Brandt ex dem. Walton v. Ogden

1 Johns. 156

• Court: New York Supreme Court
• Decided: February 15, 1806
• Status: Published

Opinion

Spencer, J.

delivered the opinion of the court. The defendants contended that a creek running into the Kayaderosseras, and rising considerably further to the southwest, than the one to which the commissioners run the line, was, in regard to its position, the real north-zvest-niost head of the Kayaderosseras ; but, in fact, the creek thus taken by the defendants, has always been known and called by the name of Coesa, and never by that of Kayaderosseras. This was proved by several witnesses, produced by the plaintiff at the trial, who had been acquainted with the country since its first settlement, and who were uncontradicted by any evidence adduced on the part of the defendants. It is true that after the Coesa disembogues into the Kayaderosseras, the name of the former is lost, but above the junction, the main stream retains the name of Kayaderosseras. Without reference to the geographical situation of the two streams, it is incontrovertible that the commissioners did right in running to the head of the river, which was called Kayaderosseras to its source. It was said, that the distance from the Mohawk, to the head of the Coesa, agreed better with the distance required by the patent; but it may be observed, that in all probability, no survey had been made prior to the grant of the patent of Kayaderosseras, and that the object being once ascertained, the distance can have no influence.

The term northerly in a grant, where there is no object to direct its inclination to the east or to the west, must be construed to mean north; and were it not for the head of the Kayaderosseras, that course would have been thus run, but that object gave direction to the course. With regard, then, to the course, “ thence eight miles more northerly,” there being no object to control it, it must be a due north line. This construction

* is inforced by the recognition of this line by the government, which, though it would not divest a right acquired under a senior patent, yet serves to illustrate the sense of government on the point. The line run by the commissioners, must, therefore, be considered as the true one.

The fact of adverse possession in the defendants stands thus : about 44 years ago, one Abraham Wing, took possession in the town of $hieensborough, and began some improvements on a creek near the possession of the defendants, which was continued until the war, when Wing quitted it; two or three years after the termination of the war, one Smeed was seen in possession, and the witnesses understood, that the defendants took possession under Smeed, and had held the premises, 14 or 15 years. In order to bar the recovery of a plaintiff who has title, by a possession in the defendant, strict proof has always been required, not only that the first possession was taken under a claim hostile to the real owner, but that such hostility has existed on the part of the succeeding tenants ; it is also requisite that such possession should be marked by definite boundaries. In the present case, the extent of Wing's first possession is not shewn, nor does it appear that he entered with a claim of title. Smeed's possession is not connected with that of Wing, nor is the, defendant’s with that of Smeed. There is no continuity of possession. Under these circumstances, it cannot be pretended, that this is an adverse possession of twenty years. The court are unanimously of opinion, that there must be a new trial, on the usual terms.

New trial granted.

This was decided to he the true construction of the patent, in January term 1802, in the case Of Jackson, ex dem. Woodworth, v. Lindsey.