#### Paul Gerrish *versus*Asa Bearce and Joshua Cane.

Grantees of land from the government are concluded by the boundaries assigned by judgment of law to any prior location, as privies, although not parties to a judgment between the commonwealth and the proprietors of such former grant or location.

This was a writ of *entry sur disseisin,*in which the demandant counted upon his own seisin, within thirty years, of an undivided *181third part of two hundred acres of land in *Minott,*(formerly included in Bakerstown,) being lots numbered 25, 26, and 27, in the agent’s part of' said town, (so called,) and upon a disseisin by the tenants. Each tenant defended a part of the land demanded, and disclaimed as to the residue.

At the trial of the action, which was had before Thatcher, J., October term, 1811, the demandant read in evidence a grant of the General Court of the late province to *Samuel Gerrish*and others, dated June 25, 1765, of a township of the contents of seven and a half miles square in the unappropriated *lands [ * 194 ] belonging to the province; provided that the said township should be laid out adjoining to some former grants to the eastward of *Saco*River; and that they should return a plan thereof into the secretary’s office within twelve months from the date of the grant; also a return of such plan, taken by *Joseph Noyes,*surveyor, and a confirmation of the said grant, according to the said plan, provided it did not exceed the quantity of seven and a half miles square, dated October 30, 1765.

*Amos Davis,*who surveyed the said tract of land in December, 1780, by order of the General Court, swore that the demanded premises were included in *Bakerstown.*

The demandant also proved that the demanded premises had been duly conveyed to him, provided the same were a part of the lands granted to the proprietors of *Bakerstown.*

The tenants, in support of their title, produced a grant of the General Court of the state of *Massachusetts,*dated March 8, 1777, of a tract of land containing about three miles square, and bounded on all sides by lands before granted, and amongst the rest on the tract called *Bakerstown,*to *Alexander Sheppard*and his heirs.

The tenants also proved that, in 1779, *Asa Bearce,*father of one of the tenants, entered upon the land demanded, and began to clear it, then having a bond from *Sheppard,*conditioned to execute a deed thereof to him; that, in November, 1785, *Sheppard*conveyed the same to said *Bearce,*from whom the tenants severally derived a title to themselves of the parcels by them respectively defended.

The tenants then produced a plan, taken by order of the Court, and by the agreement of the parties in this action, by *Seth Burn-ham,*and sworn to by him, from which it appeared that the demanded premises are not included in the lands granted and confirmed to the proprietors of *Bakerstown.*

The demandant then offered *Robert Southgate*as a witness to *182prove that he had, some years before, by order of [*195] * the Supreme Judicial Court, in another action between other parties, under oath, measured the lands granted to the proprietors of *Bakerstown,*and that, in measuring the north-west line of seven miles from the head of *New Gloucester,*(on the extent of which line it depended to ascertain whether the demanded premises were in *Bakerstown*or in *Sheppard’s*grant,) he extended said line farther north-west than *Davis*had done, ^thus including the demanded premises in Bakerstown.) The deposition went also to prove the proper and just mode of surveying the land, and to show the reasons thereof. But the judge rejected the said testimony, inasmuch as the same line had been measured by said *Burnham,*and was laid down in his plan, which was the proper evidence in the case, *(a)*

The demandant also offered to read to the jury the record of the proceedings in this Court upon an inquest of office brought in behalf of the commonwealth against the proprietors of *Bakerstown,*upon a suggestion that the tract of land granted to them, as surveyed by *Davis,*contained more land than is contained in a tract measuring seven and a half miles square; upon which this Court, pursuant to the statute, assigned certain new limits to the said location or grant; and in the judgment provided that the proprietors of *Bakerstown*should release all their right, title, and interest, in and to such part of the lands within the said limits as were actually settled upon before *Davis’s*survey, to such persons as were then settled thereon, or to their heirs; the survey and plan on which the Court assigned the said new limits was the same before referred to as taken by *Robert Southgate.*In the course of the proceedings, *Andrew Peters*was, by the agreement of the proprietors of *Bakers-town*and the proprietors of the land granted to *Sheppard,*appointed to measure and ascertain the boundary lines of *Bakerstown,*and any other lines which either party should desire. But it did not appear from the record that the said *Peters*ever made a [* 196 ] return of his survey; and the demandant * offered the survey in evidence, but the judge rejected it.

