Spencer, Ch. J. delivered the opinion of the Court.
Two questions have been made on the argument: 1. Are the premises included in the Minisink patent? 2, Has there been an adverse possession for a sufficient length of time to bar the plaintiff’s right of entry ?
The premises in dispute are part of lot No. 41. lying near the top of (and a little east thereof) the Shawangunk mountain, and west of the foot of the mountain. It appeared to be conceded, that if the Minisink patent ran along the foot of the mountain on the east side, so far north as that a west line was to be run to the Hunting house, or Yaagh house, then lot No. 41. fell within that patent, and the lessors of the plaintiff had deduced a title to it.
The last or closing line in the Minisink patent, is the only one in dispute, for it is conceded, that the place of beginning is at the Yaagh house; and that is a notorious and un-. , disputed monument. The previous boundaries and courses of the patent, were east of the Shawangunk mountain, and upon the line of the patent granted to John Bridges fy Co. and then the course is thus: “ and so along that patent (Bridges’s patent,) as it runs northward, and the patent of Capt. John Evans, and thence to the place of beginning. Now, it is clear from the evidence in the case, that the patents to Bridges <£• Co. and Capt. Evans, presented one continued unbroken line, and that Evans's patent ran along the foot of the Shawangunk mountain on the east side of it, opposite to a line due west to the Yaagh house. This was the construction of that patent adopted by this Court in Jackson V. France, (10 Johns. Rep, 434.) and it is supported by the evidence in the cause. The Minisink patent is inexplicit as to the precise point on the line of Evans's patent, from which the closing line to the place of beginning, is to be run; but the facts in the case decide that.
[299]*299Before the revolutionary war, the patent of Minisink was divided by Commissioners, appointed in pursuance of the colonial act of the 8th of January, 1762, (2d vol. of Smith’s edition of laws, 237.) and the 9th section of that act required the outlines of the patent to he surveyed by the surveyor general; after this length of time we must intend that this direction was fulfilled. At this remote period, the act of a .public officer in ascertaining the boundaries of a patent, under the direction of the legislature, is entitled to high consideration, as evidence of the sense of government; not that such an act would control, in cases where the boundaries were certain and explicit; but in cases where they are vague and uncertain, as it must be confessed they are, in regard to Evans’s patent, thé acts of the surveyor general, adopted by the Commissioners, and acted upon by the proprietors, are of very high authority. The situation of the places referred to in the patent, and the lines run, were then within the knowledge of many persons; and we cannot expect, at this late day, the same light which the officers of government then had. Independently of this, the evidence shows, that lots No. 1. and 2. in the 6th division of the Minisink patent, were purchased of the Minisink proprietors, and are held under that patent; and those lots, on the east, run down to the foot of the Shawangunk mountain. It is proved, that the proprietors of the Minisink an&Hardenbergh patents, have a settled and established boundary between them, and that the premises in question lie south of that line ; and that, in general, the lands south of that line have always been held under the Minisink patent; that the lands in Mamakating hollow, south of that line, especially, have been held, for a great number of years, under theMinisink patent; and, particularly, lot No. 46. in the first division of the Minisink patent, lying north of the premises in dispute, and east of the top of the Shawangunk mountain, is and has been, for many years, held under the Minisink patent.
These facts, in my opinion, settle tiie question, and we must pronounce the premises in dispute to lie within the Minisink patent, and, therefore, as belonging to the lessors of the plaintiff.
The defence setup was, that the defendant held adversely [300]*300"to the plaintiffs, and had so held possession, under colour of yyej more than twenty years prior to the commence•ment of this suit.
■The defendant gave in evidence, twti patents, the one to james White and others, dated the, 18th day of May, 17'61, and the other to Return Holcomb, dated the 22d of January, 1790; and it was then proved, that the patent to White covered the easterly part of the premises in question, and the pa* tent to- Holcomb, the westerly part thereof, and thereupon the plaintiff relinquished any claim to that part of the premises included in the patent to White.
