Van Gorden v. Jackson

The. Chancellor. This cause comes before the court on a bill of exceptions, taken at a circuit court in Greene county, which bill, after stating the evidence produced, and the opinion of the judge before whom it was tried, contains exceptions to the opinion ; because, 1. The court ought to have charged the jury, that by a just construction of the Catskill patent, the premises were included in it. 2. That the judge ought to have charged the jury, that the evidence of adverse possession, given on the part of the defendant below, was sufficient to bar the plaintiff’s right to recover. 3. That as it was unequivocally proved, that the defendant in the court below, held the premises in question adversely, at the time of the death of Egbert Bogardus, the court ought to have charged the jury, that nothing passed by the will of Egbert Bogardus, and that the lessors of the plaintiff could derive no title to the premises in question through it. 4. If the lessors of the plaintiff claimed by descent, then the plaintiff in the court below was only entitled to recover three-fourths of the pren .. „s in question, Egbert Bogardus having left four children, only three of whom are lessors to the plaintiff in the court below. The counsel for the parties have agreed, that the several patents, maps, Indian deeds and leases, certified or office copies of the writ of escheat, inquisition and return, and all other papers and documents that were read in evidence on both sides, in the case of James Jackson, ex dem. George Clark, against John Reeves, shall be considered and made part of the bill of exceptions in this case. The first exception imposes it upon this court, to seek for, and apply the proper construction of the Catskill patent; for that patent being the oldest in date, as respects this controversy, is to be first satisfied, and is exV pressly made an object of inquiry by the exception, [450] The two patents, of which the construction of the one and the existence of the other, as operative grants, are to be determined on, differ in one respect; for the location of Lindsay's patent is admitted to be correct, and to cover the lands granted to Helmer Jansen, as possessed by Oaten Bogart, which relieves the inquiry from some embarrassment; for, whatever may be the bounds of the Catskill patent, those of the Lindsay patent are not drawn into controversy, and are admitted to cover the premises in question. The judge, to whose opinion the exceptions have been taken, has not, as appears from the bill, laid down any construction of the Catskill patent; he charged merely, “ that by the just construction of the Catskill patent, the premises in question were not included in it.” The question of construction is, therefore, on this bill, so far at large before the court, that if upon any just construction, the premises in question can be included in the Catskill patent, the plaintiff has sustained his first exception. The construction of the bounds of the Catskill patent, are to be collected from itself, if it affords sufficient certainty to admit of it; if not, from the contemporaneous acts of the parties immediately interested, from the acts of the government, as far as it affected its own rights; and the acts or even the acquiescence of the patentees, and those deriving such interests as constituted them privies, as connected with those acts of government, are to be admitted to explain ambiguities. Many of the transactions to be examined, relate to a remote day; since which, the country, its' inhabitants, modes of thinking, and doing business, on the subject of grants and lands, have so completely changed, as to render it a difficult task, in many instances, to ascertain, satisfactorily, the weight which .ought to be ascribed to any particular act, perhaps, discoloured by the medium through which it has reached us, partially understood, [451] or totally misapprehended. On these, however, it may become necessary to pass our judgment; the first exercise of which is rendered more difficult, by the admission of a large mass of evidence, seldom presented in the same extent and complexity, from a court of law to this court. Though no question has arisen on the subject of the bounds of Lindsay’s patent, as some of the written evidence connected with it is of a date anterior to the granting of the Catskill patent, and as it may influence the construction of the Catskill patent, I shall in the first place examine that evidence," before I proceed to that of the Catskill. The Indian deed of Curpewaen,* an Esopus Indian, who, in behalf of himself and other savages of Esopus, who might form any claim, conveys to Guysbert Outen Bogart, certain parcels of land on -which he then lived, running from Boomtjes hook, up the river to the north, to a certain brook named Stuck, &c. This grant was made before Marte Garretse and Cornelius Van Eyck, then justices, and attested by Robert Livingston, whose official description does not, however, appear in the deed; but who appears, from other papers in evidence, to have been secretary of the commissaries, and, afterwards, clerk of Albany county ; but at what time he ceased to be secretary and became clerk, is not in evidence. On this grant is a memorandum, dated the 2d February, 1698-9, subscribed with the letters R. L. in the following words: “ This piece of wood-land, belonging to Guysbert Cornelius Bogart, and on which he lived many years before, and contains about one and a half morgan of land; this parcel of land is given to the said Bogart, by Eirck Hendricks Ee Gayer, and by Jacob Tennisse, alias Cobus the runner, as appears by private writings; this has been exhibited by Helmer Jansen, who purchased the right of Guysbert Bogart and Maria Jockinsc, his wife.” [445] The patent to Helmer Jansen,* recites his petition, in which he states that Guysbert Bogart, his father, and Maria Jockinse, his mother, had, by deed, bearing date the 26th day of June, 1684, made and signed before the magistrates of the city of Albany, purchased of the native Indians, a certain parcel of land, (describing it,) whereof they had then had the quiet and peaceable possession for above twenty years, without obtaining any grant for it; also another small piece of land, about three acres, &c. The location of the small piece of land, has not been attempted ; but, from the quantity, it would seem to be the same land mentioned in the memorandum endorsed on the Indian deed. This patent, as the act of government, connected