#### John Den *ex dem.*William Brower *against*John Emerson.

IN EJECTMENT.

The first two reasons relied upon in this ease for a new trial, viz • that the verdict was against evidence, and that the charge of the court was erroneous, were not sustained in point of fact.

Where the jury is called upon to weigh the contradictory testimony of two surveyors, it is not an objection to the charge of the judge that he told the jury “ that in estimating and comparing the conflicting opinions of the surveyors, they should not overlook the fact that the plaintiff’s surveyor was the same man by whom the lots were originally surveyed and laid out.”

Tills was an action of ejectment, tried at the Essex Circuit, before his Honor the *Chief Jiistiee,*and a verdict found for the plaintiff. A rule for a new trial was obtained, and argued by

*332
      *Frelinghuysen,*for the plaintiff.

*Ph. Dickerson,*for the defendant.

The Chief Justice

delivered the opinion of the court.

The first reason assigned for setting aside the verdict is, that the jury erred in point of fact, or, in other words, that the verdict is against the evidence.

The parties in the causo are the owners of adjoining lots in the town of Paterson. Both lots, with others in the vicinity, formerly belonged to the same person, Abraham Van Houten. In 1813, he divided a large lot into divers smaller lots; one of them, called No. 1, he conveyed by deed, to Brant and James Van Blarcom. Two others, No. 2 and No. 3, he granted by one deed, of the same date with the former, to the person who conveyed them to William Jacobs, under whom the defendant holds possession. Another lot, No. 4, he conveyed to the lessor of the plaintiff, describing it as he had done the others, by course and distance, and bounding it on the lot No. 3. The defendant, who sometime since erected an house, placed it, as the lessor of the plaintiff alleges, although warned at the time against doing so, upon his lot ten inches in the rear, and fifteen inches in the front. According to the deeds, the easterly line of the defendant’s lot is the western boundary of the other. One line is common to both, and the true location of that line is the matter in controversy. The defendant says these lots all bound on Van Plouten street, and their lines lie at right angles with it; and the deeds shew this to be true. Pie says his surveyor ascertained the course of Van Plouten street to be N. 83 deg. 30 min. W., and running from the corner of the defendant’s house on the street, a course S. 6 deg. 30 min. W., at right angles with the street, he struck the rear line of the lots, or the Society’s line, as it is called, about four inches to the west of Brower’s corner. Plence *333running from that corner, reversing the course, N. 6 deg. 30 min. E., which line would be four inches easterly of the other line, the house of the defendant would be found entirely to the west of the line, and therefore not within the plaintiff’s boundaries. The jury, however, did not adopt this line; and herein, says the defendant, the jury erred. This conclusion, as is manifest, is founded entirely on the assumption that the true course of Van Houten street is N. 83 deg. 30 ruin. W.; and if this be not so, some other course than 6 deg. 30 min. will be necessary to form the right angle. But in what way did the surveyor ascertain N. 83 deg. 30 min. W. to be the course of Van Houten street? Not from the deeds; for they give it N. 83 deg. 20 min. W. Not from the Society’s lino, as stated in the deeds, for this also is given N. 83 deg. 20 min. W., and Van Houten street appears from the deeds to be parallel to it. Was it from an observation with his compass in the street ? or by the fronts of the houses ? He did not inform the jury. And as so much depends on the accuracy of this first step, in order that its correctness might be tested and shewn to be a safe reliance, the method of its ascertainment ought to have been distinctly stated. Neither the argument nor the evidence then can be entitled to much weight, unless the course used by the surveyor is shewn conclusively to be the course of Van Houten street. It was insisted by the defendant’s counsel, that this street is a fixed landmark, and entitled to prevail over, or rather to regulate, other lines both in course and distance. But the question recurs, what is Van Houten street ? What is its course ? If that course is entitled to the respect of a fixed boundary, it ought to possess more certainty than has yet been shewn to belong to it. For whether the course is to be ascertained by actual observation, or by the situation of the houses, which may or may not have been accurately placed, or from the various deeds which border on it, has not been settled. Inasmuch then as this evidence and argument assume a *334proposition which was in itself an unsolved problem, it cannot be said the jury erred in not yielding to it, if on the part or shew of the plaintiff there was satisfactory ground on which to rest their verdict. The evidence exhibits the following view, which has, it may be presumed, been adopted by the jury. The line in dispute, is the third line of the original deed under which the defendant claims and the first line of the plaintiff’s deed; the course and distance are the same in both deeds; and they are in fact, as already remarked, one common line. The beginning corner of the plaintiff’s deed; which is also the third corner of the defendant’s deed, is undisputed. This corner then was taken by .the plaintiff’s surveyor as his starting point. He also ascertained that it was correct, by beginning at an house which stands at the junction of Prospect and Boudinot streets, which is the first corner of lot No. 1 of these lots, and running thence along Prospect street the given distance to the Society’s line; and then along that line, the required distance of lots No. 1 and 2 and 3, whereby he came out within two or three inches of the acknowledged corner of lots 3 and 4. Starting from this corner, he ran a course N. 6 deg. 40 min. E. the course called for in all the deeds, and which is not by any evidence shewn to have been originally erroneous; and the line thus run, passed through the house of the defendant ten inches in the rear and fifteen inches in the front, and shewed, if it was correct, that the defendant had so much encroached on the lot of the plaintiff. Now this line was evidently correct, if the starting point was right, if the course run was true, and if the work of the surveyor was skillfully performed. But the starting point was undisputed ; the course assumed is that which is given in all the deeds, including those by wdich the lots were originally laid out and conveyed; and of the accuracy of the artist no doubt is expressed. It may, however, be asked, does the line as thus run form a right angle with Van Houten street? It certainly does if 83 deg. 20 min. be the course of that street; and that such is the *335true course is abundantly shewn, whatever may be the present range of the street, or situation of the adjoining houses, from the contents of the deeds; which according to the evidence is the only true source whence the course may be deduced; and which street it was said by the defendant’s counsel, on the argument, was formed in 1813, by the laying out of these lots and had not before existed.

