiescence of the adjoining owners of lands on the two sides of the true line, a different line had been established as the east line of the patent and the Throop farm, the line, as thus established, would have been the eastern boundary of the grant. That line would have superseded the original and actual boundary and become the true line for all purposes. But Hunt could not make title of lands outside of the patent under which he took title. He did not claim title except under the patent named in his deed, and there is no evidence tending to show that at that, time a title had been acquired, either by Hunt or Throop to the premises in controversy, on any lands east of the, boundary line of the patent, either by adverse occupation or-a practical location of the line by the acquiescence of the, owners of the lands adjoining on the east. An island or any other parcel having a well-known designation, conveyed as; such and by name, would pass, although misdescribed in the statement of the particular boundaries or as to quantity, and. for the reason that the intent to grant a tract of land, well and definitely described by its name, is evident; but no such, intent can be inferred by a general reference, in addition to, an accurate description by permanent boundaries capable of being ascertained, to the premises intended as in the possession of the grantee or grantor. That would be to reverse; the rule and make the less certain and permanent portions; of the description control the more certain and permanent» which is not permitted. (Doe v. Thompson,. 5 Cow., 371; *210 Jackson v. Barringer, 15 J. R., 471; White v. Williams, 48 N. Y., 344; Lodge's Lessee v. Lee, 6 Cranch. [S. C.], 237.) The hitent of the parties was to limit the grant to lands within the boundaries of the patent mentioned, and the plaintiffs cannot claim under the grant of Hunt beyond the true and proper boundary lines of the patent, unless a different line has been established by adverse possession or a practical location. The true line of the patent is very clearly as claimed by the defendant. Of this there can be no dispute. The east line of the patent is a straight line, and not the irregular and curved line up to which the plaintiffs now claim and upon which the original fence was built. A line different from the true line cannot, upon the evidence, be claimed by the plaintiffs. The fence, claimed by the plaintiffs as the line, was built very many years since and as early as 1813, and has been maintained from that time up to the removal of the same by the defendants, shortly before the commencement of this action, and the occupation of the owners of the adjoining lands upon either side, as far .as there has been an occupation, has been up to that fence. But the fence was built by Throop at a time when the lands were not cultivated, and when there was no occupant of the .lands to the east of the line on the Ross patent, and it was located by Thróop, not under a claim of title, or as being on the true line, or for a permanent boundary, but, as is proved by one who took part in building it, merely to get around an obstacle on the direct line interposed by a bluff or ledge of rocks, and it was not claimed or supposed to be on the true line. . While Van Ornam was in possession as owner of the lands now claimed by the plaintiffs, it was understood and agreed between him and Boynton, the owner of the adjacent lands, that the fence should be continued as a division fence between them until it should be convenient for the parties to build a, better and permanent division fence upon the true line. This is clearly proved and is uncontradicted, and as is said by Judge Rapallo, when this case was before us upon a former *211 appeal, qualifies the effects of the possession as evidence of a practical location or adverse possession. There is no evidence of any adverse claim of right to occupy to the line of the crooked fence, or an acquiescence by the owners of the adjacent lands in the maintenance of the fence as a division fence upon the line between the two patents, or as the eastern boundary of the plaintiffs’ land. The fence must be assumed, in the absence of evidence to "the contrary, to have been maintained' on the line on which it was originally built, under an implied license prior to 1844 -and an express license from the time of the arrangement between Van Ornam and Boynton, as a temporary division "fence between the owners and not as establishing or being a permanent boundary line between them. A verdict for the plaintiffs could not have been sustained upon the evidence before us. The opinion of Judge Rapallo, as reported in Jones v. Smith (64 N. Y., 180), and that of Judge Boardman, of the Supreme Court, in giving the judgment from which .this appeal is brought, cover every question mow presented, and arc decisive of this appeal and obviate "the necessity of a more extended examination of the evidence. The judgment must be affirmed. All concur, except Rapallo, J., absent. Judgment affirmed.