the Indian title acquired by Outen Bogart, with the grant to Jansen, recognised its efficacy as an Indian deed, and affirmed the possession under it, from the representation of the grantee, which it admits to be true, as to its own interests. The death of Helmer Jansen, and the escheat in consequence thereof, have no bearing on this point, and are not here necessary to be adverted to, as it is my intent, in the first place, to confine myself merely to the ancient transactions contemporaneous with, or prior to the granting the Catskill patent and confirmation. The letters patent† to Rlizabeth Salisbury and Martin Garritson, recite, that whereas Captain Silvester Salis bury, late commander of Albany, made application for a grant for a certain parcel or tract of land, for his children, lying at the Catskill, on the west side of the North or Hudson River, the which he, together with Martin Garritson, one of the commissaries of Albany, with the leave and approbation of the said governor, purchased of the native Indian proprietors, and made payment for the same, whereupon the said Indians transferred their interest to the said Silvester Salisbury and Martin Garritson, upon the 8th day of July, 1678, before the com [453] missaries of Albany, the said parcel or tract of land, lying at Catskill as aforesaid, above the land of Eldert De Gayer, consisting of five great flats or plains, on both sides the creek or kill, (naming the said flats,) together with the wood-land, for out drift of cattle, containing by estimation, in circumference four miles, or one Dutch mile, including “ all the kills, creeks, brush or wood-land and dependencies, the land of John Bronk, excepted ; and which was given away before by the Indian called Schermerhorn ; there being by computation in the said parcel or tract of land, 100 morgan or 200 acres of improvable land and grants to Elizabeth Salisbury, widow of Captain Silvester Salisbury, in trust, to and for the use of his children, and to Martin Garritson, in partnership, their heirs and assigns for ever, the said premises. As explanatory of the bounds of this patent, the Indian deed, therein referred to, has been produced ; by which the grantors therein named, Catskill and Makekendes Indians, convey to Captain Salisbury, commander, and Martin Garritson, commissary, a certain parcel of - land, lying at Catskill, above the lands of Eldert De Gayer, consisting in five great plains, on both sides of the creek, (naming them, as in the patent,) with the wood-land, for out drift of cattle ; otherwise meaning, to wit, four English miles round about the aforesaid lands, except the land of John Bronk, reserved out of it. This Indian deed, from the words four English miles round about the said lands, left the precise extent and shape of the wood-land exceedingly questionable ; and, being in a language with which the English officers of government were, probably, not conversant, is subject to much doubt and difficulty. But the patent is their practical exposition of its import; and though they might be mistaken as to the extent of a Dutch mile, and as to the precise import and meaning of the Dutch words [454] v used in describing the premises intended to be granted, they could not be at a loss to express their construction in the language of the government. The grant was for the five flats, distinguished as improvable land, together with the wood-land, for out drift of cattle, cou- „ taining, by estimation, in circumference, four English, or one Dutch mile. The word land, in the Dutch language, it is well known, conveyed the same sense, with its present technical acceptation, where it is used simply. It meant arable land and no other was considered as arable, but the rich low lands, or flats. There are no words, either in the Indian deed, as translated, or in the patent, which impose an extension of the wood-land beyond the circumference of four miles, measured in the exterior lines ; for the words round about, in the translation from the Dutch, are more equivocal, and are, perhaps, capable of being applied to a surface extending four miles from every part of the flats, or to the more limited construction given by the government, in their patent; that, as clearly expressing the sense of the government, at the moment they made the grant, must unavoidably control. The grant is limited to four miles in circumference. It has been urged, that a liberal construction would exclude the flats ; and that a circle is the only location, which can satisfy the terms in which it was made. But the word circumference, in its obvious, and only sense, must be measured on the exterior line surrounding the flats. Nor does it convey any determinate idea as to shape, for in its common application, as to an island, which has some analogy to the present case, the most discerning mind could not, from the information that it was four miles in circumference, determine whether it was round, triangular, or square; for the term would be equally and properly used in all those cases, [455] tor describing the extent of the line along the water board. It is not possible to draw a circumference without comprising the fíats in it. How this line was to run, whether circular, elliptical, or strictly correspondent to the sinuosities of the flats, it is not necessary to inquire. For in whatever shape located, it could not possibly extend to the premises in question, on any construction that can be assumed, especially, if the flats, from one extremity to the other, must approach, and perhaps exceed two miles, for so the map in evidence indicates. The acts of government, intermediate the obtaining the patent and confirmation, apparently acquiesced in by the purchasers named in the first deed, or their representatives, have some bearing on this part of the subject, especially, when it is taken into view, that the persons against whose interests they are supposed to have operated, appear, from the evidence before the court, to have been of consideration, intelligent, vigilant, and capable of comprehending and asserting their rights. D uring that period several patents were granted, covering all the land east of the Indian foot-path, and north of the Catskill, or creek, and all the land on the south side of that creek, along the river, extending somewhat farther from it than the foot path, as described on the map, comprised in the eighth division, Outen Bogart’s land only excepted. There is no evidence that the passing these grants