Another part of the evidence received, it may be presumed, some attention from the jury. In January, 1824, William Jacobs, the real defendant in the cause, became the owner of lots No. 2 and No. 3. In the month of May of the same year, he purchased and obtained a conveyance from Abraham Van Houten, of a gore or triangular piece of land lying eastwardly of the lot then owned by him, and between it and that of Brower. This gore, according to the description in the deed, extends easterly along Van Houten street, sixteen inches from the north-east corner of William Jacob’s lot. Upon this gore in part, the house occupied by the defendant is placed, for his surveyor testified that the line, as he claims it, just cleared the house. On the trial, the existence of this gore between the lots, and the title of Jacobs to it, were strenuously urged; but on the argument of the motion for new trial, very properly abandoned, in as much as since lot No. 4 or Brower’s lot bounds on lot No. 3 or Jacob’s lot, there can by no possibility be a gore between them. If, however, the east side of the house was placed, under the supposed strength of that deed, fifteen or sixteen inches easterly of the north-east corner of lot No. 3, it will be seen at once that the easterly line of that lot as then considered, corresponds with the survey now made by the plaintiff, for the plaintiff’s surveyor says, his line struck the house ten inches in the rear and fifteen inches in the front; and farther that the “ house is a little skewing, and is not set exactly square.” If then the jury believed, from the evidence, that the plaintiff's line as now run coincided with the line taken and deemed to be the true lino in 1824, prior *336to the occurrence of any. controversy, they may with propriety have given some weight to the fact in settling any doubts which had been raised.

On the argument it was strongly pressed, that Brower had' the distance called for by his deed, 30 feet on the street, exclusive of the part claimed by him from the defendant, or in the words of the witness, “ measuring from the end of Emerson’s house, to the middle post of Brower’s fence, and the distance is thirty feet and six and a half inches;” and measuring the whole length of the street from the turn - pike up to Emerson’s corner, and it is, 455 feet and some inches; according, to which there is 30 feet and the fraction of an inch for Brower’s lot, clear of the line as claimed on the part of the defendant. But it is obvious to the slightest reflection, that no dependence can be placed on this course of reasoning. For the necessary order of things is exactly reversed. The north-east corner of lot No. 3, is not fixed by its distance from the north-east corner of Brower’s lot No. 4, nor by its distance from the turnpike ; but on the other hand the north-east corner of lot No. 4, is fixed by, its distance 30 feet from the north-east corner of lot No. 3, which of consequence must be first ascertained, the line of lot No. 4, running as described in the deed, and as already mentioned, along the easterly line of lot No. 3, to its corner on Van Houten street. If instead of giving the distance, on the street, of Brower’s lot, the surveyors had given the distance of the defendant’s or Jacobs’ lot, more elucidation might perhaps have been obtained; for if in the defendant’s front on Van Houten street, measuring from the north-east corner of lot Nó. 1, there would be according to the plaintiff’s claim sixty feet less fifteen inches, the defendant would not then have, what his deeds, entitled, according to the manner in which they are drawn, to be first satisfied, distinctly demand : but if in the defendant’s iront are contained, sixty feet and fifteen inches, then additional strength would be given to the plaintiff’s claim. From *337absence of any evidence on this point, the jury may have fairly drawn an inference, since it cannot well be supposed to have escaped the vigilance of the defendant’s surveyor, whose long experience was a matter of testimony, to shew, if the truth would have sustained him, that the plaintiff’s claim did not leave the defendant the extent of front to which his deeds entitled him, and entitled him, as already remarked, in preference to the claims of the plaintiff.

