Landon, J.:
The controversy in each case is over a garnet mine. In the first case, if the mine is situate upon lot 59, Totten and Cross-field’s purchase, township 14, Pond’s survey, made m 1802, then the right to work the mine is in the plaintiffs under a license from the State; if, however, the mine is not upon lot 59, then it is upon lot 62, owned by the defendant, and holding title as the lot is described by said Pond’s survey. These lots adjoin each other, and the problem is to locate the boundary between them according to-Pond’s survey. In the second case, if the mine is upon the east half of lot 57 in the same township according to Pond’s survey, then the plaintiff has the right to work it; if not upon the east half of 57, it is on the west half of the lot, and the defendant has the right to work it, unless, for reasons hereafter to be considered, the plaintiff has the right to the garnet on the west half of the lot. The determination of the westerly boundary of 57 will aid in fixing the boundary between the easterly and westerly halves of the lot, and the westerly boundary of 57, prolonged northerly, will give the boundary between lots 59 and 62. The two cases were tried together, and may now be considered together. The exterior lines of the 14th township of Totten and Crossfield’s patent were originally surveyed and indicated by marked trees in 1772 by Israel Thompson, and he plotted upon a map the the interior lots, 144 in all, some of which he surveyed. In 1802, John Ireland, having acquired title to the north half and the southeast quarter of the township, caused his three-quarters of the township to be surveyed by Benjamin Pond ana subdivided into lots. The northerly central part of the township is rocky ana mountainous, and [614]*614Pond did not locate the lot lines of this portion upon the ground, but drew them on his map. The map then made by Pond and the field notes of his survey constitute the “ Pond’s survey,’’ referred to in the titles of the respective parties. This survey the plaintiffs produced in evidence. This is the controlling survey in these notes. All other surveys, unless based upon Pond’s survey, or shown to correspond with it, are irrelevant. By Pond’s survey it appears that township 14 embraces a rectangular tract, 520 chains or 6j^ miles long from north to south, by 6 miles less 7 chains, or 473 chains wide from east to west. The three-quarters of the township acquired by Ireland are divided into 108 lots, each 40 chains square, except those in the most westerly tier, which are 33 chains wide from east to west, and those in the most northerly and southerly tiers which arc 60 chains long from north to south. Thus all the lots except those next the north, south and west sides are mapped as being 40 chains square, each containing 160 acres. To this there is this exception: ■ A branch of the Hudson river flows through the township, and the field notes show that some of tho lots cut by the river take the river for a boundary, although laid down as squares upon the map. Our examination results in the conviction that we must reverse these judgments. The main ground for this conclusion is that the testimony upon the part of the plaintiffs as to the boundaries in question tended to locate them according to Pond’s survey, while the testimony on the part of the defendants was not shown to do so, except incidentally. It tended to show that the defendants established a corner of a lot a mile and a half distant from the nearest lot in controversy and ran a compass lino according to an estimated course and distance to the lots in question without seeking to identify it upon the ground with the lino so far as Pond established it on the ground. These are not cases where the surveyors contradict each other, but where they adopt different methods of finding the line, and each one tells the truth as to his methods and discoveries. Further discussion will be clearer by reference to the outlines of Pond’s map, a copy of which we insert.
