reasons than those urged in argument, to convince my mind of its unconstitutionality; the effect of which would probably be to throw open to litigation all acts done under the same, for the twenty years it has been in operation. I am of opinion that justice has been done in this case, and am therefore in favor of affirming the judgment.

The court being unanimously of the opinion that the judgment of the supreme court ought to be affirmed, it was affirmed accordingly.

EMINENT DOMAIN. -As to what uses justify the exercise of the power of eminent domain, see Beekman v. Saratoga etc. R. R. Co., post, and note. The owner of a limited interest in property condemned for public use is entitled to compensation to the extent of that interest: Ex parte Jennings, 16 Am. Dec. 447. The principal case is cited as authority on various points connected with the exercise of the power of eminent domain as follows: That one who has conveyed land, bounding it on a street, is entitled only to nominal damages when the street is afterwards opened as a public street: Matter of Thirty-second Street, 19 Wend. 129; that the right of trial by jury does not apply to this class of cases: Hart v. Mayor etc. of Albany, 9 Wend. 590; Matter of Smith, 10 Id. 458; that the mode of ascertaining the compensation in such cases is within the discretion of the legislature: Bloodgood v. Mohawk etc. R. R. Co., 18 Wend. 51; Matter of Southern Boulevard, 3 Abb. Pr. N. S. 450; Menges v. City of Albany, 47 How. Pr. 250; that the amendments to the constitution of the United States, adopted at the first session of congress, apply only to the general government: People v. White, 11 Barb. 31; that in street cases the justices of the supreme court act as commissioners in a subordinate and limited capacity: Striker v. Kelly, 7 Hill, 19; that the benefit to the adjacent property of the owner of land taken for a street may be set off against his damages: People v. Mayor etc. of Brooklyn, 6 Barb. 217, where the principal case is referred to as "the leading case on this subject;" S. C., 9 Id. 543, where Brown, J., denies the soundness of Livingston v. Mayor etc. of New York, on this point; Betts v. City of Williamsburgh, 15 Id. 257; Long Island R. R. Co. v. Bennett, 10 Hun, 93; that the district exclusively benefited by an improvement may be taxed for the whole expenses thereof: Clarke v. City of Rochester, 24 Barb. 484; S. C., 14 How. Pr. 214.

The case is also recognized as authority on the following points: That a conveyance bounded on a street, not opened for public use, carries a right of way therein as between the parties: Willoughby v. Jenks, 20 Wend. 97; Champlin v. Layton, 18 Id. 411; that a street may be established by dedication: Pearsall v. Post, 20 Wend. 116; S. C., 22 Id. 35, per Edwards, senator; that the public have simply a right of passage in a highway, and that the fee remains in the owner of the soil; Griffin v. Martin, 7 Barb. 308; People v. White, 11 Id. 31. So where land is conveyed, as bounded on a street or alley not laid out, the fee remains in the owner, subject to a right of way in the grantee: Clements v. Village of West Troy, 16 Barb. 258; and g nerally the conveyance of land bounded on a street does not pass the fee in the street: Bartow v. Draper, 5 Duer, 149. It was held, however, in Adams v. Rivers, 11 Barb. 393, citing the principal case, that where land is bounded on a street it extends to the middle line thereof; so in Bissell v. New York etc. R. R. Co., 23 N. Y. 61, as between grantor and grantee. In Adams v.

Saratoga etc. R. R. Co., 11 Wend. 450, the principal case is cited on the point that a dedication can not be revoked. So in Child v. Chappell, 9 N. Y. 256, to the point that an express dedication operates immediately in the nature of an estoppel; and in Badeau v. Mead, 14 Barb. 337, to the point that the doc. trine of dedication, as applied to city lands, does not apply to rural lands. In Peo le v. Kerr, 27 N. Y. 201, the distinction taken by the chancellor in the foregoing opinion between rural and urban servitudes is noticed with approval. In Grinnell v. Kirtland, 2 Abb. N. C. 396; S. C., 6 Daly, 359, the principal case is referred to as not involving any question of the acceptance of a dedication.

WENDELL V. JACKSON EX DEM. THE PEOPLE.

