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The defendant asks a reversal of the judgment in this case, upon the ground that questions of fact, adjudged by the judge at circuit, ought to have been submitted to and passed upon by the jury. The first of the several questions presented is as to the true location of the easterly line of what is known as the six acre lot, of which the plaintiffs claim the premises recovered by them is a part. This lot was parcel of one hundred and twenty-five acres, conveyed in April, 1788, by Stephen Van Rensselaer to Jeremiah Lansing, and by Lansing, in January, 1789, to David De Forest. No exception or reservation was made in the grant by Van Rensselaer to Lansing, but in the deed of the latter to De Forest, an acre of land "on the south side of Wynants kill or creek, and adjoining the same, where the line (of the land conveyed) crossed the creek" was excepted and reserved unto Stephen Van Rensselaer and to his heirs and assigns. On the first of May, 1809, De Forest leased to John Brinkerhoof the six acre lot, by the following description: "Beginning at a marked hemlock tree, standing on the south side of a stream of water, commonly called Wynants kill, and at the distance of two chains and seventy-three links in a course south eighty-six degrees east from the northeast corner of the dwelling-house of the said David De Freest, and running from the hemlock tree north six degrees east two chains and forty-seven links to the northwest corner of a horse stable; thence south eighty-seven degrees forty-five minutes east four chains and forty-four links to a small marked walnut tree; thence north twenty degrees east four chains and seventy-five links to a stake; thence south seventy-one degrees east twenty chains and twenty links to a marked white oak sapling tree; thence south twelve degrees and thirty minutes east about four chains to a marked hemlock tree standing on the south side of the before-mentioned Wynants kill, and thence down the south side thereof as it winds and turns to the place of beginning; containing six acres, more or less;" with one other parcel of the same one hundred and twenty-five acres, containing one eighth of
an acre of land, with the waters, water courses, etc., belonging to or appertaining to those lots. The length of the second line of this survey, as it is described in the lease, is four chains and forty-four links, and is described as terminating at a small walnut tree. If the statement made as to the length of this line is accurate, the third line, commencing at its termination and extending north twenty degrees east four chains and seventy-five links, would terminate so far west that the fourth line, extending south seventy-one degrees east twenty chains and twenty links, having reference to the length of each line, as ascertained solely by its length of chain and links, would also terminate so far east that a line from its termination, south twelve degrees and thirty minutes east to the south side of the kill, would not include the premises in question. And thus the question is presented, not only whether a mistake was committed in that part of the description of the premises in which the length of the second line is stated to be four chains and forty-four links, but whether the evidence establishing it was so clear, that if the question had been submitted to the jury, and they had found otherwise, the verdict should have been set aside as against evidence. As proof of the mistake, it was shown that the monument called for in the lease at the termination of that line, distant four chains and forty-four links from its starting point, was not to be found; that the westerly line of De Freest's farm, of which the six acres was intended to be a part, was on the course of the second line, but three chains and forty-five links from the starting point of that line, and that a third line, extending from the point in the westerly line of De Freest's farm northerly, on the course and extending the distance specified in the lease, corresponded with the westerly line of that farm, up to which the adjoining owners had occupied for more than thirty years prior to the commencement of this action. It was also shown, that starting from the termination of the distance described as the length of the third line in the westerly line of the De Freest farm, and running the course and distance called for in the lease, reached a
point where a white-oak sapling, corresponding with a monument described in the lease as the termination of that line, had stood, instead of which an iron bolt was found to have been driven and covered by the earth. From this point, running in a southerly direction on the course specified in the lease, to the south side of Wynants kill, a hemlock tree corresponding with the one described in the lease as the termination of that line, was shown to have been standing in or upon the bank of the kill. Thus, in my judgment, a mistake in the description of the second line was so clearly established, that a verdict to the contrary could not have been upheld; and hence the judge did not err in holding, as matter of fact, that the iron bolt was the northeast corner of the six acre lot, and that a line running from it to the hemlock tree on the south side of the kill, was its east line. If De Freest had intended to limit Brinkerhoof to the use of the kill or creek to its center, the ordinary mode of fixing that right would have been by bounding him by its west side. Instead of doing so, and as a fact quite significant of his intention to give him all the land covered by it, he ran across it to a monument in or upon its southerly side; and, after bounding by that side, gave him, in express terms, all waters and water-courses belonging or appertaining to the premises described in the lease. It was shown by the testimony of at least one witness, that from a period prior to 1837, the plaintiff, Corning, and his associates entered into possession of this six acre lot, and occupied, as a part of it, the bed of the kill and its banks, by flowing their water upon it. In the autumn of 1844, the defendant erected a dock of about 150 feet in length, along the south side of this creek, which extended westerly about 100 feet beyond the east line of the six acre lot. The bank was of uneven width, the south side forming an irregular line. The face of the dock, less irregular, encroached upon the bed of the creek to a variable extent, depending very much upon the irregularity of the south line of the creek. All this the defendant insisted was rightfully done, for the reason, as they claimed, that they had possessed