The demandant produced some evidence, tending to disprove the fact of *Bearce’s*settlement on the demanded premises so early as the year 1779; and he read the confirmation of the General Court to *Sheppard,*dated June 24, 1779, describing the tract of land granted to him by certain monuments and lines, commencing at a monument seven miles and a quarter from a beech-tree standing in the head line of *New Gloucester.*

*183Upon the evidence in the case, the judge observed to the jury that, if the land demanded lay within seven miles of the head of *New Gloucester,*or within the bounds mentioned in the confirmation of the grant to the proprietors of *Bakerstown,*and the survey by *Noyes,*then the demandant ought to recover; but as there was no evidence as to the bounds and monuments referred to in the said confirmation, and as they could not be found at this time, those holding under the grant to *Gerrish*and others must be confined to the distance of seven miles from the head of *New Gloucester,*because that was the distance mentioned in the grant; and where the length of lines and monuments are both mentioned in a deed or grant, the grantees will hold to and be confined by the monuments, if ascertained; but where they cannot be ascertained, the number of miles or length of chain must govern. The grant to *Sheppard*being located on the head of *Bakerstown*before *Davis’s*line was run, it will come down southerly to within seven miles from the head of *New Gloucester,*that being the known head of *Bakerstown,*on which *Sheppard’s*grant was bounded. By the plan taken in the .case, and to the correctness of which there was no objection, there was good ground to believe that the lands in dispute were more than seven miles and a quarter distant from the true head of *New Gloucester ;*and thence, in point of mere right, he did not see any principle in favor of the demandant, and according to the evidence, of which the jury were to judge, it appeared that the tenants, and * those under whom they claimed, derived' their possession from 1779, more than a year before the running of *Bakerstown*by *Davis.*

The demandant contended that, because the confirmation to *Sheppard*was by certain supposed monuments seven miles and a quarter from the head of *New Gloucester,*therefore those holding under the grant to *Gerrish*and others had a right to extend their northerly bounds seven miles and a quarter from *New Gloucester*head, and join on to the tract confirmed to *Sheppard.*But the judge said there was no foundation for such an extension of the grant to *Gerrish*and others, as the confirmation to *Sheppard*made no mention of the grant to *Gerrish*and others; and if it really was the intention of the General Court to confirm the grant to *Sheppard*by narrower limits on the south side than those mentioned in the grant, it would only follow that there was a tract of land, about eighty rods wide, between the two grants; not that the tract was granted to *Gerrish*and his associates; and although the legislature might contest the title with *Sheppard,*and those claiming under him, no stranger could do it. Those on the tract did, in fact, clear *184it under the grant to *Sheppard,*and had a possession more ancient than those claiming under *Davis’s*survey.

The jury returned their verdict in favor of the tenants; and the counsel for the demandant excepted against the same, as oeing against the evidence in the case; and they excepted also against the directions of the judge, as being incorrect in point of law ; and the action was thereon continued.

The case was argued upon the exceptions, at the last Mav term in this county, by *Emery*and *Longfellow*for the demandant, and by *Mellen*and *Whitman*for the tenants.

*For the demandant,*

it was urged that he was entitled to the testimony of *Southgate*and others, which was offered to prove mistakes in the plan returned by *Burnham,*which was taken and used in the trial; that the demandant was improperly restrained from using the proceedings and judgment upon the informa- [ * 198 ] tian or inquest of office instituted in * behalf of the commonwealth against the proprietors of *Balcerstown,*in which the line of that tract of land was ascertained and confirmed by a n dement of court; and especially as the proprietors of the land nr ed to *Sheppard,*under whom the tenants claim, were privies to ..at judgment; that the tenants claiming as aforesaid ought to have been concluded by the admeasurement determined by the confirmation of the grant to *Sheppard, viz.,*seven miles and a quarter from the head line of *New Gloucester.*(1)

*For the tenants,*

it was said that the practice of taking surveys and plans by order of court had come into the place of views by the jury ; and that such plans must be conclusive, or they are useless. The surveyor is always either agreed upon by the parties, or, being appointed by the Court, must be equally above every objection.

