Schoonmaker v. Davis

The only question to he determined is the boundary line between the two lots, and that involves the location of the westerly line of the premises conveyed to Jacobus Bruyn, which depends substantially upon the construction that is to be given to that portion of the description contained in the Bruyn deed, which is as follows: “ And runs thence northwesterly along the bounds of the Hew Paltz to the westermost corner thereof.. Thence runs south westerly along the top of the said hills on the south east side thereof on the highest part of the steep rocks that front next to Shawangunk aforesaid as the said rocks range, &c.”

In construing a grant, natural objects control courses and distances, when they conflict. (Jackson v. Frost, 5 Cowen, 346. Wendell v. The People, 8 Wend. 183.)

The description refers to one chain of hills, “the high hills called the Shawangunk.” And those front next to Shawangunk Valley. The description proceeds as follows : “ Thence runs south westerly along the top of said hills, on the south east side thereof, and on the highest pa.rt of the steep rocks that front, next to Shawangunk aforesaid as the rocks range, &c.” The evidence shows beyond dispute that the line surveyed, and claimed to by the plaintiff as the boundary, runs along upon the summit of the said hills, and upon the highest part of the steep rocks. Van Burén testifies : “ On the line run by me we did not leave the top of the mountain.” Again: “In running the line of the plaintiff’s lot, we ran the line on the top of the highest ledge of rocks to the head of the Kline Kill on the ridge dividing the waters which run on one side down the Kline Kill and on the other side down the Coxing Creek.” He further testifies, that running from a point midway between Gertrude’s nose and *466Hamilton point, to the top of the hill, is fifty chains. It does not. appear from the evidence that there is any difficulty in ascertaining the top of the said hills ; those objects are definite and can be fixed with reasonable certainty. Indeed the defendants’ evidence does -not even tend to disclose any uncertainty in regard thereto. Nor is the expression in the description, “that front next to Shawangunle aforesaid;” inconsistent with the plaintiff’s theory. The mountain, as it rises from the Shawangunk Valley, presents a front next thereto, and the line surveyed is upon the highest part of the steep rocíes as they range upon the summit of the mountain as it fronts the said valley. Such seems to be a reasonable construction of the description in the deed. It has been seen that a variation in the course of a line is not to be regarded, where it conflicts with natural objects called for by the grant, which are ascertained. The defendants’ theory is speculative and unsatisfactory. Where the parties to the Bruyn deed were, when the description was prepared, or the" deed executed, does not appear from the evidence. Nor does it appear that they had not traversed the line, or from some other source become familiar with it. The location of the boundary of a tract of land must be regarded as something real and not imaginary; and hence we must infer that the parties by actually traversing the line, in accordance with the monuments. which were fixed, or by some other means equally satisfactoiy, acquired a knowledge of the line sought to be established by the grant. When the parties designated one object well defined., viz. “the Shatuangunle hills,” and located the line upon the top of those hills, ■and upon the highest part of the rocíes as they range, we are not at liberty to conjecture that they intended to establish the boundary upon a lower elevation upon the side of the said hills.

In the case of Wendell v. The People, (8 Wend. 183,) the court remarks: “All grants or conveyances are supposed to be made with reference to ah actual view of the premises by the 'parties thereto.” Certainly "in the absence of all evidence *467to the contrary, we must adopt and in .this case apply this rule of construction which is so well established, and so reasonable in itself.

Again, the defendants, to establish the line contended for by them, are compelled to abandon the range of rocks, at Gertrude’s nose, and cross a valley or open space of at least a mile in extent before the rocks are again reached which they claim constitute the range of rocks called for by the grant. After a careful examination of the case I am led to the conclusion that the line claimed by the plaintiff is the true boundary of the said lot. And that the plaintiff should have judgment accordingly, with costs.

Bogeboom, Miller and Ingalls, Justices.]