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Jackson, ex dem. Stoutenburgh and others, against Murray
Kent, Ch. J, delivered the opinion of the court* The lessors of the plaintiff have shown a title under the patent of Governor Nicholls, in 1667, to the lands-. covered by the former Dutch patent, and known by the name of Gregory’s Plantation. There was abundant reason for the jury to presume a conveyance from Stout-enburgh to Kip. On- that point there can be no controversy.
The great point is, the location of the patent* If it was a recent case, and we were to follow the words of the patent, I might, perhaps, concur in the location of the plaintiff % but there are several strong reasons why we ought, at least, to doubt, and why we ought not, at this late day, to admit the claim of the plaintiff.
The old Dutch patent speaks of the plantation as stretching between Peter Lindo’s plantation, and the creek or kill, and that it was in length “ tó the said'' creek or kill,” 187 rods,' &c. It no where speaks of crossing the creek, but the creek is twice mentioned, as being an exterior boundary.
There is also a great uncertainty as to the real extent or kind of measure used and-intended in the grant, and as to" the commencement of Lindo’s patent at the mouth of the Ouder-rack creek* The ancient fence between the Lindo and Gregory plan* tations, was very crooked; and nothing can be more vague than a place on the creek, “ where the water runs-over the rock.” To undertake now, to locate so vague a-description as that contained in this Dutch patent, issued-above 160 years ago, and to carry that location further 11 than the parties in interest had ever located it, by any actual pedis possessio, or mark of ownership, from its date to this day, appears to me to be dangerous and inadmissible.
The parties ought not now to go beyond their ancient fences, or actual and notorious location; and especially, if there has existed the slightest marks of adverse possession, for above 20 years, on the ground to which they now wish to advance. In this case, the sales by the corporation, in 1763, were acts of ownership of lands lying west of the old Harlaém road, and now covered fay the plaintiff’s location.
That the persons under whom the lessors claim never carried their actual possession west of the old road, is a fact beyond dispute. This ought, in such a case as the present, to be considered as a practical location of the patent, by the party who claimed under it. In all cases of any uncertainty in the location of patents and deeds, courts hold the party to his actual location i and we cannot admit of such an excuse as “ a remarkable inactivity and negligence” in the ancestor.
Every difficulty, and every doubt, ought to be turned ¡against the party who now attempts to push his location beyond the road, after having, for such an enormous lapse of time, confined the actual location to the east side of it.
As to the N. E. side of Gregory's plantation, we are necessarily deprived of evidence of the location which the parties would have originally given to it, from the circumstance that Kip, who purchased this plantation from Stoutenburgh, had already taken a patent for land lying over the creek. This fact appears to me, as it did to the judge at the trial, of decisive weight in the controversy.
The government, in 1671, and all parties in interest, knew better, at that day, than we can pretend to know, what was the true location of Gregory's plantation. The premises lay almost under the daily observation of the government, and of the claimants. The original patent, in 1647, was of a 12 piece of land then known and distinguished as Gregory’s' *L . , , . , , , Plantation, and it probably then had its bounds on the East River, designated by notorious occupancy.
The very term used denoted an inhabited spot; and 20 years afterwards, when the notoriety of the plantation and of its bounds, must have increased, the patent of confirmation uses the same description.
After this we find the ancestor of the plaintiff, suing out a patent for a piece of waste land, lying between Holmes’s land and this very plantation of Gregory, and bounded on the N. E. and S. W. sides, “ with two small creeks or kills, and on the N. W. by the old highway.” It is ’manifest that this, tract was bounded on the S. W. side by the patent of Stoutenburgh; and yet it is described to be bounded by a creek ; a decisive proof that Gregory’s Plantation was not then understood to pass the creek, however plausibly the contrary construction may now appear.
Upon the whole, the attempt now, for the first time, to extend Gregory’s Plantation west of the old Harlaem road, is not to be permitted; and the verdict ought to be set aside, and a new trial awarded, with costs to, abide the event of the Suit;.