Pond’s field notes, or such portions of them as were given in evidence, show that he surveyed and marked upon the ground the boundary lines of some of the lots. 'We have shaded these lines heavily. It will be seen from tho map thus shaded that the line between the fifth and sixth north and south tiers of lots is the line sought. Pond located this line upon the ground from the south line of 53 and 68 to the north line of 57 and 64, thus giving the west boundaiy of 57. If this line is prolonged northerly, it will give the boundary between 59 and 62. The best way to determine this line is to find it on the ground so far as it was marked upon the ground by Pond, and then prolong it in the same course between 59 and 62, for the line fixed by Poncl upon the ground as described in his field notes is tho line that he intended to draw upon his map; and if there is any difference between them the actual location is to be preferred to the theoretical one, since the actual location is the contemporaneous designation of his theoretical line The plaintiffs, by their surveyors, attempted to find this line. They first located the east line of the township, and the defendants concede that they did so accurately. They next sought the east and west center line, which the field notes refer to as. the south line of 42 and 55, and the north line of 54. The field notes, as the shaded line indicates, show that Pond located this line from the eastern boundary of the township to the southwesterly corner of 73, a distance of 480 chains. The field notes show that the center line and the corners of lots upon the center line were indicated by marked trees. The evidence tending to show that the plaintiffs’ surveyors found, traced and identified this center line, at least from the eastern boundary of the township to the southwest corner of lot 55, is very convincing. It was a line which one of the surveyors, Mr. Morse, had traced many years before. His father was a surveyor, the agent of Ireland for the sale of lands in the township; and as such agent had the custody of Pond’s survey from 1837 until his death in 1866, when the survey passed into the custody of this witness. TJie witness, with his father, had been over the line, and his father had pointed it out to him, especially the southwest corner of 55. Since his father’s death he had traced it again. Mr. Morse assisted Mr.' Colvin, the chief surveyor for the plaintiffs, and Mr. Colvin found some of the marks indicated by the field notes of Pond, and found corroboration of Morse’s statements in marked trees, corners, fences, and in courses and distances. It is plain that if the plaintiffs’ surveyors found the southwest corner of 55 as located by Pond’s survey, they found a point in the lino sought, from which it was safe to proceed northerly. It appears from the field notes that the southwest corner cf 55 is on the center line, 24 chains west from the west bank of tho Hudson river. The plaintiffs’ surveyors located it 23 chains west of the west bank of the river, where Mr. Morse testified tho corner was pointed cut to him by his father, and 197.86 chains from the east line of the township, the survey calling for 200 chains. The location found is more favorable to the defendants by 2.14 chains than the survey calls for. From this point northerly the line seems to have been traced and identified, and, according to this line, the garnet mine in dispute, between 59 and 62, was found to be upon 59, and the mine upon 57 upon the east half thereof. Mr. Ireland was the owner of these lands, and sold most of the lots on either side of the boundary, between the fifth and sixth north and south tiers of lots, according to Pond’s survey. Presumably, therefore, the lines and corners of these lots, so far as they are marked upon the ground and acquiesced in
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Landon, J.:
The controversy in each case is over a garnet mine. In the first case, if the mine is situate upon lot 59, Totten and Cross-field’s purchase, township 14, Pond’s survey, made m 1802, then the right to work the mine is in the plaintiffs under a license from the State; if, however, the mine is not upon lot 59, then it is upon lot 62, owned by the defendant, and holding title as the lot is described by said Pond’s survey. These lots adjoin each other, and the problem is to locate the boundary between them according to-Pond’s survey. In the second case, if the mine is upon the east half of lot 57 in the same township according to Pond’s survey, then the plaintiff has the right to work it; if not upon the east half of 57, it is on the west half of the lot, and the defendant has the right to work it, unless, for reasons hereafter to be considered, the plaintiff has the right to the garnet on the west half of the lot. The determination of the westerly boundary of 57 will aid in fixing the boundary between the easterly and westerly halves of the lot, and the westerly boundary of 57, prolonged northerly, will give the boundary between lots 59 and 62. The two cases were tried together, and may now be considered together. The exterior lines of the 14th township of Totten and Crossfield’s patent were originally surveyed and indicated by marked trees in 1772 by Israel Thompson, and he plotted upon a map the the interior lots, 144 in all, some of which he surveyed. In 1802, John Ireland, having acquired title to the north half and the southeast quarter of the township, caused his three-quarters of the township to be surveyed by Benjamin Pond ana subdivided into lots. The northerly central part of the township is rocky ana mountainous, and [614]*614Pond did not locate the lot lines of this portion upon the ground, but drew them on his map. The map then made by Pond and the field notes of his survey constitute the “ Pond’s survey,’’ referred to in the titles of the respective parties. This survey the plaintiffs produced in evidence. This is the controlling survey in these notes. All other surveys, unless based upon Pond’s survey, or shown to correspond with it, are irrelevant. By Pond’s survey it appears that township 14 embraces a rectangular tract, 520 chains or 6j^ miles long from north to south, by 6 miles less 7 chains, or 473 chains wide from east to west. The three-quarters of the township acquired by Ireland are divided into 108 lots, each 40 chains square, except those in the most westerly tier, which are 33 chains wide from east to west, and those in the most northerly and southerly tiers which arc 60 chains long from north to south. Thus all the lots except those next the north, south and west sides are mapped as being 40 chains square, each containing 160 acres. To this there is this exception: ■ A branch of the Hudson river flows through the township, and the field notes show that some of tho lots cut by the river take the river for a boundary, although laid down as squares upon the map. Our examination results in the conviction that we must reverse these judgments. The main ground for this conclusion is that the testimony upon the part of the plaintiffs as to the boundaries in question tended to locate them according to Pond’s survey, while the testimony on the part of the defendants was not shown to do so, except incidentally. It tended to show that the defendants established a corner of a lot a mile and a half distant from the nearest lot in controversy and ran a compass lino according to an estimated course and distance to the lots in question without seeking to identify it upon the ground with the lino so far as Pond established it on the ground. These are not cases where the surveyors contradict each other, but where they adopt different methods of finding the line, and each one tells the truth as to his methods and discoveries. Further discussion will be clearer by reference to the outlines of Pond’s map, a copy of which we insert.