was resisted on the part of the proprietors of Catskill patent. I think it was admitted in argument, that no part of the lands comprised in these patents, was held under that patent, and there is no evidence before this court that they were. ' The patent to Van Vechten was granted in 1686, and Cor lair’s, Loveridge’s Lockerman’s, and Bronk and Garritson’s, in 1687. [456] In the latter patent, Martin Garritson appears to have been a patentee, and as the grant was obtained after the death of Salisbury, an attempt has been made to separate the acts of Garritson from those of the persons who derived under Salisbury, as originating in fraud, and as an evidence of his sacrificing the interest of the wife and children of Salisbury, to promote his own, in the obtaining that patent. But though this is rather a late day, after a lapse of more than a century, to examine a subject of that kind, the patent itself bears strong evidence to repel the attempt, as it discloses the grounds upon which it issued, and clearly shows, that it was bottomed on antecedent rights, acquired by purchases from the Indians, and patents, under rights which had regularly been vested in the grantees. The patent of John Bronk and Martin Garritson bears date the 23d day of May, 1687, and contains several recitals of the Indian purchase of 1662, of a patent of the 11th day of June, 1667, of a patent to John Cloot, Jurian Tennisse and John Hendrick De Bruyn, dated the 25th May, 1667, and of a purchase of a piece of land, beginning from the property of Guysbert Outen Bogart, the titles to which are said to be vested in the patentees, all of which are regranted and confirmed by the patent, which covered the whole of the lands north of Outen Bogart’s, and on the east side of the foot-path; and, I think, affords some evidence that the Indian deed to Garritson and Van Dyck, was intended to be applied as well to the extinction of the Indian claims on the lands afterwards granted to Bronk and Garritson, as to the purposes of the proprietors of the Catskill patent. The precise locations of the several parcels, comprehended in that patent, it is not material, in the present controversy, to ascertain. They were all included in the confirmation, and are collectively laid down on the map, as bounded by the Catskill Indian foot path, which was, in argument, admitted to be the same w.ith the [457] old Catskill road under the hill, described in the Indian deed to Garritson and Van Dyck. The patent to Garritson and Elizabeth Van Dyck was dated subsequent to all these grants ; and at the time it %vas obtained, some of the lands eastward of the fiats, (clearly covered by the former grant to Elizabeth Salisbury and Van Bergan,) if the construction of the patent contended for could not prevail, were possessed by Bronk; by Tennisse, who, it appears, had a mill on the land held by him ; by Degayer ; by Outen Bogart, and some others. Where the land of John Bronk was, does not appear. The second Indian deed was, however, prior in date to all the patents 1 have enumerated, not among those described as intended to be confirmed, but so near the time of obtaining them as to leave no doubt, from the situation of the parties, their connexion with the government, and the acts they were required to perform, as public officers, at the place in which the records of public transactions were then kept, that they were fully apprized of the steps taken to appropriate the land, which afterwards became an object of claim, by the persons succeeding to their rights. Two Indians, describing themselves as heretofore owners of the lands of Cats kill, formerly bought by Capt. Salisbury and Martin Garritson, professing to act for all Indians who had any pretensions on Caiskill, appeared before Derick Wessels and Jan Janse Bleacher, justices of the peace for Albany county, and declared that the said land, consisting in five plains, besides the woods surrounding the same, lying one Dutch mile east, west, south and north, is the true property of Capt. Salisbury, deceased, and Martin Garritson they then declare, that as the said Indian owners pretend that they have some right beyond the mile, stretching as well eastward, towards the river side, as northward, towards the great plain, which was formerly bought by June 18, 1984. [458] Capt. John Cloot, deceased, John Bruyn and Jurian Tennissethat they, therefore, have now sold, as they do by these presents sell, &c. to Cornelius- Van Eyck and Martin Garritson, their right of land, as well arable as wood land, kills and creeks, with their appurtenances and dependencies, nothing- in the world excepted, which might lay out of the limits of their former purchase ; that is to say, more than the mile in' circumference, before bought; stretching eastward, towards the river side, so far as the right of Guysbert Outem Bogart, and northward up from a certain kill, called Stuck, where the right of the said Outen Bogart ends, along the river, northward, to the Vlught Hook, by the Indians called Macharwamick, further stretching along the rights of Gapt. Cloot, deceased, Jan Bruyn and jurian Tennisse, to the old Catskill road under the hills, and so further, to the former right of Catskill, heretofore bought by Capt. Salisbury, deceased, and Martin Garritson. This Indian deed, to which Cornelius Van Eyck and Martin Garritson were parties, it appears, was introduced- as evidence on the part of the defendants, as explanatory of the bounds of the patent under which the plaintiff claims. It would seem to have been intended, to obtain a recognition of the transfer of the Indian rights to the land described in the former deed, to give it extension beyond its bounds, and to be exhibited a a an evidence to government of the acquiescence of the Indians in such extension, and affords an exposition of the bounds of the land comprehended in the patent of 1680. - ' July 28, 1688. , The patent to Elizabeth Van Eyck and Martin Garritson, which I shall, for the sake of distinguishing it from-the other, only, call a confirmation, recites the purchase of the Indians, of the 8th of July, 16; 8, described in the words contained in it; but adds, that is to say, four English miles from the said plains, eastward, [459] four English miles northward from the said plains, four English miles westward from the said plains, and four English miles southward from the said plains, and refers to the deed, as showing it. It recites the death of Silvester Salisbury ; that his wife survived