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On the other hand in one place where a mountain intervenes, both sides of which were to be measured., the traditionary line for a little distance is found to the westward of the straight line. *
We found the variations so great yet so uniformly in accordance with this rule, that we were forced to believe that the actual results of the survey of 1731, were very different from a straight line which according to the agreements and reports it was the intention of the Commissioners to establish.
Some of the monuments erected in 1731 are found and identified beyond dispute, though not in the straight line In other places though the monuments themselves are not yet and may never be identified, the land held in uninterrupted succession under the patentees of the “ equivalent tract” is described as bounded on the State line and that line has never been questioned. The monuments erected and adopted in 1731, or the lines fixed by reference to them, have ever since been regarded as marking the limits of States, counties, towns, patents, and farms. In the survey of the equivalent lands, for the purpose of division and sale, made by Colden in 1732, in accordance with which most of the land on the New-York side of the line is held, the original monuments erected the previous year were taken as authentic bounds.
The limit thus fixed has always been officially recognised as authentic by the public authorities on both sides.
It is impossible that, among interests so great and so diverse, an error of this nature and magnitude could have crept in without question or resistance since the survey.
While in many places there is not a reliable tradition in regard to the exact locality, the line being ranged by ledges, rocks or trees, and exceedingly crooked; yet, in other places, the vestiges of the former surveyors are visible and not to be mistaken.
Even when uncertainties exist, the limits beyond which the greatest discrepancy, in the belief of the neighbors, does not carry the line, are far within the deviation from a straight coursé. • See Map No. 4.
The whole territory included between a straight line and the best defined traditionary line is about twenty-six hundred acres, being forty-two rods wide in its greatest breadth, and extending nearly the whole length of this course. Its form can best be seen by reference to Map Number 4, accompanying this report.
It comprises two or three hundred inhabitants, who have always, without question, acted as citizens of this State, and the polls of at least one New-York election district have for generations been held within its limits.
DISAGREEMENT OF THE COMMISSIONERS FROM THE TWO STATES.
Neither of the Connecticut Commissioners were present upon the completion of the straight line. Finding that an unanticipated investigation had become necessary, we at once notified them of our wish for a conference with them at the earliest day, and requested a meeting on the 6th of November, at Stamford, the residence of one of them.
This meeting was attended by both the Connecticut Commissioners and by the undersigned from this State, but it proved a brief and informal interview. We proposed to submit subjects for consideration, the reception of which being refused, we then stated them. They had for their object the settlement of the line on the basis of the original monuments; the definite and joint statement of the portion of the line already verbally agreed upon; a joint statement of our differences if any; and an adjustment of the expenses of the survey.
These were rejected, the Connecticut Commissioners refusing to consider any other settlement of the boundary than upon a straight line, and one of them denying any adjustment of accounts till monuments should have been set on such a line, upon which the interview was terminated,
We remained in town the next day, endeavoring to effect & satisfactory understanding. In this effort we were aided by one of the Connecticut Commissioners, but wearying in this attempt, after furnishing us with a statement of his expenditures on the joint account, he left for his own honie.
NATURE AND EXTENT OF OUR POWERS. We had from the first held the opinion that we had no authority beyond finding and distinguishing the true boundary already existing, as it was agreed upon in 1683, and finally laid down in 1725 and 1731, respectively; our action could make no new line and could at the most be only in the nature of a verdict as to the position of the old one, which the courts could set aside on the application of any one aggrieved by our decision, if it could be proved erroneous. In finding this line we believed we were to take the marks left by those who established it as conclusive evidence, however much they might vary from the intentions of those who placed them.
It was true that the commissioners in 1725, agreed that a straight line should be run from the monument opposite to Courtlandt's 'Point to the Massachusetts boundary, and that in 1731 it was reported to have been so run; but the very statement of the mode in which the work was conducted shows that such could not have been the fact. But whether the lines as run and designated by monuments coincided with those intended to have been rún, does not, in our view, affect the question of the présent line.