It was then proved by a witness, that he knew the Holcomb patent, and that at the time it was granted, and a number of years before,' Holcomb lived on part of the land covered by the patent, but not on the premises in question. That Several years ago, one Schoonmaker was about obtaining a /patent for the lands on the mountain, as vacant lands, at ■which time the possessors had po title; and it was then agreed that Schoonmaker should procure patents to the occupants for the lands possessed by them, and that he should have the rest. That, at the time the patent was granted to Holcomb, the defendant was not in possession of the premises ; that the west part of the premises not covered by White's patent, have, ever since the patent to Holcomb, been held by Holcomb, and those who have purchased of him, and that the defendant is in possession, claiming title under that patent.
It appears to me, that an adverse possession is abundantly made out. When the patent was granted to Holcomb, he did not live on the premises in question; tint eVer since the granting of the patent, that part of the premises not included in White's patent, have been held by Holcomb, and those who have purchased of him ; and the fact is proved, that the defendant is in possession, claiming title under Holcomb's patentv and he certainly entered into possession since the granting of the patent to Holcomb, for his possession has been for twenty, or twenty-live years. The objection to the adverse nature of the possession is, that there is no privity between the defendant and Holcomb, and that the defendant’s pos* session, in its origin, was. not adverse.
[301]*301The first objection is not sustained by the facts, for the proof is, that the defendant is in possession, claiming title under Holcomb’s patent, and that the premises not included in White’s patent, have, ever since the patent to Holcomb, been held by him, and those who have purchased of him.
The evidence was not objected to at the trial, nor were the deeds from Holcomb called for, or insisted upon, as the best evidence of the facts; we must, therefore, consider these facts as well proved.
If the defendant was not in possession when Holcomb’s
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Spencer, Ch. J. delivered the opinion of the Court.
Two questions have been made on the argument: 1. Are the premises included in the Minisink patent? 2, Has there been an adverse possession for a sufficient length of time to bar the plaintiff’s right of entry ?
The premises in dispute are part of lot No. 41. lying near the top of (and a little east thereof) the Shawangunk mountain, and west of the foot of the mountain. It appeared to be conceded, that if the Minisink patent ran along the foot of the mountain on the east side, so far north as that a west line was to be run to the Hunting house, or Yaagh house, then lot No. 41. fell within that patent, and the lessors of the plaintiff had deduced a title to it.
The last or closing line in the Minisink patent, is the only one in dispute, for it is conceded, that the place of beginning is at the Yaagh house; and that is a notorious and un-. , disputed monument. The previous boundaries and courses of the patent, were east of the Shawangunk mountain, and upon the line of the patent granted to John Bridges fy Co. and then the course is thus: “ and so along that patent (Bridges’s patent,) as it runs northward, and the patent of Capt. John Evans, and thence to the place of beginning. Now, it is clear from the evidence in the case, that the patents to Bridges <£• Co. and Capt. Evans, presented one continued unbroken line, and that Evans's patent ran along the foot of the Shawangunk mountain on the east side of it, opposite to a line due west to the Yaagh house. This was the construction of that patent adopted by this Court in Jackson V. France, (10 Johns. Rep, 434.) and it is supported by the evidence in the cause. The Minisink patent is inexplicit as to the precise point on the line of Evans's patent, from which the closing line to the place of beginning, is to be run; but the facts in the case decide that.
[299]*299Before the revolutionary war, the patent of Minisink was divided by Commissioners, appointed in pursuance of the colonial act of the 8th of January, 1762, (2d vol. of Smith’s edition of laws, 237.) and the 9th section of that act required the outlines of the patent to he surveyed by the surveyor general; after this length of time we must intend that this direction was fulfilled. At this remote period, the act of a .public officer in ascertaining the boundaries of a patent, under the direction of the legislature, is entitled to high consideration, as evidence of the sense of government; not that such an act would control, in cases where the boundaries were certain and explicit; but in cases where they are vague and uncertain, as it must be confessed they are, in regard to Evans’s patent, thé acts of the surveyor general, adopted by the Commissioners, and acted upon by the proprietors, are of very high authority. The situation of the places referred to in the patent, and the lines run, were then within the knowledge of many persons; and we cannot expect, at this late day, the same light which the officers of government then had. Independently of this, the evidence shows, that lots No. 1. and 2. in the 6th division of the Minisink patent, were purchased of the Minisink proprietors, and are held under that patent; and those lots, on the east, run down to the foot of the Shawangunk mountain. It is proved, that the proprietors of the Minisink an&Hardenbergh patents, have a settled and established boundary between them, and that the premises in question lie south of that line ; and that, in general, the lands south of that line have always been held under the Minisink patent; that the lands in Mamakating hollow, south of that line, especially, have been held, for a great number of years, under theMinisink patent; and, particularly, lot No. 46. in the first division of the Minisink patent, lying north of the premises in dispute, and east of the top of the Shawangunk mountain, is and has been, for many years, held under the Minisink patent.