him ; that she had since intermarried with Cornelius Van Dyck, who was then deceased; deduces her rights from him, and that she, together with Martin Garritson, had prayed a more full and ample grant, and confirmation of the premises, as also a more certain limitation of the estate, expressed in the former grant. It gives, grants, ratifies and confirms unto the said Elizabeth Van Dyck and Martin Garritson, that is to say, to the said Elizabeth, for and during her natural life, with remainder in fee, to Francis Salisbury, Silvester Salisbury and Mary Salisbury, children of Silvester Salisbury. The description in the last Indian deed is In part adopted in the recitals of the confirmation, an evidence that it had been exhibited to government, as explanatory of the original deed, on which the former patent issued, for the purpose of enlarging and defining its bound-aides. As to the act of the parties under whose title the plaintiff claims, he cannot be permitted to question the interests of the persons who, by his own showing, having been concerned, either as parties or privies in the transactions brought into view, to corroborate his title. The title of Salisbury, the patentee, after the interposition of the estate for life of his widow, which must have long since expired, was permitted to descend to the persons for whose use a moiety of the lands comprised in the first patent, was professedly made, that is, his children; and the acts of Elizabeth, his widow, and her second husband, Van Dyck, are so intimately blended with the whole course of the transaction, as to render them inseparable from those of Garritson : but if they were not Garritson?$ acts, yet as a party in interest with them, they [460] would be admitted a legitimate source of construction, as applied to the interests of both. Whether the confirmation is to be construed as an attemPt at a remodification of the quantity of the estate, or as a confirmation for the land granted by the first pa-e ° v 1 or was intended as an enlargement of the boundaries, are subjects which it might be necessary to consider, if the course of examination' presented them. But it is not requisite here to distinguish between them. I shall primarily assume the confirmation, the only point of view in which it can be considered as material, in considering the boundaries, as granting and confirming the land covered by the first patent, and legally competent to vest the lands beyond it, included in the confirmation, in the grantees. This second Indian deed, in my opinion, is a very important document, to aid in giving a construction to the bounds of the confirmation. If the first Catskill patent was circumscribed in the mode, I think it ought to be located ; and if the location, by a line of four miles in circumference, is the enly one in which it can be satisfied, it follows clearly, - that no part of the premises could be included in it, for the nearest point to the flats, as appears from the map, would be more than two miles from them. The confirmation, if it passed the rights of the crown, would only pass such as were in it at the time of the grant. It could not devest the title acquired under former .royal or ducal grants. For though Indian deeds were obtained for the purpose of proving that the rights of the natives were extinguished, in every stage of the colonial government they were subject to some species of regulation, to prevent imposition, and were never admitted, as of themselves, to be a source of legal title. They were presented to government as an inducement to extend its bounty by grant; but the firm and un. bending principle has uniformly been, that all titles must [461] fee derived, either mediately or immediately, actually or presumptively, from the crown. The Indian deed of 1684 describes the land intended to be granted as stretching eastward, towards the river side, so far as the right of Guysbert Outen Bogart, and northward up from a certain kill called Stuck, where the right of the said Outen Bogart ends, along the river, northward to the Vlught Hook ; further stretching along the right of Capt. Cloot, deceased, Jan Bruyn and Jurian 7 ennisse, to the old Catskill road, and so further to the former rights oí Catskill heretofore bought by Capt. Salisbury, deceased, and Martin Garritson. The premises in question are admitted to be part of" the land of Outen Bogart, and the map of Lindsay’s patent, in evidence, by consent of parties, as part of tire bill of exceptions, lays down Stuck, or Biz, at the Hudson river, at the north-easternmost corner of that patent, from which it is to extend northwardly to the Vlught Hook. Where the Vlught Hook was, does not appear in evidence. That it was to be found on the bank of the river, and to the northward of Stuck, is apparent, and from other parts of the description, it would seem to be somewhere in the bounds of the second tract, north of Outen Bogart’s, covered by the patent of the 23d day of May, 1687, to Bronk and Garritson ; for that tract is described as the right of Cloot, Bruyn and Tennisse, as acquired antecedent to the year 1684 ; thence, in the words of the description, stretching along the right of Capt. Cloot, deceased, Jan Bruyn, and Juñan Tennisse, to the old Catskill road; and so further to the right of Catskill, heretofore bought by Capt. Salisbury and Mar* tin Garritson. This last stretch carries it to Salisbury and Garritson’s patent, in whatever manner located ; and whether the land between Outen Bogart and the second tract, or the tract marked Cloot and company, on the map, was intended ; for, in either case,, the direction W estward would touch it> [462] The word stretching, in its common use in grants, during the early periods of the English colonial government here, was applied either to the extent of a single line, or of a rolling location, in which the breadth being described by lines on surfaces, was carried with such breadth, to the object described, as its terminus ; this appears to have been intended as a rolling grant, in that part of the description now under consideration. If this exposition is correct, it tends to show the extent of the grant to the eastward ; in that direction, Martin Garritson had acquired, by transfer or-purchase, pretensions to several parcels, perhaps undefined in extent. The Indians claimed part of these lands, and part of the lands claimed by the patentees, or their n-presentatives, under the first Catskill purchase ; the total extinguishment of their rights