Jackson ex dem. Schenck v. Wood

Thompson, < Ch.. .JU, 'delivered -the-.©pinion, -of the court. ■ ,Sf •{heRumboiitiov Fishhill .patent.was .now,- for the first.time! to receive: •á.-eonsíruotionyánd location, I .should very much invi clinevto adopt that which has-been.’given-.tp -it by-t-hedeféfidántis counsel. Upon.thÍs ábstract'quest¡onjhoweveri..thecourtdó.not, mean to express any opi nion, .But in 'grants.-of- such .aritiqui-tyy where the description;of-the land is vague, and the,construction' somewhat, doubtful, -the acts-of the'parti'e.s^'fhe acts, of govern.-' moot, and of those claiming under adjoining patents,, are entitled! to great weight, in die location of the grant;.- -It ought, also, to., be noticed, in the- outset, .that . the defendant'.in -this-action,dopsi Kot:pretep.d, t.o-'el:aim or set up any title to the premises in ques-. tionybut- rests entirely, upon his .possession, and -that not of more, than ten or twelve years continuance, and this,possession field pnfier the idea that,it , was not covered;,by any patent, -but formed, a part of a gore, between the Rumbout ond Phillips patent,. This> pretension must- be laid out of view as altogether un-. founded; Phillipses patent, which lies on. the. south, is express-, ly bounded, on the south line of this patent, which makes it im-. possible that.there should be any vacant land, between the - two. patents., Construing the. Rumbout patent, per■ se, there isnothing in it which requires the south bpundsto.be an east and, west line. [349] The more natural construction would be that the southern 'boundary was formed by the Fish creek, and the lowlands on the south side thereof, without extending at all ■ up the hills; and this location would, best' satisfy- the general description given to the .land intended to be included in the patent, to wit, lands'lying on the' north side of the Highlands ; whereas, the south line, setup on the part of the plaintiff, éxtends-several miles'upon the hills,' beyond the lowlands. But'in the patent to Phillips, which' was only twelve, years- later, the -north line of -the; land granted is not only described as being the southward bounds of the Rumbout -patent, but this line is expressly-designated as an .east and west line. This • may be considered a ootempofaneous act of ¡the government, showing their construction of the former grant; but this, it is true, would not have been. binding upon the patentee, if the interpretation was not warranted by the terms of the grant. That- construction, however; has always been acquiesced in by the proprietors of the Phillips patent; and no pretension ever appears to have been set up to a line north of the one .as claimed by the lessors qf the plaintiff. The suggestion of the defendant’s coun-i s.el, that the Phillips patent might have.been. intentionally so loca*; ted as to leave out á part of the land covered by it, .does not appear - itó be warranted by any evidence in thé cáse. And-there is nothing, showing any act of the proprietors of the Uwmóotíí patent, whereby they -have reoogniséd a- line running along the foot of- the hills as‘their south line. -The various^ acts? of the legislature, from the year 1737 to the present day,*dm>ding this part of the country ‘ into précincts - and towns, and in which the line, as now set up on the part of the plaintiff,'has been recognised as the true line between the'patents, is- a strong corroboration of this Construction. There arfí mañy other facts in the case which might be noticed, tending to the same conclusion. And, whatever doubts there might have been, originally, as tb the true location, of the south line of this patent, it is. too late now to call it in question. It was not pretended, on the; argument, that, if the Rumbout patent covered the premises in question, the plaintiff was entitled to recover. Judgment must, accordingly, be given for the plaintiff,. Judgment for the plaintiff.