[8 WENDELL, 183.]

PEOPLE OF THE STATE SUCCEEDED TO THE RIGHTS OF THE CROWN on the declaration of independence. Per Walworth, chancellor.

PEOPLE ARE OWNERS OF ALL LANDS within the state not granted to others or lost by adverse possession. The presumption is, therefore, that they own all lands which have never been granted by them, until the contrary appears. Per Walworth, chancellor.

PROOF THAT LAND WAS VACANT within the time required to make title by adverse possession is sufficient prima facie to enable the people to recover the same in ejectment. Per Walworth, chancellor.

IF LAND CAN NOT BE LOCATED TO CORRESPOND WITH ALL THE CALLS in a patent, the direction indicated by the description must be followed in running around the premises, especially where the angles are not marked by natural or artificial monuments. Per Walworth, chancellor. WHERE SEVERAL PARTICULARS ARE GIVEN IN A PATENT, all of which are necessary to ascertain the land intended, nothing will pass that does not correspond with all those particulars. Per Walworth, chancellor. CONVEYANCE BY METES AND BOUNDS, without any other description, must pass what is contained within those boundaries, though the quantity be greater or less than was supposed. Per Walworth, chancellor. FALSE OR MISTAKEN PARTICULARS OR BOUNDARIES, in the description in a patent, may be rejected. Per Walworth, chancellor.

CONVEYANCES ARE SUPPOSED TO BE MADE IN ACTUAL VIEW of the premises by the parties thereto. Per Walworth, chancellor.

NATURAL OR ARTIFICIAL MONUMENTS MUST GENERALLY CONTROL the courses and distances in a patent. Per Walworth, chancellor.

WHERE THE BEGINNING POINT IN A PATENT IS IDENTIFIED by satisfactory evidence, the location of the premises must be commenced at that point and the courses and distances pursued, although by doing so a point, mentioned in a patent issued a few days afterwards, as one of the corners, is not reached, and although it may be necessary to exclude some of the courses and distances, and part of the land supposed to be conveyed. Per Walworth, chancellor.

ERROR from the supreme court in an action of ejectment brought by the attorney-general in the name of the people, to recover certain premises. The facts relied upon by the plaintiff

are stated in the opinion of the chancellor. The defendant claimed that the premises were included in a tract called Road Patent No. 2, or in another called Hoffman township. The former patent was issued May 8, 1795, the latter May 15, 1795. The description in the first patent is given in the chancellor's opinion. The Hoffman township patent described the land included therein as follows: "Beginning at a large clump of rocks on the west bank of the Scaroon lake, at the north-east corner of a tract of three thousand five hundred acres of land granted to John Thurman [being the tract designated in the former patent], running thence north fifty degrees west one hundred and fifty-three chains, thence south forty degrees west one hundred and five chains and fifty links to the north-east bounds of township No. 24, in Totten and Crossfield's purchase," etc. The position of the south-east corner of Totten and Crossfield's purchase, which was referred to as the beginning point in the first patent, was established by satisfactory evidence. Beginning at that point and following the courses and distances in the first patent, it was found that the premises in question were excluded, and also that the distance to Scaroon lake along the third course was not more than half that given in the patent, and that running the fourth line from the end of the third it crossed the first above the place of beginning, the last course and distance being wholly lost, and the quantity of land falling short nearly one half of that specified in the patent. A survey was made on this plan by one Webster. The defendant, however, claimed that the clump of rocks mentioned in the Hoffman township patent should be made the place of beginning, and the courses and distances reversed. The consequence of this would be that the two first courses in both patents would be identical, every course and distance in the first patent would be satisfied, and the quantity specified therein would be conveyed. According to this location the premises in suit would be included in the first patent, and the south-west corner of the tract would be nearly a mile north of that claimed by the plaintiff to be the eastern corner of township No. 24 of Totten and Crossfield's purchase. The circuit judge charged the jury that if they should find that the easternmost corner of township No. 24 was a certain and ascertained boundary, and that beginning at that point and running the first two lines, the premises in question would be excluded, they should find for the plaintiff. Verdict for the plaintiff. A motion for a new trial based on exceptions to the instructions, was overruled by the supreme court and

judgment given for the plaintiff, to reverse which this writ of error was prosecuted. The points at issue sufficiently appear from the opinions of the chancellor and of Mr. Senator Westcott.