as to both must, at least, have been interesting to Martin Garritson. The explanatory deed is obtained, which covers the whole of Martin GarritsorCs pretensions, and extends the Catskill rights, as depending upon Indian purchases, four miles round the fiats, where it does not interfere with the lands already patented; but by some miscalculation, as to distance, or some construction of the patent, then, it seems not doubted, the land of Outen Bogart was excluded for all this is said to be beyond the mile round, about the plains; and in the description in the Indian deed, after arriving at the Catskill road, it is said still to run further before it touches the Catskill right. But it may be said, the Indians also pretended a right beyond the Dutch mile, stretching as well eastward towards the river, as northward towards the great plains, which was formerly bought by Captain John Cloot, Jan Bruyn and Juñan Tennisse. If these great plains mean the patent already mentioned as the second tract in the patent of Bgonk and Garritson, it will be seen, by inspection of the map, that they lie to the southward of east; but if the great plains ape iq [463] the tract marked on the map, as Cloot and company, of which there is no evidence, either from similarity of names, or the nature of the land it comprises, it requires an extension east of north-east from the flats, to reach them, which affords some criterion for estimating the accuracy with which the points of compass were attended to in these descriptions. From the Indian deed, taken in connection with the confirmation, the former, showing the sense of the purchaser, the latter, combining their sense with that of government, it appears to me, a decisive fact is to be collected; that in whatever mode the lands granted by the confirmation were to be located, the right of Outen Bogart zvas not included in them. The right of Outen Bogart, forms one of the boundaries of the Indian deed: and it is so far incorporated in the description, as to give a line some extent northwardly, along which it ran to Stuck; this right, I have already shown, had been so far recognised by government in its patent to Bronk and Garritson, as to describe it as his property. The same words of extension, are included in both the Indian deed and confirmation; and by whatever cause produced, they ought, it appears to me, to receive the same construction. To illustrate my construction ; suppose a rolling patent, described as extending from the west bank of the Hudson, with the breadth of State-street, two miles, to the State-house, with an apt description, so as to leave no doubt that the building in which this court now sits, was the house intended, and which we will suppose half a mile from the river; is there any principle to be discovered, either in law or sound construction, which would warrant the including the house and all the land, in the same breadth, and a half mile beyond it ? '■The second Indian deed for the Catskill lands, bears date the 13th day of June, 1684; that to Outen Bogart, [464] on the 26th of the same month; though called. a deed,, it is a testimonial in the nature of a notarial act, and "such, was the mode in which Indian purchases were uniformly made before the commissaries, and after their abolition, by the justices who succeeded to their powers. This second Indian deed for the Cats kill lands, was made before Martin Garriison and Cornelius Van Dyck, as justiceswho, from the nature of the transaction, appear to have been officially required to give it their sanction, as having been fairly obtained, and from whom, it is to be inferred, it was exacted as a duty to know the instrument thus formed under their superintendance. It therefore differs materially, in all its circumstances, from the modern attestation of a deed; for now the import and object may, and frequently are, wholly unknown to the witnesses, who attest its execution; 'but here the very men who had, only thirteen days before, made the purchase which formed the basis of the confirmation, if they did not frame the instrument, at least superintended its consummation, by giving their official testimony, that it was fairly conducted ; the object of which purchase, it is now contended, was comprehended in the bounds of the second Indian deed, and of the confirmation. • This is strong ground in corroboration of the construction, that the premises in question were not intended to he included in the confirmation. • To this may be added, the permitting Outen Bogart to remain in possession of the lands he had thus purchased; to transmit them to Helmer Jansen; to suffer him to obtain a patent for them; to enjoy them peaceably under ' that patent; to suffer'not only the derelict possession, from the- time of his ' death till office vfound, to remain unclaimed ; but to acquiesce in the patent of Lindsay till 1155. [465] What the legal effect of their long possession is, does not fall under this object of consideration; it is thus cursorily adverted to, in connection with the general conduct of the parties. The sense of government has been supposed to have a powerful bearing on the controversy. I have admitted its sense, in some respects, to aid the construction which I suppose a correct one. The government, intermediate the first patent and confirmation, it has been shown, made several grants within the range of the location of the Catskill patent, as contended for on the part of the plaintiff; those appear to have been acquiesced in on the part of the proprietors of the Catskill patent; at least there is no evidence in this cause, that they took any possessions under it, interfering with those patents. As far as the acts of government are combined with the acts of the parties, or the acts of the parties do not run counter to them, they certainly are entitled to more or less weight, as applied to transactions of so remote a period ; but the acts of government have frequently an effect ascribed to them, which cannot on any correct principle, influence our opinion, as a court. Whenever the crown, by its agents, the executive of this colony, divided a district of country among a number of grantees, assigning to each a portion, but retaining no part to itself, it could have neither right nor pretension to interfere in the construction of their respective grants. With its power of disposition, it lost the power of arranging and assigning to each a determinate share ; this could only be settled, if controverted, by judicial