The plaintiff being the owner of lot Ho. 2, and the defendant of lot Ho. 3, under the same title and allotment, the only question in dispute between them is simply in respect to the division line between the two lots. This question was litigated at the trial as one of fact, and the jui’y by their verdict have settled it in favor-of the plaintiff, and affirmed her claim in respect to the time southern line of lot number two. The case having been properly submitted to the jui’y, and there being no exception to the charge, to disturb their verdict upon the evidence, the only question necessary for our consideration is upon the exception to the refusal of the judge to charge as requested. The counsel for the defendant requested the judge to chai’ge the jury that the commissioners in partition having, at the time of making the pai’tition, actually surveyed and marked the northerly line of these two lines in question, by the pi’oceedings and judgment given in evidence in the pai’tition between the plaintiff and others, the line in question was located as claimed by the defendant, and the plaintiff could not recover for any timber cut on the south side of that line. The defendant’s exception upon the refusal of the judge to charge as requested presents the first and chief point for our consideration. This exception, I think, is not well taken. In the judgment in partition, lot Ho. 2 was set off and assigned to the plaintiff *344"by its number and metes and bounds, by which it was bounded south by lot Ho. 3. These lots were both known and designated on a map or allotment of great lot Ho. 9, known as the third allotment. In the judgment in partition reference was had to this map and allotment. The judgment in partition did not assume to divide any of these lots, or to change the original lines of the lots, or any or either of them. It simply assigned and set off lot two to the plaintiff and then proceeded to give the boundaries of such lots by metes and bounds. The measurements and descriptions in the judgment were simply designed to give the boundaries of these lots according to the original lines of said lots upon the said third allotment. The proofs show that the surveyor, in describing and in running the lines of lot Ho. 2, made a mistake in respect to the southern boundary of said lot, by which he apparently added a strip of land the whole length of said lot, of about fourteen rods in width, to lot Ho. 3, and diminished the size of lot Ho. 2 to that extent. The proof clearly shows that this was a mistake of the surveyor in running out said lot Ho. 2, and the jury have so found. But this survey and mistake does not affect the actual rights of the parties. The plaintiff was entitled to the whole of lot Ho. 2. She has title to it, unquestionably, and this error of the surveyor does not affect that title. It was clearly the intention of the commissioners to assign her, in the partition, the whole of said lot Ho. 2, as the same was known and designated on the original map of the third allotment of said great lot Ho. 9. The mistake of the commissioners is a mere misdescription of the bounds of said lot, and not an assignment of the particular parcel of land independent of its original lines and its true boundary. It is doubtless true, however, if possession had been taken of lot Ho. 3 and it had been fenced, used and occupied up .to the erroneous line, and such adverse use had been acquiesced in, or such line recognized as the true line, for the period *345of twenty years, it would have become the legal, fixed and boundary line of division between lots two and three by force of the statute. (Baldwin v. Brown, 16 N. Y. Rep. 362.) But the erroneous line ran' through wild land. There was no clearing, improvement or fence on either side of it, "and no question of adverse possession is in the case; and. the location, if it can be so called, of said line as made by the said survey has about it none of the elements of a line located by the parties, in pais, where rights have been acquired upon the assumption that it is the true line, till the cutting of the timber which constituted the trespass for which this action was brought. It w as a case of mutual mistake, for the commissioners were the agents of both parties, and the plaintiff has done, nothing to estop her from asserting her rights to hold the whole of lot Ho. 2 to the extent of its true southern boundary. I do not see any ground or pretense upon which McBurney, or those claiming under him, can hold the strip of land belonging to lot Bo. 2, from which such timber was cut, by the defendant. It is confessedly not a part of lot Bo. 3. He has never been in possession of it, or exercised any rights of possession or control over it, calling upon the plaintiff to assert her rights in respect to the disputed territory, before the cutting of the timber in question.
[Monroe General Term, September 7, 1868.É. D. Smith, Johnson and J. C. Smith, Justices.]
The motion for a new trial should therefore be denied, and judgment affirmed.
Judgment affirmed.