The process by information or inquest of office is always between the commonwealth and one or more of its grantees. It is not binding upon any others than parties and privies to the judgment; (2) and there was nothing in the record to show the proprietors of *Sheppard’s*grant to have been either parties or privies to the judgment between the commonwealth and1 2the proprietors of *Balcerstown.*

The action stood continued for advisement, and at this term the opinion of the Court was delivered by

(a)

*Bearce*vs. Jackson, 4 *Mass. Rep.*408.

(1)

 See *Stat.*1731, c. 13.

(2)

 1 *Burr.*146, *Tooker*vs. *Duke of Beaufort.*— *Peake's L. of Evid*, Appx. 71.

Sewall, C. J.

The demandant’s title is derived from the proprietors of *Balcerstown*— a grant by the General Court of the late *185provincial government of the territory now known as the state of *Massachusetts.*The grant was made in June, 1765, of a township seven miles and a half square, in the unappropriated lands, to be laid out adjoining to some former grant, and to the eastward of *Saco*River, and a plan thereof to be returned. In October of the same year, this grant was confirmed to *Samuel Gerrish*and others, according to a plan taken and returned by *Joseph Noyes,*with the usual provisoes or conditions, that the tract surveyed did not exceed the quantity of seven and a half miles square, exclusive * of allowance for water, nor interfere with any former [ * 199 ] grant.

On the 8th of March, 1777, the General Court of the state of *Massachusetts*granted to *Alexander Sheppard*unappropriated lands, to contain three miles square, circumscribed by sundry grants which are mentioned, and among the rest the grant to *Gerrish*and others of the location called *Bakerstoum.*The grant to *Sheppard*was confirmed to him June 24, 1779, as beginning at a stake seven and a quarter miles north-west from a beech-tree standing in the head line of *New Gloucester,*and four miles north-east from the north-west corner of *New Gloucester,*thence running north forty-five degrees east twelve miles, &c.

The tenants derive their title to the lands defended by them from *Alexander Sheppard;*and the principal question examined at the trial was, whether the premises in controversy were to be considered as within the location of *Bakerstown,*or the location under the grant to *Sheppard.*

At the trial, a plan, taken by order of Court, and with the consent of the parties, was considered as conclusive evidence upon this question. By that plan, and the testimony of the surveyor, it was made to appear that a line drawn seven and a quarter miles (with certain allowances in addition) distant north-west from the head line of *New Gloucester,*according to the admeasurement of Mr. *Burnham,*the surveyor employed under the order of Court, would include the premises in controversy in the grant to *Sheppard,*which, it is admitted, are within the line forming the south-easterly side of his patent, if that admeasurement determines the location. And upon this ground a verdict was taken for the tenants.

The demandant was not permitted to controvert the truth of the survey and admeasurement returned in the case by the sworn surveyor. Evidence tending to show mistakes therein, either in the principles by which the surveyor was governed, or proving other surveys and admeasurements, militating in their result with the survey returned * and attested by *Burnham,*[*200] was offered at the trial, and rejected. The exceptions *186apply more particularly to this decision of the judge who presided at the trial.

The further examination which has been had of this case has led to the opinion, that {he decision of the coi troversy between these parties does not depend upon the admeasurement of seven and a quarter miles from the head line of *New Gloucester,*whether that is to be regarded as proved conclusively by the plan and survey and testimony of *Burnham*or not. We shall not undertake, therefore, to determine, on 'this occasion, the quest-on immediately referred to us, how far evidence of that kind is in its nature conclusive, and uncontrollable by other testimony.