Pond’s field notes, or such portions of them as were given in evidence, show that he surveyed and marked upon the ground the boundary lines of some of the lots. 'We have shaded these lines heavily. It will be seen from tho map thus shaded that the line between the fifth and sixth north and south tiers of lots is the line sought. Pond located this line upon the ground from the south line of 53 and 68 to the north line of 57 and 64, thus giving the west boundaiy of 57. If this line is prolonged northerly, it will give the boundary between 59 and 62. The best way to determine this line is to find it on the ground so far as it was marked upon the ground by Pond, and then prolong it in the same course between 59 and 62, for the line fixed by Poncl upon the ground as described in his field notes is tho line that he intended to draw upon his map; and if there is any difference between them the actual location is to be preferred to the theoretical one, since the actual location is the contemporaneous designation of his theoretical line The plaintiffs, by their surveyors, attempted to find this line. They first located the east line of the township, and the defendants concede that they did so accurately. They next sought the east and west center line, which the field notes refer to as. the south line of 42 and 55, and the north line of 54. The field notes, as the shaded line indicates, show that Pond located this line from the eastern boundary of the township to the southwesterly corner of 73, a distance of 480 chains. The field notes show that the center line and the corners of lots upon the center line were indicated by marked trees. The evidence tending to show that the plaintiffs’ surveyors found, traced and identified this center line, at least from the eastern boundary of the township to the southwest corner of lot 55, is very convincing. It was a line which one of the surveyors, Mr. Morse, had traced many years before. His father was a surveyor, the agent of Ireland for the sale of lands in the township; and as such agent had the custody of Pond’s survey from 1837 until his death in 1866, when the survey passed into the custody of this witness. TJie witness, with his father, had been over the line, and his father had pointed it out to him, especially the southwest corner of 55. Since his father’s death he had traced it again. Mr. Morse assisted Mr.' Colvin, the chief surveyor for the plaintiffs, and Mr. Colvin found some of the marks indicated by the field notes of Pond, and found corroboration of Morse’s statements in marked trees, corners, fences, and in courses and distances. It is plain that if the plaintiffs’ surveyors found the southwest corner of 55 as located by Pond’s survey, they found a point in the lino sought, from which it was safe to proceed northerly. It appears from the field notes that the southwest corner cf 55 is on the center line, 24 chains west from the west bank of tho Hudson river. The plaintiffs’ surveyors located it 23 chains west of the west bank of the river, where Mr. Morse testified tho corner was pointed cut to him by his father, and 197.86 chains from the east line of the township, the survey calling for 200 chains. The location found is more favorable to the defendants by 2.14 chains than the survey calls for. From this point northerly the line seems to have been traced and identified, and, according to this line, the garnet mine in dispute, between 59 and 62, was found to be upon 59, and the mine upon 57 upon the east half thereof. Mr. Ireland was the owner of these lands, and sold most of the lots on either side of the boundary, between the fifth and sixth north and south tiers of lots, according to Pond’s survey. Presumably, therefore, the lines and corners of these lots, so far as they are marked upon the ground and acquiesced in [615]*615by the adjoining owners, are substantially the same as fixed by Mr. Pond. In the absence of evidence to the contrary, we may assume that they remain where they were originally placed. Evidence as to some of these fines and corners tended to corroborate the line as claimed by the plaintiffs. "The plaintiffs adduced other corroborative evidence which we do not deem it important to dwell upon. We next notice the survey upon which the defendants rely. Mr. Arnold was the principal surveyor. He did not have Pond’s survey, although he had a map made by Mr. Richards which was a substantial copy of Pond's map. He did not have a copy of Pond's field notes. He had a copy of Israel Thompson’s survey, made in 1772, including his field notes. Mr. Arnold seems to have placed large reliance upon Thompson’s field notes. These made the township 460 chains wide, instead of 473 chains wide, as stated in Pond’s survey. Twelve years before, Mr. Arnold had measured from what he assumed to be the southeast corner of the township, along a course which he assumed as its south boundary, 130.87 chains to the east bank of the Hudson river, where it crosses such course or boundary. This point on the river bank he assumed as the starting point of his survey. It is distant in a straight line from the south line of the east and west tier of lots, in which lot 57 is situate 4M miles or 340 chains. He thence crossed the river upon the same course, 5.03 chains, to the middle