interference ; but when part of the district was retained by the crown, as in the case of the land adjoining the Catskill patent, when the lands in all directions, except on the east side, were ungranted, the acts of the government may have a controlling effect, as to its own rights, especially after a long lapse of time ; and if a location [466] was' questionable before, I have not the least doubt but that the crown might, by its legal organs, employed to manage and dispose of its interests, as effectually bind itself by a fair, deliberate act, as an individual might, in similar circumstances, settle a controverted limit. The survey of Beaty, the deputy surveyor-general, was of a mixed nature ; the claimants under the Catskill patent and confirmation were the applicants ; and the interference of government, was more deliberate and formal than, perhaps, comported with the mode of conducting business of that nature at the time. The deputy surveyor-general, gave a location to the patent, in pursuance of a warrant from the executive, and formally returned it to be deposited, as it was alleged, among the archives of the colony ; of its actual return into any of the public offices, there is, however, no evidence ; the paper produced as an original, being a copy recently made and not certified, These circumstances might have weight in the construction of the confirmation, where its bounds did not comp in contact with other private rights ; but can have none here ; and it is not necessary to give, nor do I mean to give, an opinion on the subject of the location of the confirmation generally. If this could have been fairly presented as an object of consideration in this case,, several circumstances arising from the nature and extent of the controversy, I think, ought rather to have induced this court to determine on that ground than to shun it. This view, and this train of reasoning, has satisfied my paind, better than I could, in the first instance, have possibly hoped, as to the true construction of the confirmation, as far as respects the premises in question, and that the first exception cannot be sustained, The second exception is to the charge of; the judge Who presided at the trial 3 the third and fourth relate tQ matters nqt appearing in the bill of exceptions. [467] The exception, as appearing from the bill of exceptions, is in the following words : “ And thereupon the said counsel, for the said defendant, further desired the said justice, before whom the trial of the said issue was had as aforesaid, to inform the iurors aforesaid, and to declare to them the law of and upon the premises be, that if the said premises in question, in this cause, be not comprehended within the premises granted in and by the letters patent, so, as aforesaid, produced and given in evidence on the part of the defendant, yet that the evidence of possession of the said premises in question in this cause, adverse to the title under which the plaintiff claimed the same, was sufficient to bar the plaintiff’s right to recover the said premises in question, in this action, and required the said justice, so to charge the said jury ; but the said counsel for the said plaintiff objected thereto, and the said justice did refuse so to do, and thereupon did further inform the said jury, and give them in charge, that the evidence of possession, in order to defeat the plaintiff ’ s title, must establish a peaceable and unequivocal adverse possession, for twenty years antecedent to the commencement of the suit, and he submitted that point to the jury, with an intimation of his own opinion, that the evidence did not make out such adverse possession, against which opinion, and charge of the said justice, the said defendant by his said counsel, then and there also excepted.” A bill of exceptions was given by statute, not to draw the whole matter into examination again, but only the points to which it is taken ; and the party must lay his finger on those points which must arise, either in admitting or denying evidence, or matter of law, arising front a fact not denied, in which either party is overruled by the court.* _ Whether it will lie to the charge of a judge, forrefusing to lay down the law to the jury, has been made a question. [468] It is laid down, that if on a trial upon a title to a lease for years, the judges, though insisted upon, will not direct the jury, that the probate of a will is conclusive evidence; but will only tell the jury that it is good evidence, and thereupon thé jury find that there is no such will, yet a bill of exceptions will not lie.* This has been so adjudged in the supreme court, in the case of Graham v. Camman,† and the law as laid down in Bacon was recognised. The evidence has been detailed in the bill of exceptions, and the effect of admitting an exception to a charge, will be to impose it on this court, to examine the evidence, to review the whole, to determine, not whether it is good evidence, but whether it is doubtful, strong or conclusive; and after this is ascertained, to test the charge of the judge, by the result produced in their minds on the occasion. This is, in every sense of the word, assuming the province of the jury ; and instead of deciding on the law only, the facts given in evidence, and their relative weight, are in the first place to be disposed of. The jury might have found a verdict contrary to the opinion of the judge ; and if the case was such as legally imposed it on them to find conformable to the opinion, or the j udge had misdirected them as to the law, the proper mode of obtaining redress would be, by application for a new trial. Without, therefore, entering into a particular examination of the opinion of the judge, as to this exception, which I am, however, inclined to think correct, I would decide it on the ground that this did not arise on the admission or rejection of evidence, on a fact not denied, and so not within the proviso of the statute allowing a bill of exceptions. This distinction cannot apply to the first exception, for there the fact, the existence of the Catskill confirmation and its import, are not denied. The construction of its [469] boundaries as matter of law, has been decided on by the judge, and this court are to determine on it, as a matter of law only. Upon the whole, I am of opinion, that the judgment of the supreme court ought to be affirmed. L’Hommedieu, Senator. The plaintiff in error has taken several objections to the judgment of the supreme court