J. L. Wendell and D. Russell, for the plaintiff in error.

G. C. Bronson, attorney-general, for the defendant in error. WALWORTH, Chancellor. The people of this state, upon the declaration of independence, succeeded to all the rights of the crown, and they are the owners of all the lands within the limits of the state, except such as have been granted to others, or where their title has been lost by adverse possession. Where lands have never been granted by them, they are presumed to be the owners, until the contrary appears; and in such cases, they can give no other evidence of their title than that produced on this trial. The attorney-general proved that the premises in question were vacant and unoccupied thirty years before the trial, and that the first clearing thereon was made about twenty-four years previous to the commencement of the suit, which had been pending four years at the time of the trial, in June, 1829. This was presumptive evidence of right in the people of this state at the time Ruel, under whom the defendant claimed, went into possession. As that possession had been held adversely to the rights of the people, sixteen years short of the period then limited for the bringing of actions by them, it became necessary for the defendant to show title out of the state to rebut that presumption.

As the patent for the Hoffman township does not profess to be bounded on road patent No. 2, except at the clump of rocks, it is evident that the premises in question, do not lie within the bounds of that township, which must be run according to the courses mentioned in, that grant, beginning at the clump of rocks, and terminating the second course at the northeast bounds of township No. 24. The plaintiffs were therefore entitled to recover, unless the defendant succeeded in showing the premises in road patent No. 2. That tract, as described in the patent to Thurman, begins at the easternmost corner of township No. 24, of Totten and Crossfield's purchase, and runs thence along the same, north thirty-one degrees and fifteen minutes west, three hundred and thirty chains; thence north forty degrees east, one hundred and five chains and fifty links; thence south fifty degrees east, one hundred and fifty-three chains to Scaroon lake; thence across the same, south six de

gree. and forty-five minutes east, two hundred and forty chains; thence south fifty-eight degrees and forty-five minutes west, fifty chains to the place of beginning, containing three thousand five hundred acres, exclusive of the waters of the lake. It is evident from the testimony in this case that the patent can not be located on the land so as to correspond with the fixed boundaries, the courses, distances, and quantity of land mentioned in the description; and even if we adopt the clump of rocks as the termination of the third course, it will not remedy the difficulty, as that would only control the course and distance of the third line, change the location of the fourth, and the location, direction, and length of the fifth. Where the courses, distances, and quantity of land contained in a grant correspond with the natural or artificial monuments or boundaries referred to in the description of the premises, there can be no difficulty in making a practical location of the grant; and it makes no difference at what angle of the premises the surveyor begins, or whether he runs backward or forward, provided he reverses the points of compass when he runs around the land in a different direction from that described in the grant. But when a practical location of the premises can not be made to correspond with all the calls in the grant, certain legal rules must be observed as to rejecting some calls and retaining others; and it also becomes necessary to run around the premises in the direction indicated by the description in the grant, especially where some of the angles of the lot are not marked by natural or artificial monuments.

Where several particulars are given, all of which are necessary to ascertain the land intended to be conveyed, nothing but what will correspond with all those particulars will pass by the grant. Thus, if land is conveyed by metes and bounds, without any other description to ascertain the premises, it must be located by those boundaries, although it contains either more or less than the quantity supposed to have been contained within those boundaries: Jackson v. Sprague, 1 Payne, 494; Powell v. Clark, 5 Mass. 355 [4 Am. Dec. 67]; Jackson v. Barringer, 15 Johns. 471; but if there be certain particulars sufficiently ascertained to locate the grant, the addition of a false or mistaken particular or boundary may be rejected. Thus, in Loomis v. Jackson, 19 Johns. 449, where the lot was described by a wrong number, yet being also described by fixed and known monuments, this court decided that the number of the lot might be rejected; and in Jackson v. Marsh, 6 Cow. 281, where