The location was, in the first instance, determined by the plan and survey of *Noyes,*of the tract of land confirmed to the proprietors of *Bakerstown.*At the time of the grant to *Sheppard,*the location occupied by the proprietors, and then known by the name of *Bakerstown,*was made the boundary on one side or the grant to *Sheppard.*In confirming that grant, the line between that location and *Bakerstown*is stated to be seven miles and a quart 'r north-west from the head line of *New Gloucester.*This was ir June, 1779, before *Davis’s*line was run. If the admeasurement supposed in the confirmation of *Sheppard’s grant*coincided with *tl*e occupation of the proprietors of *Bakerstown,*this act of the General Court was effectual, and settled the line between *the two*locatiors. And if it did not coincide, if the proprietors of *Bakerstown,*chiming under *Noyes’s*survey, and the confirmation pursuant to it, occupied farther north-west than seven and a quarter miles front the heat1 line of *New Gloucester,*it is my own opinion that the act of the General Court, in determining the south-easterly side of the grant ‘onfirmed to *Sheppard,*was ineffectual.

And there appears to me very sufficient evidence, from subsequent transactions, for a presumption that, in fact, ¡ his admeasurement did not coincide with the location to the *Bakerstoivn*proprietors, as it was then occupied by them. * 201 ] * Because, after this confirmation, and upon in inquest of office instituted for the commonwealth, another line farther north-west (I allude to *Davis’s*line) was assumed as a line within their location. And by the judgment of this Court won that process, this line was assigned to the proprietors of *Bakersi own,*as the extent north-westwardly of the grant to them ; and the extent north-eastwardly of the same location was assigned air -' in remenee to that boundary.

It is my opinion that this location was conclusiv not c 'y as a decision between the commonwealth and the *Ba. erstown*oroprietors, but also conclusive against all persons claim, -r unde/ the *187commonwealth by any subsequent grant, and bounded southeastwardly thereon, especially as all the grants by the General Court, and certainly that to *Sheppard,*contain this reservation or limitation expressed therein, *viz.,*provided that this location does not interfere with any former grant. Subsequent grantees are therefore concluded by the boundaries finally assigned by judgment of law to any prior location, as privies, even when not parties, to a judgment between the commonwealth and the proprietors of any former grant or location, (a)

But it is not necessary to insist on this ground, in deciding the question submitted in this case ; for the Court are entirely satisfied that a new trial is not to be granted upon these exceptions, even if maintained at law; because justice is done by the verdict in this case, taken as submitted to us upon the whole evidence.

In this view, it is not important to the tenants whether the premises defended by them were to the north-west or to the southeast of the true dividing line between *Bakerstown*and *Sheppard’s*grant. If being within *Davis’s*line, that is, to the south-east of it, the premises were within the boundaries and location finally assigned to the proprietors of *Bakerstown,*yet, by the proviso in that assignment, operating, as we think, to make certain exceptions from it of particular lands in the occupation of settlers, the tenants are entitled * against the demandant. The [*202] evidence is, according to the most probable result, that they were settlers on the land before the running of *Davis’s*line, and so are within the terms of the proviso and exception. But if, before the judgment referred to, the tenants, or those under whom they claim, were in the occupation of the land defended, claiming under a written contract with *Sheppard,*dated prior to the running of that line, the tenants are settlers, or the assigns of a settler, within the equity of that proviso, *(b)*

*Judgment on the verdict.*

(a)

*Commonwealth*vs. *The Heirs of Andre and*Billon, 3 *Pick.*224. — *Adams*vs. Barnes, 17 *Mass. Rep*365. — *Cushing & Al.*vs. Hackett, 10 *Mass. Rep.*164.— *Cook vs.*Allen, 2 *Mass. Rep.*462. — *Inhab. of Worcester*vs. Green, 2 *Pick.*245.

(b)

*Pernam*vs. Wead, 6 *Mass. Rep.*131. — *Howe & Al.*vs. Bass, 2 *Mass. Rep.*380. *Aiken*vs. Sanford, 5 *Mass. Rep.*494. — *Davis*vs. Rainsford, 17 *Mass. Rep.*207