below; I shall, however, consider the only principal one respecting the construction of the Catskill patent; because, from the view I have taken of the subject, it will be unnecessary to notice any other. The description of the land contained in that patent, comprehends five great plains mentioned therein, together with the wood-land adjoining the said plains, extending four English miles round the said plains, that is to say, four English miles from the said plains eastward 5 four English miles northward from the said plains; four English miles westward from the said plains, and four English miles southward from the said plains. The court below have located this patent, by running lines of four miles in length, due north, south, east and zuest, from the extreme northern, southern, eastern and western parts of the plains, and closing these lines from the extremities by straight lines. I must dissent from this location, because to me it appears manifestly inconsistent and irreconcilable to the terms of the grant. To common understandings, these words would appear as giving to the patentees an extent of four miles from every part of the five plains ; and it is a settled rule of construction, that the words of a grant are to be interpreted agreeably to the common understanding of mankind but, by the location of the supreme court, an extent of four miles is given at the four cardinal points only ; and in every other part coming within that distance, and, indeed, in many places, within three miles of the plains. [470] This, therefore, cannot possibly, I think, be the true construction. The one contended for on the part of the plaintiff in error, appears to me more reasonable; it satisfies the terms of the grant, and does no more than satisfy them, giving an extent of four miles in every direction from the plains, which appears to me to be the obvious meaning of the words of the grant. The propriety of that location, is very strongly supported by cotemporaneous acts of the government and of the parr ties. The survey of John Beaty, the deputy surveyor-general, made in the year 1719, in pursuance of a warrant from the colonial government, adopted the construction contended for by the plaintiff in error; and this act strikes me as entitled to great weight. As an officer of government, we must believe that he would not adopt a location, giving more to the patentees than they were entitled to ; and as he acted under the surveyor-general, to whom the warrant was directed, it is a reasonable inference, that he also considered this as the proper principle of location. If this survey is not to be considered as an act binding on government, still it affords proof of the opinion of skilful professional men, respecting the location of Catskill patent, which ought to have great weight with the court; it is an opinion respecting the objects of their profession, and they could have no possible inducement to give a construction to this grant, not warranted by ils terms. The commissioners who divided the patent in 1767, adopted the same principles, and it appears to be the general opinion of skilful surveyors of the present day, that that location is the true one. And it may be observed, that there is no more difficulty in running lines round those flats, at four miles distance, than there is in running lines on each side of a winding river of four miles distance, which is frequently done by skilful surT veyors ; add to this,' that almost' every part of this pa [471] tent, where old grants do not interfere, is, and has been possessed conformably to this location. I am, therefore, of opinion, that the judgment of the court below be reversed. Gebhardt, Senator. This cause was brought here on a writ of error from the supreme court. At the trial of the cause, at the circuit, the defendant in error located the premises in question, as lying within the patent granted to John Lindsay, bearing date the 22d day of August, 1/38; and deduced a regular title under that patent, and rested his cause. The plaintiff in error relied, for his defence, on two general points. 1st. That the premises in question were included in an older grant, commonly called the Catskill patent, bearing date the 29th day of April, 1688, and which ought first to be satisfied. 2d. An adverse possession for more than twenty years. The only question involved in the first point, is the construction to be given, to the description of boundaries contained in the Catskill patent. By the decision of the supreme court, in the cause of Jackson, ex dem. Clark, v. Reeves, (3 Caines’ Rep. 293.) the premises in question are excluded, by their location of that grant; and that decision is to be taken as part of this case. The description of the lands granted, is in manner following; “ A certain tract of land, with the appurtenances, lying, situated and being at a certain place called Catskill, in the county of Albany, on the west side of Hudson’s river, and on the south and north sides of the creek, or kill, consisting of five great plains, the first called the Wachachkeek, the second Wichquanachtekak, [472] the third Pacllquyack, the fourth Assiskawackkak, and the fifth Potick, together with the wood-land adjoining to the said plains, extending four English miles round the said plains, that is to say, four English miles from the said plains eastward, four English miles northward from 'the said plains, four English miles westward from the said plains, and four English miles southward from the said plains. It is established, as a general rule of law, that where the words of a grant are doubtful, and capable of different constructions, to adopt the one most favourable to government. And to apply this rule, the defendant in error has presented a number of expositions of the location, as being equally within its construction ; but relies on the more amplified location of the supreme court. In the case before cited. It is conceded, on all hands, that the five plains aré connected together, and form an irregular figure, and that the one, at the junction of the Cats kill and Cater skill, is not included. The first location suggested is a line to be run, four miles in circumference. This would not exclude the plains, and, therefore, could not be round and from the plains ; the plains being larger than that in circumference. The next presented was a common centre, from which by a radius of four miles, the plains would be included in the circle. To this I answer, no mathematical point, as a