#### Jackson, *ex dem.*Ludlow & Ketcham, *against*Sowle *&*Sowle.

The northern .patent i» *g»*XThernTo'un0 *S-mmbpdmt,*InterSwe”0'? Ke’enthé^tmí patents.

THIS was an'actioh of ejectment,, for land lying in the conn* ty of DutchessThe cause Was-tried at.the .Di^cfesscircuit.iri Jfo<gw*k‘ 1814,■'■before'hishonour the Chief Justine, and "a verdict was taken for the plaintiff, subject-to the; opinion of the court, on. ca3e :containihg the folfowing, facts.: 4

-On- the 24 th. of *October,*1686, a - patent, was - granted, by the' .government of theprovince of *-New~ York,,*to *.Sanders Heermance$*for .twelve thousand acre's of land. Questions"haying afterwards arisen as' to the quantity of-land which was' intended to be granted to patentees,, a number of persons, who had purchased under that patent, applied to the governor and • council for a confirmation of their.titleSj Which, petition being. gránted, a warrant of'survey, tó tire surveyor-general of 'the province, Was issued,, dated the 23d of *January, 1770$*directing the farms of the.petitioners, among'whom, was one *David Reedi,*to’be surveyed, and, on the 4th of *June,*17,72, a patent was issued to *David Reed,*for'a lot of land described as follows': All ’ that certain" lot .and parcel of land, situate, lying,' and being in the, county of *Dutches's,*within oür province of *Mew «York),*bounded on the north by a line of marked trees run by the *Nine Partners ;*on the south, by a line of marked trees known by the name of the.. *Indian*,lin# j and, on the. east, by a. tract of land'granted to *Rumbout Sr Company,*beginning at a walnut tree,' with stones round it, in a line of trees .marked for the westerly- - bounds of the. aforesaid tract, granted to *Ruinbout fy*Companyq known by the name of the parallel line, and runs from the said walnut, tree,. along the aforesaid *Indian*line df marked trees,north, forty-nine degrees west; twenty-seven chains,, north, fifty---' fourdegrees .west, twenty-three chains,-to a'forked white-dak tree standing, on the.east side of the *Twede*fly,'arid to the northward óf a small hill, thence north sis chains and seventeen 'links.,' to the aforementioned line of marked trees, known by the' name of the *Nine Partners*line, thence along said line, south, 88 degrees,, east, 66 chains and 60 links, to the aforementined parallel line, the. westerly bounds, of *Rumbout 8s Company,*thence-*337along said parallel line, southerly, as it runs, to the place where this lot first began; containing ■ 100 acres of land, and the usual allowance for highways.” The lessors of the plaintiff derived their title from *Reeds ' ■*

The defendants claimed title to the premises in question, under the patent to *Caleb Héathcoat*and others, commonly called the *Great. Nine Partners Patent,*dated the 27 th of *May,*1697, for a tract of land described as follows ; ‘/ A certain tract of vacant land situate,' lying, and being on *Hudson’s*river, within our *Dutchess*county, bounded on the west by the said *Hudson’s*river, between the creek called, by the *Indians, Aquasing,*and, by the Christians-, the *Fish*creek, at the marked trees of *Pauling,*(including the said creek,) and the land, of *'Myndert.' Harmense-*Ipleermance] and company, then bounded southerly by the land of the said. *Myndert Harmense*and .company, so far "as their bounds goes, then westerly .by the land of the said- *Harmense*and company, until a southerly line run so far south until it comes to the south side of a certain meadow, wherein there is'a white oak marked with the letters H. T,. then southerly, by an east and west line, to the division line between this our province and our colony of *Connecticut,*and so easterly by the said division line, and northerly by the aforesaid *Fish*creek, as far as it goes, and from the head of the said creek, by a parallel line, to the south bounds, east and west, reaching the aforesaid division lined’

The casé made for the opinion of the court contained a .great deal of obscure and contradictory testimony relating principally to the possessory title set up by the parties, It-is thought that the above statement, as *to*the paper title, on which alone the court founded their decision, with such facts as are alluded to in the opinion of the court, will sufficiently explain the points of the case. It was contended, on the part of the plaintiff, that the land in question was included in a tract , called the *Gore,*alleged to lie intermediately between the patent,of *Sanders*$• *Heermance,*and the *Nine Partners*patent; and, on the other hand, it was insisted that-the premises were comprehended within the *Nine Partners*patents . ’

The case was argued by *J. Emott,*for the plaintiff' and by *P.; Buggies,*and *J. Tallmadge,*for the defendants. -' -

*338*Per*Curiam.

The plaintiff sets lip *9.*right to recover on ÜM" grounds, 1st. Upon, his paper title-; .2di On'his possession.'. .- It is manifest there can- be no" *gore*between *Sanders & Héermancds*patent,- and that Called the *Mine Partners*patent) the' latter- is bounded on .the- former. All- the evidence shows,, (and it has not been'pretended on the argument,.) .that the premises, do- not lie *within,.Sanders Sr HeermanCeU*.patentit is *equally*Certain that a line called 'the *Indian*line, is-.the' well-known northern boundary- of that patent: indeed, in the patent to Reed,-this line is expressly recognised. The description of* the land granted by the *'Mine Partners*patent, strongly corro* borates the location given by the defendants. The south line' is not a straight line-;'-'the *Sanders S' Heerniance*patent is a southerly boundary, so. far as it goes,'and then it becomes a'we's* terly boundary, which could not-, happen unless there wás'a deviatipn. in the lihe. The line. Set up by die .plain tiff, as the- south line of the *Mine Partners*patent,.is a straight line,iwfiich is in' direct opposition'-to the expressions, in that, grant. ' . '

It appears, pretty satisfactorily)'how the line set up by the plaintiff, ás the south .line off the *Mine Partners*patent, came'to be run as it. was. The'proprietors, many years since; laid out á ’tier Of water lots on'the river, extending four , miles back. These- were .straight lines, extending beyond.where 'the-south line of the--patent changed its course, and, ' therefore, not affecting the land lying, to the south of, this line; and ;the *Sanders Sr Heermance*patent,, confessedly, not extending north Of the *Indian*lipe, gave .rise to the idea that the -intermediate lands were a gore, and vacant, when, in truth, theró could be no such.thing.

If it were not .satisfactorily'explained how, and for what purpose, this line was run, it might be deemed a location by the ..patentees, of their south boundary, but the facts in the ease preelude this conclusión ; for it appears that they have' claimed, and exercised acts of. ownership over, what is called the gore. It follows that'the plaintiff has failed 'in showing a paper title to the premises, inasmuch as the premises are comprehended in an older patent to- the *Mine Partners.. ■*If'other considerations were necessary t.o evince the plaintiff’s want of title, it is a strong circumstance, that since- the. erection of towns in this state’the tract of land called the great or *Lower Mine*Partners,, has been the boundary recognised by the legislature, between the town# *339*©f.Poughkeepsie*and *Clinton,*and the lands in question áre described in the designation as lying in C/mion..

As to the possessory right, it would be excessively uninteresting, if not disgusting, to go through and present the confused mass of evidence in relation to it; ' Suffice it to say, that none of th'e possessions, prior to those of the defendant’s father and of *Thorn,*áre definite ór continued, but are wholly' vague, equivocal arid uncertain; sometimes the possession is under the *Mine Partners,*and sometimes under *Reed*and *Ludlow,*and sometimes'the possessors are. mere intruders. Such a heterogeneous possession ought not to. avail against a clear paper title, in opposition,to that of the -léssors, as no immediate privity is pretqnded between the lessors and the defendants.

Judgment for the defendants. '