(202 N.Y.S.)

Manursing Island, lying off the shore of the town of Rye, south and west of the mouth of the Byram river, or Port Chester Bay or Harbor, runs substantially north and south in its longest dimension. It is bounded on the east by Long Island Sound. Immediately to the east of Byram river and Port Chester Harbor, we come to the dividing line between the states of New York and Connecticut, and to the east of this dividing line the general course of Long Island Sound is east and west, the Sound being the southerly boundary of the mainland. The island is approximately some two miles in length, and the northerly portion, known as the North Island, consisted of high ground, with a bold shore on the east or Sound side. The extreme south end of the island was also comparatively high ground. From 1850 to 1870 the North Island was owned or controlled by John A. Dix, the distinguished war Governor of the state, and later minister to France. He lived on the North Island,. and improved it, and built roads and bridges connecting it with the mainland. The south end of Manursing Island was occupied by the late William P. Van Rensselaer, also a wellknown citizen of New York, and formerly a member of the bar, who had a summer home at this point. The strip of sand and meadow in the middle of the island, to which I have réferred, was owned part by Governor Dix and part by a family named Theall and their successor, Cornell. The plaintiff claims under the Theall title and Cornell title; the defendants under deed from Governor Dix. The disputed boundary runs substantially east and west across this former waste or meadow land to the shore of the Sound.

Owing to the practically waste character of the land, there is no satisfactory evidence of adverse possession by either party, and to locate the disputed line the learned trial justice had to depend largely upon evidence of former physical conditions, the courses and dimensions set out in the deeds, and the area of land granted. It would be impossible to recite here the mass of evidence in these old writings and the arguments of the parties plaintiff and defendants, based upon their interpretation of these documents. I am free to say that it was a most difficult task for the learned trial justice to reach a definite conclusion as to the location of the disputed boundary, although, as indicated in the record, he had the great advantage of familiarity with the land from his boyhood. We have carefully examined the deeds and writings in evidence, the testimony of the witnesses, and the learned briefs submitted by the parties. In the end the location of this disputed line was a question of fact for determination by the Special Term, as the action was tried and submitted for decision. We think the findings of fact locating the line, and amplified by the subsequent survey made by the surveyor, Kirby, are supported by the evidence.

Both the plaintiff and the defendants agree that one Andrew Lyon owned the locus in quo in 1762. He owned the property under a deed from one Willett, dated April 2, 1762, which conveyed the entire North Island and a tract of 73928/10000 acres, with an additional 117255/100000 acres on the north end of the South Island (a local designation for the southerly portion of Manursing Island), with appurtenant sedge and marsh. The boundaries of this land on the north end of the South Island are extremely indefinite. If the parties had paid as much attention

to intelligible courses and boundaries as they did to defining thousandths of acres in the area of the meadow and sedge land, they would have saved their successors in title much labor and weariment of spirit. The defendants' title comes under the will of Andrew Lyon, admitted to probate in 1809. Lyon devised to his grandson, William Bush, "the small hummock, situated south thereof" (i. e., south of North Island), with the salt meadow and sedge thereto appertaining. Bush conveyed to Governor Dix in 1850. Dix conveyed to Titus in 1870; Titus to Adam T. Sackett in 1878. The defendants are the children of Sackett. When this action was commenced in 1916, Lyon's holdings of the hummock and appurtenant land on the north end of the South Island, devised to his grandson, Bush, were apparently more extensive than the land actually claimed by the Sacketts. If this devise covered all the land owned by him at this point under the deed from Willett, the defendants' south boundary would be much further to the south, and they would be entitled to a larger strip of the Sound beach than they claimed to own. But during the trial the plaintiff discovered a socalled missing deed, made by Andrew Lyon in his lifetime, May 22, 1762, to one Roger Park, conveying 73928/10000 acres of this land on the South Island. This conveyance left to Lyon part of the land conveyed to him by Willett, and it was this remaining land, the "hummock" and appurtenant salt meadow and sedge, which he devised to his grandson, Bush, and which Bush conveyed to Governor Dix in 1850, in a deed reciting that the tract contained "six acres, more or less.'