common centre, could be calculated, from the irregularity of the figure of the plains. Yet, however, if indispensable to the construction of the grant, a point ought to be assumed ; but if assumed, in this case, although the plains would be included, by a radius of four miles, the circumference would not be at the distance of four miles from, the plains, the base given, at any one point, in any direction ; the words of the grant could not, therefore, in that way, be satisfied. [473] The same would be the objection in running four miles north, south, east and west, from this centre, and closing by straight lines, drawn from their extremities. The location relied on most by the defendant in error, is that given to the grant by the supreme court, which is the most plausible. In that location, the court adopted four courses, north, east, west and south, and run four lines, four miles in length each, from the four assumed points, that is to say, from the extreme northern, eastern, western and southern extremities of the plains, and then closing, by four straight lines, drawn from their terminations, making a parallelogram. In support of this construction, the rule of law, as laid down by the decision of the supreme court, in the construction of the Kayaderossercis patent, was cited. In that case, it appears, one of the courses to be run was northwardly from a given point. The court decided, as there was no object, or monument, controlling the course, it should be run due north. This I consider correct in principle. It can, however, only apply to an individual course, or line, to be run from a given point, or object, or there would be as great uncertainty in the place of beginning, as in the course to be run. Nor can it apply to courses to be run, accompanied by explanations and bearings upon every part of an extended plain. I11 this case we have an irregular figure established, consisting of plains, which form a base, upon which the grant is to be extended, and not a single point given from which any course is to start; by this exposition, too, there arc only four points from the plains, at the distance of four miles, and not a single arch or curve, but straight lines, enclosing the plains; when, by the terms of the grant, it is to extend round and from the plains, four miles. Were the grant silent here, I cannot see how this construction could prevail. But it goes on still [474] further, and gives the bearings of the surrounding woodlands, on the plains, by the most appropriate and definite expressions. You are to run round, and four miles from the said plains, eastward, northward, westward and southward, describing every possible point of compass, irom the base; thereby evidently intending to spread out the grant, to the given distance from every part of the plains, so that the exterior boundaries thereof might correspond with the sinuosities of the plains, as much as practicable. This is the construction I give the grant; nor can I satisfy the terms thereof in any other way. The boundaries of the patent, in my opinion, should be run in such manner round the plains, as that with a line of four miles long from the plains, you would always be able to touch some part or other of the exterior boundary of the plains, from any point in the out bounds of the patent. Suppose that these plains were in two distinct tracts, at the distance of two miles apart; what other construction than by spreading out the location from those plains, could satisfy those terms ? And what would be the operation of the principle adopted by the court below ? Or what would it be, if all the plains were distinct pieces, at that distance from each other ? The most manifest confusion, and interference of courses and lines, intersecting each other, would follow. But it has been objected, that it was not practicable to survey a circle by courses and distances. This I admit. Yet, by the case cited from Vesey, a circle of twelve miles round New-Castle, was settled by the court, upon the question before them ; and, it appears, no obstacle in that respect, was presented. It was likewise said, in that case, that the court directed that a mathematical point, or centre, should be calculated, from which the circle, or circumference, round [475] Mew-Castle, should be drawn, by a radius of twelve miles. The terms, in that case, .were round about New-Castle, with no distance given from, or bearings upon that town, by any single point of compass ; the rule of construction, therefore, adopted, was just. The survey of Beatty, in 1719, and of the commissioners, in 1764, adopted the location, nearly, as contended for by the plaintiff in error ; and they must have considered it as not impracticable. By the testimony of two old and experienced surveyors, Christopher Tappen and Leonard Bronk, it appears, that the location by the commissioners was practicable ; and, in their opinion, was made agreeably to the intention and import of the grant. But, it is said, surveyors are not generally scientific mathematicians ; and the court are, therefore, the better judges ; yet, in the construction of the JLosick patent, the court seem to found their decision on the survey of three eminent surveyors, who all agreed as to the construction, and according to which they located that grant. The sinuosities of the river, on both sides of which, to a certain distance, the patent extended, were regarded in that case. I ask, then, what difference can there be, in principle, whether the course to be run is on a river, or on plains, or in the bearings of a line to be run upon either ? I can see none. My opinion, upon the whole, is, that the judgment in the court below ought to be reversed. The location, as the same ought to be established in my opinion, includes the premises in question, in which the plaintiff in error, and his father, have been in possession for upwards of fifty years. This being in coincidence with the location, will supersede any further inquiry in the cause ; and I, therefore, dismiss the second point of adverse possession. [476] A majority of the court being of the same opinion ; it was, thereupon, ordered, adjudged and decreed, that the judgment below be reversed ; that the record be remitted, and that a venire facias de novo be awarded. Judgment of reversal. Footnotes [*] 26th June, 1684. [*] 15th January, 1703-4. [†] 27th March, 1680. [*] 2 Bac. Abr. 529. tit. BilL of Exceptions. [*] Ld. Raym. 404 2 Jones’s Rep. 146. Show. 120. 122. [†] 2 Caines’s Rep. 1689.