Jackson ex dem. People v. Wendell

By the Court, Sutherland, J. The question in this case is as to the true location of Road Patent No. 2, in the county of Warren, granted to John Thurman on the 8th day of May, 1795. If the premises in question are not covered by that patent, the plaintiffs must have judgment, as there is no evidence in the case that they belong to, or are embraced in. any other. If the lot in question is in this patent to Thurman, it is embraced in the angle made by the two first courses specified in the grant, according to the testimony of all the witnesses, starting from what they understand to be the easternmost corner of township No. 24, in Totten and Cross-field’s purchase, and running along the east line of that township the course and distance prescribed in the patent to Thurman, the premises in question will not be reached. The second course may also be run the prescribed distance without touching these premises or interfering with any other grant. The first difficulty in the location occurs in the third course. That line is described as running 153 chains to Scaroon lake; but according to Webster’s survey, the lake is reached in about half the distance, and being a fixed and permanent object, must control the distance. The fourth course may be run, but it closes the patent, terminating at the place of beginning; and the south line of the patent being 50 chains, is lost. According to this survey, the patent falls short nearly one half. To avoid this result the defendant contends, that instead of commencing at the southwest comer of the patent, the true place of beginning is the northeast corner, which he identifies as being a clump of rocks on the west bank of the Scaroon lake, by the introduction of a patent for the Hoffman township, granted seven days after the patent to Thurman, which describes the Hoffman township as beginning at a large clump of rocks and at the northeast corner of a tract of 3500 [146] acres granted to John Thurman. According to Webster’s survey, the northeast corner of the patent is 200 rods westerly of the clump of rocks. Taking the clump of rocks as the place of beginning, a location of Thurman’s patent may undoubtedly be made, which will embrace the premises in question. But the objections to it appear to me insuperable. It was assumed by the counsel for the defendant, that the place of beginning mentioned in Thurman’s patent was uncertain ; and upon that assumption he contended that it must yield to the fixed and natural monument by which the northeast corner was designated. There might be force in the argument, if the assumption was well founded. But I understand all the witnesses, who testify upon this subject, to speak of the easternmost corner of township No. 24 of Tot-ten and Crossfield’s purchase, which is the place of beginning of this patent, as certain and well known. The defendant’s own witness, Charles Leggett, says that he is a surveyor, and knows the southeast corner of township No. 24 in Totten and Crossfield’s purchase. It is designated as a stake and stones; it is in a large swamp; and to get the east line of this patent you must take ah offset, as you cannot run through the swamp. Starting from that corner, and running on the east boundary line of township No. 24, 330 chains, and you will not reach lot F. 6, the premises in question. Daniel Leggett, also a surveyor, a witness for the plaintiff, says he knows the southeast corner of township JVb. 24, in Totten and Crossfield’s purchase. It is in a swamp or marshy land; and he corroborates the testimony of the preceding witness as to the manner of running the first course in this patent, and that it will not reach the premises. Both these witnesses speak positively, and without any qualification, as to their knowledge of this corner; they speak of it also as a place well known, and as designated by a stake and stones. Here is no uncertainty as to the place of beginning. It is just as certain upon this evidence as though it were a natural monument; and where there is a known and well ascertained place of beginning, it must govern in the location of a grant or patent. It is immaterial how many natural [147] monuments there may be in the courses given, the place of beginning is a controlling point, and if rendered certain no matter in what manner, it cannot be abandoned, and another position assumed as the starting point. Jackson, ex dem, Craigie, v. Wilkinson, 17 Johns. R. 146. The principle is undoubtedly well settled, that in the location of a grant, that which is most certain and material in the description shall control that which is less so. Thus, a natural, permanent, or well known monument, as a river, a spring, a clearing, a marked tree, or any other well ascertained object, will control courses and distance and quantity, when they come in conflict. 1 Cowen, 612. 5 id. 346. 7 id. 723. 6 Wheaton, 582. 7 id. 10. But where, as in this case, the place of beginning can be ascertained, and the two first courses can be run according to the description, it is no reason for deranging the whole patent, that in one or more of the subsequent lines the courses and distances cannot be made to conform to the given monument. You must run according to the courses and distances as far as you can, and the courses and distances which are affected by the permanent object must yield to them. It is to be remarked, however, that the monument which the defendant contends is to control the location of this patent, is not given or recognized by the patent itself. It is the place at which the Hoffman township begins, and is incidentally mentioned in that grant as the northeast corner of Thurman’s patent. A case may be presented, in which this recognition would bind the state; but it can have no effect upon this cause, unless it will authorise an abandonment of the well known place of beginning given in the patent itself, and the two courses which alone affect the lot in question ; and in the location and running of which, according to the terms of the patent, no difficulty exists. I know no legal principle upon which this can be done. Moxom’s survey is not proved so as to entitle it to any weight. Leggett, the witness who speaks of it, does not pretend that he is acquainted with the lines, or ever traced them; and he states in express terms, that he does not know where Moxom began. Ignorant of his place of be [148] ginning, and of his courses and distances, when he says, that by his surrey, there was no gore between Road Patent No. 2 and Hoffman’s township, he must intend to be understood as expressing merely a general and vague belief or impression, without any accurate knowledge upon the subject. A survey cannot be proved in this manner. It it is conceded, also, that according to the location for which the defendant contends, assuming the clump of rocks as the place of beginning, the west line of the patent, instead of running down to the southeast comer of township No. 24 of Totton and Crossfield’s purchase, will terminate nearly a mile north of that point; so that the effect of this location would be to shove the whole patent one mile north of the well known and established place of beginning pointed out by the patent itself. On the whole case, therefore, the plaintiff is entitled to judgment according to the verdict.