These facts, in my opinion, settle tiie question, and we must pronounce the premises in dispute to lie within the Minisink patent, and, therefore, as belonging to the lessors of the plaintiff.
The defence setup was, that the defendant held adversely [300]*300"to the plaintiffs, and had so held possession, under colour of yyej more than twenty years prior to the commence•ment of this suit.
■The defendant gave in evidence, twti patents, the one to james White and others, dated the, 18th day of May, 17'61, and the other to Return Holcomb, dated the 22d of January, 1790; and it was then proved, that the patent to White covered the easterly part of the premises in question, and the pa* tent to- Holcomb, the westerly part thereof, and thereupon the plaintiff relinquished any claim to that part of the premises included in the patent to White.
It was then proved by a witness, that he knew the Holcomb patent, and that at the time it was granted, and a number of years before,' Holcomb lived on part of the land covered by the patent, but not on the premises in question. That Several years ago, one Schoonmaker was about obtaining a /patent for the lands on the mountain, as vacant lands, at ■which time the possessors had po title; and it was then agreed that Schoonmaker should procure patents to the occupants for the lands possessed by them, and that he should have the rest. That, at the time the patent was granted to Holcomb, the defendant was not in possession of the premises ; that the west part of the premises not covered by White's patent, have, ever since the patent to Holcomb, been held by Holcomb, and those who have purchased of him, and that the defendant is in possession, claiming title under that patent.
It appears to me, that an adverse possession is abundantly made out. When the patent was granted to Holcomb, he did not live on the premises in question; tint eVer since the granting of the patent, that part of the premises not included in White's patent, have been held by Holcomb, and those who have purchased of him ; and the fact is proved, that the defendant is in possession, claiming title under Holcomb's patentv and he certainly entered into possession since the granting of the patent to Holcomb, for his possession has been for twenty, or twenty-live years. The objection to the adverse nature of the possession is, that there is no privity between the defendant and Holcomb, and that the defendant’s pos* session, in its origin, was. not adverse.
[301]*301The first objection is not sustained by the facts, for the proof is, that the defendant is in possession, claiming title under Holcomb’s patent, and that the premises not included in White’s patent, have, ever since the patent to Holcomb, been held by him, and those who have purchased of him.
The evidence was not objected to at the trial, nor were the deeds from Holcomb called for, or insisted upon, as the best evidence of the facts; we must, therefore, consider these facts as well proved.
If the defendant was not in possession when Holcomb’s patent issued, and the case shows' he was not, and if these premises have been held, ever since that patent issued, by Holcomb, and those claiming under him, then the defendant’s possession was, in its inception, adverse.
The principle, however, that possession must, in its inception, be adverse, and continue so, is not well understood. In those cases in which that observation occurs, nothing had happened to change the character of the first possession, and that was considered as denoting quo animo the possession was held after ihe first entry.
If one enter on land without any title or claim, or colour of title, the law adjudges the possession to be in subservience to the legal owner, and no length of possession will render the holding adverse to the title of the owner; but if a man enters on land, withoutclaim or colour of title, and no privity exists between him and the real owner, and such person, after-wards, acquires what he considers a good title, from that moment his possession becomes adverse. I am not sensible that the Court have ever held a contrary doctrine.
In the present case, even Holcomb was not in possession of these premises when his patent issued, though he entered immediately after. It appears to me, that an adverse possession fora sufficient length of time to bar the plaintiff’s right of entry, is clearly established by the evidence.
Judgment for the defendant.
N. B. In the case of Jackson, ex dem. Belden and others., v. Daniel Godfrey, jun. the same judgment was rendered.