When Willett conveyed to Lyon by deed dated April 10, 1762, he attempted to describe the land conveyed by metes and bounds, and so far as the tract of 78928/10000 acres on the northerly part of the South Island is concerned he describes it as follows:

"All that seven acres & .3928 parts of an acre of salt meadow lying on that part of Manursing Island purchased of John Glover, including a part of the Wood Island (so called) neither more or less. Butted & bounded as followeth: Beginning at the north end of a certain ditch which ditch is the westermost bounds of a piece of salt meadow purchased by the said Willet and Samuel Willson of Samuel Brown, thence southerly with said ditch to a certain ditch a little southard of the southmost bounds of said meadow bought by Willet & Willson of Saml. Brown, thence easterly with said ditch unto the east end of the stones lying in or by said ditch on the west side of the Wood Island, thence still easterly a direct line to the middle of the sand beach lying on the east side of said meadow thence northerly by said sand beach six chains and ninety links to a stake or stones thence westerly northerly and southerly to the north end of a ditch where it begun. Containing within said bounds over and above the seven acres and .3928 parts granted to sd. Lyon one acre & .17225 parts of an acre which belongs to the estate of said Willson deceased. And also all that one equal half part in quantity and quality of all the sedges which said William Willet now ownes or of right ought to own on said part of Manursing Island granted by said Willet unto said Andrew Lyon. And Also One equal part in quantity & quality of all the sedges which said Willett owns on that part of Manursing Island he has this day sold to Roger Parks, Junr. And Also that part of the sand beach aforesaid which is the east bounds of said seven acres .3928 parts of salt meadow lying opposite to said meadow."

The significant courses and distances in this deed, which seem to have had great weight with the learned trial justice, are, first, the south

(202 N.Y.S.)

boundary of the tract conveyed; and, second, the east boundary on the beach. The southerly boundary of the tract conveyed is found in the second and third courses; the second course, "thence easterly with said ditch unto the east end of the stones lying in or by said ditch on the west side of the Wood Island;" the third course, "thence still easterly a direct line to the middle of the sand beach lying on the east side of said meadow." These two courses describe the southerly boundary of the land conveyed by Willett to Lyon, so far as the description in the deed is concerned. The third course reaches the beach. The next, or fourth, course is, "thence northerly by said sand beach six chains and ninety links to a stake or stones;" and the next and final course is "thence westerly northerly and southerly to the north end of a ditch. where it begun." Lyon, having conveyed this property to Park, still retained title to the land on the South Island north of the tract so conveyed, and it was this land so retained which passed to his grandson, Bush, under the devise in the Lyon will.

The plaintiff's title, so far as there is any cogent evidence in the case, is derived from Park; the defendants' title, from Bush, the grandson of Lyon. Therefore the importance of the south and east boundary in the deed to Park. The south boundary runs easterly in a direct line to the beach; the east boundary extends northerly along the beach 6' chains and 90 links to a stake or stones. Of course, the stake or stones on a beach exposed to the storms and tides of Long Island Sound in 1762 was a most evanescent monument. But the significant fact is that, when the grantor defined this northerly course, he limited it to 6 chains and 90 links along the beach. It did not run to the north end of the beach, or to the rock still prominent at the north end of the beach; it expressly limited the beach conveyed to 6 chains and 90 links; and it is upon this reasoning that the learned justice at Special Term located the boundary line in dispute in the case at bar, because he has ascertained the northerly end of this north course, which was the location of the "stake or stones," and from that point has laid out the north boundary of the Park land which is the boundary line in dispute.

The learned counsel for the appellant argues that there is no basis for the findings of the trial justice; he points to the final course in this description, which runs from the stake or stones, "thence westerly northerly and southerly to the north end of a ditch where it begun," and he says it is impossible to locate this final course from the point determined by the trial justice. But who shall say what the lay of the land was at this point in 1762, exposed to overflow of the tide, crossed and recrossed by dikes and ditches, many of which have disappeared within the memory of living witnesses? The learned counsel for appellant says that there is a legal presumption that no physical changes have taken place, but on the evidence here such presumption cannot be indulged in as a basis for a judgment of the court. The important fact remains that Park's ownership on the beach was limited to 6 chains and 90 links. The plaintiff would have the court find that this northerly course ran to the north end of the beach; that it took in the entire beach up to the well-defined rock, leaving Lyon without any

frontage. We think the trial justice was justified on the evidence in rejecting this claim, and in locating the north bounds of the land conveyed to Park as described in the findings and judgment, as subsequently ascertained and laid out by the surveyor.

[3] When Bush, the grandson of Lyon, conveyed the north end of the South Island to Governor Dix in 1850, he stated the area of the land conveyed to be 6 acres, more or less. The defendants called surveyors, who, with the deeds and will before them, gave their expert opinions as to the location and bounds of this 6 acres, which to some extent support the location of the line by the learned trial justice. The appellant argues that the statement of quantity of land in a deed has little or no weight in determining the boundary. This might be true, if the learned trial court had definite boundaries to guide him in reaching his conclusions, but upon the record here I think he was justified in considering all the facts and any evidence throwing light upon the situation. Evidently Bush, the grandson of Lyon, the original owner of the title, had no doubt as to his ownership of the north end of the South Island. And when, in 1870, 20 years thereafter, Governor Dix conveyed to Titus, the predecessor in title of defendants, he repeated the statement that the land conveyed comprised 6 acres, more or less.

