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survey were confirmed by the King in council. But the greater part of the bounds remaining unsurveyed, and unmarked on the land, and Connecticut retaining possession of the equivalent lands, and the old marks becoming considerably effaced by time, the two colonial legislatures in 1725 authorised a resurvey of the old lines as far as run and a further survey to be made of the remaining lines not before run, and the erecting of suitable monuments with proper marks on the land, pursuant to the agreement and partial survey of 1683 and 1684. It appears from the colonial act of New-York in 1725, that the boundary line from the mouth of Byram River, including the parallelogram of 61,440 acres taken from the territory of New-York, was run by the surveyors in 1684, but that the boundary line from the north-east corner of the parallelogram to the bounds of Massachusetts colony, and containing the equivalent lands to be added to the territory of New-York had never been actually run and marked on the land, and that the marks and monuments made in 1684 around the parallelogram conceded to Connecticut had become somewhat obliterated.
The Commissioners appointed in 1725 to resurvey the old lines and to complete the survey of the remaining lines began in 1684, did resurvey and ascertain the original bounds as far as the original survey had been actually made, and agreed upon a proper mode of surveying and marking the remaining lines from the north-east corner of the oblong conceded to Connecticut, to the Massachusetts line, and in such way as to concede and add to NewYork the 61,440 acres. And again in 1731 the Commissioners completed the survey of the whole line to Massachusetts bounds and marked them on the land in due form according to the original agreement and pursuant to their instructions from the colonial legislatures.
Now it will be observed that the Commissioners run no new lines nor were authorised to run a new line in 1725 and 1731, but only to ascertain the lines of 1684, and the lines thus run and found in 1725 and 1731 are the same that are to be found and ascertained now in 1856.
The line starting from the easterly termination of the thirteen miles and sixty-four rods, extending along and beyond the parallelogram conceded to Connecticut, and running to the cross line coming from Courtland's Point and from thence at a distance of twenty miles from the Hudson River nearly northerly to Massachusetts bounds, was run and marked on the land and is equally
traceable at this time; but the other lines parallel to these two on the east of them at the distance of about 13 miles and 20 rods from them, running in the same direction to the Massachusetts bounds, were run and marked on the land by set offs only from the former lines. That is to say, after running and marking on the land a continuous line between the colony of New-York and Connecticut from the oblong on the Sound to Massachusetts bounds, giving to Connecticut the oblong but giving to the colony of New York no equivalent lands, they run and marked on the land another line parallel to this surveyed and marked line, on the easterly side of it, at the proper distance from it, through its entire length, comprising the 61,440 acres of equivalent lands. But such other east line was only run and marked by set offs and monuments erected at distances of about two miles from each other, leaving these monuments as guides and directories to locate at any future occasion an exact, continuous line through them.
The principal governing monuments, viz: the one at the beginning towards the south, the intermediate one nearly opposite to the end of the line from Courtland's Point, and the one at the termination in the Massachusetts line are now actually ascertained and identified, and of course indicate the general course of the whole east line of the equivalent lands. Through these monuments and other intermediate ones wherever they can be found or can be shown by proper evidence to have once existed, the line must now be located just as if the monuments all remained to this time, without regard to the straightness or crookedness of the line indicated by them.
Had the line been run within a year or two after the monuments were first erected, and before being obliterated, it is plain the line must have run straight only from one to another of these monuments, however crooked it might happen to be as a whole; and the obliteration of the monuments can make no change in the rule if the places where they once were can, at this late day, be ascertained by proper evidence.
This evidence may be not only remnants of decayed monuments, but possession or occupancy in reference to them or the line running through them; or even traditionary and ancient general reputation. Long and ancient reputation, if general, is sufficient of itself, especially if accompanied by a corresponding possession and claim of jurisdiction. 1 Phil. Ev., 248; 1 Cowen & Hill's notes, 628; 1 Greenl. Ev. 145 note-301 note.
It cannot be contended that the boundary line between States is not to be ascertained by the same rules as the boundary between tracts of land owned by individuals.
“No court acts differently in deciding a boundary between States, than in lines between separate tracts of land," say the Supreme Court of the United States in the case of the State of Rhode Island vs. The State of Massachusetts. 12 Peters, 734.
Now, to establish a line between different tracts of land, monuments or marks on the land must govern, and not courses or lines of the compass, or quantity of acres; and this rule holds whether the line established by such monuments is straight or crooked.
Where a line is once found marked on the land, it cannot be straightened by an ideal line indicated by the compass. It follows that the Commissioners must now follow the old marks and monuments wherever found, and if not found after so long a period, they are then to take the best evidence they can get of their former existence and locality.