In the agreement of 1731 it is expressly provided that the lines there described as the said lines run, through the several monuments above mentioned, to have been erected by the said commissioners, on the east side of the said additional lands shall remain from henceforth the lines of partition and division between the province of New-York and colony of Connecticut, forever.”
In the act of the Connecticut General Assembly, passed October eighth, 1730, it was recited that in 1725, a part of the boundary " was actually run and ascertained by proper monuments," and the line, so far as run, was ratified. And then in reference to the remainder of the line, at that time still to be surveyed, after reciting the agreement, it was enacted that “ the lines when run and the places distinguished through which they should pass," should be the boundary. New-York ratified the line in a simi
lar manner. It thus appears that the monuments upon the whole boundary were established by law without regard to the preliminary agreements entered into by the surveyors; we there-. fore have never supposed that the commissioners had any authority to correct the errors of their predecessors, or any discretionary power in relation to this matter, beyond the examination and admission, or rejection of the evidences which might appear as to the identity of the old line; on this principle all the work had been conducted and it had been repeatedly recognized and urged by the Connecticut commissioners, as previously stated in this report.
ADVICE OF COUNSEL.
To prevent the chance of mistake in regard to our powers and duties, and for the purpose of facilitating a settlement of the matter upon a correct and sure basis, we submitted the papers, to Hon. George A. Simmons, Member of Congress, and chairman of the judiciary committee,-distinguished in his profession for his experience and knowledge in matters involving questions of land titles or boundaries—for his advice.
He prepared an elaborate written opinion which was mailed at Washington directed to us at Albany. It has not been received and although the Post Office Department volunteered to search for it we fear it is irrecoverably lost. For the substance of this opinion reference is made to the letter* of Mr. Simmons to us.
Judge A. C. Paige, of the court of appeals, and judge Lucien Birdseye of the second district, were also consulted and coincied with the opinion as given by Mr. Simmon though neither of them have written out their views. Under this advice we did not feel at liberty, however much we might otherwise have been disposed to do so, to yield at all to the demands of the Connecticut Commissioners, but considered it our duty to insist upon the line as marked by the former surveyors and that only.
CORRESPONDENCE WITH THE CONNECTICUT COMMISSIONERS. To simplify our relations as much as possible, and to avoid their complication by misunderstanding or imperfect recollection • See appendix C. Letter of New-York Commissioners, January 19th.
of what had passed between us and the Connecticut Commissioners, we on the 12th of November last, gave written notice to each of them of our withdrawal of any propositions which they might suppose us to have previously made, at the same time, intimating our desire to receive others.
Hearing nothing from them we advised them, Dec. 2nd, of our having consulted counsel and requested an interview at their . earliest convenience, for the adjustment of all our differences, or a joint recital of whatever matters. we might not be able to agree upon. By this means we hoped to avoid the probable variances of ex-parte statements and to hasten the settlement so much to be desired.
This having been disregarded, we again wrote on the 17th of December, soliciting a statement of accounts.
Receiving no response we wrote again on the 26th of the same month, for special information relative to certain workmen's accounts.
On the next day we received a letter dated December 23d, signed by Mr. Holly alone, but not meeting the questions actually stated by us. Mr. Whiting, in a private letter, gave in part the information asked in our last communication, but with no satisfactory reply to the chief matters which we had proposed. These being individual and unofficial letters, and in no sense a reply by the Connecticut commission, we wrote them again on the 19th of January, recapitulating our former requests and renewing the propositions for a just and speedy termination of our difficulties, in more strong and definite language, at the same timre demurring to any individual letters or irrelevant matters.
A joint note from both the Commissioners, assuming and en-, dorsing Mr. Holly's letter of December 23d, has been received and replied to by us.
All the correspondence referred to, except Mr. Whiting's unofficial letter, will be found in its proper order in the appendix.
Although the resolution originating the commission directed that its expenses should be reported to the Legislature, no ap