That the plaintiff and its predecessors in title recognized the propriety of locating this 6 acres is found in the evidence that, in 1900, the then counsel for the Cornell estate, owners of the land now in plaintiff, requested Mr. J. Henry Carpenter, a resident of the village of Rye and a well-known and respected surveyor of great experience, to lay off this 6-acre plot on the ground, in order to ascertain the location of this boundary line; and at the same time counsel frankly advised Mr. Carpenter of the dispute between the Cornells and their neighbors, and wrote that he was desirous of "having the line mentioned include as little of the beach within the 6-acre plot as you can properly and conscientiously make it include." With his conceded familiarity with the situation, with the deeds and the Lyon Will before him, and with the suggestion of Mr. Cornell's counsel in mind, Mr. Carpenter laid out the 6-acre tract, making a map, which was received in evidence, showing ownership in the Sacketts of a greater extent of beach front than is awarded them in the judgment. And this was the conclusion reached by an experienced surveyor, acting, of course, independently of the defendants.

I will not attempt to discuss here the mass of documentary evidence introduced by the plaintiff, or the voluminous argument in the appellant's main points and points in reply. They have been carefully considered, but I am forced to the conclusion that the learned counsel, in his zeal for his client, overlooks the fact that in the end his arguments are based largely upon surmise and speculation. If this were an action in ejectment, or trespass, or to quiet title, as defendants claim it should have been, with the burden of proving legal title to the land claimed. upon plaintiff, I have grave doubt whether, on the evidence here, a cause of action was made out. I do not think plaintiff can avoid its obligations by attempted resort to this so-called action in equity.s

(202 N.Y.S.)

I am therefore of the opinion that the judgment should be affirmed. It is not surprising that, in the mass of findings of fact and conclusions of law submitted to the court before and after the decision, there are found findings which are said to be contradictory. They do not alter the result, but this should be remedied in the order of affirmance. While I might point out here findings of fact and conclusions of law which might well be reversed by this court, as well as the absence of definite conclusions of law, in accordance with the opinion filed by the learned trial justice in deciding the case, which should be made by this court, I leave this in the first instance to counsel, to be included in the order, which should be settled upon notice. I think it proper, however, to call attention to an obvious error in the opinion of the court as printed in the record. Where the trial justice refers to the description of the so-called 7-acre tract contained in the deed of October 10, 1762, from William Willett to Andrew Lyon, the opinion as printed omits the first or southerly course contained in the deed printed in the record as an exhibit; the word "stone" in the next course as printed, "thence easterly with said ditch unto the east end of the stone lying in or by said ditch," etc., should be "stones," and the words "said beach" in the following course, "thence still easterly a direct line to the middle of the said beach lying on the east side of the said meadow," should be “sand beach."

Judgment affirmed, with costs. Settle order on notice. All concur.

(121 Misc. Rep. 784)

GUINZBURG et al. v. BLUSTEIN et al.

(Supreme Court, Appellate Term, First Department. December 12, 1923.) 1. Evidence 444 (2)—Oral agreement of condition cannot modify written subscription.

Where defendants, with knowledge of its contents, signed an absolute subscription for a charitable purpose, an oral agreement that defendants would donate the sum mentioned only in case their business continued to prosper cannot be established.

2. Subscriptions 21 (4)-Defense that plaintiffs stated subscription was mere record held insufficient.

In an action on a subscription, a defense alleging that plaintiffs requested defendants to sign the subscription, stating that the paper was a mere record, to remind defendants of their promise to donate, held insufficient; it not being alleged that defendants relied on that statement. 3. Subscriptions 21 (4)—Allegations not equivalent to assertion of rescission accepted.

Allegations in an answer, relating to an oral agreement coincident with the execution of the written subscription sued on, held not equivalent to an assertion of a rescission accepted.

4. Evidence 420 (3)—Oral condition merged in subsequent written subscription. An oral condition of a donation held merged in an absolute written subscription for a charitable purpose subsequently executed.

5. Evidence 384-Parol evidence rule one of substantive law.

The rule forbidding parol evidence to vary the terms of a written instrument is not a rule of evidence, but one of substantive law.

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