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The defendant asks a reversal of the judgment in this case, upon the ground that questions of fact, adjudged by the judge at circuit, ought to have been submitted to and passed upon by the jury. The first of the several questions presented is as to the true location of the easterly line of what is known as the six acre lot, of which the plaintiffs claim the premises recovered by them is a part. This lot was parcel of one hundred and twenty-five acres, conveyed in April, 1788, by Stephen Van Rensselaer to Jeremiah Lansing, and by Lansing, in January, 1789, to David De Forest. No exception or reservation was made in the grant by Van Rensselaer to Lansing, but in the deed of the latter to De Forest, an acre of land "on the south side of Wynants kill or creek, and adjoining the same, where the line (of the land conveyed) crossed the creek" was excepted and reserved unto Stephen Van Rensselaer and to his heirs and assigns. On the first of May, 1809, De Forest leased to John Brinkerhoof the six acre lot, by the following description: "Beginning at a marked hemlock tree, standing on the south side of a stream of water, commonly called Wynants kill, and at the distance of two chains and seventy-three links in a course south eighty-six degrees east from the northeast corner of the dwelling-house of the said David De Freest, and running from the hemlock tree north six degrees east two chains and forty-seven links to the northwest corner of a horse stable; thence south eighty-seven degrees forty-five minutes east four chains and forty-four links to a small marked walnut tree; thence north twenty degrees east four chains and seventy-five links to a stake; thence south seventy-one degrees east twenty chains and twenty links to a marked white oak sapling tree; thence south twelve degrees and thirty minutes east about four chains to a marked hemlock tree standing on the south side of the before-mentioned Wynants kill, and thence down the south side thereof as it winds and turns to the place of beginning; containing six acres, more or less;" with one other parcel of the same one hundred and twenty-five acres, containing one eighth of
an acre of land, with the waters, water courses, etc., belonging to or appertaining to those lots. The length of the second line of this survey, as it is described in the lease, is four chains and forty-four links, and is described as terminating at a small walnut tree. If the statement made as to the length of this line is accurate, the third line, commencing at its termination and extending north twenty degrees east four chains and seventy-five links, would terminate so far west that the fourth line, extending south seventy-one degrees east twenty chains and twenty links, having reference to the length of each line, as ascertained solely by its length of chain and links, would also terminate so far east that a line from its termination, south twelve degrees and thirty minutes east to the south side of the kill, would not include the premises in question. And thus the question is presented, not only whether a mistake was committed in that part of the description of the premises in which the length of the second line is stated to be four chains and forty-four links, but whether the evidence establishing it was so clear, that if the question had been submitted to the jury, and they had found otherwise, the verdict should have been set aside as against evidence. As proof of the mistake, it was shown that the monument called for in the lease at the termination of that line, distant four chains and forty-four links from its starting point, was not to be found; that the westerly line of De Freest's farm, of which the six acres was intended to be a part, was on the course of the second line, but three chains and forty-five links from the starting point of that line, and that a third line, extending from the point in the westerly line of De Freest's farm northerly, on the course and extending the distance specified in the lease, corresponded with the westerly line of that farm, up to which the adjoining owners had occupied for more than thirty years prior to the commencement of this action. It was also shown, that starting from the termination of the distance described as the length of the third line in the westerly line of the De Freest farm, and running the course and distance called for in the lease, reached a