Traditional testimony is good if supported by public acts of recognition; such as the acts of town and county officers, and even of town meetings and county assemblies, uninterruptedly continued from year to year; and mere courses and distances are never resorted to in order to straighten lines if clearly opposed to other evidence of ancient marks. This is on the same principle that a deed or bond, though lost or destroyed, is still to govern instead of a parol contract, when the contents of such lost deed or bond can be proved by other evidence.
The east line of the equivalent lands was fixed by set-offs, and the entire series of such set-offs constituted a line of monuments marked on the land, about two miles apart, from beginning to end of the boundary line. These monuments being ascertained, or the places where they once were, the intermediate lines between them must be run and connected so as to form a continuous boundary, however crooked this boundary line may turn out to be, and without regard to whether it contains between the parallels exactly 61,440 acres or not; for the Commissioners have no authority to make a new boundary, or to make a new line, even if the old Commissioners in 1731 committed mistakes in running the cross lines or set-offs.
Such crooked lines having been so long recognized and acted on as the true division line, can now only be corrected, if at all, by a suit in equity by the State of Connecticut against the State of New-York to correct the mistakes, which would, in all probability, be as ineffectual for the purpose as it was in the case of Rhode Island against Massachusetts, before cited, the loss of time or limit of prescription being applicable to States on questions of boundary as well as to individual land owners. See Vattel, p. 190, $ 147, and the opinion of the Supreme Court in the case of Rhode Island vs. Massachusetts, before cited.
In short, the old line of 1731, as indicated by the monuments then erected, and not a new line, must govern, because such new line in point of fact and of law does not coincide with the boundary established in 1731, this having been so long recognized, and now being easily ascertained and identified. If the true old line shall be ascertained by the present survey to be a crooked one, too near its western parallel on the north end, or too remote at the intermediate points, or devious and irregular in many places, it can only be straightened by the consent of the Legislatures of the two States, with that of Congress hereafter to be given, and not otherwise; for the resolutions of those Legislatures, already adopted, and under which the present Commissioners are acting, are not sufficient for the purpose; nor could the Supreme Court of the United States order the lines to be straightened after so long an acquiescence of the States.
But again: no other mode of ascertaining the division lines is consistent with the agreement made by the joint Commissioners the 29th April, 1725, and their survey under it. The lines were to be run by marks and monuments on the land; for it was agreed that “where the breadth of the said lands to be added out of Connecticut shall be established as above directed, we shall affix and ascertain the bounds of the same," and " erect monuments in the said lines at all places which may be thought necessary."
The same Commissioners, immediately thereafter, on the 12th day of May, 1725, commenced their survey on the land, and actually run and marked by monuments so much of the boundary line agreed on as designated the oblong on the land conceded to Connecticut " in pursuance” of the said agreement; and they say that they “ have erected several monuments in the said line," mentioning a large number of them. After marking trees and raising heaps of stones at the end of every mile on the line along the northerly side of the Connecticut oblong from the white oak trees north northeast thirteen miles and sixty-four rods, they marked and distinguished, and thereby established and fixed it by monuments as the line of partition so far between the province of NewYork and colony of Connecticut.
Afterwards, on the 14th of May, 1731, the joint Commissioners finished their work by running and marking the residue of the boundary lines extending from the northeast corner of the oblong assigned to Connecticut, to the Massachusetts line, including the equivalent lands of 61,440 acres, “ in pursuance of the agreement made in the year 1725, adopting their former monument at the northeast corner of the Connecticut oblong as their starting point; and then finding and fixing the northeast corner of the equivalent lands by a monument, they established the remaining boundary lines to Massachusetts, so as to include the equivalent lands, by erecting heaps of stones “as monuments of the east bounds of the said additional lands.”
These monuments were located by set-offs, or perpendiculars, from a parallel line previously surveyed and marked by them on the land; and then the Commissioners surrendered up to NewYork the possession of the equivalent lands as divided from Connecticut by the said "lines" run through the said several monuments erected as before mentioned.
These expressions in the agreement and in the report of the survey, made pursuant to it, clearly show that these Commissioners were too wise to leave boundary lines to be ascertained by mere courses and distances, to be ascertained from books; they located them on the land, as the controling marks and monuments, to be there read and known by all men; they were too sensible not to appreciate the difficulty in after times of ascertaining and fixing mere straight lines, indicated by the compass and measuring chain only, and they determined not to leave the boundaries thus uncertain and swimming in the air, but to have them attached and fastened to the land by actual marks and monuments. It was the great end and purpose which they had been appointed and empowered to accomplish-not to run new lines, but to ascertain and mark old ones; and they do not pretend to have run straight lines with any greater exactness or certainty than is marked by monuments on the land.
The lines thus actually run and marked on the land must now govern, unless we are to reject all the former agreements and surveys, and launch ourselves into an ocean of uncertainty.
GEORGE A. SIMMONS. January 1st, 1857.