of the Indian Lake road, which follows the river for some distance, and ran a traverse line by various courses and distances to what was described to him as the north line of 68, and then located the northeast corner of 68, a chain or two of (from) the river ” on its west side, at a distance which he computed (not measured) to be 198 chains, 67 links from the east line of the township, and from that point ran his line upon a compass course, north 25 degrees, 45 minutes west, and thus established. the line sought, far enough to the east to place the garnet mines upon the defendants’ lots. He passed the southwest corner of 55, 3.85 chains easterly of the corner as fixed by the plaintiffs’ surveyors. It is proper to state that he supports his line by reference to marked trees and other measurements, but he did not have Pond’s field notes, and made no effort to find the line as established by Mr. Pond. It would not be useful to review the voluminous testimony adduced by the respective parties in support of their respective lines. The plaintiffs’ theory of the case was right, namely, to find and designate the boundary line as fixed by Pond’s survey, and from the evidence it is apparent that it is practicable to do this. The defendants’ theory was to locate a line on a fixed course and distance from the northeast corner of lot 68, a corner not ascertained from Pond’s survey, and not shown to be the same as designated by it. Pond’s field notes describe tlie four lots which have this corner in common. It would be proper to start from that corner, but it should be located, if possible, according to Pond’s field notes. It is true that the burden was upon the plaintiffs to establish the line claimed by them and the weakness of the defendants’ proofs does not assist them in making aprima facie case, though it may in defending it after it is first made out. It is plain that the court gave an effect to the defendants’ plan to which it was not entitled. The plaintiffs made various requests to find, notably the twelfth, thirteenth and fourteenth in Moore v. Eldridge, and the eleventh, twelfth ap.d I thirteenth in the other case, which, as | the practice then was, they were apparently entitled to have found in their favor.
It follows that the judgment in Lynch v. Sanders should be reversed, a new trial granted, costs to abide the event.
In Moore v. Eldridge, the plaintiff, in addition to his conceded right to the garnet in the east half of lot 57, also claimed the right to mine all the garnet upon the west half, east of Racquette brook. Mrs. Connors was the owner of the west half of lot 57, and she agreed, in consideration of ten dollars, with Wood and Shields, under whom the plaintiff claims, to convey to them a right of way from the highway across the west half of the lot to the east half. Wood and Shields caused the deed for the right of way to be prepared, and to be inserted therein a clause giving them the right to mine the garnet on the west half of 57, east of Racquette brook, and by deceit procured Mrs. Connors to execute such deed, without her knowing that it contained the clause conveying the garnet. This she did in May, 1890. Wood and Shields recorded this conveyance, June, 1890. Wood and Shields sold the interest thus acquired from Mrs. Connors to the plaintiff, April 13,1891, for $500, bub at the time of this sale, the defendant’s principals were in possession of the mine maiming under Mrs. Connors, and the plaintiff withheld by agreement with Shields and Wood $300 of the purchase money until he should obtain possession. Mrs. Connors subsequently sold the right to mine the garnet upon her west half of the lot to the defendants’ principals. The court found these facts upon the evidence, and also that the plaintiff was not a bona fide purchaser of the garnet upon the west half of the lot, east of Racquette brook, and held that so much of the deed as conveyed the garnet on the west half of 57 was void, and such is one of the decrees of the judgment. We are satisfied that the fraud was established, and that if Mrs. Connors had been a party to the action, she would have been entitled to a reformation of the deed limiting the grant to the right of way without offering to restore the ten dollar consideration. The defendant is in under Mrs. Connors, and, therefore, can make the same equitable defense that she could make. Crary v. Goodman, 12 N. Y. 266; Webster v. Bond, 9 Hun, 437.) This cause of action is in the nature of ejectment, and if Mrs. Connors had an equitable title, or has an equitable defense, she transferred the same to the defendant, so far as he needs them for his defense. Ho affirmative relief is necessary; tlie defendant merely seeks to defeat the plaintiff’s cause of action, so far as it is based upon Mrs. Connors’ deed to plaintiff’s grantors of the garnet on the west half of the lot, east of Racquette brook. The judgment declaring the deed void is only operative to protect the defendant.
The judgment in Moore v. Eldridge is reversed as to that portion thereof relating to the east half of lot 57, and a new trial granted, and as to the west half, affirmed, without costs of the appeal. All other costs to abide the event. Herrick .and Putnam, JJ., concurrred; Menvin J., dissented; Parker, P. J., not voting.