point where a white-oak sapling, corresponding with a monument described in the lease as the termination of that line, had stood, instead of which an iron bolt was found to have been driven and covered by the earth. From this point, running in a southerly direction on the course specified in the lease, to the south side of Wynants kill, a hemlock tree corresponding with the one described in the lease as the termination of that line, was shown to have been standing in or upon the bank of the kill. Thus, in my judgment, a mistake in the description of the second line was so clearly established, that a verdict to the contrary could not have been upheld; and hence the judge did not err in holding, as matter of fact, that the iron bolt was the northeast corner of the six acre lot, and that a line running from it to the hemlock tree on the south side of the kill, was its east line. If De Freest had intended to limit Brinkerhoof to the use of the kill or creek to its center, the ordinary mode of fixing that right would have been by bounding him by its west side. Instead of doing so, and as a fact quite significant of his intention to give him all the land covered by it, he ran across it to a monument in or upon its southerly side; and, after bounding by that side, gave him, in express terms, all waters and water-courses belonging or appertaining to the premises described in the lease. It was shown by the testimony of at least one witness, that from a period prior to 1837, the plaintiff, Corning, and his associates entered into possession of this six acre lot, and occupied, as a part of it, the bed of the kill and its banks, by flowing their water upon it. In the autumn of 1844, the defendant erected a dock of about 150 feet in length, along the south side of this creek, which extended westerly about 100 feet beyond the east line of the six acre lot. The bank was of uneven width, the south side forming an irregular line. The face of the dock, less irregular, encroached upon the bed of the creek to a variable extent, depending very much upon the irregularity of the south line of the creek. All this the defendant insisted was rightfully done, for the reason, as they claimed, that they had possessed
that portion of the premises in controversy covered by the dock, as a portion of a practical location of the one acre of land excepted and reserved by De Freest to Van Rensselaer, which had been acquiesced in by the plaintiffs and those under whom they claimed for a space of time sufficient to bar this action. They had placed no fence or other barrier upon or around what, upon the trial, they claimed to have located as a part of the undefined acre reserved to Van Rensselaer. In 1823 or 1824 they placed some old wheels along the edge or slope of the bank of the creek for a space of about forty feet, about twelve feet of which was west of the east line of the premises in question, and the wheels remained there some ten or fifteen years; and from two to five loads of stone were also kept there by the defendant and remained there some six months. It was also shown that, in 1826, the defendant erected a privy of eight or ten feet in length, overhanging the stream, partly upon and partly west of that portion of the bank now covered by the dock, and that, in 1839, they placed some boulders on the edge of the creek, which remained there when the dock was built. The object of placing them there was to protect the mouth of the tunnel or race constructed for the purpose of conducting the water from the defendant's rolling mill into the creek. How far the mouth of the tunnel was from the east line of the lot does not appear, except from the map, which indicates the distance to be not far short of 100 feet. These were the acts or the principal acts of possession relied upon by the defendant to establish its ownership of the premises, for the recovery of which a verdict was ordered at circuit. In determining the effect of acts like these proved to have been committed by the defendant, and claimed by them to be such acts of ownership as ought to bar the plaintiffs' action, we should keep in mind the character of the property and discover, if practicable, the object of owning it, by the uses to which it would ordinarily be applied; that we may the better understand not only the mind with which it was possessed, but on the other side, the mind with which the possession
such as it was, was acquiesced in. The only conceivable value to the plaintiffs of the rights covered by the lease to Brinkerhoof, in the bed of the creek and its southern shore, was as a water course. The case is without evidence that the plaintiff was ever made aware that the defendant even claimed to hold any portion of it under a practical location of the excepted and undefined acre reserved to Van Rensselaer. The fact that useless wheels were strewed along the slope of the bank, extending some twelve feet west of the eastern boundary of the six acre lot, and remained there some ten or fifteen years, and that from two to four loads of stone were also there for six months; that a privy was erected upon the bank, partly over and partly west of the dock, which overhung the stream, and boulders were placed in the edge of the bank near by to protect the mouth of the race leading the water from the defendant's rolling mill into the creek, did not in any material respect interfere with the plaintiffs' possession in the premises, which the witness Winslow testified was enjoyed by the plaintiff, when he said that, from a period prior to 1837 up to the time of erecting the dock, the plaintiff had "occupied the bed of the stream and the banks in connection with it, by flowing the water upon it." And thus I am brought to the conclusion, not only that the plaintiffs were entitled to recover the land covered by the bed of the stream, but its southern shore, so as to secure to them the full use of the bed and shore as a water course. Hence the ruling at circuit, that the plaintiff was entitled to recover that part of the premises lying upon the bed of the creek, was right, as was also the ruling, upon the uncontradicted evidence, that the dock was built into the stream; but whether at the easterly line of the lot it encroached upon the bed of the creek beyond its southerly bank twenty-five feet, is involved in some doubt; but as to that there is no exception. I am, therefore, of the opinion that the judgment of the Supreme Court should be affirmed.