From a careful examination of the evidence, I can find no satisfactory proof that the jury have erred, or that their verdict is in any measure inconsistent with the evidence-There is a discrepancy in the observations of the two surveyors not noticed on the argument at the bar, which although it does not shew who is wrong, clearly proves that both cannot be right. The defendant’s surveyor says a lino run from the common corner of the parties on the rear in the Society’s line N. 6 deg. 30 min. E. would clear Emerson’s house. The plaintiff’s surveyor says, a line run from that corner on a course N. 6 deg. 40 min. E. strikes Emerson’s house ten inches in the rear and fifteen inches in the front. But the latter line according to the course should lie not to the westward but to the eastward of tho former.

The second reason urged for new trial is, that the charge to the jury was erroneous in the method stated to them whereby they might ascertain the position of the line in dispute. The part of the charge objected to is in these words. “ There is, it appears to me, a plain, simple and easy mode whereby to ascertain, locate and fix the line. Each lot according to the succession of numbers is made to depend on the next preceding lot. Lot No. 1 is bounded by three streets, and extends thirty-four feet three inches on the Society’s line. No. 2 is bounded by lot No. 1 ; No. 3 by 'No. 2; and No. 4 by No. 3. Locate No. I and you have the western boundary of No. 2. Lay out No. 2 and No. 3 which are thrown together in the deeds from Van Houten *338to Parke, and from Ryerson to Jacobs, and whose description is precise, and you thus find the eastern line of No. 3, the line in dispute on this occasion; for by the terms of the deeds, the eastern line of No. 3, and the western line of No. 4, are the same. Hence a satisfactory mode of ascertaining the true position of this line is presented." The argument is that the direction to go to lot No. 1, was wrong, for that as lots were laid out in the whole extent from Prospect street to the turnpike, the jury might with equal propriety have been directed to begin at the latter and go back to the premises in dispute. There is, however, no solidity in this argument, nor support for this objection. It can only gain credit from overlooking the language and structure of the deeds. If there was no error to be corrected, then the result would be the same whichever mode was pursued; but if there was an error to be corrected, and the existence of this suit and of the deed for the gore made in 1824, may serve for proof that an error in some way, in opinion at least if not in fact existed, then the mode to be pursued was evidently to locate the lots in the succession which the description in the deeds pointed out. As the eastern line of lot No. 1, was made to form the western line of lot No. 2, the former of these should be first settled —and so, of the rest. To set out at the turnpike and run the other way, would require the eastern line of lot No. 3, to depend on the western line- of lot No. 4, 'the reverse of what the order of the deeds prescribes. Suppose the fact to be that there is not space enough to satisfy all the .deeds. Lot No. 1 must be first satisfied in full tale. So of the others in succession of numbers. It was properly remarked by the'defendant’s counsel, on the argument, that the rule to find out the true line was the actual location of the lots not the numbering of them. But then it will be seen by the deeds that the location is made to depend in a measure on the numbers. If a location is made commencing at the turnpike and running westerly, the deficiency, if any exists, must be thrown upon lot No. 1, and so, the westerly line of *339lot No. *2,*being found will serve to fix the easterly boundary of No. 1; whereas, the plain and unequivocal language of the deeds, requires the converse of this proposition.

Another objection to the charge is, that the jury were told that “ in estimating and comparing the conflicting opinions of the surveyors, they should not overlook,” among other things which were stated to them, *“*the fact that Vanzaun, the plaintiff’s surveyor, was the same man by whom the lots were originally surveyed and laid out.” This remark it is objected, was as much as to toll the jury they ought to give some weight to his testimony on that account. And is it not true that they should have done so ? How much weight was not hinted, because of that the jury were to consider. It was the duty of the court to present to the jury such topics as were worthy of their attention. If the fact was unworthy of attention, it was wrong to recommend them to consider it. But if, *cceteris paribus,*the surveyors were of equal merit and standing, and I am not aware of any difference, except in this respect, exhibited by the evidence, he who had himself originally surveyed and laid out these lots was, on that account, entitled to somewhat more of confidence than a stranger. If this be not so, there must be some peculiarity in the business of surveying, which renders practice and experience ■ of less value than in any other department of art or science.

Judgment on the postea.